the legislative department, to be used by their successors to oppress the people of whom they will then be a portion. It is true the executive office is permanent; but the incumbent is elected by the people for four years. Unlike the king, the president can do wrong, and may die. Consequently the executive incumbent is not permanent. The people have the authority to designate, once in four years, who shall administer in that department. The reasons assigned why the king should exercise the veto power in England have no application here. In this country, the executive needs no protection against the encroachments of legislative authority. All are equally interested in having the proper balance preserved, and they have the power to compel its preservation without the veto power of a president.

$335. The second reason for intrusting the president of the United States with a qualified veto power is, that the rights of the people are more perfectly secured by the exercise of this power, than they otherwise would be if a mere majority of the two houses of congress were to determine what proposed measures should be law. This second reason has its basis in the assumption that the president may more perfectly comprehend the duties of a legislator upon a given question, or may better understand the rights and interests of the people, than their more immediate representatives; or the combined wisdom of the representative men of the nation, who are placed in the senate to examine and judge of the fitness and propriety of any proposed law; or upon the hypothesis that the president is less liable to improper influences than a majority of each of the two houses. Upon the soundness of these two latter propositions rests the propriety of this constitutional provision, giving a qualified veto power to the president of the United States. It is to be observed that the effect of this provision is merely to require that a measure shall receive the sanction of two-thirds of the members of each house of congress, instead of a mere majority when the objections of the president are not interposed.1

1 This qualified negative of the president upon the formation of laws, is theoretically, at least, some additional security against the passage of improper laws, through prejudice or want of due reflection; but it was principally intended to give to the president a constitutional weapon to defend the executive department against the usurpations of the legislative power. (1 Kent Com., 240). This qualified negative of the president upon the acts and

$336. It is to be remembered that the exercise of this power on the part of the president is liable to abuse. Whatever may be the theory of the exalted position and superior character of a president of the United States, the fact practically is, and ever has been, that the legislatures of the several states have uniformly placed in the United States senate learned, talented and patriotic men, who are every way as well qualified to discharge the presidential duties as the incumbent of that office; and it is safe to affirm that every presidential incumbent, from the organization of the general government to the present, might have found in the senate of the United States, senators from whom it would be as appropriate to take advice as to give it, respecting senatorial duties. It is exceedingly improbable that the many learned and patriotic meu of congress would be more liable to commit errors in respect to measures of public importance, than the single incumbent of the presidential office. But since there is a possibility of such error on the part of the congress, which may be corrected at the suggestion of the president, the power to require a reconsideration of the subject, and a two-third vote of the two houses respectively, is wisely committed to the president, if he prove worthy of the trust. A wise, discreet and prudent president will very seldom exercise that power. The case must be one where the error of congress is patent, and where the public welfare imperatively demands interposition. But in the hands of a partisan incumbent, or a president

resolutions of the two houses of the legislature, is justified in the Federalist (No. 73), as follows: "The propensity of the legislative department to intrude upon the rights and absorb the powers of the other departments, has been already more than once suggested; the insufficiency of a mere parchment delineation of the boundaries of each has also been remarked upon and the necessity of furnishing each with constitutional arms for its own defense has been inferred and proved. From these clear and indubitable principles, results the propriety of a negative either absolute or qualified in the executive, upon the acts of the legislative branches." See also the remarks of Judge Story to the same effect. (Story on Const., ? 884). With proper deference to the opinions of these learned men, I must say there no where appears in any of their arguments the assertion of any principle, or reference to any facts sustaining their positions, when applied to the theory and structure of the American government. The congress is always composed of a changing body of individuals. It seldom happens that in the house a majority of the old members are continued through more than one succeeding term. They are citizens of the states and nation, and are interested in preserving the exact balance of power between the several departments. Their continuance in congress is brief, and they become private citizens again. Now, it is obvious that a legislative body of men thus constituted can have no motive to invade the other departments, and assume executive powers. To do so would be putting weapons into the hands of their successors to injure and oppress themselves after their tenure of office had expired. Reference to the British constitution, and the practical operations of the British government, have no possible application in this country. To apply the British theory of government to our own, the president and senate should propose the laws, giving to the people, as represented in the house, the absolute negative possessed by the king. For according to the monarchical theory, the parliament is a limita tion upon the sovereignty of the king. &c. (See Ante, 11 329-333, inclusive).

with an ideal policy of his own, one to which he commits all his power and patronage, this qualified veto is a mischievous and dangerous power, and it may well be questioned if the public interest has not suffered more than has been gained by its exercise.

CHAPTER X.

THE EXPRESS POWERS OF CONGRESS.

$337. THE eighth section of the first article of the constitution provides, that "the congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States;" but that "all duties, imposts and excises, shall be uniform throughout the United States." There has been much discussion as to the precise signification of this clause, whether it should be understood that congress had the power to lay and collect taxes, &c., in order that it might pay the debts and provide for the common defense and general welfare of the nation; or, whether there were two distinct and substantial powers given, consisting, first, of the power to create the revenue; and second, of the power to provide for the common defense and general welfare. It is immaterial which construction is given to the clause, so far as the extent of the expressed and implied powers thereby granted is concerned. The general government was instituted expressly for the purpose, among other things, of providing for the common defense, and promoting the general welfare of the nation; and this clause, at least, affirms, that the general government shall have power to raise the means by taxes, duties, imposts and excises, to accomplish that purpose. Here is a specific adaptation of a means to an end. Who, then, can deny that the end sought is within the scope of the powers of the government; and, that it is the will of the people that all power, necessary and proper for the accomplishment of that end, shall be exercised? It is, consequently, immaterial whether the clause be read, that congress shall have power to lay and collect taxes, &c., for the purpose of enabling it to pay the debts and provide for the common defense and general welfare of the nation; or, that congress shall have the power to lay and collect

taxes; and also, to pay debts and provide for the common welfare. The people, in the institution of the general government, made it the duty of the government to secure that end; and charged congress, as the legislative body of the nation, to provide, by law, the means necessary and proper for such purpose. Having the authority, they signified the intention; and hence, the general government has the requisite power.

S338. The advocates of the different constructions which have been given to this clause, attached special importance to the one or to the other, as affecting materially the power therein granted. The one, that the power to lay and collect taxes, &c., is limited to the specific objects named, to wit, to pay debts and provide for the common defense and general welfare. That this limitation is secured, if the law be construed as giving but one substantial power; that is, the power to raise a revenue for the purpose specified; but that the power to lay and collect taxes, &c., is unlimited, unless the latter part of the clause be construed as a limitation upon the former, &c. On the other hand, the advocates of the construction, which makes the clause contain grants of two substantial powers, to wit, the power to raise the revenue, and the power to pay debts and provide for the common defense and general welfare, insist that, by such construction, our government is vested with unlimited power to provide for the defense and welfare of the nation, which it would lack but for such grant. But reflection, will satisfy any one that there is little to be gained or lost, to the powers of

1"Do the words, to lay and collect taxes, duties, imposts and excises,' constitute a distinct and substantial power; and the words, to pay the debts and provide for the common defense and general welfare of the United States,' constitute another distinct and substantial power? Or, are the latter words connected with the former, so as to constitute a qualification upon them?" This has been a topic of political controversy; and has furnished abundant material for popular declamation and alarm. If the former be the true interpretation, then it is obvious, that under the generality of the words, "to provide for the common defense 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, "to pay the debts and provide for the common defense and general welfare." (Story's Com. on Const. U. S., 2907; see also, note to Story, 2 908; see also, 2 U. S. Law Journal, April, 1826, p. 451 et seq.) This work contains (p. 207 et seq.) a very elaborate exposition of the doctrine. Mr. JEFFERSON has insisted that this was the federal doctrine; that is, the doctrine maintained by the federalists as a party. (4 Jefferson's Correspondence, 306.) The assertion is incorrect, for the latter opinion was maintained by some of the most strenuous federalists at the time of the adoption of the constitution, and has since been maintained by them. (2 Elliot's Debates, 170, 183, 195; 3 id., 262; 2 Am. Museum, 434; 3 id., 338.) 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 defense and general welfare was a substantive power; and that congress should have the power to provide for the general welfare of the union. But he thought, that the constitution should contain a clause in respect to all powers not granted being retained, &c.

the government, or to the security of the people, by the adoption of the one or the other of these constructions. One or the other is manifestly correct, and it matters not which. If the power of taxation is unlimited by the terms of the graut, as contained in this clause, it is only the power of the people to tax themselves; for it is to be remembered, that this government is to be administered by the people, coming from every state, and from every district of each state. If they lay and collect the tax, they alone have to pay it; and there is little to fear from the powers of a government which is never to be separated from the authority of the people in its administration. The people will not be likely to oppress themselves beyond their own endurance. They will never have occasion to overthrow a government of which they have the sole administration. The fears and jealousies expressed, of the aggressions of the government upon the people, presuppose the separation of the government from the people, or its independence of the people. The constitution having secured to the people the administrative authority of the government, the people can trust the government as far as they can trust themselves.

$339. On the other hand, adopt the theory of limitation; that the government can only lay and collect taxes, &c. for the purpose of paying debts and providing for the common defense and general welfare of the nation; and that the administrators of their government, being the people of the nation themselves, have the discretion to determine what debts shall be contracted in providing for the defense and welfare thereof, and the limitation is a check of little value. There never will be an occasion to raise a revenue for any other purposes than those specified as such limitation. When the wide range of subjects which may engage the attention of government looking to the common defense, and the general welfare of the nation come under consideration, it will be found that every thing pertaining to the duty of the government is necessarily included. It is the whole duty of every civil government to so exercise the powers committed to it, as to provide for the security and welfare of the people, which is included in the expression, "their common defense and general welfare." The people of the nation were providing for themselves a general government, which was to be intrusted with the exercise of their authority for the