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We submit that, both as argument and authority, this passage is entirely conclusive of the point. Mr. Madison, we have seen, relies much on the argument, ab inconvenienti—a topic entitled to great weight in a doubtful case, but which is only admissible in such a case. Now we submit that there is no sort of occasion to resort to it here. But if there were, we do not see its peculiar applicability or force. The exercise by the States, of the power of levying duties on imports, it is said, could not have been contemplated, from its experienced and notorious impracticability, even under the old confederation. But, admitting the inefficiency of this reserved power—as we certainly do—how does it follow, that such as it is, it was not meant to reside in the States, when we see a clause of the Constitution clearly indicating that purpose? How are the States in a worse condition, as to this policy now, than they would have been, had the Union never been formed—than they actually were in, according to Mr. Madison's own shewing, under the old confederation? To enforce a restrictive system, requires, in a continental nation, tens of thousands of sentinels and patrols—and the whole naval power of England is not sufficient to prevent the violation of her revenue laws. How could it be expected that any of these States, in its original independence of the rest, should be exempt from the necessary consequences of such an unnatural policy: Every thing goes to shew that an immense system of smuggling is already organizing in Canada, and that the existing tariff promises to become, in the end, only a bill for abolishing the custom houses of the United States, without effecting any other change in the commercial relations of the country. The framers of the Constitution, no doubt, foresaw such results whenever a restrictive policy should come to be adopted here—they would willingly have denied the States the right which these, according to Luther Martin's account, insisted on retaining—they thought the encouragement incidentally afforded by the revenue laws of the United States, quite enough for all purposes of moderate protection—but how does it follow, because the power, as it now exists in the States, is only as efficient as it would have been, had the States retained all their original sovereignty, that, therefore, it does not exist at all It may be argued, that it ought to have been yielded to the General Govern ment—even this, however, we should altogether deny—but how does that prove that it has, in fact, been yielded ? As to the absurdity implied in a State taxing itself for the benefit of the Federal Treasury, we see nothing half so unreasonable in it, as in its taxing, along with itself, other States, oi. VI.-No. 11. 32

having no common interest with it in the object for which the imposition is laid—and such is the present system. The reason why the Convention would not allow the States to come in for a share of the revenue to be derived from the customs, was altogether financial. The Federal Government was expected to rely almost exclusively on that branch of income." The temptation, therefore, of laying duties, professedly for protection of their domestic industry, but really to fill the coffers of the States, was taken away by this provision. As the Constitution now stands, the States may, with the consent of Congress, levy what duties they please for the benefit of their own manufacturers, but they are not allowed to tax the whole Union for a local purpose. They may secure to themselves—so far as it may be possible to enforce their restrictive laws—the monopoly of their own market; but then, it is a melancholy truth, that this interpretation of the Constitution, deprives them of every peculiar privilege in selling their goods to the other States. The language of Congress to such a State, is-“pursue your own measures—you are not satisfied with the commercial policy of the confederacy—you wish to cultivate a distinct interest—be it so. Shut up your ports—line your frontiers with outposts—cover the whole face of your country with policemen and patrols. You have renounced, quoad hoc, your federal relations, and become as you were before the Union. You shall enjoy all the advantages of an independent State—but do not complain because you are allowed no more—because you may not abuse federal powers for local ends.” We have hitherto argued the question as it arises upon the face of the Constitution itself. But since Mr. Madison may be regarded as a witness as well as an expositor of what was meant by himself and his associates in the Convention, we beg leave, in conclusion, to refer our readers to the contemporaneous evidence of Mr. Luther Martin, to which we called their attention in a former article.f. We do not think it reasonable to require anything more pointed, precise and unsuspected. If we have succeeded in shewing that no power whatever has been vested in Congress, to be exercised with a view to the encouragement of domestic industry, and that the States retain all their original sovereignty, quoad hoc, with the single qualification of a superintending, and we will add, salutary control in the General Government over the right of taxing imports and exports, # we have done all that is generally expected in such discussions. But in a doubtful matter, we admit that contemporaneous construction is entitled to great consideration, and we have been sorely pressed upon this point by the advocates of the “system.” We have already made many remarks bearing upon the topic now under consideration, but we will add a few more. As we have already been very prolix, they shall be as brief as possible. "Let us first state how much we are willing to concede—perhaps, no more is assumed on the other side. We admit, then, that it was the universal expectation of the country, that manufactures and agriculture would derive protection and encouragement from the new government. We admit that this expectation was studiously excited and justified by its advocates before the adoption of the Coustitution, and that the preamble of the first act to raise revenue, professing the additional purpose of helping our own industry, did no more than conform to the general wishes of the people. But we affirm, that we have never discovered in any contemporaneous paper of any kind, having the semblance of authority, an expression of a belief or a hope, that the powers of Congress would be exercised with a view to protection—where it would not be necessary to eacercise them for the accomplishment of some one of the specified federal purposes of the government. The benefits to be derived to agriculture and manufactures were expected to be altogether incidental. But even with this qualification, the anticipations of men were high and justly high. A new and most beneficent order of things had been established. Public credit was rescued from the lowest depths of degradation, and established on a sure basis. The obligation of contracts became inviolable. All odious discriminating duties, all impediments in the intercourse of the States with each other, were swept away. Favourable commercial treaties might be negotiated. The act of navigation would give a sudden impetus to the activity of our marine. The immense natural capabilities of the country, in short, were to be warmed into life, and developed under the blessed influences of equal laws and rational liberty. In addition to all these things, such protection as the first acts gave to domestic industry, (and such protection Alexander Hamilton thought abundantly sufficient) was the fundamental policy of the country, because the duties then levied were not too high for the ordinary expenses of such a government. The people of that day were moderate men, and when their hopes were warmest they were satisfied with the encouragement given by the fiscal system of that financier. Is it fair under such circumstances to infer from ambiguous expressions, in one sense perfectly consistent with a constitutional exercise of the powers of government, that those who used them looked to a usurpation of other powers? Legis constructio, say the books, non fact injuriam. If the members of the first Congress had been arraigned . as criminals for a premeditated violation of the federal compact, in this particular, they must, on every sound canon of interpretation, have been fully acquitted. In reference to the “Federalist”—a hook of high authority, certainly, and referred to as such in the “Protest” of this State— we feel perfectly safe in affirming, as the result of a most deliberate perusal, under taken, on another occasion, with an eye single to this subject, that it gives no sort of countenance (not even in its most general expressions,) to the principles of “the system.” We beseech those who still doubt, to follow our example in a thorough re-examination of that able work. If they do not come to the same conclusion with ourselves, we shall be willing to give up the controversy. They will find that the two engrossing topics of the discussion are commerce—properly defined—and the raising of revenue by duties on imposts, as a necessary substitute for direct taxes. They will find agriculture and other modes of industry, treated of in some places as local concerns,” and no where considered as more than incidentally connected with the policy of the government.f They will perceive that while indirect taxation was regarded as the only sure resource for the exigencies of the confederacy, the danger of any excess in that kind of imposition was represented as completely guarded against by the fact that duties (except in the cases already mentioned,) could be levied only for revenue, and so had a natural limit.: They will be convinced that that hatred of unconstitutional, or inordinate taxation which has produced so many struggles between the governing and the governed, from Magna Charta down to our own Revolution, animated the whole people in relation to this very power of raising revenue by duties on foreign merchandize—that one reason given for the reformation of the Union was, that the States which received their imports through other States, would never submit to pay arbitrary duties upon them, and that perpetual wars would be the consequence. They will learn that the powers of the Federal Government were thought to be very few, and expected to be but seldom put in requisition—that they were represented as almost exclusively confined to the foreign relations of the country—that the only one, not before, however imperfectly, exercised by the old confederation, was that of regulating commerce,

* Federalist, Nos. 30, 36. t Southern Review, No. II. Art. 1. -- ł We refer our readers to our observations on the effect of bounties, which the States may always grant.—Southern Review, No. IV. Article 10.

" Federalist, No. 17. t Ib No. 35—where high duties are reprobated, notwithstanding the protection they afford. t Ib. No. 21, sub. calc. § {b. No. 7, p. 36.

and that for reasons already given, no abuse of this was apprehended.” And lastly, they will be taught that JUSTICE is the great end of all good government—and that the federal scheme was recommended as especially fitted to secure it.

“Justice is the end of government. It is the end of civil society. It ever has been, and ever will be, pursued, until it be obtained, or until liberty be lost in the pursuit. In a society, under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature where the weaker individual is not secured against the violence of the stronger: And as in the latter state even the stronger individuals are prompted by the uncertainty of their condition, to submit to a government which may protect the weak, as well as themselves: so in the former state, will the more powerful factions be gradually induced by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted, that if the State of RhodeIsland was separated from the confederacy, and left to itself, the insecurity of rights under the popular form of government within such narrow limits, would be displayed by such reiterated oppressions of the factious majorities, that some power altogether independent of the people, would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects, which it embraces, a coalition of a majority of the whole society could seldom take place upon any other principles, than those of justice and the general good: whilst there being thus less danger to a minor from the will of the major party, there must be less pretext also, to provide for the security of the former, by introducing into the government a will not dependent on the latter: or, in other words, a will independent of the society itself.”—Federalist, No. 51.

As to that part of the “Protest” which speaks of the fatal consequences which the loss of our markets, through any great derangement of our commercial relations, would occasion—it will scarcely be considered as an exaggerated picture of those consequences. We admit that the case put is an imaginary, and we hope, it is an improbable one—but the bare possibility of such a result, adds greatly to the force of all the other objections which we have urged against this unnatural “system.” The marksman who was compelled to shoot at an apple on the head of his child, would have felt secure, perhaps, of hitting it any where else; but the truest bow may err, and all posterity has sympathized with the resentment of an outraged father. Quod deus avertat omen 't * See Federalist, No. 47–a most important paper which it is difficult to read without embracing the opinions which we have stated in the text cf. No. 11 & 12

+ Of course the Canada contraband trade would forever preclude the possibility of such consequences.

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