politicians has always been to construe away the provisions of the Constitution; and they have not been more sorely oppressed by any of them than by this. Consequently, their labors have been most abundantly bestowed here. The discussions that have arisen out of this disposition of the party have usually been of the character which military men would call a war of posts. The Constitution, at its origin, found the State governments, whether by right or by wrong, in the actual possession of the principal part of the field, and very little disposed to give up any portion of it.1

§ 308. Scarcely any important law for national purposes, before the rebellion of 1860, was passed without encountering objections grounded on the assumed deficiency of power in the government. The discussions have generally been so managed as to make the result settle, as little as possible, in favor of the powers of the Constitution. The slaveholding interest, always in favor of State sovereignty, under the name of State rights, gave the tone to the government, and usually controlled its action. Under these circumstances, a willing ear was always lent to any plans for limiting or curtailing the power of the

1 The people had been informed by the Convention, in their Address to Congress, that it was impracticable to secure an "independent sovereignty to each [of the States], and yet provide for the safety of all;" and that it was "difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved." But the State legislatures, as such, had not been asked to ratify the Constitution, and had not done it.

general government, or to any objections or obstructions likely to prevent or embarrass the development or aggrandizement of their authority. It was an up-hill job to sustain the right of the nation to do any thing. The supporters of the government, therefore, in all such contests, found it expedient to expose as little front as possible, and plant their engines of defence just so as to cover the point of immediate attack.

§ 309. The first statute made under the Constitution, respecting certain oaths, was defended solely on the ground, that the legislation was necessary for executing a particular provision of the Constitution,' notwithstanding the legislative power was not specially invoked. The national Bank was sustained mainly on the narrow ground of the fitness, and convenience of its agency in collecting and disbursing the finances. But Mr. Lawrence, of New York, said, in debate, in the House of Representatives, February, 1791, "The principles of the government, and the ends of the Constitution, were expressed in its preamble: it is established for the common defence and general welfare. The body of that instrument contained provisions the best adapted to the intention of those principles, and the attainment of those ends. To these ends, principles, and provisions, Congress was to have a constant eye; and then, by the sweeping clause, they were

1 Article VI., section 3.

vested with the powers to carry the ends into execution."

§ 310. In the debate in the House of Representatives, on the 3d of February, 1866, on the Freedman's Bureau Bill, Mr. Hubbard, of Connecticut, said "There was authority in the Constitution for the passage of this Bill; for to Congress was given power to pass all proper laws to carry out the provisions of the Constitution, which include the public welfare." But though the government have always done, and continue to do, many things which could not be justified on the narrow ground of any special provision among the duties of Congress, this broad, constitutional platform has never been boldly assumed and consistently maintained by any department of the government, on any subject. There probably has not been any time when it could have been done, till now. The windy warfare of posts resulted in open rebellion, and that has resulted in the plenary establishment of the national supremacy; and the Constitution, in its original purity, may now be safely followed and successfully defended.'

§ 311. The words now to be considered are a part of those special provisions relating to the powers of Congress, adapted to the attainment of the avowed objects and ends of the Constitution. The different opinions that have been advanced, as to their force and effect, may be classed under four heads: 1st, Whether they

1 See motto on the titlepage.

really mean any thing,- that is, whether they confer any power on Congress, for any purpose; 2d, Whether they confer a power to appropriate the funds arising from taxation to the objects named; 3d, Whether they are used only as a qualification of the taxing power of Congress, limiting the purposes for which taxes may be laid; 4th, Whether they specially confer on Congress the power to "pay the debts, and provide for the common defence and general welfare."

§ 312. On the first head, viz., whether they confer any power for any purpose, Mr. Madison, in his "Report of the Virginia Resolutions," states the doctrine thus: "Congress is authorized to provide money for the common defence and general welfare. . . . Subjoined to this authority is an enumeration of the cases to which their powers shall extend. Money cannot be applied to the general welfare, otherwise than by an application of it to some particular measure conducive to the general welfare. Whenever, therefore, money has been raised by the general authority, and is to be applied to a particular measure, a question arises, whether that particular measure be within the enumerated powers vested in Congress. If it be, the money requisite for it may be applied to it. If it be not, no such application can be made." The same views are often reiterated in his veto messages and other writings.

§ 313. The effect of them is, that the words

in question, "to pay the debts, and provide for the common defence and general welfare," have no meaning at all. They give Congress no power to do any thing, and are of no use, and of course ought not to be in the Constitution. The

"is

subjoined . . . enumeration of the cases to which their powers shall extend" are the real and only "specified powers," - the actual "enumerated powers" of the government, for which alone money can be raised and used, notwithstanding all that he and others have said about the 8th section being such an enumeration. Whenever money" is to be applied to a particular measure, a question arises," not whether it be "to pay the debts, or provide for the common defence or general welfare;" but "whether the particular measure [for either of the cases] be within the [8th section? No; but whether it be within the subjoined '] enumerated powers vested in Congress."

§ 314. Let the principle be explained and tested, by applying it to practice. Suppose the "particular measure" to be a bill to pay $100,000 to the captors of J. D. The question of constitutionality is raised, as usual, on all bills. The question is not, whether it is a debt which the government is bound to pay; but whether there is, within the last sixteen items of the 8th section, a specific authority granted to Congress to pass this "particular measure," paying $100,000 for the capture of J. D. Or suppose the "particu