§ 902. WE have now arrived, in the course of our inquiries, at the eighth section of the first article of the constitution, which contains an enumeration of the principal powers of legislation confided to congress. A consideration of this most important subject will detain our attention for a considerable time; as well, because of the variety of topics, which it embraces, as of the controversies, and discussions, to which it has given rise. It has been, in the past time, it is in the present time, and it will probably in all future time, continue to be the debateable ground of the constitution, signalized, at once, by the victories, and the defeats of the same parties. Here; the advocates of state rights, and the friends of the Union will meet in hostile array. And here, those, who have lost power, will maintain long and arduous struggles to regain the public confidence, and those, who have secured power, will dispute every position, which may be assumed for attack, either of their policy, or their principles. Nor ought it at all to surprise us, if that, which has been true in the political history of other nations, shall be true in regard to our own; that the opposing parties shall occasionally be found to maintain the same system, when in power, which they have obstinately resisted, when out of power. Without supposing any insincerity or departure from principle in such cases, it will be easily imagined, that a very different course of reasoning will force itself on the minds of those, who are responsible for the measures of government, from that, which the ardour

of opposition, and the jealousy of rivals, might well foster in those, who may desire to defeat, what they have no interest to approve.

§ 903. The first clause of the eighth section is in the following words: "The congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence, and general welfare of the United States; but all duties, imposts, and excises, shall be uniform throughout the United States."

§ 904. Before proceeding to consider the nature and extent of the power conferred by this clause, and the reasons, on which it is founded, it seems necessary to settle the grammatical construction of the clause, and to ascertain its true reading. Do the words, "to lay and collect taxes, duties, imposts, and excises," constitute a distinct, substantial power; and the words, "to pay debts and provide for the common defence, and general welfare of the United States," constitute another distinct and substantial power? Or are the latter words connected with the former, so as to constitute a qualification upon them? This has been a topic of political controversy; and has furnished abundant materials for popular declamation and alarm. If the former be the true interpretation, then it is obvious, that under colour of the generality of the words to "provide for the common defence and general welfare," the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, "for the common defence and the general welfare."

§ 905. The former opinion has been maintained by some minds of great ingenuity, and liberality of views.1 The latter has been the generally received sense of the nation, and seems supported by reasoning at once solid and impregnable. The reading, therefore, which will be maintained in these commentaries, is that, which makes the latter words a qualification of the former; and this will be best illustrated by supplying the words, which are necessarily to be understood in this interpretation. They will then stand thus: "The congress shall have power to lay and collect taxes, duties, imposts, and excises, in order to pay the debts, and to provide for the common defence and general welfare of the United States;" that is, for the purpose of paying the public debts, and providing for the common defence and general welfare of the United States. In

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1 See 2 Elliot's Debates, 327, 328. See Dane's App. §41, p 48; see also 1 Elliot's Debates, 93; Id 293; Id 300; 2 Wilson's Law Lect, 178, 180, 181; 4 Elliot's Debates, 224; 2 U. S. Law Journal, April, 1826, p 251, 264, 270 to 282. This last work contains, in p 270 et seq. a very elaborate exposition of the doctrine -- Mr. Jefferson has, upon more than one occasion, insisted, that this was the federal doctrine, that is, the doctrine maintained by the federalists, as a party; and that the other doctrine was that of the republicans, as a party.* The assertion is incorrect; for the latter opinion was constantly maintained by some of the most strenuous federalists at the time of the adoption of the constitution, and has since been maintained by many of them.# It is remarkable, that Mr. George Mason, one of the most decided opponents of the constitution in the Virginia convention, held the opinion, that the clause, to provide for the common defence and general welfare, was a substantive power. He added, "That congress should have power to provide for the general welfare of the Union, I grant. But I wish a clause in the constitution in respect to all powers, which are not granted, that they are retained by the states; otherwise the power of providing for the general welfare may be perverted to its destruction"+

* 4 Jefferson Corresp. 306.
# 2 Elliot's Debates, 170, 183, 195; 3 Elliot's Debates, 262; 2 Amer. Museum, 434; 3 Amer. Museum, 338.
+ 2 Elliot's Debates, 327, 328.

this sense, congress has not an unlimited power of taxation; but it is limited to specific objects, -- the payment of the public debts, and providing for the common defence and general welfare. A tax, therefore, laid by congress for neither of these objects, would be unconstitutional, as an excess of its legislative authority. In what manner this is to be ascertained, or decided, will be considered hereafter. At present, the interpretation of the words only is before us; and the reasoning, by which that already suggested has been vindicated, will now be reviewed.

§ 906. The constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers, and not of general and unlimited powers. This is apparent, as will be presently seen, from the history of the proceedings of the convention, which framed it; and it has formed the admitted basis of all legislative and judicial reasoning upon it, ever since it was put into operation, by all, who have been its open friends and advocates, as well as by all, who have been its enemies and opponents. If the clause, "to pay the debts and provide for the common defence and general welfare of the United States," is construed to be an independent and substantive grant of power, it not only renders wholly unimportant and unnecessary the subsequent enumeration of specific powers; but it plainly extends far beyond them, and creates a general authority in congress to pass all laws, which they may deem for the common defence or general welfare.1 Under such circumstances, the constitution would practically create an unlimited national government. The enumerated pow-

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1 President Monroe's Message, 4th May, 1822, p. 32, 33.

ers would tend to embarrassment and confusion; since they would only give rise to doubts, as to the true extent of the general power, or of the enumerated powers.

§ 907. One of the most common maxims of interpretation is, (as has been already stated,) that, as an exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated. But, how could it be applied with success to the interpretation of the constitution of the United States, if the enumerated powers were neither exceptions from, nor additions to, the general power to provide for the common defence and general welfare? To give the enumeration of the specific powers any sensible place or operation in the constitution, it is indispensable to construe them, as not wholly and necessarily embraced in the general power. The common principles of interpretation would seem to instruct us, that the different parts of the same instrument ought to be so expounded, as to give meaning to every part, which will bear it. Shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common, than first to use a general phrase, and then to qualify it by a recital of particulars. But the idea of an enumeration of particulars, which neither explain, nor qualify the general meaning, and can have no other effect, than to confound and mislead, is an absurdity, which no one ought to charge on the enlightened au-

thors of the constitution.1 It would be to charge them either with premeditated folly, or premeditated fraud.

§ 908. On the other hand, construing this clause in connexion with, and as a part of the preceding clause, giving the power to lay taxes, it becomes sensible and operative. It becomes a qualification of that clause, and limits the taxing power to objects for the common defence or general welfare. It then contains no grant of any power whatsoever; but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation.2

§ 909. An attempt has been sometimes made to treat this clause, as distinct and independent, and yet as having no real significancy per se, but (if it may be so said) as a mere prelude to the succeeding enumerated powers. It is not improbable, that this mode of explanation has been suggested by the fact, that in the revised draft of the constitution in the convention the clause was separated from the preceding exactly in the same manner, as every succeeding clause was, viz. by a semicolon, and a break in the paragraph; and that it now stands, in some copies, and it is said, that it stands in the official copy, with a semicolon interposed.3 But this circumstance will be found of very little weight, when the origin of the clause, and its progress to its

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1 The Federalist, No. 41.
2 See Debates on the Judiciary in 1802, p. 332; Dane's App. §41; President Monroe's Message on Internal Improvements, 4th May, 1822, p. 32, 33; 1 Turk. Black. App. 231.
3 Journ. of Convention, p. 356; Id. 494; 2 United States Law Journal, p. 264, April, 1826, New-York. -- In the Federalist, No. 41, the circumstances, that it is separated from the succeeding clauses by a semicolon is noticed. The printed Journal of the Convention gives the revised draft from Mr. Brearly's copy, as above stated. See Journal of Convention, p. 351, 356. See President Monroe's Message on Internal Improvements, 4th May, 1822, p. 16, 32, &c.;

present state are traced in the proceedings of the convention. It will then appear, that it was first introduced as an appendage to the power to lay taxes.1 But there is a fundamental objection to the interpretation thus attempted to be maintained, which is, that it robs the clause of all efficacy and meaning. No person has a right to assume, that any part of the constitution is useless, or is without a meaning; and a fortiori no person has a right to rob any part of a meaning, natural and appropriate to the language in the connexion, in which it stands.2 Now, the words have such a natural and appropriate meaning, as a qualification of the preceding clause to lay taxes. Why, then, should such a meaning be rejected?

§ 910. It is no sufficient answer to say, that the clause ought to be regarded, merely as containing "general terms, explained and limited, by the subjoined specifications, and therefore requiring no critical attention, or studied precaution;"3 because it is assuming the very point in controversy, to assert, that the clause is connected with any subsequent specifications. It is not said, to "provide for the common defence, and general welfare, in manner following, viz.," which would be the natural expression, to indicate such an intention. But it stands entirely disconnected from every subsequent clause, both in sense and punctuation; and is no more a part of them, than they are of the power to lay taxes. Besides; what suitable application, in such a sense, would there be of the last clause in the enumeration, viz., the clause "to make all laws, necessary and proper for carrying into execution the fore-

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1 Journal of Convention, p. 323, 324, 326.
2 President Monroe's Message, 4 May, 1822, p. 32, 33.
3 President Madison's Letter to Mr. Stevenson, 27 Nov. 1830.

going powers, &c.?" Surely, this clause is as applicable to the power to lay taxes, as to any other; and no one would dream of its being a mere specification, under the power to provide for the common defence, and general welfare.

§ 911. It has been said in support of this construction, that in the articles of confederation (art; 8) it is provided, that "all charges of war, and all other expenses, that shall be incurred for the common defence, or general welfare, and allowed by the United States in congress assembled, shall be defrayed out of a common treasury, &c;" and that "the similarity in the use of these same phrases in these two great federal charters may well be considered, as rendering their meaning less liable to misconstruction; because it will scarcely be said, that in the former they were ever understood to be either a general grant or power, or to authorize the requisition or application of money by the old congress to the common defence and [or]1 general welfare, except in the cases afterwards enumerated, which explained and limited their meaning; and if such was the limited meaning attached to these phrases in the very instrument revised and remodelled by the present constitution, it can never be supposed, that when copied into this constitution, a different meaning, ought to be attached to them."2 Without stopping to consider, whether the constitution can in any just and critical sense be deemed a revision and remodelling of the confederation,3 if the argument here stated be of any value, it plainly estab-

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1 "Or" is the word in the article.
2 Virginia Report and Resolutions of 7 January, 1800. See also the Federalist, No. 41.
3 See the Federalist. No. 40.

lishes, that the words ought to be construed, as a qualification or limitation of the power to lay taxes. By the confederation, all expenses incurred for the common defence, or general welfare, are to be defrayed out of a common treasury, to be supplied by requisitions upon the states. Instead of requisitions, the constitution gives the right to the national government directly to lay taxes. So, that the only difference in this view between the two clauses is, as to the mode of obtaining the money, not as to the objects or purposes, to which it is to be applied. If then the constitution were to be construed according to the true bearing of this argument, it would read thus: congress shall have power to lay taxes for "all charges of war, and all other expenses, that shall be incurred for the common defence or general welfare." This plainly makes it a qualification of the taxing power; and not an independent provision, or a general index to the succeeding specifications of power. There is not, however, any solid ground, upon which it can be for a moment maintained, that the language of the constitution is to be enlarged, or restricted by the language of the confederation. That would be to make it speak, what its words do not import, and its objects do not justify. It would be to append it, as a codicil, to an instrument, which it was designed wholly to supercede and vacate.

§ 912. But the argument in its other branch rests on an assumed basis, which is not admitted. It supposes, that in the confederation no expenses, not strictly incurred under some of the subsequent specified powers given to the continental congress, could be properly payable out of the common treasury. Now, that is a proposition to be proved; and is not to be taken for

granted. The confederation was not finally ratified, so as to become a binding instrument on any of the states, until March, 1781. Until that period there could be no practice or construction under it; and it is not shown, that subsequently there was any exposition to the effect now insisted on. Indeed, after the peace of 1783, if there had been any such exposition, and it had been unfavourable to the broad exercise of the power, it would have been entitled to less weight, than usually belongs to the proceedings of public bodies in the administration of their powers; since the decline and fall of the confederation was so obvious, that it was of little use to exert them. The states notoriously disregarded the rights and prerogatives admitted to belong to the confederacy; and even the requisitions of congress, for objects most unquestionably within their constitutional authority, were openly denied, or silently evaded. Under such circumstances, congress would have little inclination to look closely to their powers; since, whether great or small, large or narrow, they were of little practical value, and of no practical cogency.

§ 913. But it does so happen, that in point of fact, no such unfavourable or restrictive interpretation or practice was ever adopted by the continental congress. On the contrary, they construed their power on the subject of requisitions and taxation, exactly as it is now contended for, as a power to make requisitions on the states for all expenses, which they might deem proper to incur for the common defence and general welfare; and to appropriate all monies in the treasury to the like purposes. This is admitted to be of such notoriety, as to require no proof.1 Surely, the practice of that body in ques-

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1 Mr. Madison himself, in his Letter to Mr. Stevenson, Nov. 27, 1830,

tions of this nature must be of far higher value, than the mere private interpretation of any persons in the present times, however respectable. But the practice was conformable to the constitutional authority of congress under the confederation. The ninth article expressly delegates to congress the power "to ascertain the necessary sums to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses;" and then provides, that congress shall not "ascertain the

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admits the force of these remarks in their full extent. His language is, "If the practice of the revolutionary congress be pleaded in opposition to this view of the case," (i.e. his view, that the words have no distinct meaning,) "the plea is met by the notoriety, that, on several accounts, the practice of that body is not the expositor of the articles of the confederation. These articles were not in force, until they were finally ratified by Maryland, in 1781. Prior to that event, the power of congress was measured by the exigencies of the war; and derived its sanction from the acquiescence of the states. After that event, habit, and a continued expediency, amounting often to a real, or an apparent necessity, prolonged the exercise of an undefined authority, which was the more readily overlooked, as the members of that body held their seats during pleasure; as it acts, particularly after the failure of the bills of credit, depended for their efficacy on the will of the states, and as its general impotency became manifest. Examples of departure from the prescribed rule are too well known to require proof." So that it is admitted, that the practice, under the confederation, was notoriously such, as allowed appropriations by congress for any objects, which they deemed for the common defence and general welfare. And yet we are now called upon to take a new and modern gloss of that instrument, directly at variance with that practice. See also Mr. Wilson's pamphlet, on the constitutionality of the bank of North America, in 1785. The reason, why he does not allude to the terms "common defence and general welfare," in that argument, probably was, that there was no question respecting appropriations of money involved in that discussion. He strenuously contends, that congress had a right to charter the bank; and he alludes to the fifth article, which, for the convenient management of the general interests of the United States, provides for the appointment of delegates from the states. He deduces the power, from its being essentially national, and vitally important to the government. 3 Wilson's Law Lect. 397.

sums and expenses necessary for the defence and welfare of the United States, or any of them, &c. unless nine states assent to the same." So that here we have, in the eighth article, a declaration, that "all charges of war and all other expenses, that shall be incurred for the common defence or general welfare, &c. shall be defrayed out of a common treasury;" and in the ninth article, an express power to ascertain the necessary sums of money to be raised for the public service; and then, that the necessary sums for the defence and welfare of the United States, (and not of the United States alone, for the words are added,) or of any of them, shall be ascertained by the assent of nine states. Clearly therefore, upon the plain language of the articles, the words "common defence and general welfare," in one, and "defence and welfare," in another, and "public service," in another, were not idle words, but were descriptive of the very intent and objects of the power; and not confined even to the defence and welfare of all the states, but extending to the welfare and defence of any of them.1 The power then is, in this view, even larger, than that conferred by the constitution.

§ 914. But there is no ground whatsoever, which authorizes any resort to the confederation, to interpret the power of taxation, which is conferred on congress by the constitution. The clause has no reference whatsoever to the confederation; nor indeed to any other clause of the constitution. It is, on its face, a distinct, substantive, and independent power. Who, then, is at liberty to say, that it is to be limited by other clauses, rather than they to be enlarged by it; since

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1 2 Elliot's Deb. 195.

there is no avowed connexion, or reference from the one to the others? Interpretation would here desert its proper office, that, which requires, that "every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end."1

§ 915. It has been farther said, in support of the construction now under consideration, that "whether the phrases in question are construed to authorize every measure relating to the common defence and general welfare, as contended by some; or every measure only, in which there might be an application of money, as suggested by the caution of others; the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers, which follow these general phrases in the constitution. For it is evident, that there is not a single power whatsoever, which may not have some reference to the common defence, or the general welfare; nor a power of any magnitude, which, in its exercise, does not involve, or admit an application of money. The government, therefore, which possesses power in either one, or the other of these extents, is a government without limitations, formed by a particular enumeration of powers; and consequently the meaning and effect of this particular enumeration is destroyed by the exposition given to these general phrases." The conclusion de-

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1 The Federalist, No- 40. -- In the first draft, of Dr. Franklin, in 1775, the clause was as follows: "All charges of wars, and all other general expenses, to be incurred for the common welfare, shall be defrayed," &c. -- In Mr. Dickinson's draft, in July, 1776, the words were, "All charges of wars, and all other expenses, that Shall be incurred for the common defence, or general welfare," &c; and these words were subsequently retained. 1 Secret Jour. of Congress, (printed in 1821,) p. 285, 294, 307, 323 to 325, 354.

duced from these premises is, that under the confederation, and the constitution, "congress is authorized to provide money for the common defence and general welfare. In both is subjoined to this authority an enumeration of the cases, to which their powers shall extend. Money cannot be applied to the general welfare otherwise, than by an application of it to some particular measure, conducive to the general welfare. Whenever, therefore, money has been raised by the general authority, and is to be applied to a particular measure, a question arises, whether the particular measure be within the enumerated authorities rested in the congress. If it be, the money requisite for it may be applied to it; if it be not, no such application can be made. This fair and obvious interpretation coincides with, and is enforced by the clause in the constitution, which declares, that no money shall be drawn from the treasury but in consequence of appropriations by law. An appropriation of money to the general welfare would be deemed rather a mockery, than an observance of this constitutional injunction."1

§ 916. Stripped of the ingenious texture, by which this argument is disguised, it is neither more nor less, than an attempt to obliterate from the constitution the whole clause, "to pay the debts, and provide for the common defence and general welfare of the United States," as entirely senseless, or inexpressive of any intention whatsoever.2 Strike them out, and the constitution is exactly what the argument contends for. It is, therefore, an argument, that the words ought not to

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1 Virginia Revolutions, of 8th January, 1800. The same reasoning is in President Madison's Veto message, of 3d of March, 1817. 4 Elliot's Deb. 280, 281.
2 4 Elliot's Deb. 236.

be in the constitution; because if they are, and have any meaning, they enlarge it beyond the scope of certain other enumerated powers, and this is both mischievous and dangerous. Being in the constitution, they are to be deemed, vox et preterea nihil, an empty sound and vain phraseology, a finger-board pointing to other powers, but having no use whatsoever, since these powers are sufficiently apparent without.1 Now, it is not too much to say, that in a constitution of government, framed and adopted by the people, it is a most unjustifiable latitude of interpretation to deny effect to any clause, if it is sensible in the language, in which it is expressed, and in the place, in which it stands. If words are inserted, we are bound to presume, that they have some definite object, and intent; and to reason them out of the constitution upon arguments ab inconvenienti, (which to one mind may appear wholly unfounded, and to another wholly satisfactory,) is to make a new constitution, not to construe the old one. It is to do the very thing, which is so often complained of, to make a constitution to suit our own notions and wishes, and not to administer, or construe that; which the people have given to the country.

§ 917. But what is the argument, when it is thoroughly sifted? It reasons upon a supposed dilemma, upon which it suspends the advocates of the two contrasted opinions. If the power to provide for the common defence and general welfare is an independent

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1 In a Debate of 7th of February, 1792. (4 Elliot's Deb. 236.) Mr. Madison puts them, (manifestly as his own construction,) "as a sort of caption, or general description of the specified powers, and as having no further meaning, and giving no further powers, than what is found in that specification." See also, Mr. Madison's Veto message, on the Bank Bonus Bill, 3d March, 1817. 4 Elliot's Deb. 0, 281.

power, then it is said, that the government is unlimited, and the subsequent enumeration of powers is unnecessary and useless. If it is a mere appendage or qualification of the power to lay taxes, still it involves a power of general appropriation of the monies so raised, which indirectly produces the same result.1 Now, the former position may be safely admitted to be true by those, who do not deem it an independent power; but the latter position is not a just conclusion from the premises, which it states, that it is a qualified power. It is not a logical, or a practical sequence from the premises; it is a non sequitur.

§ 918. A dilemma, of a very different sort, might be fairly put to those, who contend for the doctrine, that the words are not a qualification of the power to lay taxes, and, indeed, have no meaning, or use per se. The words are found in the clause respecting taxation, and as a part of that clause. If the power to tax extends simply to the payment of the debts of the United States, then congress has no power to lay any taxes for any other purpose. If so, then congress could not appropriate the money raised to any other purposes; since the restriction is to taxes for payment of the debts of the United States, that is, of the debts then existing. This would be almost absurd. If, on the other hand, congress have a right to lay taxes, and appropriate the money to any other objects, it must be, because the words, "to provide for the common defence and general welfare," authorize it, by enlarging the power to those objects; for there are no other words, which belong to the clause. All the other powers are in distinct clauses, and do not touch taxation. No advocate for

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1 4 Elliot's Deb. 280, 281.

the doctrine of a restrictive power will contend, that the power to lay taxes to pay debts, authorizes the payment of all debts, which the United States may choose to incur, whether for national or constitutional objects, or not. The words, "to pay debts," are therefore, either antecedent debts, or debts to be incurred "for the common defence and general welfare," which will justify congress in incurring any debts for such purposes. But the language is not confined to the payment of debts for the common defence and general welfare. It is not "to pay the debts" merely; but "to provide for the common defence and general welfare." That is, congress may lay taxes to provide means for the common defence and general welfare. So that there is a difficulty in rejecting one part of the qualifying clause, without rejecting the whole, or enlarging the words for some purposes, and restricting them for others.

§ 919. A power to lay taxes for any purposes whatsoever is a general power; a power to lay taxes for certain specified purposes is a limited power. A power to lay taxes for the common defence and general welfare of the United States is not in common sense a general power. It is limited to those objects. It cannot constitutionally transcend them. If the defence proposed by a tax be not the common defence of the United States, if the welfare be not general, but special, or local, as contradistinguished from national, it is not within the scope of the constitution. If the tax be not proposed for the common defence, or general welfare, but for other objects, wholly extraneous, (as for instance, for propagating Mahometanism among the Turks, or giving aids and subsidies to a foreign nation, to build palaces for its kings, or erect monuments to its

heroes,) it would be wholly indefensible upon constitutional principles. The power, then, is, under such circumstances, necessarily a qualified power. If it is so, how then does it affect, or in the slightest degree trench upon the other enumerated powers? No one will pretend, that the power to lay taxes would, in general, have superseded, or rendered unnecessary all the other enumerated powers. It would neither enlarge, nor qualify them. A power to tax does not include them. Nor would they, (as unhappily the confederation too clearly demonstrated,)1 necessarily include a power to tax. Each has its appropriate office and objects; each may exist without necessarily interfering with, or annihilating the other. No one will pretend, that the power to lay a tax necessarily includes the power to declare war, to pass naturalization and bankrupt laws, to coin money, to establish post-offices, or to define piracies and felonies on the high seas. Nor would either of these be deemed necessarily to include the power to tax. It might be convenient; but it would not be absolutely indispensable.

§ 920. The whole of the elaborate reasoning upon the propriety of granting the power of taxation, pressed with so much ability and earnestness, both in and out of the convention,2 as vital to the operations of the national government, would have been useless, and almost absurd, if the power was included in the subsequently enumerated powers. If the power of taxing was to be granted, why should it not be qualified according to the intention of the framers of the constitution? But then, it is said, if congress may lay taxes for the common defence and general welfare, the money may be appro-

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1 See the Federalist, No. 21, 22, 30; 1 Elliot's Deb. 318.
2 See the Federalist, No. 30 to 37.

priated for those purposes, although not within the scope of the other enumerated powers. Certainly it may be so appropriated; for if congress is authorized to lay taxes for such purposes, it would be strange, if, when raised, the money could not be applied to them. That would be to give a power for a certain end, and then deny the end intended by the power. It is added, "that there is not a single power whatsoever, which may not have some reference to the common defence or general welfare; nor a power of any magnitude, which, in its exercise, does not involve, or admit an application of money." If by the former language is meant, that there is not any power belonging, or incident to any government, which has not somer eference to the common defence or general welfare, the proposition may be peremptorily denied. Many governments possess powers, which have no application to either of these objects in a just sense; and some possess powers repugnant to both. If it is meant, that there is no power belonging, or incident to a good government, and especially to a republican government, which may not have some reference to those objects, that proposition may, or may not be true; but it has nothing to do with the present inquiry. The only question is, whether a mere power to lay taxes, and appropriate money for the common defence and general welfare, does include all the other powers of government; or even does include the other enumerated powers (limited as they are) of the national government. No person can answer in the affirmative to either part of the inquiry, who has fully considered the subject. The power of taxation is but one of a multitude of powers belonging to governments; to the state governments, as well as the national government. Would a power to tax authorize a

state government to regulate the descent and distribution of estates; to prescribe the form of conveyances; to establish courts of justice for general purposes; to legislate respecting personal rights, or the general dominion of property; or to punish all offences against society? Would it confide to congress the power to grant patent rights for invention; to provide for counterfeiting the public securities and coin; to constitute judicial tribunals with the powers confided by the third article of the constitution; to declare war, and raise armies and navies, and make regulations for their government; to exercise exclusive legislation in the territories of the United States, or in other ceded places; or to make all laws necessary and proper to carry into effect all the powers given by the constitution? The constitution itself upon its face refutes any such notion. It gives the power to tax, as a substantive power; and gives others, as equally substantive and independent.

§ 921. That the same means may sometimes, or often, be resorted to, to carry into effect the different powers, furnishes no objection; for that is common to all governments. That an appropriation of money may be the usual, or best mode of carrying into effect some of these powers, furnishes no objection; for it is one of the purposes, for which, the argument itself admits, that the power of taxation is given. That it is indispensable for the due exercise of all the powers, may admit of some doubt. The only real question is, whether even admitting the power to lay taxes is appropriate for some of the purposes of other enumerated powers, (for no one will contend, that it will, of itself, reach, or provide for them all,) it is limited to such appropriations, as grow out of the exercise of those powers. In other words, whether it is an incident to those powers, or a

substantive power in other cases, which may concern the common defence and the general welfare. If there are no other cases, which concern the common defence and general welfare, except those within the scope of the other enumerated powers, the discussion is merely nominal and frivolous. If there are such cases, who is at liberty to say, that, being for the common defence and general welfare, the constitution did not intend to embrace them? The preamble of the constitution declares one of the objects to be, to provide for the common defence, and to promote the general welfare; and if the power to lay taxes is in express terms given to provide for the common defence and general welfare, what ground can there be to construe the power, short of the object? To say, that it shall be merely auxiliary to other enumerated powers, and not co-extensive with its own terms, and its avowed objects? One of the best established rules of interpretation, one, which common sense and reason forbid us to overlook, is, that when the object of a power is clearly defined by its terms, or avowed in the context, it ought to be construed, so as to obtain the object, and not to defeat it. The circumstance, that so construed the power may be abused, is no answer. All powers may be abused; but are they then to be abridged by those, who are to administer them, or denied to have any operation? If the people frame a constitution, the rulers are to obey it. Neither rulers, nor any other functionaries, much less any private persons, have a right to cripple it, because it is according to their own views inconvenient, or dangerous, unwise or impolitic, of narrow limits, or of wide influence.

§ 922. Besides; the argument itself admits, that "congress is authorized to provide money for the

common defence and general welfare." It is not pretended, that, when the tax is laid, the specific objects, for which it is laid, are to be specified, or that it is to be solely applied to those objects. That would be to insert a limitation, no where stated in the text. But it is said, that it must be applied to the general welfare; and that can only be by an application of it to some particular measure, conducive to the general welfare. This is admitted. But then, it is added, that this particular measure must be within the enumerated authorities vested in congress, (that is, within some of the powers not embraced in the first clause,) otherwise the application is not authorized.1 Why not, since it is for the general welfare? No reason is assigned, except, that not being within the scope of those enumerated powers, it is not given by the constitution. Now, the premises may be true; but the conclusion does not follow, unless the words common defence and general welfare are limited to the specifications included in those powers. So, that after all, we are led back to the same reasoning, which construes the words, as having no meaning per se, but as dependent upon, and an exponent of, the enumerated powers. Now, this conclusion is not justified by the natural connexion or collocation of the words; and it strips them of all reasonable force and efficacy. And yet we are told, that "this fair and obvious interpretation coincides with, and is enforced by, the clause of the constitution, which provides, that no money shall be drawn from the treasury, but in consequence of appropriations by law;" as if the clause did not equally apply, as a restraint upon drawing money, whichever construction is adopted. Suppose

___________________________________ 1 See also 4 Elliot's Debates, 280, 281.

congress to possess the most unlimited power to appropriate money for the general welfare; would it not be still true, that it could not be drawn from the treasury, until an appropriation was made by some law passed by congress? This last clause is a limitation, not upon the powers of congress, but upon the acts of the executive, and other public officers, in regard to the public monies in the treasury.

§ 923. The argument in favour of the construction, which treats the clause, as a qualification of the power to lay taxes, has, perhaps, never been presented in a more concise or forcible shape, than in an official opinion, deliberately given by one of our most distinguished statesmen.1 "To lay taxes to provide for the general welfare of the United States, is," says he, "to lay taxes for the purpose, of providing for the general welfare. For the laying of taxes is the power, and the general welfare the purpose, for which the power is to be exercised. Congress are not to lay taxes ad libitum, for any purpose they please; but only to pay the debts, or provide for the welfare of the Union. In like manner they are not to do any thing they please, to provide for the general welfare; but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding, and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would also be a pow

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1 Mr. Jefferson.

er to do whatever evil they pleased. It is an established rule of construction, where a phrase will bear either of two meanings, to give that, which will allow some meaning to the other parts of the instrument, and not that, which will render all the others useless. Certainly, no such universal power was meant to be given them. It was intended to lace them up strictly within the enumerated powers, and those, without which, as means, those powers could not be carried into effect."1

§ 924. The same opinion has been maintained at different and distant times by many eminent statesmen.2 It was avowed, and apparently acquiesced in, in the state conventions, called to ratify the constitution;3 and it has been, on various occasions, adopted

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1 Jefferson's Opinion on the Bank of the United States, 15th February, 1791; 4 Jefferson's Correspondence, 524, 525. -- This opinion was deliberately reasserted by Mr. Jefferson on other occasions. There may, perhaps, also be found traces of an opinion still more restrictive in his later writings; but they are are obscure and unsatisfactory. See 4 Jefferson's Correspondence, 306, 416, 457; Message of President Jefferson, 2d December, 1806; 5 Wait's State Papers, 453, 458, 459.
2 It was maintained by Mr. Hamilton, in his Treasury Report on Manufactures, (5th Dec. 1791,) and in his argument on the constitutionality of a National Bank, 23d Feb 1791, p, 147, 148; by Mr. Gerry in the debate on the National Bank in Feb. 1791,(4 Elliot's Debates, 226;) by Mr. Ellsworth in a speech in 1788, (3 American Museum, 338;) and by President Monroe, in his Message of the 4th of May, 1822, (p. 33 to 38,) in an elaborate argument, which well deserves to be studied. He contends, that the power to lay taxes is confined to purposes for the common defence and general welfare. And that the power of appropriation of the monies is co-extensive, that is, that it may be applied to any purposes of the common defence or general welfare. Mr. Adams, in his Letter to Mr. Speaker Stevenson. 11th of July, 1832, published since the preparation of these Commentaries, has given a masterly exposition of the clause, to which it may be important hereafter again to recur.
3 2 Elliot's Debates, 170, 183, 195, 328, 314; 3 Elliot's Debates, 262; 2 American Museum, 434; 1 Elliot's Debates, 311; Id. 81, 82; 3 Elliot's Debates, 262, 290; 2 American Museum, 544.

by congress,1 and may fairly be deemed, that which the deliberate sense of a majority of the nation has at all times supported. This, too, seems to be the construction maintained by the Supreme Court of the United States. In the case of Gibbons v. Ogden,2 Mr. Chief Justice Marshall, in delivering the opinion of the court, said, "Congress is authorized to lay and collect taxes, &c. to pay the debts, and provide for the common defence and general welfare of the United States. This does not interfere with the power of the states to tax for the support of their own governments; nor is the exercise of that power by the states an exercise of any portion of the power, that is granted to the United States. In imposing taxes for state purposes, they are not doing, what congress is empowered to do. Congress is not empowered to tax for those purposes, which are within the exclusive province of the states. When, then, each government is exercising the power of taxation, neither is exercising the power of the other." Under such circumstances, it is not, perhaps, too much to contend, that it is the truest, the safest, and the most authoritative construction of the constitution.3

§ 925. The view thus taken of this clause of the constitution will receive some confirmation, (if it should be thought by any person necessary,) by an historical examination of the proceedings of the convention.

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1 See cases referred to in President Monroe's Message, 4th of May, 1822; 1 Kent's Comm. Lect. p. 250, 251; 4 Elliot's Deb. 226, 243, 244, 279 to 282; Id. 291, 292; 2 United States Law Journal, April, 1826, p. 263 to 280; Webster's Speeches, 380 to 401, 411, 412, 426.
2 9 Wheat. R. 1, 199.
3 1 Kent's Comm. Lect. p. 251; Sergeant on Const. Law, ch. 28, p. 311 to 315; Rawle on the Constitution, ch. 9, p. 104; 2 United States Law Journal, April, 1826, p. 251 to 282.

The first resolution adopted by the convention on this subject of the powers of the general government, was that the national legislature ought to be empowered to enjoy the legislative rights vested in congress by the confederation, and moreover to legislate in all cases, to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation;"1 At a subsequent period, the latter clause was altered, so as to read thus: "And, moreover, to legislate in all cases for the general interests of the Union, and also in those, to which the states are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation."2 When the first draft of the constitution was prepared, in pursuance of the resolutions of the convention, the clause respecting taxation (being the first section of the seventh article) stood thus: "The legislature of the United States shall have the power to lay and collect taxes, duties, imposts, and excises," without any qualification or limitation whatsoever.

§ 926. Afterwards a motion was made to refer certain propositions, and among others a proposition to secure the payment of the public debt, and to appropriate funds exclusively for that purpose, and to secure the public creditors from a violation of the public faith, when pledged by the authority of the legislature, to a select committee, (of five,) which was accordingly done.3 Another committee (of eleven) was appointed at the same time, to consider the necessity and expediency of the debts of the several states being, assumed

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1 Journ. of Convention, 68, 86, 87, 135, 136.
2 Journ. of Convention, 181, 182, 208.
3 Journ. of Convention, 261.

by the United States.1 The latter committee reported, that "the legislature of the United States shall have power to fulfil the engagements, which have been entered into by congress, and to discharge, as well the debts of the United States, as the debts incurred by the several states during the late war, for the common defence and general welfare." This proposition (it may be presumed) has no reference whatsoever to the clause in the draft of the constitution to lay taxes. The former committee (of five) at a later day reported, that there should be added to the first section of the seventh article (the clause to lay taxes) the following words, "for payment of the debts and the necessary expenses of the United States, provided, that no law for raising any branch of revenue, except what may be specially appropriated for the payment of interest on debts or loans, shall continue in force for more than -- years."2 It was then moved to amend the first clause of the report of the other committee, (on state debts,) so as to read as follows: "The legislature shall fulfil the engagements and discharge the debts of the United States," which (after an ineffectual attempt to amend by striking out the words, "discharge the debts," and inserting the words, "liquidate the claims,") passed unanimously in the affirmative.3 So, that the provision in the report, to assume the state debts, was struck out. On a subsequent day, it was moved to amend the first section of the seventh article, so as to read: "The legislature shall fulfil the engagements, and discharge the debts of the United States, and shall have power to lay and. collect taxes, duties, imposts,

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1 Journ. of Convention, 261.
2 Id. 277.
3 Journ. of Convention, 279, 280.

and excises," which passed in the affirmative;1 thus incorporating the amendment already stated with the clause respecting taxes in the draft of the constitution. On a subsequent day the following clause was proposed and agreed to: "All debts contracted, and engagements entered into by or under the authority of congress, shall be as valid against the United States, under this constitution, as under the confederation." On the same day, and after the adoption of this amendment, it was proposed to add to the first clause of the first section of the seventh article, (to lay taxes, &c.,) the following words: "for the payment of said debts, and for the defraying the expenses, that shall be incurred for the common defence, and general welfare," which passed in the negative by the vote of ten states against one.2 So, that the whole clause stood without any further amendment, giving, the power of taxation in the same unlimited terms, as it was reported in the original draft of the constitution. This unlimited extent of the power of taxation seems to have been unsatisfactory; and at a later day another committee reported, that the clause respecting taxation should read as follows: "The legislature shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence, and general welfare of the United States;" and this passed in the affirmative without any division.3 And in the final draft the whole clause now stands thus: "The congress, &c. shall have power to lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defence and general welfare of the United States."4 From this historical survey,

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1 Journ. of Convention, 284.
2 Id. 291.
3 Journ. of Convention, 323, 324, 326.
4 Id. 351, 356.

it is apparent, that it was first brought forward in connexion with the power to lay taxes; that it was originally adopted, as a qualification or limitation of the objects of that power; and that it was not discussed, as an independent power, or as a general phrase pointing to, or connected with, the subsequent enumerated powers. There was another amendment proposed, which would have created a general power to this effect; but it was never adopted, and seems silently to have been abandoned.1

§ 927. Besides; it is impracticable in grammatical propriety to separate the different parts of the latter clause. The words are, "to pay the debts, and provide for the common defence," &c. "To pay the debts" cannot be construed, as an independent power; for it is connected with the other by the copulative "and." The payment of the antecedent debts of the United States was already provided for by a distinct article;2 and the power to pay future debts must necessarily be implied to the extent, to which they could constitutionally be contracted; and would fall within the purview of the enumerated power to pass all laws necessary and proper to carry the powers given by the constitution into effect. If, then, these words were and ought to be read, as a part of the preceding power to lay taxes, and in connexion with it, (as this historical review establishes beyond any reasonable controversy,) they draw the other words, "and provide for the common defence," &c. with them into the same connexion. On the other hand, if this connexion be once admitted, it would be almost absurd to contend, that "to pay the debts" of the United States was a general phrase,

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1 Journ. of Convention, 277.
2 Journ. of Convention, 291. See also the Constitution, art. 6.

which pointed to the subsequent enumerated powers, and was qualified by them; and yet, as a part of the very clause, we are not at liberty to disregard it. The truth is, (as the historical review also proves,) that after it had been decided, that a positive power to pay the public debts should be inserted in the constitution, and a desire had been evinced to introduce some restriction upon the power to lay taxes, in order to allay jealousies and suppress alarms, it was (keeping both objects in view) deemed best to append the power to pay the public debts to the power to lay taxes; and then to add other terms, broad enough to embrace all the other purposes contemplated by the constitution. Among these none were more appropriate, than the words, "common defence and general welfare," found in the articles of confederation, and subsequently with marked emphasis introduced into the preamble of the constitution. To this course no opposition was made, because it satisfied those, who wished to provide positively for the public debts, and those, who wished to have the power of taxation co-extensive with all constitutional objects and powers. In other words, it conformed to the spirit of that resolution of the convention, which authorized congress "to legislate, in all cases, for the general interests of the Union."1

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1 Journal of Convention, 181, 182, 208. -- The letter of Mr. Madison to Mr. Stevenson of 27th November, 1830, contains an historical examination of the origin and progress of this clause substantially the same, as that given above. After perusing it, I perceive no reason to change the foregoing, reasoning. In one respect, Mr. Madison seems to labour under a mistake, viz. in supposing, that the proposition of the 25th of August, to add to the power to lay taxes, as previously amended on the 23d of August, the words, "for the payment of the debt and for defraying the expenses, that shall be incurred for the common defence and general welfare," was rejected on account of the generality of the

§ 928. Having thus disposed of file question, what is the true interpretation of the clause, as it stands in the text of the constitution, and ascertained!. that the power

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phraseology. The known opinions of some of the states, which voted in the negative (Connecticut alone voted in the affirmative) shows, that it could not have been rejected on this account. It is most probable, that it was rejected, because it contained a restriction upon the power to tax; for this power appears at first to have passed without opposition in its general form.* It may be acceptable to the general reader to have the remarks of this venerable statesman in his own words, and therefore they are here inserted. After giving an historical review of the origin and progress of the whole clause, he says,

"A special provision in this mode could not have been necessary for the debts of the new congress; for a power to provide money, and a power to perform certain acts, of which money is the ordinary and appropriate means, must, of course, carry with them, a power to pay the expense of performing the acts. Nor was any special provision for debts proposed, till the case of the revolutionary debts was brought into view; and it is a fair presumption, from the course of the varied propositions, which have been noticed, that but for the old debts, and their association with the terms, 'common defence and general welfare,' the clause would have remained, as reported in the first draft of a constitution, expressing generally 'a power in congress to lay and collect taxes, duties, imposts, and excises;' without any addition of the phrase 'to provide for the common defence and general welfare.' With this addition, indeed, the language of the clause being in conformity with that of the clause in the articles of confederation, it would be qualified, as in those articles, by the specification of powers subjoined to it. But there is sufficient reason to suppose, that the terms in question would not have been introduced, but for the introduction of the old debts, with which they happened to stand in a familiar, though inoperative, relation. Thus introduced, however, they pass undisturbed through the subsequent stages of the constitution.

"If it be asked, why the terms 'common defence and general welfare,' if not meant to convey the comprehensive power, which, taken literally, they express, were not qualified and explained by some reference to the particular power subjoined, the answer is at hand, that although it might easily have been done, and experience shows it might be well, if it had been done, yet the omission is accounted for by an inattention to the phraseology, occasioned, doubtless, by identity with the harmless character attached to it in the instrument, from which it was borrowed.

"But may it not be asked with infinitely more propriety, and without the possibility of a satisfactory answer, why, if the terms were meant to

* Journal of Convention, p. 220, 257, 284, 291.

of taxation, though general, as to the 'subjects, to which it may be applied, is yet restrictive, as to the purposes, for which it may be exercised; it next becomes matter

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embrace, not only all the powers particularly expressed, but the indefinite power, which has been claimed under them, the intention was not so declared; why, on that supposition, so much critical labour was employed in enumerating the particular powers. and in defining and limiting their extent?

"The variations and vicissitudes in the modification of the clause, in which the terms 'common defence and general welfare' appear, are remarkable; and to be no otherwise explained, than by differences of opinion, concerning the necessity or the form of a constitutional provision for the debts of the revolution; some of the members, apprehending improper claims for losses by depreciated bills of credit; others, an evasion of proper claims, if not positively brought within the authorized functions of the new government; and others again, considering the past debts of the United States, as sufficiently secured by the principle, that no change in the government could change the obligations of the nation. Besides the indications in the Journal, the history of the period sanctions this explanation.

"But, it is to be emphatically remarked, that in the multitude of motions, propositions, and amendments, there is not a single one having reference to the terms 'common defence and general welfare,' unless we were so to understand the proposition containing them, made on August 25th, which was disagreed to by all the states, except one.

"The obvious conclusion, to which we are brought, is, that these terms, copied from the articles of confederation, were regarded in the new, as in the old instrument, merely as general terms, explained and limited by the subjoined specifications, and therefore requiring no critical attention or studied precaution.

"If the practice of the revolutionary congress be pleaded in opposition to this view of the case, the plea is met by the notoriety, that on several accounts, the practice of that body is not the expositor of the 'articles of confederation.' These articles were not in force, till they were finally ratified by Maryland in 1781. Prior to that event, the power of congress was measured by the exigencies of the war, and derived its sanction from the acquiescence of the states. After that event, habit, and a continued expediency, amounting often to a real or apparent necessity, prolonged the exercise of an undefined authority, which was the more readily overlooked, as the members of the body held their seats during pleasure, as its acts, particularly after the failure of the bills of credit, depended for their efficacy on the will of the slates; and as its general impotency become manifest. Examples of departure from the prescribed rule are too well known to require proof. The

of inquiry, what were the reasons, for which this power was given, and what were the objections, to which it was deemed liable.

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case of the old bank of North America might be cited, as a memorable one. The incorporating ordinance grew out of the inferred necessity of such an institution to carry on the war, by aiding the finances, which were starving under the neglect or inability of the states to furnish their assessed quotas. Congress was at the time so much aware of the deficient authority, that they recommended it to the state legislatures to pass laws giving due effect to the ordinance, which was done by Pennsylvania and several other states.

"Mr. Wilson, justly distinguished for his intellectual powers, being deeply impressed with the importance of a bank at such a crisis, published s small pamphlet, entitled 'Considerations on the Bank of North America,' in which he endeavoured to derive the power from the nature of the Union, in which the colonies were declared and become independent states; and also from the tenour of the articles of confederation' themselves. But what is particularly worthy of notice is, that with all his anxious search in those articles for such a power, he never glanced at the terms, 'common defence and general welfare,' as a source of it. He rather chose to rest the claim on a recital in the text, 'that for the more convenient management of the general interests of the United States, delegates shall be annually appointed to meet in congress,' which he said implied, that the United States had general rights, general powers, and general obligations, not derived from any particular state, nor from all the particular states, taken separately, but 'resulting from the union of the whole;' these general powers, not being controlled by the article declaring, that each state retained all powers not granted by the articles, because 'the individual states never possessed, and could not retain, a general power over the others.'

"The authority and argument here resorted to, if proving the ingenuity and patriotic anxiety of the author, on one hand, show sufficiently on the other, that the terms, 'common defence and general welfare,' could not, according to the known acceptation of them, avail his object.

"That the terms in question were not suspected in the convention, which formed the constitution, of any such meaning, as has been constructively applied to them may be pronounced with entire confidence. For it exceeds the possibility of belief; that the known advocates in the convention for a jealous grant, and cautious definition of federal powers, should have silently permitted the introduction of words or phrases, in a sense rendering fruitless the restrictions and definitions elaborated by them.

"Consider, for a moment, the immeasurabIe difference between the constitution, limited in its powers to the enumerated objects; and ex-

§ 929. That the power of taxation should be, to some extent, vested in the national government, was admitted by all persons, who sincerely desired to escape

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panded, as it would be by the import claimed for the phraseology in question. The difference is equivalent to two constitutions, of characters essentially contrasted with each other; the one possessing powers confined to certain specified cases; the other extended to all cases whatsoever. For what is the case, that would not be embraced by a general power to raise money; a power to provide for the general welfare; and a power to pass all laws necessary and proper to carry these powers into execution; all such provisions and laws superseding at the same time, all local laws and constitutions at variance with them? Can less be said, with the evidence before us, furnished by the Journal of the Convention itself, than that it is impossible, that such a constitution, as the latter, would have been recommended to the states by all the members of that body, whose names were subscribed to the instrument?

"Passing from this view of the sense, in which the terms, 'common defence and general welfare,' were used by the framers of the constitution, let us look for that, in which they must have been understood by the conventions, or rather by the people, who. through their conventions, accepted and ratified it. And here the evidence is, if possible, stilt more irresistible, that the terms could have been regarded, as giving a scope to federal legislation, infinitely more objectionable, than any of the specified powers, which produced such strenuous opposition, and calls for amendments, which might be safeguards against the dangers apprehended from them. "Without recurring to the published debates of those conventions. which, as far as they can be relied on for accuracy, would, iris believed, not impair the evidence furnished by their recorded proceedings, it will suffice to consult the lists of amendments proposed by such of the conventions, as considered the powers granted to the government, too extensive, or not safely defined.

"Besides the restrictive and explanatory amendments to the text of the constitution, it may be observed, that a long list was premised under the name, and in the nature of 'Declaration of Rights;' all of them indicating a jealousy of the federal powers, and an anxiety to multiply securities against a constructive enlargement of them. But the appeal is more particularly made to the number and nature of the amendments, proposed to be made specific and integral part, of the constitutional text.

"No less than seven states, it appears, concurred in adding to their ratifications a series of amendments, which they deemed requisite. Of these amendment,, nine were proposed by the convention of Massachusetts; live by that of South-Carolina; twelve by that of New-Hamp-

from the imbecilities, as well as the inequalities of the confederation.1 Without such a power, it would not be possible to provide for the support of the national

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shire; twenty by that of Virginia; thirty-three by that of New-York; twenty-six by that of North-Carolina; and twenty-one by that of RhodeIsland.

"Here are a majority of the states, proposing amendments, in one instance thirty-three by a single state; all of them intended to circumscribe the power granted to the general government, by explanations, restrictions, or prohibitions, without including a single proposition from a single state referring to the terms, 'common defence and general welfare;' which, if understood to convey the asserted power; could not have failed to be the power most strenuously aimed at, because evidently more alarming in its range, titan all the powers objected to, put together, And that the terms should have passed altogether unnoticed by the many eyes, which saw danger in terms and phrases employed in some of the most minute and limited of the enumerated powers, must be regarded as a demonstration, that it was taken for granted, that the terms were harmless, because explained and limited, as in the 'articles of confederation,' by the enumerated powers, which followed them.

"A like demonstration, that these terms were not understood in any sense, that could invest congress with powers not otherwise bestowed by the constitutional charter, may be found in what passed in the first session of congress, when the subject of amendments was taken up, with the conciliatory view of treeing the constitution from objections, which had been made to the extent of its powers, or to the unguarded terms employed in describing them. Not only were the terms, 'common defence and general welfare,' unnoticed in the long list of amendments brought forward in the outset; but the Journals of Congress show, that in tile progress of the discussions not a single proposition was made in either branch of the legislature, which referred to tile phrase, an admitting a constructive enlargement of the granted powers, and requiring an amendment guarding against it. Such a forbearance and silence on such an occasion, and among so many members, who belonged to the part of the nation, which called for explanatory and restrictive amendments, and who had been elected, as known advocates for them, cannot be accounted for, without supposing, that the terms, 'common defence and general weIfare,' were not, at that time, deemed susceptible of any such construction, as has since been applied to them.

"It tony be thought, perhaps, due to tile subject, to advert to a letter of October 5th, 1787, to Samuel Adams, and another of October 16th, of

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1 See The Federalist, No. 21, 30.

forces by land or sea, or the national civil list, or the ordinary charges and expenses of government. For these purposes at least, there must be a constant and regular supply of revenue.1 If there should be a deficiency, one of two evils must inevitably ensue; either the people must be subjected to continual arbitrary plunder; or the government must sink into a fatal atrophy.2 The former is the fate of Turkey under its sovereigns: the latter was the fate of America under the confederation.3

§ 930. If, then, there is to be a real, effective national government, there must be a power of taxation co-extensive with its powers, wants, and duties. The only inquiry properly remaining is, whether the resources of taxation should be specified and limited; or, whether the power in this respect should be general, leaving a full choice to the national legislature. The opponents of the constitution strenuously contended, that

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he same year, to the governor of Virginia, from R.H. Lee, in both of which it is seen, that the terms had attracted his notice, and were apprehended by him 'to submit to congress every object of human legislation.' But it is particularly worthy of remark, that although a member of tile senate of the United States, when amendments to the constitution were before that house, and sundry additions and alterations were there made to the list sent from the other, no notice was taken of those terms, as pregnant with danger. it must be inferred, that the opinion Formed by the distinguished member, at the first view of the constitution, and before it had been fully discussed and elucidated, had been changed into a conviction, that the terms did not fairly admit the construction he had originally put on them; and therefore needed no explanatory precaution against it."

Against the opinion of Mr. Madison, there are the opinions of men of great eminence, and well entitled to the confidence of their country; and among these away be enumerated Presidents Washington, Jefferson, and Monroe, and Mr. Hamilton. The opinion of the latter upon this very point will be given hereafter in his own words.

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1 1 Tucker's Black. Comm. App. 235 et seq.; Id. 244, 245.
2 The Federalist, No. 30.
3 Id.

4 the power should be restricted; its fiends, as strenuously contended, that it was indispensable for the public safety, that it should be general.

§ 931. The general reasoning, by which an unlimited power was sustained, was to the following effect. Every government ought to contain within itself every power requisite to the full accomplishment of the objects committed to its care, and the complete execution of the trusts, for which it is responsible, free from every other control, but a regard to the public good, and to the security of the people. In other words, every power ought to be proportionate to its object. The duties of superintending the national defence, and of securing the public peace against foreign or domestic violence, involve a provision for casualties and dangers, to which no possible limits can be assigned; and therefore the power of making that provision ought to know no other bounds, than the exigencies of the nation, and the resources of the community. Revenue is the essential engine, by which the means of answering the national exigencies must be procured; and therefore the power of procuring it must necessarily be comprehended in that of providing for those exigencies. Theory, as well as practice, the past experience of other nations, as well as our own sad experience under the confederation, conspire to prove, that the power of procuring revenue is unavailing, and a mere mockery, when exercised over states in their collective capacities. If, therefore, the federal government was to be of any efficiency, and a bond of union, it ought to be invested with an unqualified power of taxation for all national purposes.1 In the history of mankind it has ordinarily

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1 The Federalist, No. 31; Id. No. 30; Id. No. 21.

been found, that in the usual progress of things the necessities of a nation in every stage of its existence are at least equal to its resources.1 But, if a more favourable state of things should exist in our own government, still we must expect reverses, and ought to provide against them. It is impossible to foresee all the various changes in the posture, relations, and power of different nations, which might affect the prosperity and safety of our own. We may have formidable foreign enemies. We may have internal commotions. We may suffer from physical, as well as moral calamities; from plagues, famine, and earthquakes; from political convulsions, and rivalries; from the gradual decline of particular sources of industry; and from the necessity of changing our own habits and pursuits, in consequence of foreign improvements and competitions, and the variable nature of human wants and desires. A source of revenue adequate in one age, may wholly or partially fail in another. Commerce, or manufactures, or agriculture may thrive under a tax in one age, which would destroy them in another. The power of taxation, therefore, to be useful, must not only be adequate to all the exigencies of the nation, but it must be capable of reaching from time to time all the most productive sources. It has been observed with no less truth, than point, that "in political arithmetic two and two do not always make four."2 Constitutions of government are not to be framed upon a calculation of existing exigencies; but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. There ought to be a capacity to provide for future contingencies, as they may happen; and as these are (as has been

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1 The Federalist, No. 30. 2 The Federalist, No. 21.

already suggested) illimitable in their nature, so it is impossible safely to limit that capacity.1

§ 932. In answer to this reasoning it was objected, that "it is not true, because the exigencies of the Union may not be susceptible of limitation, that its power of taxation ought to be unconfined. Revenue is as requisite to the purposes of the local administrations, as to those of the Union; and the former are at least of equal importance with the latter to the happiness of the people. it is, therefore, as necessary, that the state governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the Wants of the Union. But an indefinite power in the latter might, and probably would in time, deprive the former of he means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme law of the land; and as it is to have power to pass all laws, that may be necessary, for carrying into execution the authorities, with which it is proposed to vest the national government, it might at any time abolish the taxes imposed for state objects upon the. pretence of an interference with its own. It might allege a necessity of doing this in order to give efficacy to the national revenue; and thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the state governments."2 The

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1 The Federalist, No. 34; 1 Elliot's Debates, 77 to 89; Id. 303 to 308; Id. 309, 311 to 316, 321 to 329; Id. 337; 2 Elliot's Debates, 95, 96, 118; Id. 198 to 204; 3 Elliot's Debates, 261, 262, 290; 3 Amer. Museum 334, 338; 1 Tucker's Black. Comm. 234 235 236. 2 The Federalist, No. 31; 1 Ellot's, Debates, 77, 78 to 89; Id. 91, 105, 112; Id. 293, 294 to 296; Id. 301, 302, 303; Id. 329 to 333; 2 Elli-

difficulties arising from this collision between the state and national governments might be easily avoided by a separation and distinction, as to the subjects of taxation, or by other methods, which might be easily devised. Thus, for instance, the general government might be entrusted with the power of external taxation, such as laying duties and imposts on goods imported; and the states remain exclusively in possession of the power of internal taxation. Or power might be given to the general government to lay taxes exclusively upon certain specified subjects; or to lay taxes, if requisitions on the states were not complied with;1 or, if the specified subjects failed to produce an adequate revenue, resort might be had to requisitions, or even to direct taxes, to supply the deficiency.2

§ 933. In regard to these objections it was urged, that it was impossible to rely (as the history of the government under the confederation abundantly proved) upon requisitions upon the states.3 Direct taxes were exceedingly unequal, and difficult to adjust;4 and could

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ot's Debates. 52, 51, 208; 3 Elliot's Debates, 77 to 91; 1 Tuck. Black. Comm. App. 240; 2 Amer. Museum, 543, 544. 1 3 Amer. Museum, 423; 2 Elliot's Debates, 52, 53, 200, 206. 2 See The Federalist, No. 30; 1 Elliot's Debates, 294; 1 Tucker's Black. Comm. App. 234, 235; 1 Elliot's Debates, 294, 295; 2 Elliot's Debates, 52, 53, 111, 112; Id. 200, 206, 208. -- It was moved in the convention, that whenever revenue was required to be raised by direct taxation, it should be apportioned among the states, and then requisitions made upon the states to pay the amount; and in default only of their compliance, congress should be authorized to pass acts directing the mode of collecting it. But this proposition was rejected by a vote of seven states against one, one state being divided.* 3 The Federalist, No. 30; 1 Elliot's Debates, 303, 304; Id..325, 326, 327; 2 Elliot's Debates, 195, 199, 204. 4 The Federalist, No. .21; 1 Elliot's Debates, 81, 82; 2 Elliot's Debates, 105; Id. 199, 204, 296; 1 Tucker's Black. Comm. App. 234, 235; 236; Dull. R. 171, 178. *Journal of the Convention, p. 974.

not safely be relied on, as an adequate or satisfactory source of revenue, except as a final resort, when others more eligible failed. The distinction between external and internal taxation was indeed capable of being reduced to practice. But in many emergencies it might leave the national government without any adequate resources, and compel it to a course of taxation ruinous to our trade and industry, anti the solid interests of the country. No one of due reflection can contend, that commercial imports are, or could be equal to all future exigencies of the Union; and indeed ordinarily they may not be found equal to them.1 Suppose they are equal to the ordinary expenses of the Union; yet, if war should come, the civil list must be entirely overlooked, or the military left without any adequate supply.2 How is it possible, that a government half supplied and half necessitous cart fulfil the purposes of its institution, or can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home, or respectability abroad? How can its administration be any thing else, than a succession of expedients, temporary, impotent, and disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can. it undertake, or execute any liberal or enlarged plans of public good?3 Who would lend to a

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1 The Federalist, No. 41. See 1 Elliot's Debates, 303 to 306. 2 The Federalist, No. 30, 34. --"A government," (said one of our most distinguished statesmen, Mr. Ellsworth, of Connecticut, speaking on this very subject,) "which can command but half its resources, is like a man with but one arm to defend himself." Speech in Connecticut Convention, 7th January, 1788; 3 Amer. Museum, 338 3 The Federalist, No. 30.

government, incapable of pledging any permanent resources to redeem its debts? It would be the common case of needy individuals, who must borrow upon onerous conditions and usury, because they cannot promise a punctilious discharge of their engagements.1 It would, therefore, not only not be wise, but be the extreme of folly to stop short of adequate resources for all emergencies, and to leave the government entrusted with the care of the national defence in a state of total, or partial incapacity to provide for the protection of the community against future invasions of the public peace by foreign war, or domestic convulsions. If, indeed, we are to try the novel, not to say absurd experiment in politics, of tying up the hands of government from protective and offensive war, rounded upon reasons of state, we ought certainly to be able to compel foreign nations to abstain from all measures, which shall injure, or cripple us.2 We must be able to repress their ambition, and disarm their enmity; to conquer their prejudices, and destroy their rivalries and jealousies. Who is so visionary, as to dream of such a moral influence in a republic over the whole world? It should never be forgotten, that the chief sources of expense in every government have ever arisen from wars and rebellions, from foreign ambition and enmity, or from domestic insurrections and factions. And it may well be presumed, that what has been in the past, will continue to be in the future.

§ 934. Besides; it is manifest, that however adequate commercial imposts. might be for the ordinary expenditures of peace, the operations of war might, and indeed ordinarily would, if our adversary possess-

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1 The Federalist, No. 80. 2 The Federalist, No. 34.

ed a large naval force, greatly endanger, if it did not wholly cut off our supplies from this source.1 And if this were the sole reliance of the national government, a naval warfare upon our commerce would, on this very account, be at once the most successful, and the most irresistible means of subduing us, or compelling us to sue for peace. What could Great Britain, or France do in a naval war, if they were compelled to rely on commerce alone, as a resource for taxation to raise armies, or maintain navies? What could America do, in a contest with a rival power, whose navy possessed a superiority, sufficient to blockade all her principal ports?2 And, independent of any such exigencies, the history of the world shows, that nothing is more fluctuating and capricious than trade. The proudest commercial nations in one age have sunk down to comparative insignificance in another. Look at Venice, and Genoa, and the Hanse Towns, and Holland, and Portugal, and Spain! What is their present, commercial importance; compared with its glory, and success, in past times? Could either of them now safely rely on imposts, as an exclusive source of revenue?

§ 935. There is another, very important view of this

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1 3 Elliot's Debates, 290. 2 In the recent war, of 1812-1813, between Great Britain, and the United States, we had abundant. proofs of the correctness, of this reasoning. Notwithstanding the duties upon importations were doubled; from the naval superiority of our enemy, our government, were compelled to resort to direct, and internal taxes, to land taxes and excises; and even with all these advantage, it is notorious, that the credit of the government sunk exceedingly low, during the contest; and the public securities were bought and sold, under the very eyes of the administration, at a discount of nearly fifty per cent, from their nominal amount. Nay, at one time. it was impracticable to borrow any money upon the government credit. This event. (let it be remembered,) took place, after twenty years, of unexampled prosperity of the country. It is a sad, but solemn admonition.

subject. If the power of taxation of the general government were confined to duties on imports, it is evident, that it might be compelled, for want of other adequate resources, to extend these duties to an injurious excess. Trade might become embarrassed, and perhaps oppressed, so as to diminish the receipts, while the duty was increased; smuggling, always facile; and always demoralizing in a republic of a widely extended seacoast, would be most mischievously encouraged.1 The first effect would be, that commerce would thus gradually change its channels; and if other interests should be (as, indeed, they might be to some extent) aided by such exorbitant duties;the ultimate result would be a great diminution of the revenue, and the ruin of a great branch of industry. It never can be either politic or just, wise or patriotic, to found a government upon principles, which in its ordinary, or even extraordinary operations, must naturally, if not necessarily, lead to such a result. This would be, to create a government, not for the happiness, or prosperity of the whole people; but for oppressions, and inequalities, arising from scanty means, and inadequate powers.

§ 936. In regard to the other part of the objection, rounded on the dangers to the state governments from this general power of taxation, it is wholly without any solid foundation. It assumes, that the national government will have an interest to oppress or destroy the state governments; a supposition, wholly inadmissible in principle, and unsupported by fact. There is quite as much reason to presume, that there will be a disposition in the state governments to encroach on that of the union.2 In truth, no reasoning,

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1 The Federalist, No. 35. 2 The Federalist, No. 31.

founded exclusively on either ground, is safe, or satisfactory. There ought to be power in each government to maintain itself, and execute its own powers; but it does not necessarily follow, that either would. become dangerous to the other. The objection, indeed, is rather aimed at the structure, and organization of the government, than at its powers; since it is impossible, if the structure and organization be reasonably skilful, that any usurpation or oppression can take place.1

§ 937. But waiving this consideration, it will at once be seen, that the state governments have complete means of self-protection, as with the sole exception of duties on imports and exports, (which the constitution has taken from the states, unless it is exercised by the consent of congress,) the power of taxation remains in the. states concurrent and co-extensive with that of congress. The slightest attention to the subject will demonstrate this beyond all controversy. The language of the constitution does not, in terms, make it an exclusive power in congress; the existence of a concurrent power is not incompatible with the exercise of it by congress; and the states are not expressly prohibited from using it by the constitution. Under such circumstances, the argument is irresistible, that a concurrent power remains in the states, as a part of their original and unsurrendered sovereignty?

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1 The Federalist, No. 31, 32. 2 The Federalist, No. 32. See Gibbons v. Ogden, 9 Wheat. R. 1, 199 to 902. 1 Kent's Comm. Lect. 18, p. 363, 367, 368, 369. -- This subject has been already considered in these Commentaries, in the rules of interpretation of the constitution; and a very important illustration, in the Federalist, No. 32, on this very point of taxation, was cited there. It seems, therefore, wholly unnecessary to repeat the reasoning. See also 4 Wheaton's R. 193, 316; 5 Wheaton's R. 22, 24, 28, 45, 49; 9 Wheaton's R. 199, 210, 238; 12 Wheaton's R. 446.

§ 938. The remarks of the Federalist, on this point, are very full and cogent. "There is, plain]y," says that work, "no expression, in the granting clause, which makes that power exclusive in the Union. There is no independent clause, or sentence, which prohibits the states from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is deducible from the restraint laid upon the states, in relation to duties on imports and exports. This restriction implies an admission, that, if it were not inserted, the states would possess the power it excludes; and it implies a further admission, that as to all other taxes the authority of the states remains undiminished. In any other view, it would be both unnecessary and dangerous. It would be unnecessary, because, if the grant to the Union of the power of laying such duties implied the exclusion of the states, or even their subordination in this particular, there would be no need of such a restriction. It would be dangerous, because the introduction of it leads directly to the conclusion, which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean, that the states in all cases, to which the restriction did not apply, would have a concurrent power of taxation with the Union. The restriction in question amounts to what lawyers call a negative pregnant; that is, a negation of one thing, and an affirmance of another; a negation of the authority of the states to impose taxes on imports and exports; and an affirmance of their authority to impose them on other articles." -- "As to a supposition of repugnancy between the power of taxation in the states, and in the Union; it cannot be supported in that sense, which would be requisite to work

an exclusion of the states. It is indeed possible, that a tax might be laid on a particular article by a state, which might render it inexpedient, that a further tax should be laid on the same article by the Union. But it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency of an increase, on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and state system of finance might, now and then, not exactly coincide, and might require reciprocal forbearance. It is not, however, a. mere possibility of inconvenience, in the exercise of powers; but an immediate constitutional repugnancy, that can, by implication, alienate and extinguish a preexisting right of sovereignty."1

§ 939. It is true, that the laws of the Union are to be supreme. But, without this, they would amount to nothing. It may be admitted, that a law, laying a tax for the use of the United States, would be supreme in its nature, and legally uncontrollable. Yet a law, abrogating a state tax, or preventing its collection, would be as clearly unconstitutional; and, therefore, not the supreme law. As far as an improper accumulation of taxes on the same thing. might tend to render the collection difficult, or precarious, it would be a mutual inconvenience, not arising from superiority, or defect of, power on either side, but from an injudicious exercise of it.2

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1 The Federalist, No. 32, 36. See also 3 American Museum, 338, 341; 1 Elliot's Deb. 307, 308; Id. 315, 316; Id. 321 to 323; 2 Elliot's Deb. 198 to 204; M'Culloch v. State of Maryland, 4 Wheat. R. 316, 433 to 436; 9 Wheaton's R. 199, 200; 201; 12 Wheaton's R. 448. -- Whether a state can tax an instrument, created by the national government, to accomplish national objects, will be hereafter considered. 2 The Federalist, No. 33, 36; 1 Elliot's Deb. 307, 308; Id. 321, 322.

§ 940. The states, with this concurrent power, will be entirely safe, and have ample resources to meet all their wants, whatever they may be, although few public expenses, comparatively speaking, will fail to their lot to provide for. They will be chiefly of a domestic character, and affecting internal polity; whereas, the resources of the Union will cover the vast expenditures, occasioned by foreign intercourse, wars, and other charges necessary for the safety and prosperity of the Union. The mere civil list of any country is always small; the expenses of armies, and navies, and foreign relations unavoidably great. There is no sound reason, why the states should possess any exclusive power over sources of revenue, not required by their wants. But there is the most urgent propriety in conceding to .the Union all, which may be commensurate by their wants. Any attempt to discriminate between the sources of revenue would leave too much, or too little to the states. If the exclusive power of external taxation were given to the Union, and of external taxation to the states, it would, at a rough calculation, probably give to the states a command of two thirds of the resources of the community, to defray from a tenth to a twentieth of its expenses; and to the Union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. Such an unequal distribution is wholly indefensible. And it may be added, that the resources of the Union would, or might be diminished exactly in proportion to the increase of demands upon its treasury; for (as has been already seen) war, which brings the great expenditures, narrows, or at least may narrow the resources of taxation from duties on imports to a very alarming degree. If we enter any other line of discrimination, it

will be equally difficult to adjust the proper proportions; for the inquiry itself, in respect to the future wants, as well of the states, as of the Union, and their relative proportion, must involve elements, for ever changing, and incapable of any precise ascertainment. Too much, or too little would for ever be found to belong to the states; and the states, as well as the Union, might be endangered by the very precautions to guard against abuses of power.1 Any separation of the subjects of revenue, which could have been fallen upon, would have amounted to a sacrifice of the interests of the Union to the power of the individual states; or of a surrender of important functions by the latter, which would have removed them to a mean provincial servitude, and dependence.2

§ 941. Other objections of a specious character were urged against confiding to congress a general power of taxation. Among these, none were insisted on with more frequency, and earnestness, than the incapacity of congress to judge of the proper subjects of taxation, considering the diversified interests, and pursuits of the states, and the impracticability of representing in that body all their interests and pursuits.3 The principal pressure of this argument has been already examined, in the survey already taken of the

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1 The Federalist, No. 34; 4 Tucker's Black. Comm. App. 234, 235, 236. 2 The Federalist calculated, that. the highest probable sum, required for the ordinary permanent expenses of any state government, would not exceed a million of dollars. But that of the Union, it was supposed, could not be susceptible of any exact measure. The Federalist, No. 34. 3 The Federalist, No. 35, 36; 1 Elliot's Deb. 297 to 300 ; Id. 309 to 313. 1 Tucker's Black. Comm. App. 237, 238; 2 Elliot's Deb. 98; Id. 185, 186 to 188; Id. 201, 202, 203; Id. 232, 236; 3 Elliot's Debates, 77 to 91.

structure and organization of the senate, and house of Representatives. In truth, if it has any real force, or efficacy, it is an argument against any national government, having any efficient national powers; and it is not necessary to repeat the reasoning, on which the expediency, or necessity of such a government has been endeavoured to be demonstrated. And, in respect to the particular subject of taxation, there is quite as much reason to suppose, that there will be an adequate assemblage of experience, knowledge, skill, and wisdom, in congress, and as adequate means of ascertaining the proper bearing of all taxes, whether direct, or indirect, whether affecting agriculture, commerce, or manufactures, as to discharge any other functions delegated to congress. To suppose otherwise, is to suppose the Union impracticable, or mischievous.1

§ 949. Other objections were raised on the ground of the multiplied means of influence in the national government, growing out of the appointments to office, necessary in the collection of the revenues; the host of officers, which would swarm over the land, like locusts, to devour its substance; and the terrific oppressions, resulting from double taxes, and harsh, and arbitrary regulations.2 These objections were answered, as well might be supposed, by appeals to common sense, and common experience; and they are the less necessary now to be refuted, since in the actual practice of the government they have been proved to be visionary, and fallacious, the dreams of speculative statesmen, indulging their love of ingenious paradoxes,

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1 The Federalist, No. 35, 36, 41, 45; 1 Tucker's Black. Comm. App. 244, 245. 2 The Federalist, No 36; 2 Elliot's Debates, 52, ,53, 70; Id. 208; 3 Elliot's Debates, 262, 263; 2 American Museum, 543.

or the suggestions or fear, stimulated by discontent, or carried away by phantoms or the imagination.1

§ 943. But another extraordinary objection, which shows, how easily men may persuade themselves or the truth of almost any proposition, which temporary interests or excitements induce them to believe, was urged from the North; and it was, that the impost would be a partial tax; and that the southern states will pay but little in comparison with the northern. It was refuted by unanswerable reasoning;2 and would hardly deserve mention, if the opposite doctrine had not been recently revived and propagated with abundant zeal at the South, that duties on importations fail with the most calamitous inequality on the southern states. Nay, it has been seriously urged, that a single southern state is burthened. with the payment of more than half of the whole duties levied on foreign goods throughout the Union.

§ 944. Again; it was objected, that there was no certainty, that any duties would be laid on importations; for the southern states might object to all imposts of this nature, as they have no manufactures of their own, and consume more foreign goods, than the northern states; and, therefore, direct taxes would be the common resort to supply revenue.3 To which no other answer need be given, than, that the rule of apportionment, as well as the inequalities of such taxes, would, undoubtedly, produce a strong disinclination in the nation, and especially in the southern states, to resort to them, unless under extraordinary circumstances.4

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1 The Federalist, No. 36; 3 American Museum, 338, 341; 1 Elliot's Deb. 81, 293, 294, 300 to 302; Id. 337, 338; 2 Elliot's Deb. 98; Id. 198 to 204. 2 See Mr. Ellsworth's Speech, 3 American Museum, 338, 340. 3 1 Elliot's Debates, 90, 91. 4 1 Tuck. Black. Comm. App. 234 to 238; The Federalist, No. 12.

An objection, of a directly opposite character, was also taken; viz. that the power of laying direct taxes was not proper to be granted to the national government, because it was unnecessary, impracticable, unsafe, and accumulative of expense.1 This objection also was shown to be unfounded; and, indeed, under certain exigencies, which have been already. alluded to, the national government might for want of it he utterly prostrated.2

§ 945. Other objections were urged, which it seems unnecessary to enumerate, as they were either temporary in their nature, or were mere auxiliaries to those already mentioned. The experience of the national government has hitherto shown the entire safety, practicability, and even necessity of its possessing the general power of taxation. The states have exercised a concurrent power without obstruction or inconvenience, and enjoy revenues adequate to all their wants; more adequate, indeed, than they could possibly possess, if the Union were abolished, or the national government were not vested with a general power of taxation, which enables it to provide for all objects of common defence and general welfare. The triumph of the friends of the constitution, in securing this great fundamental source of all real effective national sovereignty, was most signal; and it is the noblest monument of their wisdom, patriotism, and independence. Popular feelings, and popular prejudices, and local interests, and the pride of state authority, and the jeal-

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21, 36; 1 Elliot's Debates, 61, 62; 2 Elliot's Debates, 105; 11 Elliot's Debates, 77 to 91; 8 Journ. of Continent. Congress, 16th Dec. 1782, p. 203 1 2 Elliot's Debates, 197 to 204; Id. 208, 232, 235; 3 Elliot's Debate, 77, 91. 2 Ibid.

ousy of state sovereignty, were all against them. Yet they were not dismayed; and by steadfast appeals to reason, to the calm sense of the people, and to the lessons of history, they subdued opposition, and won. confidence. Without the possession of this power, the constitution would have long since, like the confederation, have dwindled down to an empty pageant. It would have become an unreal mockery, deluding our hopes, and exciting our fears. It would have flitted. before us for a moment with a pale and ineffectual light, and then have departed for ever to the land of shadows. There is so much candour and force in the remarks of the learned American commentator on Blackstone, on this subject, that they deserve to be cited in this place.1 "A candid review of this part of the federal constitution cannot fail to excite our just applause of the principles, upon which it is founded. All the arguments against it appear to have been drawn from the inexpediency of establishing such a form of government, rather than from any defect in this part of the system, admitting, that a general government was necessary to the happiness and prosperity of the states individually. This great primary question being once decided in the affirmative, it might be difficult to prove, that any part of the powers granted to congress in this clause ought to have been altogether withheld: yet being granted, rather as an ultimate provision in any possible case of emergency, than as a means of ordinary revenue, it is to be wished, that the exercise of powers, either oppressive in their operation, or inconsistent with the genius of the people, or irreconcilable to their prejudices, might be reserved for cogent occasions, which might justify the temporary recourse to a

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1 1 Tuck. Black. Comm. App. 246.

lesser evil, as the means of avoiding one more permanent, and of greater magnitude."

§ 946. The language of the constitution is, "Congress shall have power to lay and collect taxes, duties, imposts, and excises," &c. "But all duties, imposts, and excises shall be uniform throughout the United States." A distinction is here taken between taxes, and duties, imposts, and excises; and, indeed, there are other parts of the constitution respecting the taxing power, (as will presently be more fully seen,) such as the regulations respecting direct taxes, the prohibition of taxes or duties on exports by the United States, and the prohibition of imposts or duties by the states on imports or exports, which require an attention to this distinction.

§ 947. In a general sense, all contributions imposed by the government upon individuals for the service of the state, are called taxes, by whatever name they may be known, whether by the name of tribute, tythe, talliage, impost, duty, gabel, custom, subsidy, aid, supply, excise, or other name.1 In this sense, they are usually divided into two great classes, those, which are direct, and those, which are indirect. Under the former denomination are included taxes on land, or real property, and under the latter, taxes on articles of consumption.2 The constitution, by giving the power to lay and collect taxes in general terms, doubtless meant to include all sorts of taxes, whether direct or indirect.3 But, it may be asked, if such was the intention, why were the sub-

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1 See 2 Stuart's Polit. Econ. 485; 1 Tuck. Black. Comm. App. 232; 1 Black. Comm. 308; 3 Dall. R. 171; Smith's Wealth of Nations, B. 3, ch. 3, B. 5, ch. 2, P. 1, P. 2, art. 4. 2 The Federalist, No. 21, 36, 1 Tuck. Black. Comm. 233, 238, 239; Smith's Wealth of Nations, B. 5, ch. 3, Pt. 2, art. 1 and 2, and App. 3 Loughborough v. Blake, 5 Whteat. R. 317, 318, 319.

sequent words, duties, imposts and excises, added in the clause? Two reasons may be suggested; the first, that it was done to avoid all possibility of doubt in the construction of the clause, since, in common parlance, the word taxes is sometimes applied in contradistinction to duties, imposts, and excises, and, in the delegation of so vital a power, it was desirable to avoid all possible misconception of this sort; and, accordingly, we find, in the very first draft of the constitution, these explanatory words are added.1 Another reason was, that the constitution prescribed different rules of laying taxes in different cases, and, therefore, it was indispensable to make.a discrimination between the classes, to which each rule was meant to apply.2

§ 948. The second section of the first article, which has been already commented on for another purpose, declares, that "direct taxes shall be apportioned among the several states, which may be included within this Union, according to their respective numbers." The fourth clause of the ninth section of the same article (which would regularly be commented on in a future page) declares, that "no capitation, or other direct tax, shall be laid, unless in proportion to the census or enumeration herein before directed to be taken." And the clause now under consideration, that "all duties, imposts, and excises shall be uniform throughout the United States." Here, then, two rules are prescribed, the rule of apportionment (as it is called) for direct taxes, and the rule of uniformity for duties, imposts, and excises. If there are any other kinds of taxes, not embraced in one or the other of these two classes, (and it is certainly difficult to give full effect to

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1 Journal of Convention, 220. 2 Hylton v. United State, 3 Dall. 171, 174.

the words of the constitution without supposing them to exist,) it would seem, that congress is left at full liberty to levy the same by either rule, or by a mixture of both rules, or perhaps by any other rule, not inconsistent with the general purposes of the constitution.1 It is evident, that "duties, imposts, and excises" are indirect taxes in the sense of the constitution. But the difficulty still remains, to ascertain1 what taxes are comprehended under this description; and what under the description of direct taxes. It has been remarked by Adam Smith, that the private revenue of individuals arises ultimately from three different sources, rent, profit, and wages; and, that every public tax must be finally paid from some one, or all of these different sorts of revenue.2 He treats all taxes upon land, or the produce of land, or upon houses, or parts, or appendages thereof, (such as hearth taxes and window taxes,) under the head of taxes upon rent; all taxes upon stock, and money at interest, upon other personal property yielding an income, and upon particular employments, or branches of trade and business, under the head of taxes on profits; and taxes upon salaries under the head of wages. He treats capitation taxes and taxes on consumable articles, as mixed taxes, falling upon all or any of the different species of revenue.3 A full consideration of these different classifications of taxes belongs more properly to a treatise upon political economy, than upon constitutional law.

§ 949. The word "duties" has not, perhaps, in all cases a very exact signification, or rather it is used sometimes in a larger, and sometimes in a narrower

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1 Hylton v. United States, 3 DalI. R. 171. 2 1 Smith's Wealth of Nations, B. 5, ch. 2, P. 2. 3 Smith's Wealth of Nations, B. 5, ch. 2, P. 2, art. 1, 2, 3, 4.

sense. In its large sense, it is very nearly an equivalent to taxes, embracing all impositions or charges levied on persons or things.1 In its more restrained sense, it is often used as equivalent to "customs," which appellation is usually applied to those. taxes, which are payable upon goods and merchandise imported, or exported, and was probably given on account of the usual and constant demand of them for the use of kings, states, and governments.2 In this sense, it is nearly synonymous with "imposts," which is sometimes used in the large sense of taxes, or duties, or impositions, and sometimes in the more restrained sense of a duty on imported goods and merchandise.3 Perhaps it is not unreasonable to presume, that this narrower sense might be in the minds of the framers of the constitution, when this clause was adopted, since, in another clause, it is subsequently provided, that "No tax or duty shall be laid on articles exported from any state;" and, that "No state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws."4 There is another provision, that "No state shall, without the consent of congress, lay any duty of tonnage," &c.; from which, perhaps, it may be gathered, that a tonnage duty, (by which is to be understood, not the ancient custom in England, so called, on wines imported,5 but a duty on the ton

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1 See The Federalist, No. 86. 2 Smith's Wealth of Nations, B. 4, ch. 1, P. 3, B. 5, oh. 2, art. 4; Hale on Customs, Harg. Tracts, p. 115, &c.; 1 Black. Comm. 313, 314, 315, 316; Com. Dig. Prerogative, D. 43 to D. 49. 3 The Federalist, No. 30; 3 Elliot's Debates, 289. 4 Mr. Madison is of opinion. that the terms, imposts, and duties, in these clauses, are used as synonymous. There is much force in his suggestions. Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828. 5 1 Black. Comm. 315; Hale on Customs, Harg. Law Tracts, p. 3, ch. 7, ch. 14, ch. 15.

nage of ships and vessels,) was not deemed an impost, strictly, but a duty. However, it must be admitted, that little certainty can be arrived at from such slight changes of phraseology, where the words are susceptible of various interpretations, and of more or less expansion. The most, that can be done, is, to offer a probable conjecture from the apparent use of words in a connexion, where it is desirable not to deem any one superfluous, or synonymous with the others. A learned commentator has supposed, that the words, "duties and imposts," in the constitution, were probably intended to comprehend every species of tax or contribution, not included under the ordinary terms, "taxes and excises."1 Another learned judge has said,2 "what is the natural and common, or technical and appropriate, meaning of the words, duty and excise, it is not easy to ascertain. They present no clear or precise idea to the mind. Different persons wilt annex different significations to the terms." On the same occasion, another learned judge said, "The term, duty is the most comprehensive, next to the generical term, tax; and practically in Great Britain, (whence we take our general ideas of taxes, duties, imposts, excises, customs, &c.) embraces taxes on stamps, tolls for passage, &c. and is not confined to taxes on importations only." 3

§ 950. "Excises" are generally deemed to be of an opposite nature to "imposts," in the restrictive sense of the latter term, and are defined to be an in]and imposition, paid sometimes upon the consumption of the com-

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1 1 Tuck. Black. Comm. App. 243. 2 Mr. Justice Patterson in Hylton v. U. States, 3 Dall. R. 171,177. 3 Mr. Justice Chase, Ibid. 174. See The Federalist, No. 36.

modity, or frequently upon the retail sale, which is the last stage before the consumption.1

§ 951. But the more important inquiry is, what are direct taxes in the sense of the constitution, since they are required to be laid by the rule of apportionment, and all indirect taxes, whether they fall under the head of "duties, imposts, or excises," or under any other description, may be laid by the rule of uniformity. It is clear, that capitation taxes,2 or, as they are more commonly called, poll taxes, that is, taxes upon the polls, heads, or persons, of the contributors, are direct taxes, for the constitution has expressly enumerated them, as such. "No capitation, or other direct tax, shall be laid," &c. is the language of that instrument.

§ 952. Taxes on lands, houses, and other permanent real estate, or on parts or appurtenances thereof, have always been deemed of the same character, that is, direct taxes.3 It has been seriously doubted, if, in the sense of the constitution, any taxes are direct taxes, except those on polls or on lands. Mr. Justice Chase, in Hylton v. United States, (3 Dall. R. 171,) said, "I am inclined to think, that the direct taxes, contemplated by the constitution, are only two, viz. a capitation or poll tax simply, without regard to property, profession, or other circumstance, and a tax on land. I doubt, whether a tax by a general assessment of personal property within the United States is included within the term,

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1 1 Black. Comm. 318; 1 Tuck. Black. Comm. App. 341; Smith's Wealth of Nations, B. 5, ch. P. art. 4; 2 Elliot's Debates, 209; 3 Elliot's Debates, 289, 290. 2 See 2 Smith's Wealth of Nations, B. 5, ch. 2, art. 4; The Federalist, No. 36; 2 Elliot's Debates, 209. 3 1 Tuck. Black. Comm. App. 232, 233; Hylton v. United States, 3 Dall. R. 171; The Federalist, No. 21; Loughborough v. Blake, 5 Wheat. R. 317 to 395.

direct tax." Mr. Justice Patterson, in the same case, said, "It is not necessary to determine, whether a tax on the produce of land be a direct or an indirect tax. Perhaps the immediate product of land, in its original and crude state, ought to be considered, as a part of the land itself. When the produce is converted into a manufacture, it assumes a new shape, &c.;Whether 'direct taxes,' in the sense of the constitution, comprehend any other tax, than a capitation tax, or a tax on land, is a questionable point, &c. I never entertained a doubt, that the principal, I will not say the only, objects, that the framers of the constitution contemplated, as falling within the rule of apportionment, were a capitation tax and a tax on land." And he proceeded to state, that the rule of apportionment, both as regards representatives, and as regards direct taxes, was adopted to guard the Southern states against undue impositions and oppressions in the taxing of slaves. Mr. Justice Iredell, in the same case, said, "Perhaps a direct tax, in the sense of the constitution, can mean nothing but a tax on something inseparably annexed to the soil; something capable of apportionment under all such circumstances. A land or poll tax may be considered of this description. The latter is to be considered so, particularly under the present constitution, on account of the slaves in the Southern states, who give a ratio in the representation in the proportion of three to five. Either of these is capable of an apportionment. In regard to other articles, there may possibly be considerable doubt." The reasoning of the Federalist seems to lead to the same result.1

§ 953. In the year 1794, congress passed an act,2 laying duties upon carriages for the conveyance of per

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1 The Federalist, No. 31, 36. 2 Act of 1794, ch. 45.

sons, which were kept by or for any person, for his own use, or to be let out to hire, or for the conveying of