1. First among the powers of Congress, and associated with the power to lay and collect taxes, is that to “provide for the common defence and general welfare.” It is questioned whether this is a substantive power, or simply incident to that with which it is associated. But it is difficult, if not absurd, to insist that Congress has not this substantive power. Shall it not provide for the common defence? Shall it not regard the general welfare? If powerless to do these things in a great crisis, it had better abdicate. In the Virginia Convention, Mr. George Mason, a most decided opponent of the Constitution, said: “That Congress should have power to provide for the general welfare of the Union I grant.”[275] The language of Patrick Henry, to which allusion has just been made, was more explicit. He foresaw that this power would be directed against Slavery, and did not hesitate to declare:—
“Slavery is detested. We feel its fatal effects. We deplore it with all the pity of humanity. Let all these considerations, at some future period, press with full force on the minds of Congress; let that urbanity which, I trust, will distinguish America, and the necessity of national defence,—let all these things operate on their minds; they will search that paper [the Constitution] 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 dearly and certainly exercise it.”[276]
Language could not be more positive. To all who ask for the power of Congress over Slavery, here is a sufficient answer; and remember that this is not my speech, but the speech of Patrick Henry, who says that the Constitution “speaks to the point.”
2. Next comes the fountain, “Congress shall have power to declare war, to raise and support armies, to provide and maintain a navy.” A power like this is from its nature unlimited. In raising and supporting an army, in providing and maintaining a navy, Congress is not restricted to any particular class or color. It may call upon all, and authorize that contract which the Government makes with an enlisted soldier. But such contract would be in itself an act of manumission; for a slave cannot make a contract. And if the contract be followed by actual service, who can deny its completest efficacy in enfranchising the soldier-slave and his whole family? Shakespeare, immortal teacher, gives expression to an instinctive sentiment, when he makes Henry the Fifth, on the eve of the victory at Agincourt, encourage his men by promising,—
“For he to-day that sheds his blood with me
Shall be my brother; be he ne’er so vile,
This day shall gentle his condition.”
3. There is still another clause: “The United States shall guaranty to every State in this Union a republican form of government.” Here again is a plain duty. But the question recurs, What is a republican form of government? John Adams, in the correspondence of his old age, says:—