Practically every judge on the Supreme Court bench has referred to this Government as one of "enumerated powers.' That expression could not have been used if the words "the general welfare" embraced all powers. Why refer to a government of "enumerated" powers when one power among the number contained all others? Judge Marshall in McCulloch v. The State of Maryland (4 Wheat. 314), says:

"This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted.

And Judge Marshall, as a member of the Virginia Convention called to ratify the Constitution of the United States, in speaking of the powers of the States and the General Government over the militia, used this language:

* *

"The State governments did not derive their powers from the General Government. But each government derived its powers from the people; and each was to act according to the powers given it. * Could any man say that this power was not retained by the States, as they had not given it away? For does not a power remain until it is given away? The State legislatures had power to command and govern their militia before, and have still, undeniably, unless there be something in this Constitution that takes it away. * * * There are no negative words here. It rests, therefore, with the States. * * * All the restraints intended to be laid on the State governments (besides where an exclusive power is expressly given to Congress) are contained in the tenth section of the first article. * * * The power of governing the militia was not vested in the States by implication, because being possessed of it antecedent to the adoption of the Government and not being divested of it by any grant or restriction in the Constitution they must necessarily be as fully possessed of it as ever they had been, and it could not be said that the States derived any powers from the system, but retained them, though not acknowledged in any part of it."

Also in Gibbons v. Ogden (9 Wheat 1), speaking of the reserve powers of the States, he said they represented

"that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State.

The decisions of the courts are full of such expressions, but I shall insert one other a quotation from the opinion of one of the greatest judges, in my opinion, who ever sat upon the bench, Justice Brewer, who in Kansas v. Colorado (206 U. S. 89-91), said:

Appreciating the force of this, counsel for the Government relies upon "the doctrine of foreign and inherent power," adding: "I am aware that in advancing this doctrine I seem to challenge great decisions of the court, and I speak with deference." His argument runs substantially along this line: "All legislative power must be vested in either the State or the National Government; no legisÎative powers belong to a State government, other than those which affect solely the internal affairs of that State; consequently, all powers which are national in their scope must be found vested in the Congress of the United States. But the proposition that there are legislative powers affecting the Nation as a whole which belong to, although not expressed in, the grant of powers, is in direct conflict with the doctrine that this is a Government of enumerated powers. That this is such a Government clearly appears from the Constitution, independently of the amendments, for otherwise there would be an instrument granting certain specific things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the tenth amendment. This amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if in the future further powers seemed necessary they should be granted by the people in the manner they had provided for amending that act. It reads: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. The argument of counsel ignores the principal factor in this article, to wit, 'the people.' Its principal purpose

was not the distribution of power between the United States and the States, but a reservation to the people of all powers not granted. The preamble of the Constitution declares who framed it, 'We, the people of the United States,' not the people of one State, but the people of all the States, and Article X reserved to the people of all the States the powers not delegated to the United States. The powers affecting the internal affairs of the States not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, and all powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States. The people who adopted the Constitution knew that in the nature of things they could not foresee all of the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and after making provision for an amendment to the Constitution under which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. This Article X is not to be shorn of its meaning by any narrow or technical construction, but is to be considered fairly and liberally so as to give effect to its scope and meaning.

If Judge Story's construction of the words "the general welfare" be correct, is it not of more than passing interest that in the history of the Supreme Court, covering more than 130 years, no case can be produced in which the court rests its judgment upon the power of Congress to appropriate money for any object which they might deem for the general welfare of the people?

The citations above given show on the one hand that the American commentators, Judge Story and Pomeroy, sustain Mr. Hamilton's view, and Mr. Monroe's name has been added to this number, although he certainly did not go as far as Judge Story, that Congress has the right to appropriate money for any purpose, State or national, which they might deem for the general welfare; he clearly states his view as follows (Internal Improvements, May 4, 1822):

“If, then, the right to raise and appropriate the public money is not restricted to the expenditures under the other specific grants according to a strict construction of their powers, respectively, is there no limitation to it? Have Congress a right to raise and appropriate to any and to every purpose according to their will and pleasure? They certainly have not. The Government of the United States is a limited government, instituted for great national purposes, and for those only. Other interests are committed to the States, whose duty it is to provide for them. Each government should look to the great and essential purposes for which it was instituted and confine itself to those purposes." After this statement, could anyone think that Mr. Monroe was of opinion that Congress could legislate to affect or control matters which were exclusively in the control of the States, and grant appropriations to them?

On the other hand, Mr. Madison, Mr. Jefferson, Willoughby, Von Holst, Cooley, Hare, Judge Miller, Chief Justice Marshall, Curtis, James Wilson, Duer, Grover Cleveland, and Tucker hold to the contrary. Judge Marshall may, with confidence, be placed among the latter number from the following extract from his opinion in Gibbons v. Ogden (9 Wheat, 1, 198-99), where he is discussing the power of taxation by Congress and the States:

"Congress is authorized to lay and collect taxes, etc., to pay the debts, and provide for the common defense and general welfare of the United States. This does not interfere with the power of the States to tax for the support of their own governments; nor is the exercise of that power by the States an exercise of any portion of the power that is granted to the United States. In imposing taxes for State purposes they are not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other."

If Congress can not tax for State purposes, who among us will hold that it may appropriate money for State purposes? Congress is not obliged in levying a tax to state the objects for which such tax shall be used, for it is presumed they are levied for national objects; so if Congress appropriates money raised for national objects for State purposes, it is a clear breach of trust.

William A. Duer, of Columbia College, in his Constitutional Jurisprudence, second edition, page 211, indorses Madison's view, as follows:

'Congress is accordingly invested with power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare'; and it has also a distinct power 'to borrow money on the credit of the United States.'

"It was originally urged as an objection to the Constitution, and it is still occasionally contended that the latter branch of the form of these clauses amounts, in terms, to an authority to exercise every power which may be alleged to be necessary for the 'general welfare.' But this construction was promptly refuted by the authors of "The Federalist.' 'Had no other enumeration or definition of the powers of Congress,' say they, 'been found in the Constitution there might have been some color for this interpretation, though it would have been difficult to have found a reason for so awkward a form of describing an authority to legislate in all possible cases.' It is evident that the expressions in question must be taken in connection with the preceding branch of the clause, and were intended merely as a specification of the objects for which taxes are to be laid, and not to convey a distinct and independent power to provide for 'the general welfare.""

I add the view of President Grover Cleveland, one of the bravest and most courageous men who ever sat in the presidential chair, as set forth in a message to the House of Representatives vetoing "An act to enable the Commissioner of Agriculture to make a special distribution of seeds in the drought-stricken counties of Texas, and making an appropriation therefor." He says:

"Though there has been some difference in statements concerning the extent of the people's needs in the localities thus affected, there seems to be no doubt that there has existed a condition calling for relief * * *

And yet I feel obliged to withhold my approval of the plan, as proposed by this bill, to indulge a benevolent and charitable sentiment through the appropriation of public funds for that purpose.

"I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted to the end that the lesson should be constantly enforced that though the people support the Government the Government should not support the people."

In a lecture on "The National and State Constitutions the Legislative Department," by James Wilson (Wilson's Works, Andrews, Vol. II, pp. 56-59), we find a striking confirmation by that eminent judge of the views of judges and commentators that we have just cited:

"VI. I come now to the last head, * * * to consider the powers vested in Congress by the Constitution of the United States.

"On this subject we discover a striking difference between the Constitution of the United States and that of Pennsylvania. By the latter each house of the general assembly is vested with every power necessary for a branch of the legislature of a free State. In the former no clause of such an extensive and unqualified import is to be found. The reason is plain. The latter institutes a legislature with general, the former with enumerated powers. Those enumerated powers are now the subject of our consideration.

"One great end (Constitution United States, preamble) of the National Government is to 'provide for the common defense.'

He then refers to all of the enumerated powers in the Constitution which are related to this provision "provide for the common defense," such as to declare war, raise an army, establish a navy, and so forth. He then quotes the other provisions of the preamble: "To insure domestic tranquility,' ""to establish justice," "to form a more perfect Union," and recounts the enumerated powers of the Constitution which are intended to carry out these declarations, and finally (p. 58) he says:

"Once more, at this time: The National Government was intended to promote the general welfare." For this reason Congress has power to regulate commerce with the Indians and with foreign nations and to promote the progress of science and of useful arts by securing for a time to authors and inventors an exclusive right to their compositions and discoveries.

"An exclusive property in places fit for forts, magazines, arsenals, dock yards, and other needful buildings, and an exclusive legislation over these places, and also, for a convenient distance, over such district as may become the seat of the National Government-such exclusive property and such exclusive legislation will be of great public utility, perhaps of evident public necessity. They are therefore vested in Congress by the Constitution of the United States.

"For the exercise of the foregoing powers and for the accomplishment of the foregoing purposes, a revenue is unquestionably indispensable. That Congress may be enabled to exercise and accomplish them, it has power to lay and collect taxes, duties, imposts, and excises.

"The powers of Congress are, ndeed, enumerated; but it was intended that those powers thus enumerated should be effectual and not nugatory. In conformity to this consistent mode of thinking and acting Congress has power to make all laws which shall be necessary and proper for carrying into execution every power vested by the Constitution in the Government of the United States or in any of its officers or departments.'

The learned judge gives no hint in this statement that the "general welfare" was anything more than descriptive of those powers which were subsequently stated and enumerated in the Constitution. There is not an intimation in his statement that Congress has any other power than those which are enumerated, and that the words "to provide for the general welfare" are merely a general description of that welfare, which is to be accomplished by carrying out certain enumerated powers.

I will close this collection of the views of statesmen and commentators on this subject by inserting Mr. Madison's supplement to his letter to Mr. Andrew Stevenson, which, to my mind, is among the ablest of American State papers, from the reasoning of which any man who will fairly read it will say there is no escape (Writings of James Madison, edited by Galyard Hunt, Vol. ÎX, p. 424):

"It is not to be forgotten that a distinction has been introduced between a power merely to appropriate money to the common defense and general welfare, and a power to employ all the means of giving full effect to objects embraced by the terms.

"1. The first observation to be made is, that an express power to appropriate money authorized to be raised, to objects authorized to be provided for, could not, as seems to have been supposed, be at all necessary; and that the assertion of the power 'to pay the debts,' etc., is not to be referred to that cause. It has been seen that the particular expression of the power originated in a cautious regard to the debts of the United States antecedent to the radical change in the Federal Government: and that, but for that consideration, no particular expression of an appropriating power would probably have been thought of. An express power to raise money, and an express power (for example) to raise an army, would surely imply a power to use the money for that purpose. And if a doubt could possibly arise as to the implication, it would be completely removed by the express power to pass all laws necessary and proper in such cases.

"2. But admitting the distinction as alleged, the appropriating power to all objects of 'common defense and general welfare' is itself of sufficient magnitude to render the preceding views of the subject applicable to it. Is it credible that such a power would have been unnoticed and unopposed in the Federal convention, in the State conventions, which contended for and proposed restrictive and explanatory amendments, and in the Congress of 1789, which recommended so many of these amendments? A power to impose unlimited taxes for unlimited purposes could never have escaped the sagacity and jealousy which were awakened to the many inferior and minute powers which were criticized and combated in those public bodies.

"3. A power to appropriate money without a power to apply it in execution of the object of appropriation could have no effect but to lock it up from public use altogether, and if the appropriating power carries with it the power of application and execution the distinction vanishes. The power therefore means nothing, or what is worse than nothing, or it is the same thing with the sweeping power 'to provide for the common defense and general welfare.'

"4. To avoid this dilemma the consent of the States is introduced as justifying the exercise of the power in the full extent within their respective limits. But it would be a new doctrine that an extraconstitutional consent of the parties to a constitution could amplify the jurisdiction of the constituted government. And if this could not be done by the concurring consents of all the States, what is to be said of the doctrine that the consent of an individual State could authorize the application of money belonging to all the States to its individual purposes? Whatever be the presumption that the government of the whole would not abuse such an authority by a partiality in expending the public treasure, it is not the less necessary to prove the existence of the power. The Constitution is a limited one possessing no power not actually given, and carrying on the face of it a distrust of power beyond the distrust indicated by the ordinary forms of free government.

"But it would seem that a resort to the consent of the State legislatures as a sanction to the appropriating power is so far from being admissible in this case that it is precluded by the fact that the Constitution has expressly provided for

the cases where that consent was to sanction and extend the power of the National Legislature. How can it be imagined that the Constitution when pointing out the cases where such an effect was to be produced should have deemed it necessary to be positive and precise with respect to such minute spots as forts, etc., and have left the general effect ascribed to such consent of an argumentative or, rather, to an arbitrary construction? And here again an appeal may be made to the incredibility that such a mode of enlarging the sphere of Federal legislation should have been unnoticed in the ordeals through which the Constitution passed by those who were alarmed at many of its powers bearing no comparison with that source of power in point of importance.

"5. Put the case that money is appropriated to a canal to be cut within a particular State. How and by whom, it may be asked, is the money to be applied to the work to be executed? By agents under the authority of the General Government? Then the power is no longer a mere appropriating power. By agents under the authority of the States? Then the State becomes either a branch or a functionary of the Executive authority of the United States; an incongruity that speaks for itself.

"6. The distinction between a pecuniary power only and a plenary power 'to provide for the common defense and general welfare' is frustrated by another reply to which it is liable. For if the clause be not a mere introduction to the enumerated powers and restricted to them, the power to provide for the common defense and general welfare stands as a distinct substantive power, the first on the list of legislative powers, and not only involving all the powers incident to its execution but coming within the purview of the clause concluding the list, which expressly declares that Congress may make all laws necessary and proper to carry into execution the foregoing powers vested in Congress.

"The result of this investigation is that the terms 'common defense and general welfare' owe their induction into the text of the Constitution to their connection in the Articles of Confederation, from which they were copied, with the debts contracted by the old Congress and to be provided for by the new Congress, and are used in one instrument as in the other, as general terms, limited and explained by the particular clauses subjoined to the clause containing them; that in this light they were viewed throughout the recorded proceedings of the convention which framed the Constitution; that the same was the light in which they were viewed by the State conventions which ratified the Constitution, as is shown by the records of their proceedings; and that such was the case also in the First Congress under the Constitution, according to the evidence of their journals, when digesting the amendments afterwards made to the Constitution. It equally appears that the alleged power to appropriate money to the 'common defense and general welfare' is either a dead letter or swells into an unlimited power to provide for unlimited purposes by all the means necessary and proper for those purposes. And it results finally that if the Constitution does not give to Congress the unqualified power to provide for the common defense and general welfare, the defect can not be supplied by the consent of the States, unless given in the form prescribed by the Constitution itself for its own amendment.

"As the people of the United States enjoy the great merit of having established a system of government on the basis of human rights, and of giving to it a form without example which, as they believe, unites the greatest national strength with the best security for public order and individual liberty, they owe to themselves, to their posterity, and to the world a preservation of the system in its purity, its symmetry, and its authenticity. This can only be done by a steady attention and sacred regard to the charter boundaries between the portion of the power vested in the Government over the whole and the portion undivested from the several governments over the parts composing the whole; and by a like attention and regard to the boundaries between the several departments-legislative, executive, and judicial-into which the aggregate power is divided. Without a steady eye to the landmarks between these departments the danger is always to be apprehended, either of mutual encroachments and alternate ascendencies incompatible with the tranquil enjoyment of private rights or of a concentration of all the departments of power into a single one, universally acknowledged to be fatal to public liberty.

"And without an equal watchfulness over the great landmarks between the General Government and the particular governments the danger is certainly not less, of either a gradual relaxation of the band which holds the latter together, leading to an entire separation or of a gradual assumption of their powers by the former, leading to a consolidation of all the governments into a single one.