DE TOCQUEVILLE'S PROPHECY.

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the whole ground; and it is still possible to use patronage for political purposes; to wring money from the pockets of officeholders for party and private ends through the dread of dismissal, and to employ the power of appointment and removal as a means of seduction, of favoritism, and of intimidation. Such practices have in the course of the last fifty years been so ingrained in public life that the present generation of practical politicians must become extinct or give place to men who do not regard country as subordinate to party, or use party as a means of personal advancement and of amassing money, before we can hope for a thorough reform of the public service.1

De Tocqueville long since said that all the European races would follow the same law of development as ourselves, and end in the democracy which had been established here; and the subsequent course of events tends to show the truth of his remark. When such a change has occurred, it is as impossible for a nation to revert to monarchy or to aristocracy as it would be for an individual to renew his youth; and the choice lies between a well-ordered popular government and the Cæsarism which may afford a temporary refuge from anarchy, but never yet stayed the downward course of any people. The conditions are nowhere so favorable to the solution of such a problem as in the United States; and if we fail, what country can hope for success? The issue does not therefore concern ourselves alone, but mankind; and the event must necessarily depend on such an education of the people as will

1 It is difficult to escape from a false position, even when it is due to the faults of others. For twenty years before the advent of the present administration, one half of the people of the United States were systematically excluded, for opinion's sake, from the public service; and just as is the theory of civil-service reform, it could not equitably be applied until an injustice of such long standing was rectified by equalizing the distribution of office. Had Mr. Cleveland taken this ground, it would have appeared reasonable to every fair-minded man, and he might have avoided the seeming breach of pledges which he honestly endeavored to maintain, in the face of a pressure which few men could have withstood with as much firmness.

2 De Tocqueville, La Démocratie en Amérique, vol. ii. ch. ix. p. 190.

inspire them not only with a love of freedom, but with a knowledge of the dangers with which it is threatened, and the means by which they can be averted or overcome. Once convince the masses that party, as now organized, is adverse to their interests and the general good, and that civil-service reform is the much-needed corrective, and we may rely on their common-sense and patriotism for the rest. No man who has the requisite opportunities and knowledge should regard himself as exempt from this duty; but it belongs primarily to the profession which, from its acquaintance with the principles of constitutional law, is best fitted for such a task. The influence of the Bar, as De Tocqueville finely pointed out, is greater in this country than in any other, and has been largely exerted for good.1 The Constitutional Conventions which have done so much good work in the various States were composed principally of lawyers, and are a convincing proof of what might be expected from the Bar if the people were free to choose their representatives. It is therefore to the legal profession, and above all to the young men who in a few years will take the lead, that I would appeal on behalf of our country to regard her as their client, and devote some portion of their laborious days and nights to the cause of reform. I believe that cause to be necessary and just, and that with such advocacy it will prevail.

1 De Tocqueville, La Démocratie en Amérique, vol. ii. ch. viii. p. 174.

LECTURE XV.

Taxation by the United States.

The Power of Congress to Tax for Purposes in its Judgment conducive to the Common Defence and General Welfare absolute and unlimited. Distinction between expending the Proceeds of Taxation in Internal Improvements and assuming the Control of such Improvements. - Jurisdiction of the Supreme Court in Questions of Taxation. — Direct Taxes.

THE eighth section of the first article of the Constitution is as follows: "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."

This clause has been regarded in different aspects, and as variously interpreted. Agreeably to one view, it is not a single grant, but confers two very different powers, which are incongruously grouped under the same head, a power to raise money by taxation, and a power to provide for the common defence and general welfare. Agreeably to the other, it is simply an authority to lay taxes, subject to two qualifications, that taxation shall be uniform, and that it shall not be imposed for objects which are merely local and do not concern the entire people. The former view is now generally conceded to be repugnant both to the interpretation which would naturally be put on the clause if it stood alone, and to the tenor of the instrument as a whole. It wrests the latter part of the paragraph from its antecedent, and gives it an entirely different meaning from that which it would have if considered relatively as part of the same sentence. Unpunctuated, the clause is simply a power to raise money by taxation, with a designation of the purposes for which it may be expended; read with a semicolon after "excises," it becomes

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a substantive grant so broad and sweeping as to confer not only all that is subsequently enumerated, but much which the specific grants impliedly exclude.

A government authorized to provide for the common defence and general welfare is virtually absolute, because it must determine what means are requisite for the end in view, and its decision will necessarily be binding on the courts. If such were really the meaning of the clause under consideration, the Tenth Amendment, that "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," would have no real significance, since when all has been in effect given, there can be nothing to withhold; and the concluding words would supersede the first or render them superfluous, because the duty to provide for the common defence and general welfare would imply the right to tax as indispensable to its fulfilment. The clause should therefore, as Story observes, be read as if it contained two words, which are in effect implied, and will then stand as follows: "Congress shall have power to lay and collect taxes, duties, imposts and excises, in order to pay the debts and provide for the common defence and general welfare of the United States;" the common defence and general welfare and the payment of the public debts being the ends for which the power is conferred, and taxation a means for their attainment.1

The field of controversy is thus narrowed; but there is still room for doubt. Is the clause an authority to raise money, and consequently to appropriate it, for any purpose which Congress may deem conducive to the common defence or general welfare? Or does it merely authorize the laying and collection of taxes for the execution of the enumerated powers? The former is the literal import of the words employed, and merely sanctions what would be implied under every form of government but our own; that is, the right to

1 Story on the Constitution, sect. 890; see Madison's Letters to Alexander Stevenson, Nov. 27, 1830, 4 Madison's Writings, 120, 126, 131.

UNENUMERATED OBJECTS.

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expend the public revenue for any purpose that may be deemed conducive to the public good.

The first Secretary of the Treasury accordingly held, in a report on manufactures made in the year 1791, that the national legislature may, in the exercise of their discretion, "pronounce upon the objects which concern the general welfare and for which under that description an appropriation of money is requisite and proper," and that "whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce is within the sphere of national councils as regards the appropriation of money."

This view is nevertheless open to objection as carrying the power of taxation beyond the verge of the Constitution, and authorizing the government to take money from the citizen for uses which it cannot accomplish in its sovereign capacity, and which are, on the contrary, reserved to the several States. The right of providing for popular education confessedly belongs to them, and not to the United States; and yet the latter may, if the Hamiltonian argument is sound, lay taxes with the view of endowing public schools which it can neither establish nor regulate. The leader of the Anti-Federal or Democratic party accordingly contended that such an interpretation would confer a general authority extending much beyond the enumerated powers and having no bounds but the good pleasure of Congress, and that the clause in question should consequently be read with a due regard to the plain intent of the Constitution to restrict the operation of the General Government to certain objects which are specifically enumerated.1 So Madison took occasion, in his once celebrated report on the Virginia Resolutions of 1798, to characterize Hamilton's doctrine as "extraordinary," and to declare that "whenever money has been raised by taxation and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated powers of Congress. If it be, the money requisite for

1 See the Kentucky Resolutions, drawn by Jefferson, of November 10, 1798, and the Virginia Resolutions of the same year from the pen of Madison, 4 Elliott's Debates (2d ed., Phila., 1876), 528, 542.