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been introduced, with singular skill, ingenuity, and wis. dom, into the arrangements. Yet, after all, the fabric may fall; for the work of man is perishable. Nay, it must fall, if there be not that vital spirit in the people, which can alone nourish, sustain, and direct, all its move. ments. If ever the day shall arrive, in which the best talents, and the best virtues shall be driven from of fice, by intrigue, or corruption, by the denunciations of the press, or by the persecutions of party factions, legislation will cease to be national. It will be wise by accident, and bad by system.
Powers of Congress.— Taxation.
§ 154. We next come to the consideration of the legislative powers conferred on Congress, which are contained in the eighth section of the first article. The first clause is,-". The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and proyide for the common defence and general welfare of the United States. But all duties, imposts, and excises shall be uniform throughout the United States.” What is the true interpretation of this clause, has been matter of considerable controversy ; that is to say, whether the words, “ Congress shall have power to lay and collect taxes, duties, imposts, and excises,” constitute a distinct clause and confer a substantive independent power ; and the words, “to pay the debts, and provide for the common defence and general welfare of the United States," constitute another, distinct clause, and substantive and independent power ; or, whether these latter words are a dependent clause, merely qualifying the former clause, and so the whole to be read together, as if the words stood thus,-" Congress shall have power to lay and collect taxes, duties, imposts, and excises,” in order to pay the public debts, and to provide for the common defence and general welfare;' that is to say, Congress shall have pow er to lay taxes, &c., for the purpose of paying the public debts, and providing for the common defence and general welfare. If the former be the true interpretation, then it s obvious, that the powers of the National Government, under color of the authority of the clause to provide for the common defence and general welfare, would be practically unlimited. If the latter be the true interpretation, then the words properly amount to a limitation or qualification of the power of taxation; so that no taxes can be laid by Congress, except to pay the debts, and to provide for the common defence and general welfare. The latter seems the more just and solid interpretation of the words, and most conformable to the true spirit and objects of the instrument.
$ 155. The necessity of the power of taxation, to the vigorous action of the
National Government, would seem to be self-evident. The want of it, was one of the principal defects under the Confederation. A National Government, without the power of providing for its own expenditures, charged with public burdens and duties, and yet deprived of adequate means to sustain and perform them, would soon become wholly inert and imbecile. It would be almost as absurd, as to bind a man immovably to the earth, and yet at the same time to require him to walk abroad. If, then, there is to be a real, effective National Government, there must be a power of taxation given to it, adequate to its wants, its objects, and its duties. The only proper remaining inquiry would be, whether the power of taxation should be limited to particular specified objects and sources, or whether the power should be general and unlimited. It is obvious, that if limited to particular objects and sources, those objects and sources might be exhausted, or might become utterly inadeequate to the public wants, or might be taxed to an extent, which would be ruinous to particular employments and interests. Thus, for example, if the power were limited to mere taxes on commerce, and the nation should be engaged in war, or should otherwise be involved in heavy expenditures in the course of unfortunate events, the very attempt to defray the national expenditures, and supply the national wants, by taxes on commerce, might amount to an utter annihilation of all its value, and be equivalent to a total prohibition of all foreign trade. The same would be equally true, if the power of taxation were limited exclusively to lands, or to the products of agriculture, or manufactures, or to taxes on particular articles, such as wheat, corn, cotton, flour, rice, or domestic animals. The power of taxation, on the other hand, if general and unrestricted, will leave to Congress a free choice, from time to time, to select such articles for taxation as shall be most productive, and least burdensome, and thus to supply the public wants, without endangering the interests, or depressing the products, of every section of the Country. For these reasons, the power has been given in unlimited terms; and the wisdom of the provision will scarcely now be called in question, by any considerate mind.
$ 156. The words used, are, “taxes, duties, imposts, and excises.” In a general sense, all contributions, imposed by the Government upon individuals for the service of the State, are taxes, by whatever name they may be called. In this sense, they are usually divided into two classes ;—direct taxes, under which head are included taxes on land, and other real estate, and poll, or capitation taxes, or taxes on the polls or persons of individuals ; indirect taxes, under which head are classed those, which are levied only upon articles of consumption, and, of course, of which every person pays only so much, as he consumes of the articles. The word “duties,” is often used as synonymous with taxes; but is more often used as synonymous with customs, ” which are taxes levied upon goods and merchandise, which are exported or imported. In this sense, duties are equivalent to “imposts,” although the latter word is often restrained to duties on goods and merchandise, which are imported from abroad.
Excises,” is a word, generally used in contradistinction to " imposts,” in its restricted sense ; and is applied to internal or inland impositions, levied sometimes upon the consuinption of a commodity, sometimes upon the retail sale of it, and sometimes upon the manufacture of it. Thus, a tax, levied upon goods imported from a foreign country, is generally called an “impost” duty ; and a tax, levied upon goods manufactured or sold in a country, is called an “excise” duty. The meanings of these words, therefore, often run into each other; and all of them are used in the Constitution, to avoid any ambiguity, as to any one of them being used in a general sense, or in a restricted sense, which might involve endless doubts as to the true extent of the constitutional power.
$ 157. The power of taxation is not, however, unlimited in its character. The taxes levied must be (as we have seen) either to pay the public debts, or to provide for the common defence and general welfare of the United States. They cannot be levied solely for foreign purposes, or in aid of foreign nations, or for purposes not national in their objects or character. In the next place, all direct taxes (as we have also seen) are to be apportioned among the several States, in the same manner as Representatives, that is, according to the numbers of the population, to be ascertained in the particular mode pointed out in the Constitution. There is another clause of the Constitution, on the same subject, which declares, “ That no capitation, or other direct tax, shall be laid, unless in proportion to the census, or enumeration, herein before directed to be taken." There do not seem to be any other cases,
in which a direct tax can be laid according to the sense of the Constitution, except by a direct tax on land or other real estate, or a capitation or poll tax; for no other taxes seem capable of an apportionment among the States. All other taxes, that is, all “ duties, imposts, and excises,” are required to be uniform throughout the United States. The reason of the latter rule, is, to prevent Congress from giving any undue preference to the pursuits or interests of one State over those of
any other. It might otherwise happen, that the agriculture, commerce, or manufactures of one State might be built up on the ruins of the interests of another ; and, the combination of a few States in Congress might secure a monopoly of certain branches of trade and busi ness exclusively to themselves.
§ 158. And further, to enforce this uniformity, and to preserve the equal rights of all the States, it is declared, in a subsequent clause of the Constitution, that “No tax or duty shall be laid on articles exported from any State. No preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another ; nor shall vessels, bound to or from one State, be obliged to enter, clear, or pay duties in another.”
$ 159. The obvious object of these provisions is, to prevent any possibility of applying the power to lay taxes, or regulate commerce, injuriously to the interests of any one State, so as to favor or aid another. If Congress were allowed to lay a duty on exports from any one State, it might unreasonably injure, or even destroy, the staple productions, or common articles of that State. The in equality of such a tax would be extreme. In some of the States, the whole of their means result from agricultural exports. In others, a great portion is derived from other sources ; from external fisheries ; from freights ; and from the profits of commerce in its largest extent. The burden of such a tax would, of course, be very unequally distributed. The power is, therefore, wholly taken away to intermeddle with the subject of exports. On the other hand, preferences might be given to the ports of one State by regulations, either of commerce or of revenue, which might confer on them local facilities or privileges in regard to commerce, or to revenue. And such preferences might be equally fatal, if indirectly given under the milder form of requiring an entry, clearance, or payment of duties in the ports of any State, other than the ports of the State, to or from which the vessel was bound. The last clause, therefore, does not prohibit Congress from requiring an entry or clearance, or payment of duties at the customhouse on importations in any port of a State, to or from which the vessel is bound; but cuts off the right to require such acts to be done in other States, to which the vessel is not bound. In other words, it cuts off the power to require that circuity of voyage, which, under the British colonial system, was employed to interrupt the American commerce before the Revolution. No American