Imatges de pÓgina

the civil and military establishments of the govern. ment, and of carrying into effect the powers specifically enumerated, and vested by the Constitution in Congress; thus excluding from all share of meaning the last member of the clause, which specifies the

general welfare" as one of the objects for which this branch of taxation was wholly given up to the National Government. And while some contend that there is no express authority granted to Congress to lay duties on foreign commodities, in order to favour or protect similar productions and fabrics of our own growth or manufacture—nor any power, express or implied, to encourage domestic industry by any means whatsoever; and that no such authority or power arises from intendment, as necessary to carry into effect any of the enumerated powers; others allege that this authority, if it exist at all, can only be constitutionally exercised indirectly, as resulting incidentally from the power to regulate commerce with foreign nations; and that imposts beyond what may be requisite to provide a revenue to meet the necessary and ordinary expenditures of the government, can only be imposed to the extent required to countervailthe commercial restrictions of other countries.

You will perceive, in the first place, that this exposition of the power in question denies, in effect, any operation whatever to that branch of the clause in the Constitution by which it is supposed to be conferred; and thus adopts the opposite extreme to that latitude of construction which would give to the expressions relative to providing for the "general welfare," a meaning more extensive than


other part of the Constitution, and invest Congress with a general power of legislation. It is, however, a sound rule of construction, and admitted to be universal in its application, that the different parts of the same in

strument are to be so expounded as to give effect to the whole, and to every portion susceptible of meaning. It is not to be presumed that the words in question were introduced without some object; they are not, therefore, to be excluded from all share in the interpretation of the clause, unless incapable of bearing any signification in connexion with those with which they are conjoined. But the specific ends embraced by these general terms cannot certainly be supposed to be comprised among those more definite objects, subsequently enumerated in another and separate clause in the same article of the Constitution ; and it must therefore be intended that other objects were meant to be accomplished by means of the taxing power, than the payment of the “public debt," and providing for the “common defence ;" and that those farther objects comprehend everything to which the “ general welfare" required the power to be applied, as the direct means of effecting the end proposed.

A different view was, indeed, taken of this clause of the Constitution by the authors of “ The Federalist ;'* and that high authority has been quoted in support of a very different interpretation. In answering the objection urged against the general expres sions with which the clause concludes, as conferring a distinct and substantive power “to provide for the common defence and general welfare of the United States," the authors of “ The Federalist” do not advert to the circumstance that those expressions are used merely as a general and summary designation of the purpose for which taxes were to be laid, independently, of the objects subsequently specified; but in refuting the objection, they seem to adopt, in part, the construction of their adversaries, and admit that the

* No. 41.

words in question confer a substantive and independent power, distinct from the power of taxation; and they meet the argument drawn from these terms, against this extensive and sweeping operation of the power, by alleging that it was restricted by the subsequent enumeration of the specific powers of Con. gress in the same section. It has since, however, been judicially decided, and is even admitted by those who, nevertheless, seek to avail themselves of this authority, that these words do not invest Congress with any power whatsoever distinct from the power of taxation, but that they merely refer to the purposes for which that power may be exercised. So far, moreover, from affording support to the argument against the powerof Congress to encourage manufactures, two of the authors of “ The Federalist," soon after the organization of the government, officially asserted that power to be exclusively vested in Congress, which body, they contended, was bound to exercise it. They derived it, indeed, from the power to regulate commerce; but the acknowledged construction of the clause conferring the power of taxation, referring to the exercise of that power, as the means or instrument of providing for the general welfare, affords an ampler basis for the right; and in order to establish it on this broader and more solid foundation, it becomes necessary to show that the general welfare" is, in fact, promoted by imposing duties on foreign commodities to such an amount as to foster our home-manufactures.

This is clearly a question of national policy and legislation, involving facts and opinions not cognizable, from their nature, in the judicial tribunals, but depende ing for their determination upon a sound exercise of legislative discretion. Their decision must of neces. sity belong to the National Legislature ; for the states cannot afford the protection in the mode contemplated, inasmuch as they are prohibited from laying any duties on imports, except such as may be necessary for executing their own health and inspection laws, and have no power whatsoever to regulate commerce. Whatever, therefore, may be the opinions of the most enlightened men as to the policy of protecting domestic manufactures, or, in other words, as to the question whether the “ general welfare” is promoted by the imposition of duties on imports with that view, those opinions must necessarily be founded on facts and principles of political economy, concerning which none but the National Legislature can, for any practical purpose, authoritatively decide. The necessity of vesting in Congress the power of determining such a question, may be illustrated by analogy from the power of the President to judge of the existence of the exigency upon which his power of calling forth the militia is made to depend. Without such authority, we have seen that both the existence of the exigency and the legality of the proceedings would turn, not on his knowledge or belief of the one, or his judgment on the other, but upon the verdict of a jury as to the facts, and the judgment of the court on the legal questions they might present. So with respect to the power now under consideration : unless Congress have authority to decide on the circumstances upon which the exercise of their legislative discretion depends, both facts and principles of a complicated character, concerning which great conflict of opinions exists, would be subject to judicial examination, and a construction given to the Constitution, not merely by the judgment of the court on the ques. tion whether Congress is authorized “to lay duties to provide for the general welfare,” but upon the opinion of the jury whether "the general welfare"

was, upon sound principles of public policy, in fact promoted by protecting duties.

With regard to the existing laws imposing duties on imported articles, the objection, so far as founded on the nature of the objects to which the revenue thus produced is applied, loses much of its force, from the circumstance that these laws were passed before the extinction of the public debt, for the

payment of which, as well as to the support of the national institutions, the proceeds of those duties were intended to be applied. Whether they have in fact been so applied, or to what purposes the surplus arising from them has been, from time to time, appropriated, are questions wholly independent of the constitutional validity of laws merely authorizing such duties to be collected. When collected, and paid into the national treasury, they are mingled with the general mass of funds, and are at the disposal of Congress; and as, by the Constitution, “no money can be drawn from the treasury but in pursuance of appropriations made by law,” the question as to the constitutionality of the objects to which any part of the public revenues may be applied can never arise, until a law be proposed or enacted for their specific appropriation.

It has been, moreover, objected that the existing laws, imposing duties on imports, are unequal in their operation, and therefore contrary to that provision of the Constitution which requires all duties to be uniform throughout the United States.” But the uniformity required is plainly in the imposition, and not in the operation of the duties ; and whatever may be the fact as to the inequality of their operation, it is equally plain that it never can be controlled by the Legislature, but must always be regulated by the consumption of the article ; for all indirect taxes,

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