common consent, abstained from the use of tea, and thus prevented the levying of the duty.

§ 115. In general, all the necessaries of life, such as coarse clothing, bread, meat, fruit, wood, and iron, are the productions of our own country,--so that the whole import duty, or nearly the whole revenue of the country, as now levied, is a mere matter of voluntary contribution upon the part of each and every citizen; hence it is that indirect taxes, being in a measure unfelt and voluntary, are comparatively popular, while direct taxes are more or less odious.

§ 116. The terms imposts and duties, as now used, are nearly synonymous ; but originally, the word duty had a general signification, as it respects taxes, of which imposts was a particular application. Now they are applied indiscriminately to the revenue obtained from imported articles.

117. The term excise is defined to be a duty on commodities, but of late it has been confined to a tax on domestic distilled liquors. In this sense it is a tax, not only on the productions of the country, but also a tax on the manufacture of them: it is a tax, at once, upon the raw material and the labour put upon it. Such a double duty, it is obvious, could never be imposed by the Legislature, nor borne by any people, but from a conviction in a large portion of the community of the disastrous influence of spirituous liquors, and a strong desire to repress their use. Even with this conviction among the intelligent, an excise duty has never been imposed but in time of great public emergency, and then at the risk of civil

war.

In the year 1793, Congress laid an excise duty on distilled spirits, and appointed inspectors, officers, &c. to collect it. This law became so excessively odious to a portion of the people, that notwithstanding the unrivalled popularity and commanding influence of

1 Madison's Letter on the Tariff.

General Washington, who was then President, they were excited, especially in the neighbourhood of Pittsburgh, Pennsylvania, into open acts of violence. The inspectors were attacked in their houses, the mails robbed, the marshal resisted, and numerous other outrages, amounting to open insurrection, were committed.1 At length, the President called out the militia, and by the display of superior force, and the determination to use it, quelled the insurgents. In this brief history, we see the effect of excise duties, of which the chief cause, next to the appetite for spirituous liquors, may be found in the onerous nature of a tax both upon labour and production.

§ 118. But all duties, imposts, and excises must be uniform. In the case of Hylton vs. United States,2 the Supreme Court decided that a duty levied indiscriminately upon all carriages was not a direct tax, and was therefore properly laid, and uniform. Had it been a direct tax, it must, according to a previous provision of the Constitution, (§ 42), have been apportioned in proportion to the population of the several states.

§ 119. In the case of Loughborough vs. Blake,3 the court decided that the power of Congress to tax extended over the District of Columbia, and all other territories; that the power of taxation was co-extensive with the government, but that when exercised, direct taxes must be in proportion to the population. The court decided that Congress were not obliged to extend taxation to the territories, although when they did so, the Constitution gave a rule of assessment.

§ 120. 2d Clause. To borrow money on the credit of the United States:

This power has been constantly exercised, and for the plain reason that no state or government could

15 Marshall's Washington, 585. 35 Wheaton, 31%..

23 Dallas, 171.

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:

§ 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. In a very celebrated case, Gibbons vs. Ogden,1 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 regulate 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 legislative discretion; and that the power of Congress was sovereign relative to commercial intercourse.

of

§ 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 purposes 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.2 In both these cases it was understood to include the encouragement of manufactures.

1 Madison's Letter on the Tariff.

2 Ibid.