"the neat produce of all duties and imposts laid by any state on "imports or exports, shall be for the use of the treasury of the "United States; and all such laws shall be subject to the re"vision and control of the congress. No state shall, without the "consent of congress, lay any duty on tonnage, keep troops or "ships of war in time of peace; enter into any agreement or "compact with another state, or with a foreign power, or engage "in war, unless actually invaded, or in such imminent danger "as will not admit of delay.”

The restraint on the power of the states over imports and exports, is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified, seems well calculated at once to secure to the states a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States, a reasonable check against the abuse of this discretion. The remaining particulars of this clause, fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. The sixth and last class, consists of the several powers and provisions, by which efficacy is given to all the rest.

1. "Of these, the first is, the power to make all laws which "shall be necessary and proper for carrying into execution the "foregoing powers, and all other powers vested by this consti"tution in the government of the United States."

Few parts of the constitution have been assailed with more intemperance than this; yet on a fair investigation of it, as has been elsewhere shown, no part can appear more completely invulnerable. Without the substance of this power, the whole constitution would be a dead letter. Those who object to the article, therefore, can only mean that the form of the provision is improper. But have they considered whether a better form could have been substituted?

There are four other possible methods, which the convention might have taken on this subject. They might have copied the second article of the existing confederation, which would have prohibited the exercise of any power not expressly delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms "necessary and proper;" they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition :

They might have been altogether silent on the subject; leaving these necessary and proper powers, to construction and infer

ence.

Had the convention taken the first method of adopting the second article of confederation, it is evident that the new congress would be continually exposed, as their predecessors have been, to the alternative of construing the term "expressly" with so much rigour, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. It would be easy to show, if it were necessary, that no important power, delegated by the articles of confederation, has been or can be executed by congress, without recurring more or less to the doctrine of construction or implication. As the powers delegated under the new system are more extensive, the government which is to administer it, would find itself still more distressed with the alternative of betraying the public interest by doing nothing; or of violating the constitution by evercising powers indispensably necessary and proper; but at the same time, not expressly granted.

Had the convention attempted a positive enumeration of the powers, necessary and proper for carrying their other powers into effect; the attempt would have involved a complete digest of laws on every subject to which the constitution relates; accommodated too not only to the existing state of things, but to all the possible changes which futurity may produce: For in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object; and be often properly varied whilst the object remains the same.

Had they attempted to enumerate the particular powers or means, not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection; that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, not necessary or proper; it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper,

and that the unnecessary and improper powers included in the residuum, would be less forcibly accepted, than if no partial enumeration had been made.

Had the constitution been silent on this head, there can be no doubt that all the particular powers, requisite as means of executing the general powers, would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it, is included. Had this last method therefore been pursued by the convention, every objection now urged against their plan, would remain in all its plausibility; and the real inconveniency would be incurred, of not removing a pretext which may be seized on critical occasions, for drawing into question the essential powers of the union.

If it be asked, what is to be the consequence, in case the congress shall misconstrue this part of the constitution, and exercise powers not warranted by its true meaning? I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same in short, as if the state legislatures should violate their respective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort, a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal, than of the state legislatures, for this plain reason, that as every such act of the former, will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in affecting a change of federal representatives. There being no such intermediate body between the state legislatures and the people, interested in watching the conduct of the former,violations of the state constitutions are more likely to remain unnoticed and unredressed.

2. "This constitution, and the laws of the United States which "shall be made in pursuance thereof, and all treaties made, or

"which shall be made, under the authority of the United States, "shall be the supreme law of the land, and the judges in every "state shall be bound thereby, any thing in the constitution or "laws of any state to the contrary notwithstanding."

The indiscreet zeal of the adversaries to the constitution, has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this, we need only suppose for a moment, that the supremacy of the state constitutions had been left complete, by a saving clause in their favour.

In the first place, as these constitutions invest the state legislatures with absolute sovereignty, in all cases not excepted by the existing articles of confederation, all the authorities contained in the proposed constitution, so far as they exceed those enumerated in the confederation, would have been annulled, and the new congress would have been reduced to the same impotent condition with their predecessors.

In the next place, as the constitutions of some of the states do not even expressly and fully recognize the existing powers of the confederacy, an express saving of the supremacy of the former, would in such states have brought into question every power contained in the proposed constitution.

In the third place, as the constitutions of the states differ much from each other, it might happen that a treaty or national law of great and equal importance to the states, would interfere with some and not with other constitutions, and would consequently be valid in some of the states, at the same time that it would have no effect in others.

In fine, the world would have seen for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.

3. "The senators and representatives, and the members of "the several state legislatures; and all executive and judicial "officers, both of the United States and the several states, "shall be bound by oath or affirmation, to support this constitu"tion."

It has been asked, why it was thought necessary, that the state magistracy should be bound to support the federal constitution,

and unnecessary that a like oath should be imposed on the offi cers of the United States, in favour of the state constitutions ?

Several reasons might be assigned for the distinctions. I content myself with one, which is obvious and conclusive. The members of the federal government, will have no agency in carrying the state constitutions into effect. The members and officers of the state governments, on the contrary, will have an essential agency in giving effect to the federal constitution. The election of the president and senate, will depend in all cases, on the legislatures of the several states. And the election of the house of representatives, will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws of the states.

4. Among the provision for giving efficacy to the federal powers, might be added, those which belong to the executive and judiciary departments: But as these are reserved for particular examination in another place, I pass them over in this.

We have now reviewed in detail, all the articles composing the sum or quantity of power, delegated by the proposed constitution to the federal government; and are brought to this undeniable conclusion, that no part of the power is unnecessary, or improper, for accomplishing the necessary objects of the union. The question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the union, shall be established; or in other words, whether the union itself shall be preserved.

NUMBER XLV.

BY MR. MADISON.

PUBLIUS.

A further discussion of the supposed danger from the powers of the union, to the state governments.

HAVING shown, that no one of the powers transferred to the federal government is unnecessary or improper, the next question