the Articles of Confederation, omitted the clause, but a judicious caution on the part of the states required it to be immediately replaced. Accordingly we find it there provided,

"That the powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Art. 10, Amend. Con.

Thus it appears that Congress have no authority whatever beyond that delegated to them by the constitution. If we inquire under what provision of that instrument the right is given to tax sales by auction, we shall be referred to the following clause of the eighth section of the first article.

"The 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.*

The terms here used are so very obvious, plain and simple, that the first rules of construction must be violated to wrest them from their meaning; which evidently is, to invest Congress with the power to lay and collect taxes in order to provide, or make provision for the common defence and general welfare by such appropriation of the proceeds as their discretion may dictate. But as a very different construction has been lately countenanced in Congress, and one which, if true, gives to that body illimitable power, it is of the last importance that we ascertain the real intention of the people when they ratified the constitution. We say, of the last importance, for it is a maxim approved by the wisdom and experience of all ages, that the people are free, only when the powers of government are clearly defined in their operation, and limited in their extent. This article of the constitution then, may be construed to mean, that Congress shall have power to lay and collect taxes, duties, imposts and excises, for the purpose of applying the proceeds to

*By a most culpable negligence, this single sentence has been printed in different works, with every possible variety of punctuation. In the old edition of the laws of the United States, in the laws of Connecticut, in the Federalist, and in the journals of Congress, printed 1787, there is a comma after the word 'excises,' in the second line. In Ingersol's Digest, in the last edition of the laws of the United States, and in the laws of New-York, a semicolon is used, and in the Debates of the convention on the constitution, a colon is used, and the next words, "to pay the debts," actually begin a new paragraph with a capital. The above is an exact transcript of the original instrument on file in the Department of State at Washington.

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provide for the common defence and general welfare of the people of the United States.

Or it may mean, that Congress shall have power to lay (and collect) such taxes, duties, imposts and excises as they shall believe to be for the general advantage, although such taxes of necessity extinguish themselves; because, being equivalent to a prohibition of the source whence they are derived, they obviously can never be paid into the treasury.

Or, finally, it may mean that congress shall have the power to lay and collect taxes, duties, imposts and excises at their own will and pleasure, without any restriction--that congress also shall have the power to pay the debts, &c.

If the first of these constructions is correct, congress have no power granted to them to pass any laws but such as are necessary to procure funds to meet the expenses of the union; consequently they cannot pass a prohibitory law, at least, under this clause of the constitution. If either of the other constructions is the true one, congress may have this power.

To decide this point satisfactorily, it will be proper to refer to the state of the nation, and of its financial concerns, during the existence of the Articles of confederation, to the debates of congress, and, in a word, to a full history of this portion of our constitution. And we are satisfied that no unprejudiced person will rise from the perusal of these facts, but with the fullest conviction that the states never intended to delegate, and never, in fact, did delegate to congress the power of imposing taxes for any other purpose than that of revenue, which revenue must be applied to the purpose of defraying expenses incurred for the general welfare.

By the articles of confederation proposed in 1777, and finally adopted in 1781, the colonies bound themselves together for their common defence; and congress was not, by this instrument, intrusted with the powers of taxation at all. The state legislatures charged themselves with providing for the national expenses, as appears by the eighth article which follows.

"All charges of war, and all other expenses that shall be incurred for the common defence, or general welfare, and allowed by the United States in congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states in proportion to the value of all land within each state, granted to, or surveyed for, any person as such land and buildings and improvements thereon shall be estimated, according to such mode as the United States in congress assembled shall, from time to time, direct and appoint. The taxes for paying that proportion shall be laid and levied by the

authority and direction of the legislatures of the several states within the time agreed upon by the United States in congress assembled." 8th article of confederation.

By this article, the states pointedly and clearly reserved to themselves the right of taxation; and although congress were invested with the power of emitting bills of credit, and borrowing money, they had no means of meeting their engagements but through the states.

A refer

The apportionment of their quotas to the different states was a constant and fruitful source of vexation. Some of them were unwilling, and some unable to meet the national demands, until public faith became, at last, a butt of ridicule. ence to the journals of congress and archives of the department of state will show the real and excessive distresses of the nation. In February, 1781, congress passed a resolution de claring it indispensably necessary that they should be invested with the power of levying, for the use of the United States, a duty of five per cent. ad valorem, upon all goods, wares and merchandise of foreign growth and manufacture which may be imported into the said United States; to which resolution was added the following :

"That the moneys arising from the said duties be appropriated to the discharge of the principal and interest of the debts already contracted, on the faith of the United States for supporting the present war."

"That the said duties be continued until the said debts shall be fully and finally discharged." Deb. Cong. Feb. 5th, 1781.

Several of the states passed acts allowing the above duties to be imposed; but Rhode Island made such cogent objections to the proposition, that a committee consisting of Mr. Hamilton, Mr. Madison and Mr. Fitzsimmons, was appointed to draft an answer to that state. This answer bears internal evidence of being the production of Hamilton's powerful pen. In justification of the proposition for granting to the United States the power of levying an impost, it was urged to be a matter of necessity, and that repeated experiments had shown that the revenue to be raised within the states was altogether inadequate to the public wants. A deputation of three of the members was sent to Rhode Island for the purpose of making farther efforts to procure the compliance of that state. Notwithstanding all this, either Rhode Island was not convinced, or opposition started up elsewhere, and most of the other states which had passed acts favorable to the views of congress, took

the alarm and repealed them. The next year the necessities of the nation again forced the subject before congress, and the following resolution was passed:

"Resolved by nine States, That it be recommended to the several states as indispensably necessary to the restoration of public credit, and to the punctual and honorable discharge of the public debts, to invest the United States in congress assembled, with the power to levy for the use of the United States the following duties upon goods imported into the said states from any foreign port, island, or plantation."

[Here follows a list of the duties proposed.]

“Provided, That none of the said duties shall be applied to any other purpose than the discharge of the interest or principal of the debts contracted upon the faith of the United States for supporting the war agreeably to a resolution of the 16th of December last, nor be continued for a longer term than twenty-five years." It was also resolved, "that none of the preceding resolutions shall take effect until all of them shall be acceded to by every state." &c. Res. of Cong. 18 April,

1783.

On the questions being taken, both of the members from Rhode Island and one from New-York opposed the resolution.

A committee was again appointed to address the states; but in vain: the act met with the fate of its predecessors, and was rejected by six states out of the thirteen. New Hampshire, Massachusetts, Connecticut, New Jersey, Virginia, North Carolina and South Carolina passed acts enabling congress to carry their resolutions into effect. Pennsylvania, Rhode Island and Delaware only complied in part, while Maryland, New-York and Georgia never passed any act at all on the subject.

In February, 1786, three years after the resolution laying an impost had passed the house, and while the states had not made any farther concessions than have been just mentioned, a committee, to whom were referred the several reports concerning the system of general revenue, recommended by congress in 1783, made their report. In the course of it they say,

"Thus circumstanced, after the most solemn deliberation, and under the fullest conviction that the public embarrassments are such as above represented, and that they are daily increasing, the committee are of opinion that it has become the duty of congress to declare most explicitly that the crisis has arrived

when the people of these United States, by whose will and for whose benefit the federal government was instituted, must decide whether they will support their rank as a nation, by maintaining the public faith at home and abroad, or whether, for want of a timely exertion in establishing a general revenue, and thereby giving strength to the confederacy, they will hazard not only the existence of the union, but of those great and invaluable privileges for which they have so arduously and honorable contended."

This report was accepted, and a resolution was passed recommending to the states which had not assented to the requisitions of congress respecting the impost system, an immediate compliance with it. On the 4th of May, in the same year, the state of New-York passed an act on the subject, the title of which is remarkable, and clearly shows the spirit and intention of the law :

"An act for giving and granting to the United States in congress assembled certain imposts and duties on foreign goods imported into this state for the special purpose of paying the principal and interest of the debt contracted in the prosecution of the late war with Great Britain."

The provisions of this law, (not, however, that part relating to the special purpose of the application of the receipts) were not found to comply with that recommended by congress, and the legislature were requested to alter it. But no alteration ever was made.

Early in the year 1787, it was determined to call a convention of the states for the purpose of revising the articles of confederation which were found to be too defective to answer any longer the purposes intended. We have not room here to insert the interesting debates which ensued. A very brief outline of those parts connected with the subject before us, however, is necessary. Mr. Charles Pinckney summitted to the convention, on the twenty-ninth day of May, the original draft of our constitution, which soon after superseded the confederation.

The first paragraph of the sixth article was as follows:

"The legislature of the United States shall have the power to lay and collect taxes, duties, imposts and excises."

Mr. Pinckney's draft was referred to a committee of five, who on the 6th of August following, reported this article, without any other than a numerical alteration from the sixth to the