SEC. 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 meaning. 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 defense 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 the color of the generality of the words to "provide for the common defense 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 (But see E contra, sec. 923.) common defense and the general welfare." SEC. 908. The former opinion has been maintained by some of great ingenuity The latter has been the generally received sense of the and liberality of views. 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 defense and general welfare of the United States"; that is, for the purpose of paying the public debts and providing for the common defense 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 defense 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. SEC. 909. The Constitution was from its very origin contemplated to be a frame of a national government of special and enumerated powers, and not This is apparent, as will be presently seen, from general and unlimited powers. 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 defense 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 Under such circumstances the for the common defense or general welfare. 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. SEC. 910. 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 defense and general welfare? To give the enumeration of the specific powers any sensible place or operation in the Constitution, it is indispensible to construe them, as not wholly and necessarily embraced in the general power. The common principles of interpretation Shall 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. 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. It would be to charge them either with premediated folly or premeditated fraud. SEC. 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 powers to objects for the common defense 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. II The argument of Judge Story (contained in sections 909 and 910), which demolishes the theory of the Hamiltonians, shows conclusively that the words "the common defense and general welfare," as found in this section, constitute no substantive grant of power; and he further denies that these words contain any power whatsoever. His argument is irresistible in its conclusion to any unbiased mind, but it furnishes an equally powerful argument against his claim that the words "to provide for the common defense and general welfare" are merely words of limitation on the taxing power, for his argument for the latter claim is based upon the relationship of those words solely to the first clause of section 8, and excludes their relationship to the other 17 distinct clauses in that sentence. would thus exclude these words "common defense and general welfare" from any participation in the construction of the whole sentence. How can that consist with his language in sections 909 and 910? He SEC. 910. * * 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 significance? And yet, to maintain his argument, the doubtful and indefinite terms "common defense and general welfare" are allowed to stand unconnected, unchallenged, and unaffected by the clear and precise expressions which follow. Or how can his argument be maintained against the declaration in section 910? Nothing is more natural or common than first to use a general phrase, and then to qualify it by a recital of particulars. If this expression controlled Judge Story in demolishing the Hamiltonian claim of a substantive power in the words "common defense. and general welfare," why should not this same expression of his, on like principle, apply in the attempt to make them merely words of limitation on the taxing power? For this last quotation from Judge Story, section 910, shows that there is an indissoluble bond of dependence, that can not be broken, between the general expression mon defense and general welfare" and the subsequent explicit grants of power contained in the same sentence in section 8. The subsequent enumerated powers were sufficient to convince the learned judge that these general and indefinite terms could not be regarded as absorbing or nullifying the specifically enumerated grants. But by taking the two together, and giving to each that meaning which a just and reasonable construction justifies, he destroys the Hamiltonian argument; but alas, it is fatal to his argument holding these words to be merely words of limitation, for in it he rejects the basic foundation of his former argument. His argument showing that the Hamiltonian claim, that these words "common defense and general welfare" constituted a substantive grant of power, was based chiefly on the grammatical construction of the whole sentence, and he invoked two principles that must be admitted by all as sound, which have been quoted in sections 909 and 910; the first that the different parts of the same sentence ought to be so expounded as to give meaning to every part which will bear it, and, with striking emphasis, he asks a question which can be answered only in one way, 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? and, second, a principle recognized by all authors and writers, That nothing is more natural or common than first to use a general phrase, and then to qualify it by a recital of particulars. These are two principles general in their application to all sentences and a fortiori when applied to one sentence, must be followed in the different construction of the same sentence; but this Judge Story does not do, but rejects the principle that all parts of the same sentence must be considered for its proper construction, which he invoked so triumphantly in overthrowing the Hamiltonian claim of a substantive power in these words, and holds that these words "common defense and general welfare" have no relation to any part of the sentence, except the first clause of section 8. Is it consistent or logical that a principle adopted in solving the one construction of a sentence should be rejected in the other? And if a general expression, as he holds, may be qualified and explained by subsequent specific grants or qualifications in the subsequent parts of the same sentence, why should 17 specific and independent grants to Congress be denied any place in aiding in another construction of the same sentence? In his argument against the Hamiltonian theory, Judge Story has forged a weapon that must, in the minds of all intelligent people, prove fatal to that theory. It is beyond question sound, reasonable, conclusive, and irresistible; but that same weapon forged by his own hand, conceived and worked out in his own brain, will, to the same minds, prove fatal to his claim that the words "common defense and general welfare" are only limitations upon the taxing power, for in reaching this conclusion he has been forced to repudiate the basic principle that made his former argument irresistible Byron has well interpreted Judge Story's position in the lines: So the struck eagle stretched upon the plain, That helped to wing the shaft that quivered in his heart. III The argument from section 913, et seq., to sustain the position that these words constitute only a limitation on the taxing power, is labored and unsatisfactory; it is a repudiation, distinct and complete, of the whole fabric of his former argument, in which he unhorses the Hamiltonians who hold that these words constitute a substantive grant of power. In sections 909, 910, and 911 he builds up what seems to be an impregnable wall of logic, and in sections 912 and 913 et seq., he seeks to batter down the wall he has builded. The two arguments must be read carefully together to see their inconsistency. In the second, he refuses to recognize the principles of his first argument and ruthlessly "bastardizes his own issue." See his language in section 913: 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 (President Madison's letter to Mr. Stevenson, November 27, 1830); because it is assuming the very point in controversy to assert that the clause is connected with any subsequent specifications. Here he asserts that there is no connection between the clause "to pay the debts and provide for the common defense and general welfare" and the subsequent grants of power in the same sentence. Turn to section 910 and read what he says: 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? Here he frankly states that every part of a sentence must be construed with other parts to secure a reasonable meaning and that the words, "common defense and general welfare" are connected with every part of this sentence, with every specific grant of power; while in section 913 he claims that they are connected only with the first clause. Again, he says in section 913: It is not said to "provide for the common defense, 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. As a matter of fact, each "subsequent clause" is a part of, and linked up with, the power to lay taxes as shown infra, pages 14-15, by Cooley, Wilson, and Sage. In this he is asserting again that there is no connection between these specific grants of power in this whole sentence, involving the whole of section 8, though he has based his argument against the Hamiltonian claim upon the fact that the words "the common defense and general welfare" must be considered in relation to every part of the sentence for its proper construction. Section 8 of Article I constitutes one sentence. The 18 grants of power are distinct and separate, and the words in the first clause, "the common defense and general welfare," he says in his first argument, must be construed with reference to the whole sentence. The clauses are "distinct as the billows," but the sentence is "one as the sea." It is seen in this last quotation also that the learned judge claims that the omission of the words "in the manner following, viz," following these words in clause 1, is fatal to our pretenses. In section 910 he uses this language: Nothing is more natural or common, than first to use a general phrase, and then to qualify it by a recital of particulars. 1 He does not say here that it is usual to follow it by a videlicet, as follows, or in manner following, to wit. A simple example will serve to clarify this question. Here is a contract which reads: This contract between William Johnston and Warren Grice of the City of Macon, Ga., witnesseth: That said Johnston agrees to build for the said Grice a large, commodious, "and convenient residence on a specific lot in said city of the best material in all respects; the house to contain 10 rooms, of which 6 are to be bedrooms, a dining room, parlor, kitchen, and pantry, and 4 bathrooms, 3 upstairs and 1 downstairs; the dining room to be 20 by 30 feet in dimensions, of oak floor; the parlor to be 25 by 35 feet, of maple floor, and on his part said Grice agrees to pay said Johnston, on the completion of the building, the sum of $25,000. Under this contract Johnston has agreed to build for Grice "a large, commodious, and convenient house of the best material in all respects" in the first clause of the contract; but this clause has been modified by subsequent enumerations which explain what is meant by "a large, commodious, and convenient house." Can Johnston meet the demands of this contract by building Grice a house with a dining room 15 by 20 feet, a parlor 20 by 20 feet, with 8 instead of 6 bedrooms, and with 2 instead of 4 bathrooms, with dining-room floor of North Carolina pine and the parlor floor of oak? Is it not perfectly clear, under the proper construction of the contract, that the unlimited discretion conveyed in the words "a large, commodious, and convenient house, of the best materials in all respects," is explained and modified by the subsequent words giving the number and size of rooms, character of floors, etc.? The real meaning of this contract is that Johnston has agreed to build Grice a house with a certain number of rooms; certain number of bathrooms, with the floors of the rooms specified of certain material, the size of each clearly indicated, and that when this is done the house will be regarded by Grice as "a large, commodious, and convenient house." In other words, the specific enumerations constitute the real contract, and the words in the first clause are merely words of general import. And so "the common defense and general welfare" are explained in their meaning by the enumerated clauses that follow in the same. sentence. IV In discussing the argument made by his opponents that these words were merely general terms that were explained by the subsequent specific enumerations of grants of power, each involving and being a part of the common defense or general welfare of the United States, Judge Story says in section 912: 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 connection in which it stands. Now, it may be admitted that these words would have a natural and appropriate meaning as a qualification or limitation on the tax |