to destroy. (Van Brocklin v. Tennessee, 117 U. S. 151; State bank notes, Veazie Bank v. Fenno, 8 Wall. 533); oleomargarine McCray v. U. S., 195 U. S. 27; and phosphorous matches 37 Stat. 81); and to prohibit importations. The power to spend follows the power to tax. (U. S. v. Realty Co., 163 U. S. 423.) So, Congress induces the States to set up satisfactory laws concernings schools, highways, militia, forestry, maternity, and what not? (Massachusetts v. Mellon, 262 U. S. 44; 16 American Political Sci. Rev. 443.)

The limits of the commerce power are not yet fixed. The commerce brought under control is that which affects the States generally, whether it moves across State lines or not. (Wm. H. Rankin Co. v. Associated Bill Posters, 260 U. S. 1; United States v. Am. Linseed Oil Co., 262 U. S. 371; Board of Trade v. Olsen, 262 U. S. 1.) This power is frequently used to control some subject which was before a matter of internal State policy. Food and drug act, narcotic act, white slave act, employees' liability act, and various others are excursions into internal policy far better referred to the welfare clause than to the commerce clause.

Under the war powers we see exerted and upheld power to allot commodities, fix prices, define and prohibit intoxicants, fix hours of labor and determine in what employment a citizen shall remain. Congress is judge of the emergency. (Hamilton v. Kentucky Distilleries Co., 251 U. S. 146.)

The treaty power is not limited by any enumeration. (Missouri v. Holland, 252 U. S. 416; Sullivan v. Kidd, 254 U. S. 433.) A treaty on any subject having been made, Congress can repeal, modify, or enforce it. (Grogan v. Hiram Walker & Sons, 259 U. S. 80; Ward v. Race Horse, 163 U. S. 504.) So the United States is put into the making and enforcement of game laws and can legislate on any subject, if it can servilely gain the formal consent of some nation of really independent power.

IS CONGRESS REALLY A COORDINATE BRANCH

Congress can make laws to carry into execution the powers of the judiciary and of the executive and to give effect to the guaranties and immunities of citizenship. (Strander v. West Virginia, 100 U. S. 303; Yick Wo v. Hopkins, 118 U. S. 356; Ableman v. Booth, 21 How. 506, Logan v. U. S., 144 U. S. 263.) Congress makes the maritime law only by virtue of a Federal judicial power to enforce such law. (Re Garnett, 141 U. S. 1; Panama R. Co. v. Johnson, 264 U. S. 375; Southern Pac. Co. v. Jensen, 244 U. S. 205), and must make it as general as the jurisdiction of the courts. But a power to give or take away the jurisdiction of the courts implies a power to give the rule of decision, if jurisdiction is given. Fauntleroy v. Lum, 210 U. S. 230; United States v. Interstate Commerce Commission, 246 U. S. 638; American Banana Co. v. United Fruit Co., 213 U. S. 347; Smith v. Appel, 264 U. S. 285.) The executive can not act without means supplied by Congress, even to enforce the decrees of the courts. The Federal Court of Appeals under the Articles of Confederation had no power because the Congress had no power to sustain its decrees. (C. F. 131 U. S. Appendix XXIX; Virginia v. West Virginia, 246 U. S. 565; Haines, Judicial

Mr. KELLER. I am having a new form of the child labor law drafted in the hope that it may be constitutional, and I expect to have it before this committee in the very early days of the forthcoming extraordinary session.

LEGAL DISCUSSION OF WELFARE CLAUSE

By James F. Lawson

THE POWER OF CONGRESS

In deference to the primary rule of statutory construction we first look to the language of the Constitution to discover the powers of the Congress, created by that instrument. Proceeding to the section in which those powers are formally enumerated we read the first, as follows:

SEC. 8. 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.

I have written a brief, designed to show that this clause was intended by the makers of the Constitution to convey to Congress the general power" to provide for the common defense and general welfare of the United States," that is, a power to determine when any subject matter lies beyond the competency of State legislatures and has become a matter of paramount national importance, and thereupon to determine upon and adopt the best method of providing for the general welfare of the United States. The brief has been printed but the first printing was exhausted by the gifts I have made to persons interested in the subject. For your convenience I have prepared this summary of my argument. In the interest of brevity most of the citations which support the points to be made must be omitted from this outline. The abbreviation "D. H. C.", wherever it occurs, refers to the Documentary History of the Constitution, published by the Government Printing Office.

as a coordi

The natural reading is to treat the clause "to pay the debts and provide for the common defense and general welfare nate with the clause "to pay and collect taxes," being governed like each of the succeeding infinitives) by the same antecedent part of the sentence, "the Congress shall have power." The alternative reading supplies the words "in order" after the word "excises," thus giving the power to tax only in order "to pay the debts and provide for the common defense and general welfare." treatment only exalts the power "to pay the debts and provide for the common defense and general welfare" above all the others enumerated in the instrument, as being the only one for which the power to tax is given. "It is a mere grammatical quibble," said Jefferson, "whether the two last infinitives are governed by the first, or are distinct and coordinate powers." (7 Worls 78.)

THE ENUMERATION OF POWERS

The important question, Jefferson thinks, is decided by the enumeration immediately following. The maxim, "expressio uninus est exclusio alterius," would doubtless operate to exclude the power to provide for the general welfare, but for the significant fact that the power to provide for the general welfare is also expressed. The rule that, when general words follow particular words, the former

must be construed as applicable to the thing or person particularly mentioned is too narrow," says the Supreme Court. (Cutler v. Konns, 111 U. S. 720; Mason v. U. S., 260 U. S. 545; Nephi Plaster Co. v. Juab County, 33 Utah 114; 93 Pac. 53; 36 Cyc. 1120).

The rule is the same when the general words precede the particulars enumerated, as we find when the Supreme Court undertakes to construe its own grant of power. In Kansas v. Colorado (206 U. S. 46), the court said:

Article 3, which treats on the judicial department-and this is important for our present consideration-we find that paragraph 1 reads, "that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." By this is granted the entire judicial power of the Nation. Section 2, which provides that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States." etc., is not a limitation nor an enumeration. It is a definite declaration-a provision that the judicial power shall extend to-that is, shall include the several matters mentioned, leaving unrestricted the general grant of the entire judicial power."

The court, in like manner, finds that the executive power is also vested by a general grant, "strengthened by specific terms where emphasis is appropriate, and limited by direct expressions where limitation is needed." (Myers v. United States, 272 U. S. 52); bearing out a construction insisted upon by Hamilton, Theodore Roosevelt, and Wilson.

The court, in Kansas v. Colorado (206 U. S. 46), announces the result:

The first article, treating of legislative power, does not make a general grant of legislative powers. It reads, 'art. 1, sec. 1. All legislative powers herein granted shall be vested in a Congress," etc.; and then in Article (sic) VIII, mentions and defines the legislative powers that are granted. By reason of the fact that there is no general grant of legislative power it has become an accepted constitutional rule that this is a government of enumerative powers. It is thus manifest that the court, in reading section 8 or article 1, is wholly disregarding the phrase, included in the first clause of the grant," to pay the debts and provide for the common defense and general welfare." And the distinction, between the particularization of matters mentioned and defined in the legislative grant and the specification of "several matters " mentioned and definitely declared in the judicial grant, is too subtle to justify the overthrow of government by the people through a representative legislature. The impossibility of a complete enumeration dictated the general terms with equal force in the legislative, executive, and judicial grants; just as muncipal charters after enumerating the powers of the common council, almost invariably conclude with a more general gran The courts have no diffculty in sustaining the general clause in t less important cases. (3 Dillon, Municipal Corporations, 5th e p. 2110; 28 Cyc. 262, 942; Porter v. Vanzant, 49 Fla. 413; Roundtree v. Galveston, 42 Tex. 610; United States v. Fisher, 2 Cranch 358; Johnson v. Southern Pac. Co. 196 U. S. 1.)

THE COURT HAS NEVER CONSTRUED THIS CLAUSE

I may now observe that in more than 286 volumes of the reported decisions of the Supreme Court, among which are scarcely more than a score of decisions holding that Congress has gone beyond the

Mr. KELLER. I am having a new form of the child labor law drafted in the hope that it may be constitutional, and I expect to have it before this committee in the very early days of the forthcoming extraordinary session.

LEGAL DISCUSSION OF WELFARE CLAUSE

By James F. Lawson

THE POWER OF CONGRESS

In deference to the primary rule of statutory construction we first look to the language of the Constitution to discover the powers of the Congress, created by that instrument. Proceeding to the section in which those powers are formally enumerated we read the first, as follows:

SEC. 8. 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.

I have written a brief, designed to show that this clause was intended by the makers of the Constitution to convey to Congress the general power" to provide for the common defense and general welfare of the United States," that is, a power to determine when any subject matter lies beyond the competency of State legislatures and has become a matter of paramount national importance, and thereupon to determine upon and adopt the best method of providing for the general welfare of the United States. The brief has been printed but the first printing was exhausted by the gifts I have made to persons interested in the subject. For your convenience I have prepared this summary of my argument. In the interest of brevity most of the citations which support the points to be made must be omitted from this outline. The abbreviation "D. H. C.", wherever it occurs, refers to the Documentary History of the Constitution, published by the Government Printing Office.

The natural reading is to treat the clause "to pay the debts and provide for the common defense and general welfare" as a coordinate with the clause "to pay and collect taxes," being governed like each of the succeeding infinitives) by the same antecedent part of the sentence, "the Congress shall have power. The alternative reading supplies the words "in order" after the word "excises," thus giving the power to tax only in order "to pay the debts and provide for the common defense and general welfare." But this treatment only exalts the power "to pay the debts and provide for the common defense and general welfare" above all the others enumerated in the instrument, as being the only one for which the power to tax is given. "It is a mere grammatical quibble," said Jefferson, "whether the two last infinitives are governed by the first, or are distinct and coordinate powers." (7 Worls 78.)

THE ENUMERATION OF POWERS

The important question, Jefferson thinks, is decided by the enumeration immediately following. The maxim, "expressio uninus est exclusio alterius," would doubtless operate to exclude the power to provide for the general welfare, but for the significant fact that the power to provide for the general welfare is also expressed. The rule that, when general words follow particular words, the former

must be construed as applicable to the thing or person particularly mentioned is too narrow," says the Supreme Court. (Cutler v. Konns, 111 U. S. 720; Mason v. U. S., 260 U. S. 545; Nephi Plaster Co. v. Juab County, 33 Utah 114; 93 Pac. 53; 36 Cyc. 1120).

The rule is the same when the general words precede the particulars enumerated, as we find when the Supreme Court undertakes to construe its own grant of power. In Kansas v. Colorado (206 U. S. 46), the court said:

Article 3, which treats on the judicial department-and this is important for our present consideration-we find that paragraph 1 reads, “that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." By this is granted the entire judicial power of the Nation. Section 2, which provides that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States." etc., is not a limitation nor an enumeration. It is a definite declaration-a provision that the judicial power shall extend to-that is, shall include the several matters mentioned, leaving unrestricted the general grant of the entire judicial power." The court, in like manner, finds that the executive power is also vested by a general grant, "strengthened by specific terms where emphasis is appropriate, and limited by direct expressions where limitation is needed." (Myers v. United States, 272 U. S. 52); bearing out a construction insisted upon by Hamilton, Theodore Roosevelt, and Wilson.

The court, in Kansas v. Colorado (206 U. S. 46), announces the result:

The first article, treating of legislative power, does not make a general grant of legislative powers. It reads, "art. 1, sec. 1. All legislative powers herein granted shall be vested in a Congress," etc.; and then in Article (sic) VIII, mentions and defines the legislative powers that are granted. By reason of the fact that there is no general grant of legislative power it has become an accepted constitutional rule that this is a government of enumerative powers.

It is thus manifest that the court, in reading section 8 or article 1, is wholly disregarding the phrase, included in the first clause of the grant," to pay the debts and provide for the common defense and general welfare." And the distinction, between the particularization of matters mentioned and defined in the legislative grant and the specification of "several matters" mentioned and definitely declared in the judicial grant, is too subtle to justify the overthrow of government by the people through a representative legislature. The impossibility of a complete enumeration dictated the general terms with equal force in the legislative, executive, and judicial grants; just as muncipal charters after enumerating the powers of the common council, almost invariably conclude with a more general grant. The courts have no diffculty in sustaining the general clause in the less important cases. (3 Dillon, Municipal Corporations, 5th ed. p. 2110; 28 Cyc. 262, 942; Porter v. Vanzant, 49 Fla. 413; Roundtree v. Galveston, 42 Tex. 610; United States v. Fisher, 2 Cranch 358; Johnson v. Southern Pac. Co. 196 U. S. 1.)

THE COURT HAS NEVER CONSTRUED THIS CLAUSE

I may now observe that in more than 286 volumes of the reported decisions of the Supreme Court, among which are scarcely more than a score of decisions holding that Congress has gone beyond the