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for every cloth, 6s. 8d.” The question was whether this by-law were good, and it was ruled in the affirmative; because it was a a salutary regulation (not a restraint) of trade. “Also the assessing of the said 1d. for halleage was good, because it was pro bono publico, and it was competent and reasonable, having regard to the benefit which the subject enjoyed by reason of the said ordinances, and such assessments being for the maintenance of the public good, and not pro privato lucro [for the benefit of the corporation] were maintainable in law.” Here is the doctrine of all inspection laws.
We dismiss this important point, upon which we have necessarily enlarged a good deal, with an humble confidence in the justiness of our views in relation to it.
If we have succeeded in shewing that the only two clauses of the Constitution, under which the right to protect domestic industry has been claimed, give no countenance to such a pretension, we have done all that in strict justice can be exacted of us. The onus probandi is upon the other side, and if they have not made out their case, we are entitled to judgment of course. But we shall now proceed to that part of the “Protest,” in which it is affirmed that the right of levying protecting duties has been reserved to the States.
“6. Because whilst the power to protect manufactures is no where expressly granted to Congress, nor can be considered as necessary and proper to carry into effect any specified power, it seems to be expressly reserved to the States by the tenth section of the first article of the Constitution.
We spoke so much at large upon this subject, in our review of the “Crisis”—the pamphlet in which this doctrine, as well as the negative inference to be drawn from the language of the clause authorizing Congress to grant patent rights, were, we believe, first publicly discussed—that we find our present labour a good deal abridged.” But Mr. Madison having, since our former remarks were published, adverted very particularly to this topic, and given his reasons for rejecting what he calls a novel, however plausible, interpretation, we feel bound to reply to his strictures. They are as follows:–
“It is seen with no little surprise, that an attempt has been made in a highly respectable quarter, and at length reduced to a resolution formally proposed in Congress, to substitute, for the power of Congress to regulate trade so as to encourage manufactures, a power in the several States to do so, with the consent of that body; and this expedient is derived from a clause in the tenth section of article first of the Constitution, which says: “No state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties, and imposts, laid by any State on imports and exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.” “To say nothing of the clear indications in the Journal of the Convention of 1787, that the clause was intended merely to provide for expenses incurred by particular States, in their inspection laws and in such improvements as they might choose to make in their harbors and rivers, with the sanction of Congress—objects to which the reserved power has been applied, in several instances, at the request of Virginia and Georgia—how could it ever be imagined that any State would wish to tax its own trade for the encouragement of manufactures, if possessed of the authority, or could, in fact, do so, if wishing it? “A tax on imports would be a tax on its own consumption; and the met proceeds going, according to the clause, not into its own Treasury, but into the Treasury of the United States, the State would tax itself separately for the equal gain of all the other States; and as far as the manufactures, so encouraged, might succeed in ultimately increasing the stock in market, and lowering the price by competition, this advantage, also, procured at the sole expense of the State, would be common to all the others. “But the very suggestion of such an expedient to any State, would have an air of mockery, when its experienced impracticability is taken into view. No one, who recollects or recurs to the period when the power over commerce was in the individual States, and separate attempts were made to tax, or otherwise regulate it, need be told that the attempts were not only abortive, but, by demonstrating the necessity of general and uniform regulations, gave the original impulse to the constitutional reform which provided for such regulations. “To refer a State, therefore, to the exercise of a power, as reserved to her by the Constitution, the impossibility of exercising which was an inducement to adopt the Constitution, is, of all remedial devices, the last that ought to be brought forward. And what renders it the more extraordinary, is, that, as the tax on commerce, as far as it could be separately collected, instead of belonging to the Treasury of the State, as previous to the Constitution, would be a tribute to the United States, the State would be in a worse condition, after the adoption of the Constitution, than before, in reference to an important interest, the improvement of which was a particular object in adopting the Constitution.”
* Southern Review, No. II. Art. 1.
When it is maintained that Congress has not the power contended for, the question naturally presents itself, is it still in the States. This question, however, obviously could not arise until the power of Congress was disputed, because a general system of protection is, in every point of view, preferable to a local or particular one. The novelty of our doctrine, therefore, ought not to prejudice it. Until to our objection (for reasons already mentioned) so recently made, that the General Government had not the power, it was answered, that then it existed no where, since the States could not exercise it, nobody thought of looking into the Constitution to see whether or not it had been expressly reserved to the States. That it had not been given away, was, to be sure, in reason, substantially the same thing ; but if a clause of the Constitution itself could be found from which such a reservation must necessarily, or could fairly be inferred, it put the conclusion upon much safer grounds. Not that we feel the force of the argument, that such a power must exist somewhere. We have already spoken to that point; but we must be allowed to repeat, that, except for the purposes of commerce and revenue, or defence, (where we concede the right) we do not acknowledge the necessity of what we consider as a great evil, to the perfection of any political constitution. But we look into the Constitution, and we find the following words:—
“No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the nett produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.”
The question is, what is the object of such a reservation ? Mr. Madison says it is merely to authorize the levying of trifling port duties, &c. We answer, in the first place, that the Constitution must speak for itself. Where there is no ambiguity in its words, evidence aliunde is inadmissible. We ask, then, whether this is not a full reservation to the States, of whatever power they originally had of taxing imports—subject to the single qualification, that they should have the consent of Congress For the purposes of the inspection laws, their power is complete without that consent—but in all other cases, without exception, they may lay what duties they please, upon exports or imports, provided those duties do not, in the opinion of Congress, interfere with the commercial or other policy of the nation. Even if it were a grant of power, in such general terms, it would be hard to shew that it was meant to be restricted to certain objects only—since there is nothing, we have seen, in the powers vested in Congress, at all inconsistent with the existence of such a right in the States. But the inference is much stronger, in the mere reservation of an original, inherent, universal power. Independently of the federal compact, the States might tax imports, or any thing else, at their good will and pleasure. But they have agreed, for obvious reasons, not to exercise their power in a particular case, except on one
condition. Now, supposing that condition complied with or removed, how can it be pretended that there are any other restrictions upon their sovereignty—or that a trifling port duty is the utmost extent of untrammelled sovereignty o
We are really unable to make this matter plainer by any reasoning of our own; but if we could, the task has been so much better performed by an abler pen, that it would be unnecessary. In the 32d No. of the “Federalist,” General Hamilton, addressing himself to this very topic, lays down the doctrine as follows:—
“I am willing here to allow, in its full extent, the justness of the reasoning, which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And making this concession, I affirm that, (with the sole exception of duties on imports and exports,) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its constitution.
“An entire consolidation of the States into one complete national sovereignty, would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act exclusively delegated to the United States. This exclusive delegation, or rather this alienation of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted, in one instance, an authority to the Union, and in another, prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant. I use these terms to distinguish this last case from another which might appear to resemble it; but which would, in fact, be essentially different: I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. These three cases of exclusive jurisdiction in the Federal Government, may be exemplified by the following instances: The last clause but one in the eighth section of the first article, provides expressly, that Congress shall exercise “exclusive legislation” over the district to be appropriated as the seat of government. This answers to the first case. The first clause of the same section empowers Congress, “to lay and collect taxes, duties, imposts and excises;” and the second clause of the tenth section of the same article declares, that “no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, exexcept for the purpose of executing its inspection laws.” Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares, that no tax or duty shall be laid on articles exported from any State; in consequence of which qualification, it now only extends to the duties on imports. This answers to the second case. The third case will be found, in that clause which declares, that Congress shall have power “to establish an uniform rule of naturalization throughout the United States.” This must necessarily be exclusive; because if each State had power to prescribe a distinct rule, there could be no uniform rule.
“A case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. I mean the power of imposing taxes on all articles other than exports and imports. This I contend, is manifestly a concurrent and coequal authority in the United States, and in the individual States. There is plainly no expression in the granting clause, which makes that power erclusire in the Union. There is no independent clause or sentence which prohibits the States from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is deducible from the restraint made upon the States in relation to duties on imports and exports. This restriction implies an admission, that if it were not inserted, the States would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the States renains undiminished. In any other view, it would be both unnecessary and dangerous; it would be unnecessary because, if the grant to the Union of the power of laying such duties, implied the exclusion of the States, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean that the States, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the Union. The restriction in question amounts to what lawyers call a negative pregnant; that is, a negation of one thing, and an affirmance of another: a negation of the authority of the States to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. It would be mere sophistry to argue, that it was meant to exclude them absolutely from the imposition of taxes of the former kind, and to leave them at liberty to lay others subject to the control of the national legislature. The restraining or prohibitory clause only says, that they shall not, without the consent of Congress, lay such duties; and if we are to understand this in the sense last mentioned, the Constitution would then be made to introduce a formal provision, for the sake of a very absurd conclusion; which is, that the States, with the consent of the national legislature, might tax imports and exports; and that they might tax every other article, unless controlled by the same body. If this was the intention, why was it not left, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the Union ? It is evident that this could not have been the intention, and that it will not bear a construction of the kind.”