the opinion of a future Congress that monopolies, in certain cases, might be useful, and a door would then be open for their establishment.

February 7, 1791.

Mr. GERRY. The gentlemen on different sides of the question do not disagree with respect to the meaning of the terms taxes, duties, imposts, excises, &c., and of borrowing money, but of the word necessary; and the question is, What is the general and popular meaning of the term? Perhaps the answer to the question will be truly this - That, in a general and popular one, the word does not admit of a definite meaning, but that this varies according to the subject and circumstances. With respect to the subject, for instance; if the people, speaking of a garrison besieged by a superior force, and without provisions or a prospect of relief, should say it was under the necessity of surrendering, they would mean a physical necessity; for troops cannot subsist long without provisions. But if, speaking of a debtor, the people should say he was frightened by his creditor, and then reduced to the necessity of paying his debts, they would mean a legal, which is very different from a physical necessity; for although the debtor, by refusing payment, might be confined, he would be allowed sustenance; and the necessity he was under to pay his debts would not extend beyond his confinement. Again, if it should be said that a client is under the necessity of giving to his lawyer more than legal fees, the general and popular meaning of necessity would in this case be very different from that in the other cases. The necessity would neither be physical nor legal, but artificial, or, if I may be allowed the expression, a long-robed necessity. The meaning of the word "necessary" varies, also, according to circumstances: for, although Congress have power to levy and collect taxes, duties, &c. ; to borrow money; and to determine the time, quantum, mode, and every regulation necessary and proper for supplying the treasury,- yet the people would apply a different meaning to the word necessary under different circumstances. For instance, without a sufficiency of precious metals for a medium, laws creating an artificial medium would be generally thought necessary for carrying into effect the power to levy and collect taxes; but if there was a sufficiency of such metals, those laws would not generally be thought necessary. Again, if specie was scarce, and the credit of the government low, collateral measures would be by the people thought necessary for obtaining public loans; but not so if the case was reversed. Or, if parts of the states should be invaded and overrun by an enemy, it would be thought necessary to levy on the rest heavy taxes, and collect them in a short period, and to take stock, grain, and other articles, from the citizens, without their consent, for common defence; but in a time of peace and safety such measures would be generally supposed unnecessary. Instances may be multiplied in other respects, but it is conceived that these are sufficient to show that the popular and general meaning of the word necessary" " varies according to the subject and circumstances.

The Constitution, in the present case, is the great law of the people, who are themselves the sovereign legislature; and the preamble is in these words "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessing of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

These are the great objects for which the Constitution was established; and in administering it, we should always keep them in view. And here it is remarkable, that, although common defence and general welfare are held up, in the preamble, amongst the primary objects of attention, they are again mentioned in the 8th section of the 1st article, whereby we are enjoined, in laying taxes, duties, &c., particularly to regard the common defence and general welfare. Indeed, common sense dictates the measure; for the security of our property, families, and liberties of every thing dear to us depends on our ability to defend them. The means, therefore, for attaining this object, we ought not to omit a year, a month, or even a day, if we could avoid it; and we are never provided for defence unless prepared for sudden emergencies.

In the present case, the gentlemen in the opposition generally, as well as the gentleman first up, from Virginia, give the whole clause by which Congress are authorized "to make all laws necessary and proper," &c., no meaning whatever; for they say the former Congress had the same power under the Confederation, without this clause, as the present Congress have with it. The "Federalist" is quoted on this occasion; but, although the author of it discovered great ingenuity, this part of his performance I consider as a political heresy. His doctrine, indeed, was calculated to lull the consciences of those who differed in opinion with him at that time; and, having accomplished his object, he is probably desirous that it may die with the opposition itself. The rule in this case says, that where the words bear no signification, we must deviate a little; and as this deviation cannot be made by giving the words less than no meaning, it must be made by a more liberal construction than is given by gentlemen in the opposition. Thus their artillery is turned against themselves; for their own interpretation is an argument against itself.

The last rule mentioned relates to the spirit and reason of the law; and the judge is of opinion "that the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it-of the cause which moved the legislature to enact it." The causes which produced the Constitution were an imperfect union, want of public and private confidence, internal commotions, a defenceless community, neglect of the public welfare, and danger to our liberties. These are known to be the causes, not only by the preamble of the Constitution, but also from our own knowledge of the history of the times which preceded the establishment of it. If these weighty causes produced the Constitution, and it not only gives power for removing them, but also authorizes Congress to make all laws necessary and proper for carrying these powers into effect, shall we listen to assertions, that these words have no meaning, and that the new Constitution has not more energy than the old? Shall we thus unnerve the government, leave the Union as it was under the Confederation, — defenceless against a banditti of Creek Indians, — and thus relinquish the protection of its citizens? Or shall we, by a candid and liberal construction of the powers expressed in the Constitution, promote the great and important objects thereof! Each member must determine for himself. I shall, without hesitation, choose the latter, and leave the people and states to determine whether or not I am pursuing their true interest. If it is in quired where we are to draw the line of a liberal construction, I would also inquire, Where is the line of restriction to be drawn?

The interpretation of the Constitution, like the prerogative of a sove

reign, may be abused; but from hence the disabuse of either cannot be inferred. In the exercise of prerogative, the minister is responsible for his advice to his sovereign, and the members of either house are responsible to their constituents for their conduct in construing the Constitution. We act at our peril: if our conduct is directed to the attainment of the great objects of government, it will be approved, and not otherwise. Bui this cannot operate as a reason to prevent our discharging the trusts reposed in us.

Let us now compare the different modes of reasoning on this subject, and determine which is right for both cannot be.

The gentleman from Virginia (Mr. Madison) has urged the dangerous tendency of a liberal construction; but which is most dangerous, a liberal or a destructive interpretation? The liberty we have taken in interpreting the Constitution, we conceive to be necessary, and it cannot be denied to be useful in attaining the objects of it; but whilst he denies us this liberty, he grants to himself a right to annul part, and a very important part, of the Constitution. The same principle that will authorize a destruction of part, will authorize the destruction of the whole, of the Constitution; and if gentlemen have a right to make such rules, they have an equal right to make others for enlarging the powers of the Constitution, and indeed of forming a despotism. Thus, if we take the gentleman for our pilot, we shall be wrecked on the reef which he cautions us to avoid.

The gentleman has referred us to the last article of the amendment proposed to the Constitution by Congress, which provides that the powers not delegated to Congress, or prohibited to the states, shall rest in them or the people; and the question is, What powers are delegated? Does the gentleman conceive that such only are delegated as are expressed? If so, he must admit that our whole code of laws are unconstitutional. This he disavows, and yields to the necessity of interpretation, which, by a fair and candid application of established rules of construction to the Constitution, authorize, as has been shown, the measure under consideration.

The usage of Congress has also been referred to; and if we look at their acts under the existing Constitution, we shall find they are generally the result of a liberal construction. I will mention but two. The first relates to the establishment of the executive departments, and gives to the President the power of removing officers. As the Constitution is silent on this subject, the power mentioned, by the gentleman's own reasoning, is vested in the states or the people. He, however, contended for an assumption of the power, and, when assumed, urged that it should be vested in the President, although, like the power of appointment, it was, by a respectable minority in both houses, conceived that it should have been vested in the President and Senate. His rule of interpretation then was, therefore, more liberal than it is now. In the other case, Congress determined by law, with the sanction of the President, when and where they should hold their next session, although the Constitution provides that this power shall rest solely in the two houses. The gentleman also advocated this measure, and yet appears to be apprehensive of the conse quences that may result from a construction of the Constitution which admits of a national bank. But from which of these measures is danger to be apprehended? The only danger from our interpretation would be the exercise by Congress of a general power to form corporations; but the dangers resulting from the gentleman's interpretation are very differ

ent; for what may we not apprehend from the precedent of having assumed a power on which the Constitution was silent, and from having annexed it to the supreme executive? If we have this right in one instance, we may extend it to others, and make him a despot.

Militia Bill.

December 22, 1790.

Mr. BLOODWORTH moved to strike out the words in the 1st sec tion, " except as herein exempted," and to insert, in lieu thereof, "except such as shall be exempted by the legislatures of the particular states."

Mr. SHERMAN wished the gentleman would consent to alter his motion, and let it be all between certain ages, and who are not exempted from militia duty by the respective states.

Mr. MADISON said, the motion ought to go still farther, and exempt the judges of the federal courts; because some states, having no militia laws, could not have exempted them, and the propriety of exonerating them from militia duty was too apparent to need any arguments to prove it.

Mr. SHERMAN thought the motion was simple as it stood, and would decide a question upon which the house seemed to be divided. It would afterwards be open for amendment, so far as to add the exemptions.

Mr. MADISON said, if the gentleman would vary his motion, so as to embrace his idea, he would have no objection to the adoption of that part which was first moved.

Mr. LIVERMORE declared, that he had several objections. The first was, that the expression in the motion was of a doubtful import. It could not be readily ascertained, whether it had relation to the militia laws at this time existing in the several states, or to the existing and future laws. If it opens a door to future laws, it is impossible for us to foresee where it will end. It destroys that certainty which is necessary in a government of laws, and renders us incapable of judging of the propriety of our own act. Some states may exempt all persons above thirty years of age; some may exempt all mechanics; and others all husbandmen, or any general description of persons; and this uncertainty will be productive of inconceivable inconveniences. Hence it will be improper to adopt the amendment in the present form.

Mr. SHERMAN observed. that most of the powers delegated to the government of the United States, by the Constitution, were altogether distinct from the local powers retained by the individual states. But in the case of the militia it was different. Both governments are combined in the authority necessary to regulate that body. The national government is to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. But, then, it is to be observed, that the states do, respectively and expressly, reserve out of such power the right of appointing officers, and the authority of training the militia; so that the concurrence of both governments is evidently necessary, in order to form and train them. Now, in governing the militia, the states have, at times other than when they are in the actual service of the United States, an indisputable title to act as their discretion shall dictate. And here it was an allowable supposition, that the particular states would have the greatest advantage of judging of the disposition of their own citizens, and who are the most proper characters to be exempted from their gov

ernment. He admitted, however, that the general government had (under that clause of the Constitution which gave the authority to exercise all powers necessary to carry the particularly enumerated powers into effect) a right to make exemptions of such officers of the government whose duties were incompatible with those of militiamen. Every thing, besides this, he believed, was vested in the particular states; and he would ask the gentleman whether it was not a desirable thing to give satisfaction on these points; and whether they ought not to avoid stretching the general power, which he had mentioned, beyond what was absolutely necessary to answer the end designed.

An accommodation (continues Mr. Sherman) on this point took place between the gentlemen, and the two motions were blended and made into one; whereupon Mr. GILES rose and said, he had now greater objections to the motion than before, and was well persuaded that if the gentleman (Mr. Sherman) attended to its consequences, he would find that it was not only extremely dissimilar in its principles, but tended to overthrow the very doctrine laid down in the first proposition, which was intended to decide whether, under the division of the authority for forming and raising the militia, the power of making exemptions remained in the state governments, or was granted by the Constitution to the government of the United States. Now, in the compromised proposition, there appears to be a mixture of power; the first part seems to declare that the states ought to make the exemptions; yet the subsequent absolutely exercises it on the part of the United States. If, then, the power of exemption be either ceded to the general government, or reserved to the state governments, the amendment must fall to the ground.

But this was not his only objection. He conceived that, whether the power of exemption was in the state or federal government, there was one description of men mentioned in the proposition which could not be exempted or further privileged by the house. He alluded to the members of the legislature of the United States. The privilege of these persons was taken up and duly considered by the Convention, who then decided what privileges they were entitled to. It is under this clause, said he, that every thing necessary or proper to be done for members of Congress was done. "The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony, and breach of peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place." Now, if the Convention took up this subject, (as it is plain from the foregoing clause that they did,) it is reason able to presume that they made a full declaration of all our privileges; and it is improper to suppose that we are possessed of similar powers with the Convention, and able to extend our own privileges. I conceive that every inconvenience which would attend the want of an exemption in the bill, is completely remedied by the Constitution; and therefore it is impolitic to make a useless regulation.

Mr. WILLIAMSON. When we departed from the straight line of duty marked out for us by the first principles of the social compact, we found ourselves involved in difficulty. The burden of militia duty lies equally upon all persons; and when we contemplate a departure from this principle, by making exemptions, it involves us in our present embarrass ment. I wish, therefore, that, before we proceed any farther in consider