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if there be none already made. So we do not agree with Mr. Madison, that it is at all dangerous to give it the full length of the reins, in honestly providing for the common defence. Salus populi suprema lex esto-is as much the maxim of republics as of despotisms. Every thing really necessary, therefore, either to prevent or to prosecute war, must, it should seem, be conceded to it. For this reason, we have no objection at all to the policy of the first Congress in laying the foundation, by a tariff of protection, of a complete independence upon foreign nations for military and other the like essential supplies. So, if Cuba were about to fall into the hands of a dangerous power-Haytı for instance-it would be, we conceive, the duty of the government, as it would be the interest of the country, to prevent it, and whether it did so by force or by purchase-that is to say, by money spent in war, or by money peaceably laid out in the way of bargain and sale-would seem to make no essential difference.* The bona fides of the measure is all that we have a constitutional right to exact. The truth is, that every thing depends upon the exercise of a power being honest and reasonable-and that, even in matters of strict law. It has, sometimes, struck us with great surprise, as we remarked on a former occasion,† to contrast our metaphysical and technical way of considering constitutional questions, "with the plain rules of liberty"--the downright, practical good sense and good faith--by which our English forefathers were governed in their struggles for popular rights. When an Englishman speaks of a course of policy as unconstitutional, he merely means that it is unreasonable and unjustagainst Magna Charta and common right. An abuse of power with him is an usurpation, and so, as the "Protest" of our Legislature affirms, it is, or ought to be, with us. And here we beg leave to have recourse, once more, to the lights, of the Common Law, for an illustration of the previous topics. In "the Chamberlain of London's Case," (5. Rep. 63.) a great leading case upon by-laws and ordinances, Lord Coke reports a decision upon the following points. It was ordained by the Common Council, &c. "that if any citizen, freeman or stranger within the city put any broad cloth to sale, within the city of London, before it be brought to Blackwall-Hall, to be viewed and searched, so that it may appear to be saleable, and that halleage be paid for it, scil 1d. for every cloth, that he shall forfeit

We thought with "Brutus," the purchase of Louisiana justifiable in this point of view, until we learned that Mr. Jefferson had honestly confessed he considered it, at the time, as a stretch of the Constitution.

↑ Southern Review, No. III. Art, 3.

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 justness 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.

* Southern Review, No. II. Art. 1.

may be

lay any imposts or duties on imports or exports, except what 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 net 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."

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:

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"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?

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 na▾ tional government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its


"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

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