work of man is perishable, and must for ever have inherent elements of decay. Nay, it must perish, if there be not that vital spirit in the people, which alone can nourish, sustain, and direct all its movements. It is in vain, that statesmen shall form plans of government, in which the beauty and harmony of a republic shall be embodied in visible order, shall be built up on solid substructions, and adorned by every useful ornament, if the inhabitants suffer the silent power of time to dilapidate its walls, or crumble its massy supporters into dust; if the assaults from without are never resisted, and the rottenness and mining from within are never guarded against. Who can preserve the rights and liberties of the people, when they shall be abandoned by themselves? Who shall keep watch in the temple, when the watchmen sleep at their posts? Who shall call upon the people to redeem their possessions, and revive the republic, when their own hands have deliberately and corruptly surrendered them to the oppressor, and have built the prisons, or dug the graves of their own friends? Aristotle, in ancient times, upon a large survey of the republics of former days, and of the facile manner, in which they had been made the instruments of their own destruction, felt himself compelled to the melancholy reflection, which has been painfully repeated by one of the greatest statesmen of modern times, that a democracy has many striking points of resemblance with a tyranny. "The ethical character," says he, "is the same; both exercise despotism over the better class of citizens; and the decrees are in the one, what ordinances and arrets are in the other. The demagogue, too, and the court favourite are not unfrequently the same identical men, and always bear a close analogy. And these have the principal power, each in their re

spective governments, favourites with the absolute monarch, and demagogues with a people, such as I have described." 1

§ 901. This dark picture, it is to be hoped, will never be applicable to the republic of America. And yet it affords a warning, which, like all the lessons of past experience, we are not permitted to disregard. America, free, happy, and enlightened, as she is, must rest the preservation of her rights and liberties upon the virtue, independence, "justice, and sagacity of the people. If either fail, the republic is gone. Its shadow may remain with all the pomp, and circumstance, and trickery of government, but its vital power will have departed. In America, the demagogue may arise, as well as elsewhere. He is the natural, though spurious growth of republics; and like the courtier he may, by his blandishments, delude the ears, and blind the eyes of the people to their own destruction. If ever the day shall arrive, in which the best talents and the best virtues shall be driven from office by intrigue or corruption, by the ostracism of the press, or the still more unrelenting persecution of party, legislation will cease to be national. It will be wise by accident, and bad by system.

1 Burke on the French Revolution, note; Aristotle Polit. B. 4, ch. 4. See Montesquieu's Spirit of Laws, B. 8, passim.

CHAPTER XIV.

POWERS OF CONGRESS.

§ 902. WE have now arrived, in the course of our inquiries, at the eighth section of the first article of the constitution, which contains an enumeration of the principal powers of legislation confided to congress. A consideration of this most important subject will detain our attention for a considerable time; as well, because of the variety of topics, which it embraces, as of the controversies, and discussions, to which it has given rise. It has been, in the past time, it is in the present time, and it will probably in all future time, continue to be the debateable ground of the constitution, signalized, at once, by the victories, and the defeats of the same parties. Here, the advocates of state rights, and the friends of the Union will meet in hostile array. And here, those, who have lost power, will maintain long and arduous struggles to regain the public confidence, and those, who have secured power, will dispute every position, which may be assumed for attack, either of their policy, or their principles. Nor ought it at all

to surprise us, if that, which has been true in the political history of other nations, shall be true in regard to our own; that the opposing parties shall occasionally be found to maintain the same system, when in power, which they have obstinately resisted, when out of power. Without supposing any insincerity or departure from principle in such cases, it will be easily imagined, that a very different course of reasoning will force itself on the minds of those, who are responsible for the measures of government, from that, which the ardour

of opposition, and the jealousy of rivals, might well foster in those, who may desire to defeat, what they have no interest to approve.

§ 903. The first clause of the eighth section is in the following words: "The congress shall have power to "lay and collect taxes, duties, imposts, and excises, tu "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 through"out the United States."

§ 904. Before proceeding to consider the nature and extent of the power conferred by this clause, and the reasons, on which it is founded, it seems necessary to settle the grammatical construction of the clause, and to ascertain its true reading. Do the words, "to lay and collect taxes, duties, imposts, and excises," constitute a distinct, substantial power; and the words, "to pay debts "and provide for the common defence, and general wel"fare of the United States," constitute another distinct and substantial power? Or are the latter words connect ed with the former, so as to constitute a qualification upon them? This has been a topic of political controversy; and has furnished abundant materials for popular declamation and alarm. If the former be the true interpretation, then it is obvious, that under colour of the generality of the words to "provide for the common defence and general welfare," the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, "for the common defence and the "general welfare."

§ 905. The former opinion has been maintained by some minds of great ingenuity, and liberality of views.' The latter has been the generally received sense of the nation, and seems supported by reasoning at once solid and impregnable. The reading, therefore, which will be maintained in these commentaries, is that, which makes the latter words a qualification of the former; and this will be best illustrated by supplying the words, which are necessarily to be understood in this interpretation. They will then stand thus: "The congress "shall have power to lay and collect taxes, duties, im"posts, and excises, in order to pay the debts, and to "provide for the common defence and general welfare "of the United States;" that is, for the purpose of paying the public debts, and providing for the common defence and general welfare of the United States. In

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1 See 2 Elliot's Debates, 327, 328. See Dane's App. § 41, p. 48; see also 1 Elliot's Debates, 93; Id. 293; Id. 300; 2 Wilson's Law Lect, 178, 180, 181; 4 Elliot's Debates, 224; 2 U. S. Law Journal, April, 1826, p. 251, 264, 270 to 282. This last work contains, in p. 270 et seq. a very elaborate exposition of the doctrine. - Mr. Jefferson has, upon more than one occasion, insisted, that this was the federal doctrine, that is, the doctrine maintained by the federalists, as a party; and that the other doctrine was that of the republicans, as a party.* The assertion is incorrect ;for the latter opinion was constantly maintained by some of the most strenuous federalists at the time of the adoption of the constitution, and has since been maintained by many of them. It is remarkable, that Mr. George Mason, one of the most decided opponents of the constitution in the Virginia convention, held the opinion, that the clause, to provide for the common defence and general welfare, was a substantive power. He added, "That congress should have power to provide for the general welfare of the Union, I grant. But I wish a clause in the constitution in respect to all powers, which are not granted, that they are retained by the states; otherwise the power of providing for the general welfare may be perverted to its destruction." +

4 Jefferson Corresp. 306.

2 Elliot's Debates, 170, 183, 195; 3 Elliot's Debates, 262; 2 Amer. Museum, 434; 3 Amer. Museum, 338.

2 Elliot's Debates, 327, 328.