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powers, and the express provision in the amendments to the Constitution that “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;” annihilates the powers of the States at the pleasure of Congress; and applies with equal force to anything else. The Constitution contains no clause or sentence prohibiting Congress from reënacting the edict of Herod, that all the young children should be slain, under an assumption, within such discretionary power of Congress, that if they were permitted to live, they might rebel, and endanger the safety of the Government. Nor does the Constitution contain any clause or sentence, prohibiting Congress from directing that all the Catholics shall be murdered on a particular day; and what shall hinder that body, in the exercise of powers “unlimited " and “more than imperial,” from proceeding to such constitutional legislation, whenever, in their judgment, the public welfare requires it. Why may we not conclude that “If the framers of the Constitution intended to take from Congress the power of passing” such laws, “they would have drafted a clause to that effect.” It might well be supposed that even a very limited knowledge of the Constitution and its history should have restrained any one from such a course of argument. In the convention in Virginia which ratified the Constitutian of the United States, Patrick Henry, who opposed the ratification with all his powers, and raised every objection which his ingenuity could devise, said of Congress, – “If the Constitution is adopted, they will search that paper, and see if they have power of manumission. And have they not, sir? Have they not power to provide for the general defence and welfare? May they not think that these call for the abolition of slavery May they not pronounce all slaves free; and will they not be warranted by that power? This is no ambiguous implication or logical deduction. The paper speaks to the point; they have the power in clear, unequivocal terms, and will clearly and certainly exercise it.” But Governor Randolph, who was himself one of the most able men in the convention which framed the Constitution, replying to this remark of Mr. Henry, said,
“We are carried back to the clause giving that dreadful power, for the general welfare. Pardon me, if I remind you of the true state of that business. I appeal to the candor of the honorable gentleman, and if he thinks it an improper appeal, I ask the gentlemen here, whether there be a general, indefinite power of providing for the general welfare 2 The power is “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare;’ so that they can only raise money by these means, in order to provide for the general welfare. No man who reads it can say it is general, as the honorable gentleman represents it. You must violate every rule of construction and common sense, if you sever it from the power of raising money, and annex it to anything else, in order to make it that formidable power which it is represented to be.” 3 Elliot's Debates, 599.
And Mr. Madison, one of the most distinguished members of the convention which adopted the Constitution, in reply to that objection, made by a member of the Virginia convention, said, – -
“I was struck with surprise when I heard him express himself alarmed with respect to the emancipation of slaves. Let me ask, if they should even attempt it, if it will not be a usurpation of power? There is no power to warrant it, in that paper. If there be, I know it not.” 3 Elliot's Debates, 621.
Mr. Justice Story, in his Commentaries on the Constitution, referring to these two readings of this clause, by one of which a general substantive power would be given to Congress to provide for the common defence and general welfare, and by the other of which, that part of the clause is confined to laying and collecting taxes, duties, &c. says: —
“The latter has been the generally received sense of the nation, and seems supported by reasoning at once solid and impregnable. The reading, therefore, which will be maintained in these Commentaries, is that, which makes the latter words a qualification of the former; and this will be best illustrated by supplying the words, which are necessarily understood in this interpretation. They will then stand thus: “The Congress shall have power to lay and collect taxes, duties, imposts, and excises in order to pay the debts, and to provide for the common defence and general welfare of the United States;" that is for the purpose of paying the public debts, and providing for the common defence and general welfare. . . . . If the clause, “to pay the debts and provide for the common defence and general welfare of the United States,' is construed to be an independ
ent and substantive grant of power, it not only renders wholly unim
portant and unnecessary the subsequent enumeration of specific powers; but it plainly extends far beyond them, and creates a general authority in Congress to pass all laws, which they may deem for the common defence or general welfare. Under such circumstances, the Constitution would practically create an unlimited National Government. The enumerated powers would tend to embarrassment and confusion; since they would only give rise to doubts as to the true extent of the general power, or of the enumerated powers.” . . . . . " On the other hand, construing this clause in connection with, and as a part of the preceding clause, giving the power to lay taxes, it becomes sensible and operative. It becomes a qualification of that clause and limits the taxing power to objects for the common defence or general welfare. It then contains no grant of any power whatsoever; but is a mere expression of the ends and purposes to be effected by the preceding power of taxation.” 2 Story's Commentaries on the Constitution, Sects. 905, 906, 908.
It has been reserved for a new generation of theorists to revive this long-exploded attempt of the enemies of the Constitution to give it a construction which would subvert the powers of the States.
The following extracts are from the second chapter of the pamphlet, devoted to the war powers of Congress.
“The United States are AT war with rebels in the strictly legal and constitutional sense of the term, and have, therefore, all the rights against them which follow from a state of war, in addition to those which are derived from the facts that the rebels are also subjects.”
“Having thus the full powers and right of making and carrying on war against rebels, both as subjects and as belligerents, this right frees the President and Congress from the difficulties which might arise, if rebels could be treated only as subjects, and if war could not be waged upon them.”
“But a rebel does not cease to be a subject because he has turned traitor. The Constitution expressly authorizes Congress to pass laws to punish traitor—that is, belligerent—subjects; and suppressing rebellion by armed force, is making war. Therefore the war powers of the Government give full belligerent rights against rebels in arms.”
“THE LAw of NATIONs Is ABOVE THE CONSTITUTION.” . . .
“It will be observed, that the law of nations is above the constitution of any government.”
“To determine what are the rights of different nations when making war upon each other, we look only to the law of nations.”
Now it is true that, in the case of an extensive rebellion resulting in a civil war, the Government may, by the recognition of foreign nations, be obliged to treat the rebels as belligerents in some particulars, – as for instance, in the institution of a blockade, – because those nations would otherwise claim a right to trade in the ports occupied by the rebels; and humanity, perhaps necessity, may lead to an exchange of prisoners. This does not take away the right to punish the insurgents as rebels. The law of nations governing belligerent rights, is applied to the operations of the war to which that law is applicable; subject, however, to all the limitations and restrictions imposed by the Constitution and laws of the United States, upon those acting under the Constitution in the prosecution of the war. The Constitution and the laws of the United States are alone applicable to the war so far as the insurgents are to be treated as rebels. This right to deal with the rebels as belligerents, and the necessity of doing so in some particulars, will not show that the Government may commission privateers, to cruise against them as rebels, (privateering being a belligerent right, never, so far as I am aware, exercised against rebels,) and still punish those who war against it as rebels, by confiscation and death, for the crime of treason. But the astounding position that “the law of nations is above the Constitution ” in regulating the action of Congress and of the President, (which is announced in capitals, and afterwards repeated,) if it were accepted, must abrogate all legislation of Congress for the punishment of rebels and traitors, after they are treated as belligerents, and thus come under the law of nations, in the prosecution of the war. If the law of nations is to be set above the Constitution, and to furnish the rule, because the rebels are belligerents, then, upon the suppression of the rebellion by the proposed conquest of the territory of the seceded States, Davis, Floyd, Thompson, and others, if seized, will become prisoners of war, and entitled to be treated as such. The author appears to have a glimmering consciousness
that his argument leads to such a result, and enters a caveat against it; but he does not show how his caveat is to avail, if “the law of nations is above the Constitution.”
Furthermore, any one who will give but a limited examination to the question,- What are the nature, character, objects, and certainty of the Law of Nations, will perhaps be ready to ask, - Who authorized the rebels, or Congress, or the President, or all of them, to place that law above the Constitution ?
This argument, if admitted, will not serve to prove the ex
istence of the power contended for, as the law of nations
does not recognize the power of one belligerent, by any act
of legislation, or by proclamation, during the war, to change
the institutions and domestic relations of the other belligerent. What is not actually changed by the war, remains, on the conclusion of the war, as it was before. When conquest has given control, the legislative power of the conqueror may change the laws of the conquered party.
The author next gives us another very remarkable specimen of legal reaspning. Referring to certain proceedings which have been alleged to be in violation of those amendments of the Constitution which declare “that no man shall be deprived of life, liberty, or property, without due process of law; that private property shall not be taken for public use without just compensation; that unreasonable searches and seizures shall not be made ; freedom of speech and of the press shall not be abridged ; and that the right of the people to keep and bear arms shall not be infringed,” — the general proposition is enunciated:—
“THESE PRovisions NoT APPLICABLE TO A STATE of war.” And the author proceeds to add, “If these rules are applicable to a state of war, then capture of property is illegal, and does not pass a title; no defensive war can be carried on ; no rebellion can be suppressed; no invasion can be repelled; the army of the United States, when called into the field, can do no act of hostility. Not a gun can be fired constitutionally, because it might, deprive a rebel foe of his life without due process of law — firing a gun not being deemed “ due process of law.”
Now it is to be noted, that this proposition that these provisions of the Constitution are not applicable to a state of