CONGRESS, UNITED STATES. 



199 



To make rules for the government and regulation 



of tin- land and naval forces. 



"Now, sir, in reference to the power to 

 pass this bill, there is one phrase which is 

 jrtvatly relied upon; and if I can show that 

 it fails to give constitutionality to this hill, 

 tli. -11 I think I will have cleared up all diffi- 

 culties. Gentlemen have said that there is 

 power given to Congress ' to provide for the 

 (oiiiinon defense and general welfare.' I deny 

 it in toto. I say there is no grant of power to 

 provide for the common defense- and general 

 welfare. The language of the Constitution in 

 r.miio.etion witli that phrase, its origin and 

 adoption into the Constitution, and the debates 

 in the Federal Convention, show conclusively 

 that they indicate the object of the previously 

 delegated tax-power, and are not in themselves 

 a substantive grant of power. This has been 

 shown by what was said by my able friend 

 from Pennsylvania (Mr. Cochrane). He showed 

 that Judge Story had interpreted the clause as 

 if the words 'in order' were inserted before 

 the words ' to pay debts,' etc. ; so that the 

 clause would read : 



Congress shnll have power to lay and collect taxes, 

 duties, imposts, and excises [in order] to pay the 

 debts and provide for the common defense and gen- 

 eral welfare; . . . but all duties, imposts, and ex- 

 cises shall be uniform throughout the United States. 

 Constitution, United States, Article I., 8. 



" That this is the true interpretation will ap- 

 pear from the grammatical construction of the 

 sentence. It consists of three branches: the 

 first as to laying and collecting, the second as 

 to paying debts and providing for common de- 

 fenss and general welfare, and the third a quali- 

 fication on the power in the first branch of 

 the sentence. To suppose the learned men of 

 the convention would have interjected as a 

 substantive power the words in the second 

 branch of the sentence, and then in the third 

 branch qualified the first branch, would be to 

 attribute to them a lamentable lack of knowl- 

 edge of the rules of grammar and of style. 



"Hence the usual and generally-conceded 

 construction of the second clause has been that 

 it is attached to the first clause as a definition 

 of the objects of the tax-power, limiting its 

 use only to such objects, and that the second 

 clause cannot be fairly held to contain a new 

 and substantive grant of power. 



u Now, sir, it is a very curious fact (and I 

 beg to call the attention of the distinguished 

 gentleman from Massachusetts to it) that this 

 clause, ' to provide for the common defense 

 and general welfare,' finds its origin in a Con- 

 stitution which confessedly gave so little power 

 to Congress that Congress had to beg from the 

 States additional grants of power in order to 

 perpetuate its own frail and precarious exist- 

 ence. 



u You will find that in three clauses of the 

 Articles of Confederation, not adopted finally 

 until March, 1781, and which were in force 

 thereafter until the adoption of the Federal 



Constitution in 1789, the words are to be found. 

 Thus, in the eighth article, the following words 

 occur : ' All charges of war, and all other ex- 

 penses that shall be incurred for the common 

 defense or general welfare .... shall be de- 

 frayed out of a common treasury, which shall 

 bo supplied by the several States,' etc. The 

 same phrase occurs in two other clauses of the 

 same instrument. 



" Now, sir, if these words give the power 

 which gentlemen claim they give under the 

 present Constitution, how was there any lack 

 of power in the old Congress of the Confedera- 

 tion ? And yet its lack of power was so noto- 

 rious, so inconvenient, and so alarming, that 

 Congress came again and again to the very 

 footstool of the States and begged for addi- 

 tional grants of power to save the Confedera- 

 tion from perishing. 



" When, afterward, these words were trans- 

 ferred from the Articles of Confederation into 

 the Federal Constitution, they were brought 

 with their original meaning, which cannot be 

 changed without violating well-settled prin- 

 ciples of interpretation and the dictates of 

 common-sense. In their original use they did 

 not define a grant, but the objects of a pre- 

 vious grant of power ; and, when put into the 

 present Constitution in a like connection to 

 the same power as when originally used, we 

 are bound to refer them to the previous grant 

 of the tax-power as merely defining the object 

 and purpose of its delegation, and they cannot 

 now be interpreted to constitute a separate 

 and distinct grant of power. 



" Now, it is a remarkable fact that, in the con- 

 vention which formed the Constitution, Alex- 

 ander Hamilton, whose early fate was a cause 

 of lament at least to one portion of the old 

 Federal party, proposed, as Mr. Madison re- 

 ports it, that Congress should have power 'to 

 pass all laws which they shall judge necessary 

 to the common defense and general welfare of 

 the Union.' I hope the advocates of this 

 measure will hear this; for the proposition 

 made by Hamilton in reference to the powers 

 of Congress, and which was rejected, is your 

 only show of authority to pass this centennial 

 appropriation. Mr. Hamilton proposed that 

 Congress should have power to pass all laws 

 which they should judge necessary to the com- 

 mon defense and general welfare of the United 

 States. Now suppose that proposition had 

 been adopted in that form. But, instead of 

 being adopted, it was rejected, and the present 

 formal enumeration of powers was inserted in 

 lieu of this general and sweeping clause. 



" If this Congress has the sweeping power 

 to provide for the general welfare and to do 

 whatever it may judge to be necessary there- 

 for, this Government becomes at once vested 

 with unlimited power. We may then throw 

 up our hands and never say again that Con- 

 gress has not the power to do anything it 

 pleases. I know no other limitation, no other 

 breakwater to the unrestricted authority of 



