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been preserved, are Virginia and North Carolina, and from these no adverse inferences can be drawn. Nor is there the slightest indication that either of the two States farthest south, whose debates in Convention, if preserved, have not been made public, viewed the encouragement of manufactures as not within the general power over trade to be transferred to the Government of the United States.

6. If Congress have not the power, it is annihilated for the nation; a policy without example in any other nation, and not within the reason of the solitary one in our own. The example alluded to is the prohibition of a tax on exports, which resulted from the apparent impossibility of raising, in that mode, a revenue from the States, proportioned to the ability to pay it—the ability of some being derived, in a great measure, not from their exports, but from their fisheries, from their freights, and from commerce at large, in some of its branches altogether external to the United States; the profits from all which, being invisible and intangible, would escape a tax on exports. A tax on imports, on the other hand, being a tax on consumption, which is in proportion to the abilities of the consumers, whencesoever derived, was free from that inequality.

7. If revenue be the sole object of a legitimate impost, and the encouragement of domestic articles be not within the power of regulating trade, it would follow that no monopolizing or unequal regulations with foreign nations could be counteracted; that neither staple articles of subsistence, nor the essential implements for the public safety, could, under any circumstances, be insured or fostered at home, by regulations of commerce, the usual and most convenient mode of providing for both; and that the American navigation, though the source of naval defense, of a cheapening competition in carrying our valuable and bulky articles to market, and of an independent carriage of them during foreign wars, when a foreign navigation might be withdrawn, must be at once abandoned, or speedily destroyed; it being evident that a tonnage duty in foreign ports against our vessels, and an exemption from such a duty in our ports, in favor of foreign vessels, would have the inevitable effect of banishing ours from the ocean.

To assume a power to protect our navigation, and the cultivation and fabrication of all articles requisite for the public safety,

as incident to the war power, would be a more latitudinary construction of the text of the Constitution, than to consider it as embraced by the specified power to regulate trade-a power which has been exercised by all nations for those purposes, and which effects those purposes with less of interference with the authority and conveniency of the States, than might result from internal and direct modes of encouraging the articles; any of which modes would be authorized, as far as deemed "necessary and proper,” by considering the power as an incidental power.

8. That the encouragement of manufactures was an object of the power to regulate trade is proved by the use made of the power for that object, in the first session of the first Congress under the Constitution; when among the members present were so many who had been members of the Federal Convention which framed the Constitution, and of the State Conventions which ratified it; each of these classes consisting also of members who had opposed, and who had espoused, the Constitution in its actual form. It does not appear from the printed proceedings of Congress on that occasion, that the power was denied by any of them. And it may be remarked, that members from Virginia, in particular, as well of the anti-federal as the federal party-the names then distinguishing those who had opposed and those who had approved the Constitution-did not hesitate to propose duties and to suggest even prohibitions in favor of several articles of her production. By one a duty was proposed on mineral coal, in favor of the Virginia coal pits; by another, a duty on hemp was proposed, to encourage the growth of that article; and by a third, a prohibition even of foreign beef was suggested, as measure of sound policy.

A further evidence in support of the constitutional power to protect and foster manufactures by regulations of trade-an evidence that ought, of itself, to settle the question-is the uniform and practical sanction given to the power, by the General Government, for nearly forty years, with a concurrence or acquiescence of every State government, throughout the same period; and it may be added, through all the vicissitudes of party which marked the period. No novel construction, however ingeniously devised, or however respectable and patriotic its patrons, can withstand the weight of such authorities, or the unbroken current of so prolonged and universal a practice.

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And may it not be fairly left to the unbiased judgment of all men of experience and of intelligence, to decide, which is most to be relied on for a sound and safe test of the meaning of the Constitution, a uniform interpretation by all the successive authorities under it, commencing with its birth, and continued for a long period, through the varied state of political contests; or the opinion of every new Legislature, heated as it may be by the strife of parties-or warped, as often happens, by the eager pursuit of some favorite object-or carried away, possibly, by the powerful eloquence or captivating address of a few popular statesmen, themselves, perhaps, influenced by the same misleading causes? If the latter test is to prevail, every new legislative opinion might make a new Constitution, as the foot of every new Chancellor would make new a standard of measure.

But Mr. Madison had not postponed the communication of his views on this subject until his old age. In his speech in Congress in 1789, upon the proposition to combine the objects of protection and revenue in the first tariff act, rendered famous by its preamble, declaratory of a purpose to encourage and protect manufactures, he said:

The States that are most advanced in population, and ripe for manufactures, ought to have their particular interests attended to in some degree. While these States retained the power of making regulations of trade, they had the power to protect and cherish such institutions. By adopting the present Constitution, they have thrown the exercise of this power into other hands; they must have done this with an expectation that those interests would not be neglected here.-Gales and Seaton's Debates, old series, Vol. I., p. 116.

In his

So, too, when he had become President. second annual message, December 5, 1810, after adverting to a "highly interesting extension of useful manufactures, the combined product of professional occupations and of household industry," he observes, "how

far it may be expedient to guard the infancy of this improvement in the distribution of labor, by regulations of the commercial tariff, is a subject which cannot fail to suggest itself to your patriotic reflections." Thus, at the beginning, in the midst, and at the close of his career as constitution-maker, as chief magistrate, as hoary and revered sage he held the same opinion about the source, nature, and extent of the protecting power.

Gulian C. Verplanck, in his once celebrated letter to Colonel William Drayton, of South Carolina, November 1, 1831, piled proof upon proof to show that the whole generation contemporaneous with the new government were of one mind on this question. Below is part of his statement of facts and reasons:

Mr. Madison has told us, in his letter to Mr. Cabell, that the objects of our present tariff laws were "the objects to which this power was generally understood to be applicable, when the words were inserted in the Constitution." Mr. Gallatin, one of the

earliest, and certainly one of the most consistent and able champions of free trade in this country, has stated in the conferences of the free trade committee, as I am told, and repeatedly in conversation with myself, that such he found, upon his first entrance into political life in 1783, to be the universal opinion of the statesmen who formed and of those who opposed the Constitution. In the debates of the first Congress under it, whilst the policy of laying protecting duties was strongly supported by some members, all, so far as I can gather from the reports, seemed to take the power for granted. Petitions for duties to foster manufactures were presented, meetings held, and societies formed for effecting that object; and, after diligent inquiry, I can find no trace of opposition or censure from the press or from the public on constitutional grounds, or any doubt anywhere intimated as to this power of Congress. The preamble of the first act imposing duties, reciting that they are laid, amongst other purposes," for the encouragement of manufactures," has often been quoted. Merely as an expression of the opinion of the First Congress on this head, it is

doubtless entitled to great weight. But a circumstance which I have never seen or heard remarked upon strikes me with much greater force. There is no evidence of any opposition or proposed amendment to this assertion of power. It was not, therefore, simply the expression of the Federal majority of that Congress, who might on this, as on other points, be supposed to claim a liberal or latitudinarian construction of the Constitution, but shows strongly the general opinion of a legislature contemporary with the adoption of the instrument itself, and containing a bold, a vigilant, and an eloquent minority, jealous of the new Constitution, and opposing every extension of the authority of any of its branches. They opposed the Bank of the United States as unconstitutional; they opposed the President's power of removing his officers, without the consent of the Senate, as unconstitutional. In a succeeding Congress, the same men opposed the carriage tax as unconstitutional. On this preamble they were silent. It is, besides, remarkable that, in the very next year, when the first tariff act of the United States was repealed, and a higher scale of duties substituted, this preamble was recited and retained.

The nullification controversy, based on the claim. that the tariffs of 1824 and 1828 were oppressive, unjust, and even unconstitutional, imposed upon the friends of the Union the task of investigating the origin, the character, and the limitations of the protecting power. Metaphorically, they had to dig down through forty years of eruptive overflow from the volcanoes of partisan politics, before they could lay bare the distinct outlines of this buried and forgotten Herculaneum of the Constitution, which had been as familiar as their own doorsteps to the first generation of American statesmen. About the time of those explorations, Andrew Jackson, in his second annual message to Congress, December 7, 1830, placed the intolerant and aggressive advocates of the revenue standard in the following predicament—a condition of awkwardness and difficulty from which they have never yet been able to extricate themselves:

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