stitution, and ascertained that the power of taxation, though general as to the subjects to which it may be applied, is yet

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 a small pamphlet, entitled 'Considerations on the Bank of North America,' in which he endeavored to derive the power from the nature of the Union, in which the colonies were declared and became independent States; and also from the tenor 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 cach 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 patri otic 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 acceptance 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 immeasurable difference between the Constitution limited in its powers to the enumerated objects, and expanded 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 Isaid 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

restrictive, as to the purposes for which it may be exercised; it next becomes matter of inquiry, what were the reasons for which

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, still more irresistible, that the terms could not 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, it is 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 govern ment too extensive or not safely defined.

"Besides the restrictive and explanatory amendments to the text of the Constitu tion, 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 parts 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 amendments, nine were proposed by the convention of Massachusetts, five by that of South Carolina, twelve by that of New Hampshire, 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 Rhode Island.

"Hero are a majority of the States proposing amendments, in one instance thirtythree 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 than 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 freeing 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 the progress of the discussions, not a single proposition was made in either branch of the legislature which referred to the phrase as admitting a constructive enlargement of the granted powers, and requiring an amendment guarding against it. Such a forbearance and silence on such an occa

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

§ 932. 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 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 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.2 If there should be a deficiency, one of the two evils must inevitably ensue; either the people must be subjected to continual arbitrary plunder, or the government must sink into a fatal atrophy. 3 The former is the fate of Turkey under its sovereigns: the latter was the fate of America under the confederation.4

§ 933. If, then, there is to be a real, effective, national government, there must be a power of taxation coextensive 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, sion, 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 'com. mon defence and general welfare' were not, at that timo, deemed susceptible of any such construction as has since been applied to them.

"It may be thought, perhaps, due to the subject to advert to a letter of October 5, 1787, to Samuel Adams, and another of October 16th, of the 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 the 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 may 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. 1 See The Federalist, Nos. 21, 30.

2 1 Tuck. Black. Comm. App. 235 et seq.; Id. 244, 245.

8 The Federalist, No. 30.

• Ibid.

leaving a full choice to the national legislature. The opponents of the Constitution strenuously contended that the power should be restricted; its friends as strenuously contended that it was indispensable for the public safety, that it should be general.

§ 934. 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 been found, that in the usual progress of things the necessities of a nation in every state of its existence arc, at least, equal to its resources. But, if a more favorable state of things should exist in our own gov. ernment, 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 calami

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

2 The Federalist, No. 30.

2

ties; 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."1 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 already suggested, illimitable in their nature, so it is impossible safely to limit that capacity.2

§ 935. 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 the means of providing for their own necessitics; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme

1 The Federalist, No. 21.

2 The Federalist, No. 34; 1 Elliot's Debates, 77 to 89; Id. 303 to 308; Id. 309, 311 to 316, 321 to 329; Id. 837; 2 Elliot's Debates, 95, 96, 118; Id. 198 to 204; 3 Elliot's Debates, 261, 262, 290; 3 Amer. Museum, 834, 338; 1 Tucker's Black. Comm. 234, 235, 236.