CHAPTER XIII.

NATURE AND EXTENT OF THE PROTECTING POWERCONCLUDED.

The entire generation which participated, either in creating or in launching the new government, have uniformly testified, whenever they have expressed an opinion on the subject, that the power to regulate commerce, as granted to Congress in the Constitution, was well known and was designed to include what the British Parliament had always claimed and exercised, and what America had acquiesced in for over a century-the power of favoring or prohibiting particular traffics, products, or fabrics, by duties on imports.

This is the position which was taken by James Madison, who, as a member of the Federal Convention, as a constant sharer in the deliberations of that body, and as a signer of the original draft of the Constitution, must be supposed to have been thoroughly conversant with the meaning and intent of that instrument, in its several parts. How superlatively competent he was, in Daniel Webster's estimation, to expound the Constitution, is thus set forth by the great Massachusetts Senator, in his address, February, 1831, at the public dinner tendered to him in the city of New York:

Mr. Madison, thanks to a kind Providence, is yet among the living, and there is certainly no other individual living, to whom the country is so much indebted for the blessings of the Constitution. He was one of the commissioners who met at Annapolis, in 1786, to which meeting I have already referred, and which, to the

great credit of Virginia, had its origin in a proceeding of that State. He was a member of the Convention of 1787, and of that of Virginia in the following year. He was thus intimately acquainted with the whole progress of the formation of the Constitution, from its very first step to its final adoption. If ever man had the means of understanding a written instrument, Mr. Madison has the means of understanding the Constitution. If it be possible to know what was designed by it, he can tell us. It was in this. city that, in conjunction with Mr. Hamilton and Mr. Jay, he wrote the numbers of the Federalist; and it was in this city that he commenced his brilliant career under the new Constitution, having been elected into the House of Representatives of the first Congress.

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Having been afterward, for eight years, Secretary of State, and as long President, Mr. Madison has had an experience in the affairs of the Constitution, certainly second to no man. More than any other man living, and perhaps more than any other who has lived, his whole public life has been incorporated, as it were, into the Constitution; in the original conception and project of attempting to form it, in its actual framing, in explaining and recommending it, by speaking and writing, in assisting at the first organization of the government under it, and in a long administration of its executive powers-in these various ways he has lived near the Constitution, and with the power of imbibing its true spirit, and inhaling its very breath, from its first pulsation of life. Again, therefore, I ask, if he cannot tell us what the Constitution is, and what it means, who can?

When such a witness states, with the utmost deliberation, and in the most formal manner, that the protection of home manufactures by a tariff was intended to be a function of the power to regulate commerce; and especially when he cannot be contradicted by any other competent witness, but is corroborated on every material point, his testimony must be deemed conclusive. In his once famous though now forgotten letter to Joseph C. Cabell, under date of September 18, 1828,

he entered into the following details and arguments to support his views:

Your late letter reminds me of our conversation on the constitutionality of the power of Congress to impose a tariff for the encouragement of manufactures; and of my promise to sketch the grounds of the confident opinion I had expressed, that it was among the powers vested in that body.

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The Constitution vests in Congress, expressly, "the power to lay and collect taxes, duties, imposts, and excises," and "the power to regulate trade."

That the former power, if not particularly expressed, would have been included in the latter, as one of the objects of a general power to regulate trade, is not necessarily impugned by its being so expressed. Examples of this sort cannot sometimes be easily avoided, and are to be seen elsewhere in the Constitution. Thus the power "to define and punish offenses against the law of nations" includes the power afterward particularly expressed, "to make rules concerning captures, etc., from offending neutrals." So, also, a power "to coin money" would doubtless include that of "regulating its value," had not the latter power been expressly inserted. The term taxes, if standing alone, would certainly have included duties, imposts, and excises. In another clause, it is said, "no tax or duties shall be laid on exports," etc. Here the two terms are used as synonymous. And in another clause, where it is said "no State shall lay any imposts or duties," etc., the terms imposts and duties are synonymous. Pleonasms, tautologies, and the promiscuous use of terms and phrases, differing in their shades of meaning (always to be expounded with reference to the context, and under the control of the general character and manifest scope of the instrument in which they are found), are to be ascribed, sometimes to the purpose of greater caution; sometimes to the imperfections of language; and sometimes to the imperfection of man himself. In this view of the subject, it was quite natural, however certainly the general power to regulate trade might include a power to impose duties on it, not to omit it in a clause enumerating the several modes of revenue, authorized by the Constitution. In few cases could the ex majori cautela" occur with more claim to respect.

Nor can it be inferred that a power to regulate trade does not involve a power to tax it, from the distinction made in the original controversy with Great Britain, between a power to regulate trade with the colonies, and a power to tax them. A power to regulate trade between different parts of the empire was confessedly necessary; and was admitted to lie, as far as that was the case, in the British Parliament; the taxing part being at the same time denied to the Parliament, and asserted to be necessarily inherent in the Colonial Legislatures, as sufficient, and the only safe depositories of the taxing power. So difficult was it, nevertheless, to maintain the distinction in practice, that the ingredient of revenue was occasionally overlooked or disregarded in the British regulations, as in the duty on sugar and molasses imported into the colonies. And it was fortunate that the attempt at an internal and direct tax, in the case of the Stamp Act, produced a radical examination of the subject before a regulation of trade with a view to revenue had grown into an established authority. One thing at least is certain, that the main and admitted object of the Parliamentary regulations of trade with the colonies was the encouragement of manufactures in Great Britain.

But the present question is unconnected with the former relations between Great Britain and her colonies, which were of a peculiar, a complicated, and, in several respects, of an undefined character. It is a simple question, under the Constitution of the United States, whether "the power to regulate trade with foreign nations," as a distinct and substantive item in the enumerated powers, embraces the object of encouraging by duties, restrictions, and prohibitions, the manufactures and products of the country? And the affirmative must be inferred from the following considerations:

1. The meaning of the phrase, "to regulate trade," must be sought in the general use of it; in other words, in the objects to which the power was generally understood to be applicable, when the phrase was inserted in the Constitution.

2. The power has been understood and used by all commercial and manufacturing nations, as embracing the object of encouraging manufactures. It is believed that not a single exception can be named.

3. This has been particularly the case with Great Britain, whose

commercial vocabulary is the parent of ours. A primary object of her commercial regulations is well known to have been the protection and encouragement of her manufactures.

4. Such was understood to be a proper use of the power by the States most prepared for manufacturing industry, whilst retaining the power over their foreign trade.

5. Such a use of the power, by Congress, accords with the intention and expectation of the States, in transferring the power over trade from themselves to the Government of the United States. This was emphatically the case in the Eastern, the more manufacturing members of the Confederacy. Hear the language held in the Convention of Massachusetts:

By Mr. Dawes, an advocate for the Constitution, it was observed: "Our manufactures are another great subject which has received no encouragement by national duties on foreign manufactures, and they never can by any authority in the old Confederation." Again, "If we wish to encourage our own manufactures, to preserve our own commerce, to raise the value of our own lands, we must give Congress the powers in question."

By Mr. Widgery, an opponent: "All we hear is, that the merchant and farmer will flourish, and that the mechanic and tradesman are to make their fortunes directly, if the Constitution goes down."

The Convention of Massachusetts was the only one in New England whose debates have been preserved. But it cannot be doubted that the sentiment there expressed was common to the other States in that quarter, more especially to Connecticut and Rhode Island, the most thickly peopled of all the States, and having, of course, their thoughts most turned to the subject of manufactures. A like inference may be confidently applied to New Jersey, whose debates in Convention have not been preserved. In the populous and manufacturing State of Pennsylvania, a partial account only of the debates having been published, nothing certain is known of what passed in her Convention on this point. But ample evidence may be found elsewhere that regulations of trade, for the encouragement of manufactures, were considered as within the power to be granted to the new Congress, as well as within the scope of the national policy. Of the States south of Pennsylvania, the only two in whose Conventions the debates have