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rant in the charter for what it does; the extent sidered as applicable to each. It has been afof a tax must necessarily determine the right to firmed by the Senators from Maine and Tennes impose it: hence the motive becomes impor- see, that you cannot examine the motive to the tant, and, strictly speaking, ought always to law. This I deny; and maintain that no law, appear. As the opinions of Mr. Hamilton have enacted by the Federal Government, is valid, often been adverted to on this subject, let us unless supported by a constitutional motive. see what he says on the extent to which the im- The regulation of the affairs of the household post taxes may be carried. Page 77, of Fed., is vested in the head of the family. A parent he says: "It is therefore evident, that one na- has the right, for a lawful purpose, to chastise tional government would be able, at much less his child, to improve his temple and manners. expense, to extend the duties on imports be- The power to enforce such regulations is given yond comparison, further than would be prac-to advance the interest and welfare of the child: ticable to the States, separately, or to any par- the legality of the act may, or rather must, detial confederacies; hitherto, I believe it may be pend upon the motive. If a parent were to punsafely asserted, that these duties have not, on ish, under this indefinite power, a child, be an average, exceeded, in any one State, three cause he did not steal, nor commit a crime, the per cent. In France, they are estimated at 15 legality of that punishment might be questionper cent.; and the proportion is still greater ined in any court, and the parent made answeraGreat Britain. There seems to be nothing to ble therefor. The same of a master and his hinder their being increased, in this country, to slave, or apprentice; under the general right to at least treble their present amount." regulate the labor of such, no incidental unlawful purpose can be consummated.

It has not been pretended, in this debate, that to provide for the common defence and ge neral welfare, enlarges the taxing power beyond the objects especially intrusted to the care of Congress. But, it is said, it is a necessary incident to the revenue power to protect domestic manufactures; and a reference has been made to the address of the Free Trade Convention, as conceding this right..

We are too apt, in considering this question, to resolve the incident into the principal. It cannot be denied but many original substantive powers may be so executed as to effect incidental benefits. We must, however, never lose sight of the fact that the mere incidental power cannot be lawfully converted into the principal one.

looking at his shadow, a black devil, too! With this, he cast a hasty glance over his shoulders, saw his shadow, became panic struck, and mʊved off; when she cried, "run, black devil— catch white devil!" and the poor frightened ghost was run down by his own shadow. The advocates of the tariff seize, with more insane quickness, the incidental protection afforded by legitimate revenue, to run down the principal, thereby making the shadow conquer the substance.

Before I proceed to consider this as an inci Among other illustrations of this question, I dental power, let me fasten it down as a sub-will relate a story of a gentleman who once stantive one. The argument of the Virginia went to reclaim a female lunatic from a singuresolutions, on this question, as well as the ar-lar habit, which she had adopted, of sleeping gument in the Federalist, both attributed to among cows. In a clear moonlight night, he Mr. Madison, are so conclusive, that the bold-wrapped himself up in a sheet, and advanced est advocates for construction seem to abandon towards the unfortunate lady; his purpose, the the idea of resorting to those general phrases, surrounding objects, the wild countenance of "common defence and general welfare" as the maniac, were by no means calculated to conferring any substantive power. What, then, give his judgment the entire ascendancy over have you the right to impose a tax for? No-is imagination, and alter strolling about the thing, but to effect some object which the go- unfortunate girl, she at last saw him, and, withvernment may desire money to consummate, out alarm, she said: Ah, a white devil! and, under the express provisions of the Constitution. There is no power to spend money in the protection of manufactures; and hence you have not the right to impose a tax for that ob ject. I now call the attention of the Senate to this incidental power. It is said, that the first act of Congress, laying duties, maintained the protecting principle as it is established by the reciting clause or preamble. By adverting to the debate on this bill, it will be seen that it was throughout considered as a financial measure: there was great opposition to this mode of tax- Again, Sir, I will state a case furnishing my ation; and the intro Juction into the act of this opinion of the incidental and principal power preamble, was to increase its patronage, by in- of Government on this subject. Suppose the ducing those opposed to it, as a species of tax- commissioners of roads, called on to lay out a ation, to look to the effect of the law, rather new road, and in doing so, they come to a than the cause of it. As it was, in point of fact, swamp, which requires an embankment to be a revenue measure, it could do no harm to in- thrown up; and while they are deliberating troduce one of its incidents into the preamble; where they shall locate the road, a person who for it was unquestionably true, that it afforded has a mill seat comes forward and says it does protection to the precise extent that it levied a nut concern the public where this road is laid tax on importation. This incidental power is down: I have a valuable saill seat which will be claimed both under the revenue and commer-serviceable to the neighborhood; I suggest the cial clause. I will illustrate my position by propriety of locating the road, so that the em some examples, and the argument may be con- bankment may be converted into my mill dam;

The pretention of regulating commerce, so

There are but two ways to regulate_commerce; the one is by treaty, the other by legislation.

and thereby the labor saved to me of making this dam. It being a matter of indifference to as to protect domestic manufactures, is not the commissioners where the road is laid out, avowed here, nor can it be shown that it ever this concession is made to the individual, he was alleged as an inducement to the adoption avails himself of this public act, the main in- of the federal government, other than as inciducement to which is the completion of the dental to the taxing power. high way, and he incidentally is benefitted to the whole extent of the labor bestowed on the embankment. Thus the public executes its original substantive purpose, and the individual Could any thing be more absurd or offen takes the incidental benefit. But let me ask, sive to the moral sense of this nation, than a with what grace would this same individual treaty with a foreign nation, stipulating a cesdemand of the commissioners of the road to sation of all commerce between the two? The set about and erect a mill dam for him, where assumption of such basis, for a treaty, would no road was intended nor demanded by the be treated with public indignation, and the peopublic. And yet this would not be more pre-ple of both nations would soon revise such a posterous than the manufacturers insisting that treaty. I defy the production of any case, in because protection to the extent of the revenue which our Government has, under the power has heretofore been extended, that therefore of regulating commerce, proposed to cripple it now they must have protection when revenue by treaty; to advance, enlarge, and improve it, is not wanting. is the great object of our commercial treaties.

Latterly the advocates of the protecting sys- The idea of negotiating with foreign powers, tem, finding the revenue power not sufficiently to destroy commerce, is so ridiculous and ab. strong to build their hopes upon, have resort-surd that no one will pretend that the treaty ed to the clause in which the right to regulate|making power can be resorted to for the proforeign commerce among the States is con-tection of domestic industry. founded. Let me examine this view of the But it is said we can do this by legislation. subject for a moment. Neither the history of With a proper motive, I admit we can legislate the times, the cotemporaneous commentaries, a regulation of commerce into existence, not nor the proper import of these words can be to protect manufactures but to countervail fo relied on as sustaining this construction. The reign restrictions. It was lawful and constituobject in conferring on the federal Government |tional for our Government to interdict the dithe power to regulate commerce, was to im rect trade between this country and the British prove, facilitate, and add new life thereto. Un West Indies, and how so? not to increase the der the old confederation, foreign nations re- price of sugar and molasses, or to reduce the fused to form commercial arrangements, be price of lumber and naval stores; but to recause we presented a broken surface and a mu-store to reciprocal and equal terms, the comt-lated front; each State adopting its own commerce between the British and American pos mercial code. One of the main inducements sessions. It would be no more constitutional to the change of the confederation was to en-to prohibit foreign commerce, with a view to able the federal Government to act as an entire domestic protection, than to make treaties to nation in its foreign intercource. Hence it is abolish commerce. The power was not con said in the commentary submitted to the Amer-fided for such purposes, and when so used is ican people in the Federalist: "The powers fraudulent and void. delegated to the Federal Government are few

But it is said. the British Government refuse and defined. Those which remain with State ed to receive our breadstuffs; and therefore Governmen's are numerous and indefinite. The we can refuse to receive her manufactures. former will be exercised principally in exter-This is not the true motive. The British corn nal objects, as war, peace, negotiation, and fo laws were in force long since. It never was reign commerce; with which last, the power of contended upon the adoption of the constitu taxation will, for the most part, be connected.tion, that the existence of the corn laws in The powers reserved to the several States wil England, would give an indefinite right to extend to all the objects, which, in the ordinary trammel our commerce with that nation, nor is it course of affairs, concern the lives, liverties, pretended your prohibitory laws are enacted, and property of the people; and the internal bona fide, with a view to retaliate on the Britorder, improvement, and prosperity of the ish corn laws. This was an afterthought, reState. The operations of the federal govern-sorted to, to give color to legislation; adopted ment, will be most extensive and important in avowedly to effect what was denied to the gentime of war and danger; those of State Govern-eral government by the convention. The pow ments in time of peace and security. The ad er to regulate commerce with foreign nations, ministration of private justice, between the citi-and among the States, is given, using the term zens of the same State, the supervision of agri- regulate, as common to both. I will ask, can culture, and other concerns of a similar nature. Congress prohibit Tennessee iron from being All those things, in short, which are proper to sold in Pittsburg, under the power to regulate be provided for by local legislation, can never commerce among the States? Or would the be desirable cares of general jurisdiction. It power to prohibit western trade in live stock is therefore improbable that there should exist be entertained by Congress to foster the fara disposition, in the federal councils, to usuar ming interest of the south? One of the modes the powers with which they are connected."

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proposed by Col. Hamilton, in his famous re- lay any imposts, or duties on imports or export on manufactures to encourage them, was ports, except what may be absolutely necessa to prohibit the exportation of the raw mate-ry for executing its inspection laws." rial. Would any one on this floor avow the right to prohibit the exportation of cotton, in ting the inspection laws, may be enacted withNow, what is absolutely necessary for execuorder to lessen the price to the manufacturer? out the consent of Congress, and clearly does Or would any one be countenanced in the pro- not go into the United States' Treasury, since position to tax domestic manufactures at the the very exception confers both the power and north, and to enable the south to engage, with the use of the money. Other and more subsuccess, in that branch of industry? Neverthe-stantial taxes were in contemplation, when it less, all these consequences will fairly result was considered proper to require the consent from the assertion of the power to regulate of Congress to permit their passage, and when commerce, so as to destroy it, and establish those who paid the taxes are required to foreone branch of industry on the ruins of another. go the benefit of them. In transferring the imBut it is said, if Congress has not this power, post duties, laid with the consent of Congress, it is extinct; because the States have surredner by the State Governments, from the State ed it. The States may have surrendered this Treasury to the United States Treasury, some power without conferring it on Congress: there indirect object was to be effected, else in conare some things which cannot be done either ceding this power to the States, the nett proby the Federal Government or the States. The ce ds would not have been abstracted from powers not delegated to the United States by those who imposed the duty. I there con the constitution, nor prohibited by it to the clude the reasons assigned by Mr. Madison are States, are reserved to the States respectively, not conclusive. or to the people." This supposes there may

be some powers neither granted to the United dence of the purposes intended to be effected, States nor retained by the States, which may but we have the opinion of one of the ablest still remain with the people. But has the con- delegates to the cunvention, that this was the stitution not provided for this very case, by con- intention-I mean Luther Martin-he says:ferring on the several States, the right to lay "By this same section, every State is prohibit taxes and impost duties, with the consent of ed from laying imposts, or duties on imports or Congress? If this power was not conferred for exports, without the permission of the General this precise purpose, it is clearly a nugatory one. It was evidently intended to enable such States as wished to prohibit her citizens against foreign competition, to do so, with the consent of Congress, and at the expense of those on whom the tax would operate.

Giovernment. It was urged that, as almost all sources of taxation were given to Congress, it would be but reasonable to leave the State the power of bringing money into their treasuries by laying a duty on exports, if they should The gentleman from New Jersey supposes to injure or discourage industry, and yet might think proper, which might be so light as not he has found an "extinguisher" for this argu- be productive of considerable revenue; alsothat ment, when he shows that the State tax is to there might be cases in which it would be progo into the Treasury of the United States. Upper, for the purpose of encouraging manufac on more reflection, I think he will not find tures, to lay duties to prohibit the exportation; this so clear. It is admitted that the tax im- and even in addition to the duties laid by Conposed to protect domestic manufactures, is gress on imports, for the sake of revenue, to paid as a bounty to them; and thé question is, lay a duty to discharge the importation of parwho ought to bear this tax-those who impose, ticular articles in a State, to enable the manuor those who resist it? I it be so important to facturer there to supply us on as good terms as a State to protect its own industry, let the ci- they could be obtained from a foreign market. tizens of such a State balance the profit and However, the most we could obtain was, that loss of this matter; "qui sentit commodum, de- this power might be exercised by the States, bit sentire incommodum," and he will be a with, and only with the consent of Congress, little careful how far he taxes. But when a and subject to its control; and so anxious are tax is laid by those who receive the benefit,and they to seize on every shilling of our money, do not pay it, what responsibility have you a- for the General Government, that they insisted gainst unjust extortion and exaction? Madison, in his letter to Mr. Cabell, states his should not be appropriated to the use of the Mr. on the little revenue that might thus arise surprise that this construction should be given to the clause under consideration. He rea Bons, to show that this clause was to confer the right on the States to provide for the execution of their inspection laws. This would not have been the object since the right to pass such laws, without the consent of Congress, is conceded by the very clause.

never entered the mind of this great statesman institutions yield to a government more vigoand lawyer, that the power to regulate com-rous, more energetic. merce could be construed so as to protect ma- Nothing but a despotism can make the legisla nufactures. This idea seems to have originated tion of the Central Government acquiesced in, even with Mr. Madison, at a period subsequent when it interferes with the every day transacto the Virginia resolutions; for we find him go- tions of life of a people who live in this vast ing out of the question, then before him, to re continent. It is this which Mr. Jefferson conprobate Mr. Han Iton's report, made on the siders worse than disunion. And yet, the rapid 5th December, 1791, the report referred to strides made by the Federal Government to so often in this debate. In the famous report consolidation and despotism create no alarm.— of his, which was made by him in 1799, he says: Extreme powers are pressed without the least "To these indications might be added, without concern as to results, and the warning voices of looking further, the official report on manufac- Washington and Jefferson are treated as the tures by the late Secretary of the Treasury, and idle wind. Sir, the gentleman on the other side the report of the committee of Congress in Ja- will search in vain in the history of the times, nuary, 1797, on the protection of agriculture. or the journal of the Convention, for the power In the first of these, it is expressly contended to now claimed. If this power had been avowed belong to the discretion of the National Legis- and maintained as conferred by the Constitu lature, to pronouce upon the objects which tion, this government would not have been for concern the general welfare, and for which, un-med. The agricultural States would not have der that description, an appropriation of money become parties to the compact, knowing that is requisite and proper. And there seems to their right would be so affected. This matter be no room for a doubt, that whatever concerns does not depend upon inference nor implica the general interests of Learning, of Agricultion; by referring to the journal of the Conventure, of Manufactures, and of Commerce, are tion it will be seen this power is expressly dewithin the sphere of the national councils, as nied: "To establish public institutions, refar as regards an application of money. The wards, and immunities, for the promotion of latter report," says Mr. Madison, assumes agriculture, commerce, trades, and manufacthe same latitude of power in the national tures," was proposed and rejected. I have councils, and applies it to the encouragement not seen either in the journal debates or comof agricultue, by means of a society to be estab-mentaries, by Hamilton, Mdison and Jay, one lished at the seat of government. Although single expression favoring the idea, that this neither of these reports may have received the power was conferred, except as a mere incisanction of a law carrying it into effect, yet, on dent to revenue. (Here Mr. M. referred to the the other hand the extraordinary doctrine con-opinions of Messrs Jefferson, Hamilton, Maditained in both has passed without the slightest on, &c. to show this power was not supposed positive mark of disapprobation, from the auto be conferred.) The whole argument upon thority to which it was addressed." the adoption of the first tariff, turned upon the

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Can it be doubted, if the reports here ani-measure as a financial one, and the naked ques madverted on, had based themselves upon the tion of protection, as a constitutional right is right to regulate commerce, the same anathema no where to be found, although it may often would not have been pronounced? The idea have have been adverted to as an incident to a bad not then occurred, either to Mr. Hamilton substantive power of revenue. In that point of or Mr. Madison, to fasten on the clause to regu- view it is not now resisted. The argument late commerce, to build up home industry; if might be rested on this single interrogation So, why d spute about the financial power, if it would the advocates of this system venture to fairly belonged to the Government under any lay a direct tax on the nation, either as a comclause? Why reprobate the mere assertion of mercial or financial arrangement, and give the the abstract power as an usurpation? product to the manufacturers to enable them to The Senator from Kentucky has quoted an keep up their establishments? If they would act of the Legislature of South Carolina, in fa- not venture to do so directly, by what authority vor of the policy of establishing manufactures. can they do so indirectly? Sir, the people of This is in conformity with the very theory which South Carolina believe these laws to be uncon is here contended for. Let the States protect stitutional, and they believe further, that they their own manufactures. South Carolina is not have the right to declare them so. In this they opposed to manufactures; it is only opposed err. But we have it from the eloquent apostle, to taxing the people in one State, to protect the the great champion of Christian faith, that manufactures of another, against their will, and "Those who know not the law, yet do the without a lawful reason to do so, Sir, we are things contained in the law, their consciences not opposed to manufactures nor internal im- shall be a law unto them." The Senate ought provement, when carried into effect by State to keep in mind this fact, that such is the opinauthority, We have spent liberally our funds ion, the honest and fearless opinion, of the for internal improvement. We have not asked majority of the people of at least one of the the Federal Government to aid our manufac. States; that they have not, heretofore, carried tures, nor held us to make our roads. Our op out their opinions, is owing to their unwilling position is to the consolidation of all power in ness to put themselves apparently in opposition the Federal Government, by which the union to what should be the constituted authority of of the States will be destroyed, and our free the nation, its legislative enactments. Sir, the

Senator from Maine has travelled out of this de- ist, and a right which cannot be enforced. I bate to reprimand South Carolina for her politi- place no value on an imperfect right-a parole cal faith, and has given in his experience in this title to lands, where the statute of frauds is in matter. I have understood the Senator from force, is no title at all. It is a solemn mockery, Maine to be a professed follower of Mr. Jeffer- to tell the States they have certain rights reson, a republican in principle and a friend to served, but they can be ascertained only by the States in practice. How do his sentiments subtracting them from those which the Fedeon this subject comport with such suppositions? ral Government may choose, without control He informs us that he has always been the con- or restraint, to exercise. I can illustrate my sistent advocate of the supremacy of Congress, opinions on this subject with no more force that the States sometimes have put on airs, than by relating a familiar and friendly conver but they have always been wrong, and that sation with one of my constituents, on the disSouth Carolina is particularly reprehensible for puted powers of the two governments. He told the opinions put forth by her. I do not envy me he was opposed to the doctrine of nullifica the gentleman the complaisance he derives by tion,but asked my opinion on the matter, where. the reference to his consistency and supposed upon I got out of my sulky, and marked on the orthodoxy. ground a square, and said to him: "Now, these The doctrine of divine right, and passive o-lines contain the whole of your land; you sell bedience, has no charms for me. If I thought half to me, with the usual covenants; I take as the Senator from Maine, I would not avow, possession, and very soon begin to trespass beI would conceal it. His sentiments accord with yond what you sold me; you protest against the prerogative party—the government party. this, and ask by what authority I pass the line, I speak not in the sense which the terms are to which I reply, it is true the boundary exused in this country; not in the odious associa-pressed in the premises of your deed has been tion connected with our revolationary history-passed by me, but there is a clause-the Habut as the terms are used in England-when I bendum-which says, I am to have and to hold *say the sentiments of the Senator from Maine the land, together with all rights, appurtenanwould locate him with the tory party. In eve- ces, &c. thereunto incident, or any wise apperry free country, having the claim to constitu-taining. Now, one of these incidental rights is tional liberty, mankind will divide into those just to take as much of your reserved land as who take sides with the power, and those who suits my convenience, or my interest; to this take sides with the people. The old English you reply, this is not a fair construction of the Whig is not the less a friend of his country, and deed Very well; we will go to law: but who the enemy of anarchy and revolution, because is to decide? When I gravely tell you, my ser. he resists the power of the Crown, and main.vant, my faithful, intelligent servant is to detains the constitutional rights of the people.-cide; he, and he only, shall decide this matter The principles of South Carolina are the Whig-would not your indignation rise at the avowprinciples. The principles which dethroned al of such unparallelled injustice and effrontethe Stuarts, and achieved our revolution: they ry?"

are the principles which brought Mr. Jeffer- With this illustration I left my friend to his son into power, and upon which the mainte- reflections, and the next time I saw him he innance of our constitutional liberty rests. Our formed me he was now for nullification; he creed may be summed up in this-the declara-saw, very clearly, that the States had no rights tion of our right to resist encroachment and uunless they had some way of protecting them. surpation, and the determination to use the re- Would any man, in his senses, make a barserved rights of the people against the assum-gain such as is here described, and confer on ed power of the government. The avowal of the person interested the right to appoint, pay, these opinions calls forth the animadversion and and dismiss the person who is to decide on it? reprehension of the Senators from Kentucky This is the pretension set up by the General and Maine. Let me tell the Senators that there Government to construe its own charter, and is nothing in the qualities of these sentiments, take what it pleases, and, in case of resistance, neither in the sources whence they sprang, the to refer the matter to its creatures, liable to be effects they have produced, nor their moral in-operated on by increased salaries, or the judg fluence upon civil society, which is calculated ment influenced by additional selected incunto bring a blush upon the cheek of those who bents? Instead of creating a batch of new avow them. We believe the people did not peers, you can create a batch of manufacturing invest this government with absolute and su-judges. If we have become a party to a compreme power-that some rights were reserved pact, containing such provisions, we are bound to the people of the States, as States; and that to submit; but it must be very clear language the people of the States must, from necessity, which would satisfy a rational mind that any be the guardian of their rights. It is idle to intelligent people would so compromise their tell me I have rights which I have no means to rights. Against such a conclusion, we have enforce. It is a mere illusion, to tell me that the great names of Washington, Jefferson, Mathe States have rights, as opposed to the Fede-dison, Hamilton, Parsons, Roane, and McKean, ral Government, and that those rights are to be backed by the great body of the democratic protected by the Federal Government. It is party.

committing the lamb to the wolf;—there is no Sir, I have said we have these great names, difference between a right which does not ex-besides common sense, the fair construction of

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