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nothing is within its jurisdiction that is not contained in the constitutional grants either expressly or by reasonable implication. When any act is attempted by the government, authority for that act must be found within the provisions of the organic law.

But within the scope of functions assigned to it, over the subjects committed to its care, the powers of the general government are complete, supreme, absolute; as to these subjects of legislation, Congress is as omnipotent as the British Parlia

ment.

In respect to particular governmental measures, the Constitution does not descend to any minuteness of detail in the recital of the various functions which it confers; it deals only in generals. Daniel Webster, with a power of insight and expression which condensed a volume of discussion into a single sentence, remarked that "our Constitution is one of enumeration, and not of description." It contains, in fact, a list of the grand subjects and purposes which must be the final objects of all legislation; but it does not attempt to define all the means and methods by which those objects may be attained. Congress has an unlimited choice among all the means and methods which tend to accomplish any end enumerated in the general grants of the Constitution. If the particular measure which the legislature has enacted, has a tendency to bring about the end, it is lawful, is within the scope of congressional action, and the courts cannot interpose and defeat this measure, although the judges may be of opinion that the means was not the best. In this manner the United States government, while pursuing the legitimate objects for which it was organized, may interfere with many subjects which are committed to the several states and which ordinarily fall under their exclusive jurisdiction.

Finally, the means and methods, the particular measures of legislation, which are adopted, must have some relation to an end included in the general grants of the Constitution; if there be absolutely no such relation. Congress has erred, not on a mere question of policy, but in an exercise of power; their work is unwarranted by the fundamental law, and is a nullity.

CHAPTER IV.

THE LEGISLATIVE POWERS OF THE UNITED STATES GOVERN

MENT.

§ 270. I AM now to discuss the powers which the people of the United States have conferred upon their Congress. These powers are all legislative in their character. In considering them, and in ascertaining their extent, or, in other words, in determining what statutes Congress may lawfully pass, we must constantly bear in mind the important principle which was stated and illustrated in Section II. of the last chapter, -a a principle to be freely applied in every case of doubt and difficulty. In connection with this subject it will be natural and proper to speak of those legislative functions and attributes which have been conferred upon, or withheld from, the several states.

The first power which we meet and are to consider is that of taxation.

SECTION I.

THE POWER OF TAXING.

§ 271. I will collect all the clauses of the Constitution which have reference to the general subject of taxation.

Art. I. Sec. VIII. contains an enumeration of legislative powers, of which the first is as follows: "Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States." Art. I. Sec. II. § 3, provides that "Direct taxes shall be apportioned among the several states which may be

included within this Union, according to their respective numbers." Sec. IX. § 4, declares that "No capitation, or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken;" and § 5, that "No tax or duty shall be laid on articles exported from any state;" and § 6, that "No preference shall be given by any regulation of revenue to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to pay duties in another." Sec. X. § 2, provides that "No state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; " and § 3, that "No state shall, without the consent of Congress, lay any duty of tonnage."

§ 272. In examining this language, we may consider, first, What powers of taxation are held by Congress; and, secondly, What powers are held by the several states.

The first of these questions may be subdivided, so that we may separately examine (1) the purposes for which taxes may be laid and collected; (2) the kinds of taxes; (3) the means and methods of enforcing the power, and (4) its extent. This last subdivision will lead us to the final inquiry, how far the corresponding function of the states is limited.

First. What Powers of Taxation are held by Congress.

I. The Purposes for which Taxes may be Laid and Collected.

§ 273. Congress has power "to lay and collect taxes, etc., to pay the debts and provide for the common defence and general welfare of the United States." Do these two clauses contain two separate and distinct powers, or is the latter a limitation upon the other? In other words, does the Constitution, by this language, confer upon the legislature a general faculty of taxation, and also another general capacity to pay public debts and provide for the common defence and general welfare; or does it confer a limited power of taxation, by restricting the purposes for which taxes may be laid, and con

fining them to the payment of debts and provision for the common defence and general welfare? The latter construction is the one which has been almost universally adopted, although the language, taken apart from the context, is susceptible of the other. There are two grounds for preferring the interpretation which has been generally received. Both these clauses are found in a subsection which relates to taxation; and it would be doing violence to the context to wrest one of these from its natural connection and make it refer to a subject entirely different. But again: if the construction should be adopted which regards the second clause as an independent grant of power, it would, in effect, be making our general government unlimited. Providing for the common defence and general welfare includes every thing which any government could possibly do; and a grant of power in these broad terms would be the same as making Congress omnipotent, equal in the extent of its functions to the British Parliament.

$274. The subsection should, therefore, be understood as though it read, taxes may be laid and collected in order to pay debts and provide for the common defence and general welfare. Thus the Congress does not possess an absolutely unlimited power of taxation. It can only resort to this high attribute for one or more of three purposes, payment of debts, the common defence, the general welfare. The defence must be common, and the welfare general. But, after all, this leaves a sufficiently wide field for the legislative operations. Money may be raised to pay any debts however contracted, whether now existing or to become due at a future time. Common defence and general welfare are terms of the broadest generality; and within them can be easily included all the objects for which governments may legitimately provide.

§ 275. What measures, what expenditures will promote the common defence or the general welfare, Congress can alone decide, and its decision is final. It is certainly not necessary that any particular expenditure should be spread over the whole country, to bring it within the meaning of a defence. which shall be common, or a welfare which shall be general. All the disbursements of the government must be met by

revenue of some kind, and must finally be paid by some species of taxation, except that small portion which may be provided for by the sale of public property. Congress expends vasts sums of money in the erection and adornment of a capitol, in furnishing a library, in the purchase of pictures, statues, and busts, in endowing a scientific institution; but it is not claimed that these disbursements are not made for the general welfare. A fort in New York is for the common, not local, defence. In short, the legislature is not trammelled by these provisions; it has ample scope and verge in which to indulge its proclivities to raise and expend money.

II. The various Kinds of Taxes.

§ 276. Congress

may lay and collect "taxes, duties, imposts, and excises." Another clause speaks of capitation and other direct taxes. Let us inquire into the meaning of these various terms. The word "taxes" is generic, and includes all species; the words "duties," "imposts," "excises," "capitation," "direct" and "indirect " taxes, are specific, instances and examples of the genus tax. It is plain that if the Constitution had said Congress may lay and collect taxes, and there had stopped, it would have conferred all the power which is now granted. The specifications were only added for greater caution. "Duties" and "imposts," as commonly used, are synonymous, although "imposts" is etymologically a word of broader meaning. They are especially applied to those sums of money demanded by the government for the privilege of importing or exporting merchandise; although "duties" also describes fixed sums paid on ships and other instruments of commerce, as tonnage duties and the like. "Excises" is a word of wide significance, and includes almost all forms of tax which are not direct, and which are not strictly "duties." The various payments required by the existing internal revenue laws are examples of excises. Payments of a percentage upon incomes, upon sales, upon the circulation of banks, upon the value of manufactured articles, upon the products of the soil; license fees for carrying on different

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