ing power, if this first clause was a complete sentence, but it is only one clause of a sentence of 18 clauses, and his argument heretofore, as I have shown, is that these words have a relation to every part of this sentence and must be considered in the construction of each clause of the sentence, and hence the error of his assumption.

But Judge Story also assumes that there must be a limitation on the taxing power in the Constitution in order to reach his conclusion, but why should there be? His assumption of such necessity is to "force the answer," as the children used to say at school when they lacked a link to make the solution of their problem complete. Suppose the words "to pay the debts and provide for the common defense and general welfare of the United States" had been omitted from this clause (and they were not put in the clause until September 4), would there have been no limitation on the taxing power? It is recognized by all authorities that the taxing power of a government, without special limitation or specification, extends only to the execution of the functions or powers of that government. Judge Miller, in Loan Association v. Topeka (20 Wall. 655), has laid down this principle as to our own Government, declaring that all taxation must be for public purposes, i. e., to carry out the powers granted to the Government, and the syllabus of the case (5) says:

Among these is the limitation of the right of taxation, that it can only be used in aid of a public object, an object which is within the purpose for which governments are established.

Judge Cooley ("Cooley on Taxation," 2d edition, p. 110) says on this subject:

GENERAL EXPENSES OF GOVERNMENT

Every government must provide for its general expenses by taxation and in these are to be included the cost of making provision for those public needs or conveniences, for which, by express law or general usage, it develops upon the particular government to supply. As regards the Federal Government, a general outline of these is to be found in the Federal Constitution. That government is charged with the common defense of the Union, and for that defense, it may raise and support armies, create and maintain a navy, build forts and arsenals, construct military roads, etc. It has a like power over the general subject of post offices, post roads, and over other subjects enumerated in the Federal Constitution and subjected to its authority. It may contract debts and must provide for their payment. For all national purposes, it may levy taxes and its power in so doing to select the subjects of taxation and to determine the rate and the methods is as full and complete as can exist in any sovereignty whatsoever, with the exceptions which are provided by the Constitution itself.

So that if these words had never been put into Article I, section 8, clause 1, the taxing power would have been limited to carrying out the powers granted by the Constitution to the Federal Government and no other. But the framers of the Constitution left this matter in no doubt, for the eighteenth clause of this section 8, after enumerating one by one 17 grants of power, reads:

The Congress shall have power to make all laws which shall be necesasry and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

This coefficient clause therefore constitutes the constitutional limitation on the taxing power of Congress; but any law passed by Congress to carry out an express grant must be necessary and bona fide appropriate to the end. So Congress, desiring to carry out some

regulation of commerce that requires an appropriation, may by law appropriate money for it under this coefficient clause, for the end is legitimate and the appropriation is bona fide appropriate to the end. So as to every other grant of power to Congress that may require money.

And so we find that Judge Story's interpretation that these words constitute a natural and appropriate limitation on the power to lay taxes is useless and unnecessary, as the true interpretation is supplied by the Constitution itself in the coefficient clause, which gives to Congress in the disposition of money raised by taxation, the right to dispose of it wherever necessary and wherever bona fide appropriate to carry out a power granted by the Constitution to the Congress. Why, then, should Judge Story supply an interpretation which the Constitution itself clearly supplies? Why provide a limitation upon the taxing power when the Constitution itself has clearly provided it in this eighteenth clause, known as the coefficient clause?

V

But it is clear that these words do not constitute a limitation upon the taxing power of Congress as contended by Judge Story but an expansion of its taxing power, as will be shown. If these words had been omitted, the limitation upon the taxing power supplied to Congress in the coefficient clause, limits Congress in its appropriations to "the foregoing powers" that is, the enumerated national powers-whereas under Judge Story's construction, that slight limitation is brushed aside; and wherever sympathy, or emotion, or the political bias of Congress may conclude that an appropriation will be for the general welfare, whether it be to carry out a national power, a local power, or a power exclusively in the States, Congress may do it; a power as broad as the boundless seas and as infinite as the firmament, embracing the whole field of human desires and human cupidity, with no guide but its own will; with no restraint but its own discretions; with no constitution but its own fiat, and no law but its own power.

The proposition of Mr. Hamilton would have given Congress unlimited power to create receptacles and then fill them up with appropriations from the Treasury. Judge Story stoutly denies such power as intended to be given in the Constitution, but claims the power in Congress to appropriate money to any persons, associations, or corporations if in their opinion it would conduce to the generaĺ welfare of the people. Under this view the courts are without power to obstruct any such measure, as it is to be left to Congress alone to determine, and not the courts. Judge Story denies that the Hamiltonian claim could be sound because it would make of the Government one of unlimited powers, which he says, as we have seen, was never intended by the Convention; but if Congress is without restraint in selecting objects of appropriation, and the tax power is likewise unlimited, is it not apparent that the union of these two unlimited powers in Congress creates a government of unlimited power? The roads may be different that lead to the same_end, but if the end, a government of unlimited power, which Judge Story well says was never intended, be the same, his construction must be

rejected, as it leads inevitably to the same result, if not to a worse result.

But Judge Story's construction of these words as a limitation of the taxing power of Congress is subject to a fatal objection for another reason. The general welfare of the United States is made up of the welfare of the people in the several States, in relation to some particular object. Now, while this object may permeate the whole country in the welfare of the people, it may be a subject which, under the Constitution, must be regulated by the States and therefore denied to the Federal Government, for it is well known that Congress an legislate only under the powers granted to it, while all else, under the tenth amendment, is left to the several States for their determination. So that, the general welfare may be, and often is, claimed in a subject which is confessedly within the power of the States alone to control. If the special general welfare sought to be obtained is included in the power to regulate commerce, or establish post offices or post roads, or any of the granted powers, Congress clearly has the power to appropriate for it under the coefficient clause, but not under the general welfare clause; but if the object should be education, or maternity, or vocational rehabilitation, or any other subject under the exclusive control of the States, it must be denied, as Congress has no power to control those subjects.

If, therefore, the object selected by the Congress for legislation under the general welfare is under the Constitution subject to the control of the States, Congress has no power to legislate or to appropriate money for such object, for if the Constitution gives the power over this subject to the States, of course the act of Congress is void. Take, for instance, the proposed educational bill, the subject of which under the Constitution is reserved to the States for their determination; in a case of this character, it may well be that the general welfare of the United States would be promoted by the education of every child in every State in the Union, but since the States alone have the power to control education, Congress, of course, can not assume that duty. The Tenth Amendment settles this question. Judge Marshall's statement in Gibbon v. Ogden can not be repeated too often. It stands as the irrefutable argument against the doctrine of appropriating money for the general welfare of the United States. In Gibbons v. Ogden, in discussing the powers of taxation, the power belonging to the States and the Federal Government alike, he uses this language:

Congress is authorized to lay and collect taxes, to pay debts, etc. 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 the exercise of any portion 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 power of the States.

And what purposes or objects are within the exclusive power of the States? Everything except those granted to Congress in the Constitution. This simple statement of the great Chief Justice, who did more to expound the Constitution than any man who ever sat upon the Supreme bench, is the complete and final answer to the absurd. claim of the existence of a general welfare clause, under which, it is

claimed, Congress can appropriate money for any cause that they may deem for the general welfare of the people of the United States.

This clear, succinct statement of the great chief justice was followed by Mr. Justice Wayne in delivering the unanimous opinion of the court (1842) in the case of Dobbins v. the Commissioners of Erie County (16 Peters, pp. 448-449) where he says:

The revenue of the United States is intended by the Constitution to pay the debts and provide for the common defense and general welfare of the United States; to be expended, in particular, in carrying into effect the laws made to execute all the express powers, "and all other powers vested by the Constitution in the Government of the United States."

It is interesting to note that Judge Story was one of the judges who concurred in this unanimous opinion of the court rendered in 1842 by Justice Wayne, and it may properly be construed as the mature judgment of that great jurist, to which he had come in the later years of his life, and which is in such contrast with the views expressed by him in his Commentaries, which were published to the country some nine years before, where he upholds the power of Congress to appropriate for any purpose which they themselves may deem for the good of the people of the country.

Chief Justice Chase, delivering the opinion of the court in the case of Veazie Bank v. Fenno (8 Wallace 541, U. S. Report) (75 U. S. Report 541), after discussing the full and ample power of taxation. given to Congress by the Constitution follows Chief Justice Marshall by declaring:

There are, indeed, certain virtual limitations, arising from the principles of the Constitution itself. It would undoubtedly be an abuse of the power if so exercised as to impair the separate existence and independent self-government of the States, or if exercised for ends inconsistent with the limited grants of power in the Constitution.

Could language be clearer or stronger?

As applicable in a general way to this question, the vigorous discussion of Chief Justice Taft of the power and objects of taxation by the Federal Government as set forth in his opinion in the child labor tax case (359 U. S., pp. 38–39), may be consulted with interest.

The above cases show that Chief Justice Marshall's statement was indorsed by Chief Justice Taney and Chief Justice Chase. Three Chief Justices of the Supreme Court who, if not the greatest who ever sat on that bench, at least may rest secure in the fact that no greater can successfully be mentioned; three judges than whom no greater ever deserved the wreath of immortality; and to these must be added the names of those who concurred with Justice Wayne in the case of Dobbins v. The Commissioners of Erie County, supra. They were in addition to Chief Justice Taney, Justices Story, Thompson, McLean, Baldwin, Catron, McKinley, and Peter V. Daniel, and those also who concurred with Chief Justice Chase in Veazie v. Fenno, supra, namely, Swayne, Miller, Field, Grier, and Clifford; a marvelous array of the brightest luminaries in the whole scope of our judicial histe y.

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Judge Story's concurrence in Chief Justice Chase's statement that "the revenue of the United States is intended, by the Constitution, to be expended, in particulars, in carrying into effect the laws made to execute all the express powers" of the Government deserves a passing notice, for it refects the high judicial

character of that great judge who has enjoyed the reputation with the bar of the United States of being one of the most learned men who ever sat upon that bench. His Commentaries on the Constitution, in course of preparation for years, were finally given to the public in 1833. His views on this subject I have given in this address, and have sought to controvert his conclusions.

The Madison Papers, the most complete compendium of the formation of the Constitution, were not printed until 1840. They were, therefore, not available to Story, the commentator, in 1833, but were open to Story, the judge, in 1842, when this opinion was delivered; and with a judicial instinct worthy of Chief Justice Chase who, as statesman, created the legal-tender notes in order to save his country, but as judge, was compelled to deny their validity to compel a creditor to take from his debtor less than he had received, Judge Story, with equal courage, was not afraid or ashamed to renounce his former opinions when he found them based on error.

Judge Story's conclusion that these words "common defense and general welfare" are simply a limitation upon the taxing power of the Government, while denying to them any constructive power, results in this anomalous condition, that the Federal Government, under these words, can construct or create no instrumentality unless the power be granted in the Constitution, but may yet appropriate the money raised by taxation to such organization constructed by the States or other power; that is, that while the Congress could not create a university in every State, it would have the power, if in its opinion it was for the "general welfare," to appropriate money to run them after being established by the States.

But an analysis of these words will show that this can not be admitted, for look again at these words critically, "to pay the debts and provide for the common defense and general welfare of the United States." Note the words in this phrase, "of the United States." Why were they inserted? Suppose this clause read:

The Congress shall have power to lay and collect taxes, etc., pay the debts of the United States.

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to

What is the meaning of the words "United States" in that clause? Would it mean to pay the debts of the people of the United States, or pay the debts of the Government of the United States? The words "the people" are omitted, and, in this form, clearly it would mean the debts of the United States Government. The words "United States" would, therefore, mean the Government of the United States, under the Constitution. Now, supply the omitted words in the above paragraph, "and provide for the common defense and general welfare"; must not the words "United States" mean the same as to both the payment of debts and common defense and general welfare? They are connected by the conjunctive "and." So that this careful examination of the sentence shows beyond question that the common defense and general welfare contemplated was not that of the people of the United States but of the Government of the United States, and, therefore, when under this construction, an appropriation of $100,000,000 is asked for out of the Treasury to be applied to education in the States, there is no authority for it even under this supposed general welfare clause, because it specifically declares that the debts to be paid and the welfare to be secured are not those of the