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nied? This is one answer to that part of Mr. Madison's letter, in which he argues that the General Government must have the right of protecting manufactures, because the States have not. Perhaps, we may shew that the States still have the power—but if we do not, does it follow that a power in the extent to which it is claimed) at war with the nature of our government, and of all free governments, and of all enlightened policy, must exist somewhere? Is it not very conceivable that our fathers, at so recent a period as foriy years ago, might have been thoroughly imbued with the principles of the popular pbilosophy of the day, the great revelation of the eighteenth century, the doctrine of free trade, and that they chose this, like some other rights—the trial by jury, for instance-to be above all the caprices of legislation? They fully understood their position-ihey clearly perceived their advantages—they knew what a world was all before them to cultivate and build up and beautify—is it not in strict analogy with all they said and did, to suppose that they chose to make their country the empire of reason, to conform their laws to the laws of nature, to leave this people to the impulse of most favourable circumstances and an energetic and enterprising national character, “of our proper motion to ascend” to the prosperity and importance to which we have attained, so soon, and by those very means?
It seems to us quite remarkable that so acute and sound a mind as Gen. Hamilton's, was not struck with the singular incongruity which we have pointed out between the admitted powers and the supposed purposes of the government. How unaccountable, that the States anticipating the birth of the "American System,” out of the necessities of the country, should have made no provision, or next to none, for its decent support! To be sure, the ingenious idea of raising money for any purpose whatever, federal or unfederal, went very far to fill up the melancholy chasm. It is hard to say what a government, both putting money into its purse, “ as Iago advises" and taking it out ad libitum, cannot accomplish. But even with this mighty succedaneum, it is still unaccountable in theory, how the prophetic formers of the Constitution-the pretended fathers of the American System-should have left the encouragement of manufactures, to depend almost exclusively upon the manner in which another great interest of the country should be regulatedshould leave them, as it were, absolutely dependent upon what they could pick up casually and indirectly, by the liberality of that interest, or by cunning contrivances of their friends to defraud and circumvent it. Can any thing be more striking than the very deficiency pointed out by General Hamilton himself in the
passage just quoted, of a power to reward the introducers of foreign improvements ? Why should such a power not be implied, as well as the right to institute a corporation ? Because it would be too glaringly inconsistent with the context. The convention had on full consideration and in the most solemn terms, given to the government a power “ to promote the progress of science and useful arts"-how? O most lame and impotent conclusion !--"By securing for limited times to authors and inventors, the exclusive right to their respective writings and discoveries.” This, like every other grant of power in the Constitution, was an emphatic affirmative pregnant. It utterly excluded the idea of any other species of direct encouragement-even by money, one should think. This difficulty was felt by the ablest champion, whom those who would strengthen the federal system by implication, have ever found. What other inference can be drawn from such premises, but that the whole system of protection, as such, was out of the pale of the government that commerce with foreign nations, not the domestic industry which feeds it—that the merchant, not the artificer, was the object of our federal association ?*
This conclusion thus drawn from the frame of the Constitution and the analogies of the Constitution itself, seems to conform to the general understanding of mankind. Every definition which we have happened to meet with in elementary books, confirins us in our interpretation of the clause conveying the power to regulate commerce. A people having no manufactures, and as a nation, no direct power to promote them, agrees that the right of regulating their great and rapidly increasing commerce with foreign nations, shall be vested in a certain assembly-what is the business of these trustees? Is it not strictly internationalis it not confined to the regulating of a reciprocal intercourseand as the intercourse is in fact, as well as in the theory of the government, a great, paramount national concern, are not these trustees obviously bound in the execution of their powers, to make the most of that interest ??
* “ Those that buy goods to reduce them by their own art or industry into other forms than formerly they were ot, are properly called artificers, not mercbants."Molloy de Jure Maritim. 1. 3. c. 7. Ø 13.
+ The idea of encouragement to domestic manufactures does not seem to be embraced in any definitions of “commerce," though “navigation” is—and in commercial treaties, commerce and navigation are always mentioned as synonimous.
They are identified in the common understanding of mankind. Beawes (Lex Mercatoria, vol. p 1,) distinguishes between commerce and trade. “Com merce is that intercourse with foreign nations which is carried on from one country to another by means of navigation, either for the exchange of commodities, or for the sale or purchase of them through the medium of money. Commerce, then, has its basis in navigation, and is supported by exports and imports, whereas,
The answer to this last question is the great point of difference between the friends and the adversaries of the system." The former admit that the government of the United States has not all the powers necessary to a complete protection of domiestic industry, but they say that the right to regulate commerce is the most important of any, and that that right is conveyed to Congress, in an unqualified, unreserved mannerthey affirm that the fallacy of our argument consists in restricting the exercise of a power thus given without stint, to the accomplishment of a few only out of its many objects. The only question, say they, about the capacity of Congress to legislate, is a naked one as to the existence of the power. Ifihat be decided affirmatively, then how, or how far, it shall be exercised, or whether it shall be exercised at all or not, are matters of uncontrolled legislative discretion. This discretion may be abused, but an abuse of power is not an usurpation.
We believe we have put tbe argument fairly we have endeavoured to put it strongly. Let us proceed to examiut it.
It follows, we maintain, from our previous reasonings, that to suppose that the power to regulate commerce was not given with a view to commerce, as an end, as one of the great, paramount objects of the government, but only as a meuns of pronioting indirectly other objects not directly embraced, and therefore, entirely excluded from the scheme of the government, is a solesimple trade may be transacted independent of these elements, and herein chiefly consists the difference.” The word used in the Constitution of the United Staies is -- Commerce," and even when the traffic between the Stales is mentioned, it is described in the same way-thus excluding every ambiguity that might arise upon the word “trade." Martens also, (Law of Nations, B. 4. c. 3 ) represents comquerce as consisting in exchanges. “ External commerce has several branches. It consists in selling the superfluity, in purchasing articles of necessity, as well productions as manufactures, in buying from one nation and selling to another, or in transporting the merchandise from the stller to the buyer, to gain the freight.” Navigation, therefore, is included in this definition of commerce. “Commerce is carried on either by land or sea. It is well known that musitime commerce is the most considerable and in every respect the most important. Besides, the sea itselt produces very respectable branches of commerce." See to the same effect, Jacob's Law Dictionary. Voc. Commerce. Pardessus (Cours de Droit Commercial, vol. i. p. 1) defines it thus: - Le commerce dans ses rapports arec la jurispruduce peut être définie l'échange que les hommes font entr'eux des diverses productions mobiliaires de la nature ou de l'industrie." Domat. (Public Law. B. i. Tit 12. Sec. i.) “We give the name of commerce in general to the usage of buying and selling and bartering, which has been introduced, to the end that every one night have the things they stand in need of." Let these specimens suffice. We need not say that some of the books cited, are elementary works of the very highest authority.
Still further to illustrate the meaning of the words to “regulate commerce between the States," &c. we quote the following passage of the “ Federalisi.” “A very material object of this power was the relief of the States which import and export through other states, froin the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen, that ways would be found out, to load the articles of import and export, during the passage through their jurisdiction ith duties which would fall on the makers of the latter and the consumers of the former." &c.-No. 42.
cism and a contradiction. It is, as we have already remarked, a tundamnental principle in the law of all powers-especially where they are confided to agents of a limited interest or commission-ihat the objects of the power are of its very essence. It does not exist for any other purpose, and if a perversion of it to other purposes, may not be defeated or prevented, it is because the law, contrary to its first maxim, gives no remedy where there is an unquestionable right. If, indeed, the friends of the sistein consider impunity in doing wrong, as the test of right, there may be something in their argument. The forms of the law, the imperfections of judicature, may, and sometimes do, admit of such abuses, and when this is the case, there is no remedy but revolution that is to say, provided the sufferings of the people become great enough to justify a resort to the sword. B t we suppose the friends of the system to act in good faith. We do not presume against them any fraud up n the law. We address our argument, in short, to those concerned in the passing of such laws-the members of Congress and the Executive of the nation. We are sitting in chancery and would purge their consciences. And we put it to their common sense and their moral sense to decide, whether they have any right at all to treat the cardinal ends of government as mere means of accomplishing other ends, and to sacrifice an unquestionable and paramount object of that great covenant of States, to what those States never contemplated as any object of it at all. That the solemn and mighty trust confided to the agents of the Federal Government, was to be circumscribed by its enumerated
purposes (and in what other way could it be circumscribed?) is so clear from the reason of the thing, that authority is quite superfluous. We quote the following passage from the Federalist, therefore, rather by way of illustration than authority. It was written by General Hamilton and is directly in point-"The necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived. The inquiry will naturally divide itself into three branches: The objects to be provided for by a Federal Government—the quuntity of power necessary to the accomplishment of those objects-the persons upon whom the power ought to operate.
The principal purposes to be answered by the Union, are these: the common defence of the members—the preservation of the public peace, as well against national convulsions as external attacks-the regulation of commerce with other nations and between the United States-the superintendence of our intercourse, political and commercial with foreign countries."* We beg our readers,
* Federalist, No. 22.
before we proceed any further, to remark the admirable, and we will add, characteristic precision, with which the most able author of this paper has condensed, so to speak, the whole sum and substance of the Constitution into these few lines. It is the outline of a gigantic fabric sketched by the hand of a master with a single dash of his pencil. He proceeds to speak afterwards in detail of “the authorities essential” to the effecting of the above mentioned objects, and among other things lays down a principle quite indisputable, “that the means ought to be proportioned to the end," &c. 'This is the true doctrine of the Constitution and the only sure chart of the government; and now we ask, how can it be pretended that commerce can be regulated, to its own utter destruction, with a view to encourage manufactures, unless it be shewn (which is impossible) that commerce with foreign nations, is one and the same thing with industry and the labours of the artizan.
It is objected to us, that the right to regulate, implies the right to restrain. To be sure it does, provided the object of the restraint be a legitimate, paramount one. For instance, an embargo laid as a preliminary to, or even a substitute for war, is unquestionably constitutional. So, if the encouragement of manufactures were a distinct purpose of the Union, a tariff of protection would be constitutional, as a tariff for revenue confessedly is. And, to go a step further, restraints upon commerce are certainly within the provision of government, when the purpose of them is to coerce foreign States to reciprocity and fairness in their intercourse with us. This is an answer to another of Mr. Madison's objections. We—that is, the legislature of this State-have never pretended that the only purpose for which duties could be levied was revenue. On the contrary, we have uniformly been careful to admit that a bona fide commercial tariff would be constitutional-that is to say, a tariff of which the object is to increase commerce-to procure a wider market for the products of the couutry, after those products are created. Nothing is more common than a negotiation of which the object is to settle the duties reciprocally to be paid by two countries. The treaty between France and England in '86 is an example of this.* In that treaty his Britannic majesty reserves the right of countervailing, by additional duties, on certain enumerated merchandizes, the internal duties, actually imposed upon the manufactures or the impost duties which are charged on the raw material. Some such arrangement, with a view to a modification of the British corn laws, is rumoured to have been in contemplation of our government, when Mr. M'Lane went out to London; and it would reflect immortal honour upon
* Beawes, L. M. 617.