present state are traced in the proceedings of 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 attempted to be maintained, which is, that it robs the clause of all efficacy and meaning. No person has a 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 connexion, 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?

§ 910. 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; 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 fore

1 Journ. of Convention, p. 323, 324, 326.

2 President Monroe's Message, 4 May, 1822, p. 32, 33.

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

going 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 common defence, and general welfare.

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§ 911. 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 con'gress assembled, shall be defrayed out of a common treasury, &c;" and that "the similarity in the use of "these same phrases in these two great federal char"ters may well be considered, as rendering their mean"ing 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 enu"merated, 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, if the argument here stated be of any value, it plainly estab

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1 "Or" is the word in the article.

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

3 See the Federalist, No. 40.

lishes, 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. So, 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 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 language 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 supercede and va

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§ 912. 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 unfavourable 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 was 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.

§ 913. But it does so happen, that in point of fact, no such unfavourable or restrictive interpretation or practice was ever adopted by the continental congress. On the contrary, they 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 allexpenses, which they might deem proper to incur for the common defence and general welfare; and to appropriate all monies 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 ques

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

tions 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 constitutional 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

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 aud 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 gen-eral 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.