dered them to the oppressor, and have built the prisons, or dug the graves, of their own friends? Aristotle, in ancient times, upon a large survey of the republics of former days, and of the facile manner in which they had been made the instruments of their own destruction, felt himself compelled to the melancholy reflection, which has been painfully repeated by one of the greatest statesmen of modern times, that a democracy has many striking points of resemblance with a tyranny. "The ethical character," says Edmund Burke," is the same; both exercise despotism over the better class of citizens; and the decrees are in the one what ordinances and arrêts are in the other. The demagogue, too, and the court favorite are not unfrequently the same identical men; and always bear a close analogy. And these have the principal power, each in their respective governments, favorites with the absolute monarch, and demagogues with the people, such as I have described.”1

§ 904. This dark picture, it is to be hoped, will never be applicable to the republic of America. And yet it affords a warning which, like all the lessons of past experience, we are not permitted to disregard. America, free, happy, and enlightened as she is, must rest the preservation of her rights and liberties upon the virtue, independence, justice, and sagacity of the people. If either fail, the republic is gone. Its shadow may remain with all the pomp and circumstance and trickery of government, but its vital power will have departed. In America, the demagogue may arise, as well as elsewhere. He is the natural though spurious growth of republics; and like the courtier he may, by his blandishments, delude the ears and blind the eyes of the people to their own destruction. If ever the day shall arrive in which the best talents and the best virtues shall be driven from office by intrigue or corruption, by the ostracism of the press, or the still more unrelenting persecution of party, legislation will cease to be national. It will be wise by accident and bad by system.

1 Burke on the French Revolution, note; Aristotle, Polit. B. 4, ch. 4. See Montesquieu's Spirit of Laws, B. 8, passim.

CHAPTER XIV.

POWERS OF CONGRESS.

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

§ 906. 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."

§ 907. 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 the 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 color 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, "to pay the debts and provide for the common defence and the general welfare."

§ 908. 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

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

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 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.

§ 909. 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 powers 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.

§ 910. One of the most common maxims of interpretation is (as has been already stated), that, as an exception strengthens

VOL. I.

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

41

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 authors of the Constitution.1 It would be to charge them either with premeditated folly or premeditated fraud.

§ 911. On the other hand, construing this clause in connection 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

§ 912. 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

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 Tuck. Black. App. 231.