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proposed by Col. Hamilton, in his famous re- lay any imposts, or duties on imports or éx. port on manufactures to encourage them, was purts, except what may be absolutely necessato prohibit the exportation of the raw matery for executing itsyinspection laws." rial. Would any one on this floor arow the Now, what is absolutely necessary for execu. right to prehibit the exportation ot cotton, in ting the inspection laws, may be enacted with. order to icssen 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 sax dimestic manufactures at the the very exceptio: confers both the power and north, and to enable the south to engage, with the use of the money. Other and more subo success, in that branch of industry? Neverthe-stantial taxes were in contemplation, when it lesy, 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 fore. one branch of industry on the ruins of another. go the benefit of them. In transferring the im. But 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 Stalo 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 effecteil, else in conare some things which cannot be done either ceding this power to the States, the nett pro. by the Federal Government or the Stales. •The ce ds would not bave been abstracted from powers not delegated to the United States by those who imposed the duty. I there com the constitution, nor prohibited by it to the clude the reasons assigned by Mr. Madison are States, are reserved to the Siates respectively, not conclusive. or to the people.” This supposes there may This clause not only furnishes inherent evie be some powers neither granted to the United dence of the purposes intended to be effected, States nor retained by ihe States, which may but we have the opinion of one of the ablest still remain with the people. But has the cori- delegates to the cunvention, that this was the stitution not provided for this very case, by con- intention- mean Luther Martin-he saya:ferring on the several States, the right to lay "By this same section, every State is pronibit. 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 cleaıly a nugatory one. Giovernment. It was urgedgthat, as alm:st all It was evidently intended to enable such States sources of taxation were given to Congress, it as wished to prohibit her citizens against fu- would be but reasonable to leave the State the reign competition, to do so, with the consent power of bringing money into their treasuries of Congress, and at the expense of those on by laying a duty on exports, if they should whom the tax would operale.

think proper, which might be so light as not The gentleman froin New Jersey supposes to injure or discourage industry, and yet might he bas found an "extinguisiner" for this argu- be productive of considerable revenue; aisuthat ment, when he shows that the State tax is to there might be cases in wbich 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 fi id iures, 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 manutactures, is gress on imports, for the sake of revenue, to paid as a bounty lo 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 manu. or those who resist it. Ii it be so important to facturer there to supply us on as good terms as

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 incommudum," 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 anxivus 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 respunsibility have, ou a. for the General Government, that they insisted grainst unjust extortion and exaction? Mr. on the little revenue that might ihus arite Madison, in his letter 10 Mr. Cabell, states his should not be appropriated to the use of the surprise that this consiruction should be given respective States where it was collected but to the clause unde: cunsideration. He rea should be paid into the Treasury of the United sons, to show that this clause was to confer the Siates; and accordingly it is so determined." right on the States to provide for the execu. We have here the wistory of this clause, by tion of their inspection laws. This would not Mr. Martin, directly afier the Convention, show. have been the object since the right to pass ing the point debated, and the point decided such laws, withoui the consent of Congress, is made to his State ; not founded on the glimconceded by the very clause.

mering recollection of years, but cotemporane. "No State shall, without consent of Congress, ously with the adoption of the Constitution.

When you look at the words of this clause, and He who receives the bounty ought to pay the account given by Mr. Martin, who can tbetas.

doubt what it was intended to effect. Il

dever entered the mind of this great statesman institutions yield to a government more vigo. and 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, lo re continent. is this which Mr. Jefferson con. : a probate Mr. Han Iton's report, made on the siders worse than disunion. And yet, the rapid

3th December, 1791, the report referred to strides made by the Federal Government to so often in this debale. 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 firm 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 ihe 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. latore, 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 douht, that whatever concerns does not depend upon inference nor implica. the general interests of Learning, of Agricul. tion; by referring to the journal of the Conven. fure, of Manufactures, and of Commerce, are tion it will be seen this power is expressly dewithin the sphere of the nasional councils, as nied: "To establish public institutions, re. far as regards an application of money. The wards, and immunities, for the promotion of latter report," says Mr. Madison, "assumes agriculture, commerce, trades, and manufac. the same latitude of power in the national lures, was proposed and rejected. I have councils, and applies it to the encouragement not seen either in the journal debates or com. of agricultue, by means of a society to be estab- mertaries, by Hamilton, M.dison 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 incia sanction of a law carrying it into effect, yet, on dent to revenue. (Here Mr. M. referred to the the other hand ebe 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 au. to be conferred.) The whole argument upon thority to which it was addressed."

the adoption of the first tariff, lurned upon the Can it be doubled, if the reports here ani- measure as a financial one, and the naked ques madverted on, bad 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 had 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 resisteil.

The argument late commerce, to build up home industry, if might be rested on this single interrogation :50, 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 iseep up their establishments ! It 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 triese laws to be uncon. is here contended for. Let the States profect stilutional, 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 ibe eloquent apostle, to taking the people in one State, to protect the the great champion of Christian faith, that manufaciures of another, against their will, and " Those who know not the law, yet do the without a lawful reason 1o 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 nut, heretofore, carried tures, nor held us to make our roads. Our op out their opinions, is owing to their unwilling position is 10 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 ibe nation, ils legislative enactments. Sir, the


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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 Fede. on this subject comport with such suppositions? fral 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 Pthe States sometimesj have put on airs, than by relating a familiar and friendly converbut 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 be 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 es. used 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 Hs. but as the terms are used in England—when I bendum-which says, I am to have and to hold * say the seatiments of the Senator from Maine the land, together with all rights, appurtenan. would locate him with the tory party. In eve-ces, &c. thereunto incident, or any wise apper. ry 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, intelligeni servant is zo de tains 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 avow. principles. The principles which dethroned al of such unparallelled injustice and effronte the Siuarts, and achieved our revolution: they ry?" are the principles which brought Mr. Jeffers 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 be in. nance 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 10 resist encroachment and u. unless they had some way of protecting them. surpation, and the determination to use the re Would any man, in his senses, make a bar served 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 preiension 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 salıries, or the judge fluence upon civil society, which is calculated ment influenced by additional selected incur. to 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. juulges. If we have become a party to a com: preme power-that some rights were reserved pact, containing such provisions, we are bounil to the people of the States, as Stales; 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, Ma. the Siales have rights, as opposed to the Fede. Jisun, Hamilton, Parsons, Rvane, 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 constructiun of

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the English language, and our Anglo-Saxon no supreme over those societies, and the individu. tions of liberty, to sustain us. General Wash. als of whom they are composed. But it will inglon, in his farewell address, makes the fol- not follow from this doctrine, that acts of the lowing observations :

larger society which are not pursuant to its con. "It is important, likewise, that the habits of stitutional powers, but which are invasions of thinking, in a free country, should inspire cau- the residuary authorilies of the smaller societion in those intrusted with its administration, ties, will become the supreme law of the land. 10 confine themselves within their respective / These will be merely acts of usurpation, and will constitutional sphe es, avoiding, in the exer. deserve to be treated as such.Such a law, he cise of the powers of one department, to en- says again, "would not be the supreme law of croach upon another. The spirit of encroach- the land, but an usurpation of power not grant. ment tends to consolidate the powers of all the ed by the Constitution." departments in one, and thus to create, what. “ It may safely be received as an axiom in ever the form of government, a real despotism. our political system, that the Slale Gwernment A just estimate of that love of power, and will, in all possible conlingencies, afford comproneness to abuse it, which predominates in plete security against invasions of the public ihe bulan heart, is sufficient to satisfy us of liberty by the national authority. Projects of the truth of this position. The necessity of usurpation cannot be masked under pretence reciprocal checks in the exercise of political su likely to escape the penetration of select bo. power, by dividing and distributing it into dif

. dies of inen, as of the people at large ferent de positories, and constituting each the Power being almost always the rival of guardian of the public weal, against invasion power, the General Government will, at all by the others, has been evinced by experi- times, stand ready to check the usurpations of ments ancient and modern : some of them in the State Governments; and these will have our own country, and under our own eyes. To the same disposition towards the General Gopreserve them must be as necessary as to insti. vernment. The people, by throwing themtute them. If, in the opinion of the people, selves into either scale, will make it preponthe distribution or modificati'on of the constitu derate. If their rights are invaded by either, tional powers be, in any particular, wrong, leo they can make use of the other as the instruit be corrected by an amendment in the way ment of redress. How wise will it be in them, which the Crns:itution designates. But les by cherishing the union, to preserve for them. there be no change by usurpation : for though selves an advantage which can never be los high. this, in one instance, may be the instrument of ly prized !guod, it is the customary weapon by which free “ In the compound republic of America, the governments are destroyed." The precedent power surrendered by the people is first di. must always greatly overbalance, in permanent v ded between two distinct governments, and evil, any partial or transient benefit which the then the power allotted to each suhdivided use can at any time yield.”

among distinct and separate departments W bat is the meaning of the necessity of re. Hence a double security arises to the rights of ciprocal checks, in the exercise of political the people. The different governments will power

, by dividing and distributing into differ- control cach ulher at the same time that each ent depositories, and constituing each the will be controlled by the people.” guardian of the public weal against the invasion "It is well known, that in the Romın repub. of the other, unless it means, that ihe Stales lic, the legislative authority in the last resort, who have political rights, as opposed to fede. resided for ages in two different political boral rights, must be the guardian of them? The dies ; not as branches of the same legislature, father of his country has cautioned against co.. but as distinct and independent legislatures; in solidating all power into the ha'ids of the Fede. each of which an opposite interest prevailed, ral Government

, and its tendency to despotism; in one the Patrician, in the other the Plebian. he has not only pointed out the danger, but sug. Many arguments might have been adduced, to gested the remedy ; the constituting each pow-prove the unfitness of two such seemingly coner the guardian of the public weal, against in- tradictory authorities, each having power to Vasion by the other.

annul or repeal the acts of the other. But a man Let us now hear Col. Hamilton, -not in the would have been regarded as frantic, who convention, insisting what the Constitution should have attempted at Rome to disprove their should be, nor in the Treasury Department, (existence. And yet these two legislatures, es carrying out his high-toned principles; but in isted for ages, and the Roman republic attained his address to the people of the States, per- to the pinnacle of human greatness." suading them to adopt the Constitution, and

Mr. Jefferson, in the Kentucky resolutions, giving a commentary which has always been maintains the doctrine we contend for, in terms considered almost as binding as the test. He not 10 be mistaken: be who runs may read it. guaintains, in various numbers, the powers and The following sentiments, from the pen of that rights of the States, as will be seen by refer- great man, covers the whole ground: ence to his writings in the Federalist :

“ The several States composing the United "If a number of political societies enter into States of America, are not united on the prina larger political society, the laws wbich the ciple of unlimited submission to the General lagter may enact, pursuant lo the powers entrust. Government; but that by compact under the ed to it by its constitution, must necessarily be style and title of Constitution for the United

States, and of amendments thereto, they con-/ wrote his masterly commentary on the prin.
stituted a General Government for special ciples of our Government-o be found in the
purposes; delegated to that Government cer. State paper, from which the above is an
tain definite powers, reserving each State to extraci!
itself, the residuary mass of right to their own Sir, we rest upon the great names to which
self-government; and that whensoever the bave referred. Are these authorities to be
General Government assumes . undelegated contemned, and is South Carolina put under
powers, its acts are unauthoritative, void, and the ban, whilst she follows truth and correct
of no force; that to this compact, each Stale principles, illustrated and enforced by the illus.
acceded as a State, and as an integral party, its trious patriots of 1776-1798?
co-states forming to itself the other party; that Let us advert to the Constitution itself, and
the Government created by this compact was see how far ils plain import will sustain the
not made the exclusive or final judge of the doctrine, that the rights of the States are alone
extent of the powers delegated to itself: since to be determined by the Federal Judiciary:
that would have made its discretion, and not "The judicial power shall extend to all cases
the Constitution, the measure of its power; but in law and equity, arising under the Constitu.
that, as in all cases of cumpacts among parties tion, the laws of the United States, and the
having no common judge, each party has an treaties made, or which shall be made, under
equal right to judge for itself, as well of in their authority,” &c.
fractions, as of the mode and measure of "In all cases affecting ambassadors, other

public ministers, and consuls, and those ia In the Virginia resolutions, from the pen of which a State shall be a party, the Supreme Mr. Madison, we find the following position Court shall have original jurisdiction, both as maintained:

to law and fact, with such exceptions and "It appears to your committee to be a plain under such regulations as the Congress shall principle, founded in common sense, illustrated make." by common practice, and essential to the nature There is no mention made of appeals from of compacts, that where resort can be had to State courts here. Under the terms, "Sucb no tribunal superior to the authority of the regulations as Congress shall make," are the parties, the parties themselves must be the States chained down. rightful judges in the last resort, whether the In partitioning out the Federal powers be. bargain has been pursuel or violated. tween the Executive, Legislative, and Judicial

“The Constitution of the United States was departments, no one should suppose, that the formed by the sanction of the States, given by States can be considered as adverted to. The each in iis sovereign capacity. It adds to the President is to have certain powers, Congress stability and digniry, as well as to the authority to have certain powers, and the judges to of the Constitution, that it rests on this legiti. exercise certain powers--all obviously federal mate and solid foundation. The States then, in their nature. The President is not to see a being the parties of the constitutional compaci, State law executed, Congress is not to legislate and in their sovereign capacity, it follows of for the States; and wliy is it, that, under necessity, that there can be no tribunal above general phrases, used with reference to the their authority, to decide in the last resort, partition of the federal powers, it is assumed, whether the compact is made by them, or that the Supreme Court is 10 revise and execute violated; and consequently, that as parties to it judgments of the State courts! If the State they must themselves decide, in the last resori, cuuris had been within the scope of the meansuch questions' as may be of sufficient magni-ing of inferior courts, subject to the appellato tude to require their interposition." power of the Supreme Court, why declare,

I refer to this report for its own intrinsic and that they should be bound by the Constitution,
unanswerable reasoning; not because it is the laws, statutes, in a distinct and separate
opinion of Madison, but because the principles clause?
contained in that report were adopted and We are told by the Chief Justice, in his life
recognized by the democratic republican party of Washington, that the Federal Constitution

This great civilian was at that time in the prime was committed, after its adoption, to the feder
of life, surrounded by patriots and sustained by al party; and it seems, what it lacked of ener-
pure principles. That his opinions, before or sy; they determined to acquire by legisla:
after this time, should vary from this report, tion.
matters nothing. The question is, when was The judiciary act sprang into existence, em
he right? In the Convention, when he avow.bodying principles which were repudiated in
ed, the Staies “were only corporations, baving the convention, and which, to a certain er.
the power to make bye laws, and those effectent, have never been acquiesced in, notwith
tual only, if they are contradictory to the standing the ingenious devices resorted to, by
general confederation when he avowed, the construction, io subvert the authority of the
States ought to be placed under the control of States.
the General Government, at least as much so Without denying the authority of the judi-
as they were under the King and British Par. ciary act, there is still a redeeming spirit in
Jiamen? In his letter to the North American the constitution which rises abuve ait artifice
Review, when be maintained the supremacy of and bids defiance to every scheme of federal
the Federal Judiciary, or, in 1799, when he subjugation. So long as the trial by jury shall



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