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subsist without it. Every war, especially under a frugal and economical government like ours, imposes upon the government the necessity for greater revenues than the ordinary taxes can supply; the consequence is a national debt. But the same simplicity and frugality which keep the revenue below the lavish demands of war, furnish the means of speedily extinguishing the debts which result from it. Thus, in our country, the year 1816 found the nation more than 120 millions in debt; the year 1834,-18 years afterward,-found it not only out of debt, but its statesmen actually contending about the surplus revenue!

§ 121. Clause 3d. To regulate commerce with foreign nations and among the several states, and with the Indian tribes:

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§ 122. The power given in this paragraph has been the origin of many important legislative provisions, of which some have given rise to judicial decisions, and others to frequent and severe political discussions. a very celebrated case, Gibbons vs. Ogden,' arising under the Steamboat Laws of New-York, the Supreme Court of the United States have solemnly decided the meaning of the phrase to regulate commerce.

§ 123. The term commerce, in that decision, is decided to comprehend navigation, and the power to regu late navigation is as expressly given as if it had been added to the word commerce.

§ 124. The power to regulate commerce extends to every species of commercial intercourse between the United States and foreign nations, and among the several states. But it does not comprehend that commerce which is internal, as between man and man, and between different parts of the same state. It does not, however, stop at the jurisdictional lines of the several states, but extends wherever the subject of it exists. § 125. The power to regulate commerce is the 19 Wheaton, 189, 193.

power to prescribe the rule by which commerce is to be governed.

§ 126. The power to regulate commerce extends as well to vessels employed in carrying passengers as to those in transporting goods, to vessels navigated by fire and steam as to those by sails.

§ 127. The law regulating the coasting trade, in relation to which these decisions were made, was passed in February, 1793. From that day to this, Congress have been in the constant exercise of the power to regulate commerce. They have passed laws to regulate commerce, as such, to lay embargoes, navigation acts, &c.

§ 128. By the Embargo Act, December, 1807, a prohibition was laid of exportation from the United States, either by land or water, of any goods or wares, either foreign or domestic. In the case of the United States against the Brigantine William,' this act was controverted, as unconstitutional: but the court decided that the embargo act was constitutional; that nonintercourse and embargo laws are within the range of legislative discretion; and that the power of Congress was sovereign relative to commercial intercourse.

§ 129. Within a few years, another question has arisen under the power to regulate commerce. Political zeal and party spirit have originated an idea, which certainly, so far as authentic history goes, never entered into the heads of the framers of the Constitution. This notion is, that a law imposing duties for the protection of domestic manufactures is not constitutional. It is admitted, that any amount of imposts and duties may be levied upon any articles for the purpose of revenue, and that the protection arising from this impost, being incidental, is constitutional,—but that these same imposts being imposed for protection so called, are not constitutional.

This is in reality a distinction without a differ

12 Hall's Law Journal. 255.

ence; for, according to the theory itself, Congress, without transcending their powers, may levy the whole revenue from particular articles, and thus create not only a protection against, but an absolute prohibition of them. But, suppose the bill was enacted for protection merely, and let us examine briefly the principles and authorities applicable to it. It is neither necessary nor proper here to enter into a detailed argument upon the subject, but the matter may be stated in a few propositions with sufficient force to make the conclusion irresistible.

§ 130. The avowed objects of the Constitution, as expressed in the preamble, are to provide for the common defence, and promote the general welfare; for this purpose various means are provided, and among others the express power given "to lay imposts, duties, and excises, to provide for the common defence, and promote the general welfare." Now, it is perfectly apparent, that neither of these provisions can be carried into effect without such discriminating duties as will encourage and protect the domestic manufacture of the munitions of war, and of necessary clothing.

§ 131. The power to regulate commerce includes every thing in relation not only to the mode of carrying it on, but also to the terms upon which it shall be carried on.1 Those terms, therefore, may be arranged either for the purpose of raising revenue or protecting manufactures, as suits the legislator. The government has a discretion, which it may exercise as it pleases.

§ 132. The meaning of the phrase, to regulate trade, must be gathered from the use of it among commercial people, and the manner in which it was understood by those who used it in making and adopting the Constitution. In both these cases it was understood to include the encouragement of manufactures.

§ 133. The Supreme Court is vested with power to

1 Madison's Letter on the Tariff.

2 Ibid.

decide on the constitutionality of all laws: this point has not been directly before them, but they may be considered as having decided it upon principle, by the application of certain rules which they have laid down.

§ 134. The court have decided' that the power to regulate commerce is the power to prescribe the rule by which commerce shall be governed;

§ 135. That, like all other powers vested in Congress, it is complete in itself, and has no other limits than such as are prescribed in the Constitution;

§ 136. That the power to regulate implies in its nature full power over the thing to be regulated.

§ 137. Now, if Congress have power to tax all articles in all modes (as they have, under the clause to lay duties, imposts, &c.), and have besides the power to regulate commerce without limitation as to the subject matter, then it is impossible to avoid the conclusion, that they have the power to make any discrimination whatever, in the duties to be levied, no matter for what purpose, whether of revenue or protection, is answered thereby.

§ 138. But if any thing were wanting to make conviction perfect, it would be found in the uniform practice of the government, whether administered by those who were co-laborators in its formation, or by those who grew up under it from the adoption of the Constitution to the present day; in the opinions often expressed, of the wisest and most distinguished statesmen; and finally, in the admissions of the ablest opponents of the protective policy.

§ 139. The power to regulate commerce is exclusive in the general government." The full power to regulate a particular subject implies the whole power, and leaves no residuum. A grant of a power to regulate necessarily excludes the action of all others, who would perform the same thing.

1 Gibbons vs. Ogden, 9 Wheaton, 189.

2 Brown vs. Maryland, 12 Wheaton, 419, 445.

§ 140. The power to regulate trade and commerce extends to the coasting trade and fisheries, within or without a state, wherever it is connected with other states, or with foreign nations; it extends to the regulation and government of American seamen on board of American ships, and to conferring privi leges upon American ships in domestic as well as foreign trade.1

§ 141. It extends also to quarantine, pilotage, and salvage laws; to the construction of light-houses; to the removal of obstructions in creeks, harbours, and sounds; and to the establishment of ports of entry for the purposes of foreign commerce.

§ 142. These powers have all been exercised in the eractment and enforcement of various laws regulating the collection of the revenue, the government of seamen, the mode of navigation, and the improvement of harbours.

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§ 143. This section of the Constitution contains also power, which has been often exercised, of regulating intercourse with the Indian tribes. The Supreme Court have decided that Congress have the exclusive right of pre-emption to all the Indian lands within the territories of the United States. This right the United States have constantly exercised; neither the states nor any individuals are allowed to purchase lands from the Indians.

§ 144. In the case of the Cherokee Nation vs. Georgia, it was decided that a tribe, situated within the ter ritorial limits of a state, but exercising the powers of government and national sovereignty, under the guarantee of the general government, is not a foreign state in the sense of the Constitution; but is entitled to sue in the courts of the United States. Such a tribe is to be deemed politically a state, that is, a distinct political so1 2 Story's Comm. 518. 22 Wheaton, 543; 6 Cranch, 142. $5 Peters' R. 1, 16, 17. 9 Wheaton, 203, 209.

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