timation, but by the suggestion of perfectly definite subjects, of an end or object, and of a general outline, the same which the paper now exhibits. By derivation from himself, the Farewell Address speaks the very mind of Washington. The fundamental thoughts and principles were his; but he was not the composer or writer of the paper. Hamilton was, in the prevalent literary sense, the composer and writer of the paper. The main trunk was Washington's; the branches were stimulated by Hamilton; and the foliage, which was not exuberant was altogether his. . . . ... We might, though not with full and exact propriety, allot the soul to Washington, and the spirit to Hamilton. The elementary body is Washington's, also; but Hamilton has developed and fashioned it, and he has symmetrically formed and arranged the members to give combined and appropriate action to the whole. HORACE BINNEY, Inquiry into the Formation of Washington's Farewell Address. 171. OLNEY (1900) It has heretofore been considered that anything like an alliance between the United States and an European Power, for any purpose or any time, was something not to be thought of. To give a thing a bad name, however undeservedly, is to do much to discredit it, and there is no doubt that the epithet "entangling"-almost invariably applied has contributed largely to make alliance" popularly and politically odious. Yet there may be "alliances" which are not " entangling" but wholly advantageous, and without the French alliance, American independence, if not prevented, might have been long postponed. It has been a prevalent notion that Washington was inimical to all alliances as such and left on record a solemn warning to his countrymen against them. Yet Washington clearly discriminated between alliances that would entangle and those that would not, and between alliances that were permanent and those that were temporary. Justly construed, Washington's utterances are as wise to-day as when they were made, and are no more applicable to the United States than to any other nation. It must be the policy of every State to avoid alliances that entangle, while temporary and limited are better than general and permanent alliances because friends and partners should be chosen in view of actually existing exigencies rather than in reliance upon doubtful forecasts of the uncertain future. Nevertheless, up to this time the theory and practice of the United States have been against all alliances peremptorily. RICHARD OLNEY, Growth of our Foreign Policy in The Atlantic Monthly, March, 1900. CHAPTER XIX THE EXTENT OF FEDERAL POWERS (1819) SUGGESTIONS THIS report of the famous Supreme Court decision in the McCulloch vs. Maryland Case bears date 1819. Of the decisions made by the Supreme Court in the early part of the century this is the most typical, as setting forth the construction of the powers of the Federal government by the courts. The decision has a place among the documents of Anglo-Saxon liberty because it shows the American theory of limitations, and the extent of the power of the nation to legislate in questions which include individual rights; and the doctrine here stated has ever since been the foundation of American national government. The exposition and comments which follow give an opportunity for acquaintance with the opinions of the ablest constitutional expounders. For Outlines and Material, see Appendix B, § 5. DOCUMENT Decision in the Case of M'Culloch vs. the State of Maryland. United States Court Re- Statement of (1819) Writ of error from the court of appeals of Maryland. MARSHALL, C. J., delivered the opinion of the court. In the case now to be determined, the defendant, a sovereign State, denies the obligation of a law enacted by the legislature of the Union; and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that State. The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the union and of its members, as marked in that con- cludes the This gov ernment is one of enu Among the enumerated powers, we do not find The omitted that of establishing a bank or creating a corpora- passage intion. But there is no phrase in the instrument phrase: which, like the articles of confederation, excludes incidental or implied powers; and which requires acknowthat everything granted shall be expressly and ledged to be minutely described. Even the 10th amendment, merated which was framed for the purpose of quieting the powers." excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor Conf., ii. prohibited to the States, are reserved to the States or to the people; "thus leaving the question, whether See Conthe particular power which may become the subject stitution, of contest, has been delegated to the one govern- ment x. ment, or prohibited to the other, to depend on a fair construction of the whole instrument. See Arts. of Amend It would have been, says enumerate We admit, as all must admit, that the powers of the government are limited, and that its limits are the Court, not to be transcended. But we think the sound impossible to construction of the constitution must allow to the all the denational legislature that discretion, with respect to tails, unless the means by which the powers it confers are to be tion should carried into execution, which will enable that body "partake of to perform the high duties assigned to it, in the the prolixity of a legal manner most beneficial to the people. Let the end code." the Constitu Since the be legitimate, let it be within the scope of the congovernment stitution, and all means which are appropriate, has a right to do an act, it which are plainly adapted to that end, which are should be al- not prohibited, but consist with the letter and spirit lowed to seof the constitution, are constitutional. . . . lect the means. Taxation, especially since" Confirmatio . . . In the Legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, Chartarum," in the confidence that it will not be abused. This, then, is not a case of confidence, and we must consider it as it really is. has been a right of the people. In both Arts. vi., and the powers de- If we apply the principle for which the state of Maryland contends, to the constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the States. The American people have declared their constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the States. If the States may tax one instrument, employed by the government in the execution of its powers, they may tax any and every instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the custom-house; they may tax judicial process; several States they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the States. are clearly enumerated. Gentlemen say, they do not claim the right to extend state taxation to these objects. They limit their pretensions to property. But on what principle is this distinction made? Those who make it have furnished no reason for it, and the principle for which they contend denies it. They contend |