§ 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 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. 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 sig

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, pp. 32, 33; 1 Tuck. Black. App. 231.

nificancy 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, namely, 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. But this circumstance will be found of very little weight, when the origin of the clause and its progress to its present state are traced in the proceedings in the convention. It will then appear that it was first introduced as an appendage to the power to lay taxes. But there is a fundamental objection to the interpretation thus attemped to be maintained, which is, that it robs the clause of all efficacy and meaning. No person has à 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, 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?

§ 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," 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,

1 Journ. of Convention, p. 356; Id. 494; 2 United States Law Journal, p. 264, April, 1826, New York. In The Federalist, No. 41, the circumstance 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, pp. 351, 356. See President Monroe's Message on Internal Improvements, 4th May, 1822, pp. 16, 32, &c.

2 Journ. of Convention, pp. 823, 324, 326.

8 President Monroe's Message, 4th May, 1822, pp. 32, 33.

President Madison's Letter to Mr. Stevenson, 27 Nov. 1830.

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 foregoing 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 commom defence and general welfare.

§ 914. 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 the 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 establishes 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. 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

1 "Or" is the word in the article.

So

2 Virginia Report and Resolutions of 7 January, 1800. See also The Federalist, No. 41.

• See The Federalist, No. 40.

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 languago 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 supersede and vacate.

§ 915. 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 unfavorable 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 were 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.

§ 916. But it does so happen, that, in point of fact, no such unfavorable or restrictive interpretation or practice was ever

On the contrary, they

adopted by the continental Congress. 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 moneys 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 questions 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 consitutional 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 sums and expenses necessary for the defence and welfare of the United States, or any of them, &c., unless nine States assent to the

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