79. TO PROVIDE FOR THE COMMON DEFENCE.-See this sentence How is comcontained in connection with the conclusion, that all duties, imposts, mon defence and excises shall be uniform throughout the United States. This construed? provision operates exclusively on the power granted in the first part of the clause. (Monroe.) Story's Const., § 982.

10, 78.

The object is to secure a just equality among the States in the exercise of that power by Congress. (Monroe.) Id., § 982.

The grant consists of two-fold power: to raise; and to appro- What two priate the money. (Monroe.) Id., § 986.

The power in this clause is limited by the nature of the government only. Id., and § 991.

powers in the grant?

For a more limited doctrine, see President Jackson's veto message of the Maysville road bill, 27 May, 1830; 4 Elliot's Debates, 333-335; 4 Jefferson's Correspondence, 524; Jefferson's message, 72–77. 2d Dec., 1806; Wait's State papers, 457, 458.

The extent of the power has been very much debated, and perhaps the subject was exhausted in Congress, as reported in 4th Elliot's Debates, 236, 240, 265, 278, 280, 284, 291, 292, 332, 334, and in Hemphill's Report on Internal Improvements, 10th Feb., 1831; see also 1 Kent's Com., Lect. XII, 250, 251; Sergt's Const., ch. 28, 311-314; Rawle on the Const., ch. 9, p. 104; 2 United States Law Jour., April, 1826, p. 251, 264–280; Story's Const., ch. xiv.

Every one will determine for himself the practice of the government from the appropriations for the Cumberland road in 1806, down to the Pacific railroads, and judge the value of precedents, according to his own theories. The speeches of Mr. Huger and Grimke in the South Carolina legislature, in 1830, may well be consulted by students. The term is necessarily connected with the next, "the general welfare."

80.

rate States

The Confederate States Constitution contained this limitation:"To levy and collect taxes, duties, imposts, and excises, for What was revenue necessary to pay the debts, provide for the common the Confededefence, and carry on the government of the Confederate States; (rebel) Conbut no bounties shall be granted from the treasury, nor shall any stitution? duties or taxes on importations from foreign nations be laid to promote or foster any branch of industry; and all duties, imposts, and excises shall be uniform throughout the Confederate States." Paschal's Annotated Dig., 88.

It will thus be seen that, as in the preamble of the Constitution 5, 11. of this peculiarly indoctrinated school, they took "TO PROVIDE FOR THE GENERAL WELFARE out of their Constitution; while they left COMMON DEFENCE" in, although it was not one of the objects expressed in the preamble.

the

To leave no doubt of the intention to exclude the ideas which 80-89. had divided the country upon the subject of internal improvements, the same Constitution contained this clause:

"3. To regulate commerce with foreign nations, and among the 82-89. several States, and with the Indian tribes; but neither this nor any other clause contained in the Constitution, shall ever be con

Define the general welfare.

11, 79, 89.

79.

What is the power and

the purpose?

22, 74.

What are the rules for taxes?

strued to delegate the power to Congress to appropriate money for any internal improvement, intended to facilitate commerce, except for the purpose of furnishing lights, beacons, and buoys, and other aids to navigation upon the coasts, and the improvement of harbors and the removing of obstructions in river navigation: in all which cases such duties shall be laid on the navigation facilitated thereby, as may be necessary, to pay the costs and expenses thereof." Paschal's Annotated Digest, p. 88.

The object of this was to prevent land internal improvements by the National government; aud yet we find the same men as early as April 19th, 1862, appropriating a million and a half of dollars to aid in the construction of a railroad from New Iberia in Louisiana to Houston in Texas. Acts of Confederate States at large, 34. Like appropriations were made to complete the road from Danville to Raleigh. The amendment was in accordance with the extreme States rights or strict constructionists' views.

80. "AND GENERAL WELFARE." Judge Story believed that the true import of the whole clause could be thus expressed: “The Congress shall have power to lay and collect taxes, duties, imposts, and excises, in order to pay the debts, and to provide for the common defence and general welfare of the United States." Story's Const. $908. Thus limiting the power of the government to tax for providing for the common defence and general welfare. Id. and § 911-913.

The laying taxes is the power, and the general welfare the purpose for which the power is to be exercised. Congress are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the general welfare of the Union. In like manner they are not to do any thing they please, to provide for the general welfare; but only to lay taxes for that purpose. (Jefferson's Op. on the Bank of the United States 15 Feb. 1781; 4 Jefferson's Correspondence 524, 525.) Story's Const. § 926, 927, note 3; Elliot's Debates, 170, 183, 195, 328, 344; 3 Elliot's Debates, 262; 2 American Museum, 434; 2 Elliot's Debates, 81, 82, 311; 3 Elliot's Debates, 262, 290; 2 American Museum, 544.

The power does not interfere with the power of the states to tax for the support of their own governments. Congress is not empowered to tax for those purposes which are within the exclusive province of the States. Gibbons v. Ogden, 9 Wheat. 199; 1 Kent's Com. 251; Sergeant's Const. Ch. 28, p. 311-315. Rawle's Const. Ch. 9, p. 104; 2 United States L. I., April, 1826, 251–282.

81. "ALL DUTIES TO BE UNIFORM." Congress has plenary power over every species of taxable property, except exports. But there are two rules prescribed for their government:-Uniformity, and apportionment. Duties, imposts and excises were to be laid by the 22, 144, 145. first rule; and capitation and other direct taxes by the second. (Hylton v. The United States, 3 Dall. 171.) 1 Kent's Com. 255.

Define uniform?

Taxes under this clause must be uniform; but need not be apportioned according to census. Idem. Yet" UNIFORM must mean that the same duties shall be paid at all the ports in the "States and Territories," throughout the United States; and that

the same income taxes and excises should operate, alike including
the District of Columbia. Loughborough v. Blake, Wheat. 317.
The Indian tribes are not included in the excise law.
See "uniform" rule of naturalization.

91, 92.

93, 94.

91.

[2.] To borrow money on the credit of the United To borrow. States.

82. As first reported it read: "To borrow money [and emit bills] on the credit of the United States." To "emit bills," was stricken out, after debate, on the ground, that "on the credit," authorized the issuing of bills or notes by the government. Metropolitan Bank v. Van Dyke, 27 N. Y. R. 420; 3 Madison papers, 1343.

129.

78.

83. MONEY.-[Moneta.] Cash; that is, gold and silver, or the What is lawful circulating medium of the country, including bank notes, money? when they are known and approved of and used in the market as 97, 98, 129. cash. (Co. Litt. 207 a; Lord Ellenborough, 13 East 20; Kent. in Mann v. Mann, 1 Johns. Ch. R. 236.) Burrill's Law Dic. MONEY. And money deposited in bank; but not stocks. Hotham v. Sutton,

15 Ves. 319; Mann v. Mann, 1 Johns. Ch. p. 257.

For the necessity of this power, see the Federalist No. 41; Story's Const. § 1065.

on

Treasury notes have been issued under the acts of 25th Feb. Treasury 1813, 26th December, 1814, 12th October, 1837, 31 January, 1812, notes 31 August 1842, 22 July, 1846, 28 July, 1847, 23 December, 1857, authority the 25th February, 1862, and the several subsequent acts. They issued? are binding on the government. (Thorndyke v. The United States, 2 Mason, 1, 18.) Metropolitan Bank v. Van Dyck, 27 New York, 421. Some have drawn interest; others not; they all circulate as money. And see the Pennsylvania Cases. 52 Penn. St. Rep.

15-100.

84. The United States bonds and indeed all the public securities which have to be redeemed, and which circulate as currency may properly be classified as money borrowed, or rather securities given for money borrowed on the credit of the United States. The bonds issued and sold in market are technically so.

78.

22.

The states have no power to tax the loan of the United States. Can the Weston v. City Council of Charleston, 2 Pet. 449-65; Bank of States tax the public Commerce v. New York, 2 Black, 629. The Constitutional Court securities? of South Carolina, in May, 1823, decided in favor of the power to tax the loan. Judge Huger and two other judges, against four, gave an opinion against the constitutionality of the law. 2 Pet.

452.

The sovereignty of a state extends to every thing which exists by its own authority, or is introduced by its permission, but not to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States. (Weston v. The City of Charleston, 2 Pet. 419.) Bank of Commerce v. New York, 2 Black, 632.

This power is supreme within its scope and operation, and may be exercised free and unobstructed by state legislation or authority.

22.

Are treasury notes a constitu

tender?

(McCulloch v. The State of Maryland, 4 Wh. 116; Osborn v. The United States, 9 Wh. 732,) Bank of Commerce v. New York City, 2 Black. 632.

For the history of this section, see Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 419, et seq. The power to issue notes is thus tional legal given, and the convention declined to prohibit the making them a legal tender in payment of either public or private debts. (Thorndyke v. United States, 2 Mas. 1, 18). Id. And after a full review of the question of power, it was held that such notes may constitutionally be made a legal tender in payment of all debts between individuals. Metropolitan Bank v. Van Dyck, 27 N. Y. 451.

82, 83.

97-100.

Give the examples?

155.

Congress has constitutional power to issue treasury notes of the United States, and make them lawful money, and a legal tender for the payment of debts. Shollenberger v. Brinton, 52 Penn. St. Rep. (2 P. F. Smith) 9,100; Brown v. Welch, 26 Ind. 116; Thayer v. Hedges, 23 Ind. 141; Bank of Indiana v. Reynolds, Law Reg. 1865. (But Contra, Judge Cadwalader. Morrison v. Reading Railroad.) Shollenberger v. Brinton, 52 Penn. 49.

The Act of Congress of Feb. 25, 1862, authorizing the issue of
such notes, is constitutional.
Shollenberger v. Brinton, 52 Penn
St. Rep. (2 P. F. Smith) 9,100; Carpenter v. Northfield Bank, 39
Vt. (4 Veasey) 49.

แ

The principal sum which redeems a ground-rent, is a debt within the meaning of the act. Shollenberger v. Brinton, 52, Penn, 9, 100.

A ground-rent payable in "*** dollars, lawful silver money of the United States of America," is redeemable by such notes. Id.

So the half-yearly instalment of a ground-rent, payable in "*** dollars lawful silver money of the United States, each dollar weighing 16 dwt. 6 gr. at least." Mervin v. Sailor, 52 Penn. St. Rep. (2 P. F. Smith), 18, 45, 102.

So a ground-rent payable in "lawful money," or "lawful money of the United States." Davis v. Burton, 52 Penn. St. Rep. (2 P. F. Smith) 22; Kroener v. Calhoun, 52 Penn. St. Rep. (2 P. F. Smith) 24.

So a certificate of deposit of "*** gold, payable in like funds with interest." Sandford v. Hays, 52 Penn. St. Rep. (2 P. F. Smith) 26; Warner v. Sauk Co. Bank, 20 Wis. 494; Warnibold v. Schlicting, 16 Iowa, 243; Breitenbach v. Turner, 18 Wis. 140.

So a note for a sum of money marked in margin, "$14,145 specie,' which by banker's rules, meant gold or silver coin. Graham v· Marshall, 52 Penn. St. Rep. (2 P. Smith) 28, 103

So a note for "*** dollars in gold," Laughlin v. Harvey, 52 Penn. St. Rep. (2. P. F. Smith) 30; Wood v. Bullens, 6 Allen (Mass.) 516, 518.

So, or if paid in paper, the amount thereof necessary to purchase the gold, at the place of payment." (Logansport v. Indiana.) Brown v. Welch, 26 Ind. 116.

The condition of a bond for payment of $3,000 "in good coins of United States, of a particular fineness, notwithstanding any laws which may now, or hereafter shall make any thing else a tender in

payment of debt. Held, not payable in greenbacks. Dutton v. Pailant, 52 Penn. St. Rep. (2 P. F. Smith) 109.

"When treasury notes were made a legal tender in payment of 97, 98. debts, they were made the equivalent of coin as a means of payment, in all but the cases excepted by law." Brown v. Welch, 26 Ind. 117.

The outstanding debt of the United States for borrowed money usually called the loan, see note 78.

99.

78.

[3.] To regulate commerce with foreign nations, and What is the among the several States, and with the Indian tribes.

power as to commerce?

85. "TO REGULATE." That is, to prescribe the rule by which How to regcommerce is to be governed. (Gibbons v. Ogden, 9 Wheat. 196.) ulate comStory's Const. § 1061.

merce?

101.

The power is exclusive, and leaves no residuum. (Gibbons v. 79, 80.
Ogden, 9 Wheat. 209.) Story's Const. § 1072. See the Passenger
Cases, 7 How. 283.

But a State may pass tants against paupers. city of New York v. § 1072 a.

police laws for the protection of its inhabi-
This is not a regulation of commerce. The
Miller, 12 Pet. 102, 132; Story's Const.

It is denied that the power "to REGULATE" is exclusively in Congress. (The License Cases, 5 How. 504.) Id. § 1072. And license laws, the primary object of which is to secure the health of the community. The License Cases, 5 How. 504; Story's Const. § 1072.

89.

86. "COMMERCE" is traffic, but it is something more; it is inter- What is course. Gibbons v. Ogden, 9 Wheat. 191, 209.) United States v. commerce? Holliday, 3 Wallace, 417; Story's Const. § 1061, note 2.

3

Buying, selling, and exchanging is the essence of commerce. Wall, 417. It also includes navigation, as well as traffic, in its ordinary signification; and embraces ships and vessels as the instruments of intercourse and trade, as well as the officers and seamen who navigate and control them. The power of Congress extends to all these subjects. People v. Brooks, 4 Denio, 469.

For the necessity of this power see the Federalist, Nos. 4, 7, 11, 22, 37; Gibbons v. Ogden, 9 Wheat. 225; Brown v. Maryland, 12 Wheat. 445, 446; Story's Const. §§ 1057, 1060.

209.

To regulate the external commerce of the nation and the respective states. People v. Huntington, 4 N. Y. Leg. Obs. 187. The 196. whole subject fully discussed. Id. But not to declare the status Can Conwhich any person shall sustain while in any State of the Union. gress declare The power can be exercised over persons as passengers, only while on the ocean, and until they come under State jurisdiction. the States? It ceases when the voyage ends, and then the State laws control. 18, 196. Lemmon v. People, 26 Barb. 270; affirmed, 20 N. Y. 562.

the status of in

persons

87. "COMMERCE WITH FOREIGN NATIONS" means commerce be- W th foreign tween citizens of the United States and citizens or subjects of for- nations. eign governments, as individuals. United States v. Holliday, 3 Wallace, 417; Flannagan v. Philadelphia, 22 Penn. 219. The erection of wharves is subservient to commerce. Stevens v. Walker, 15 La. Ann. 577.

231.