"1. Because the good people of this Commonwealth believe that the powers of Congress were delegated to it in trust for the accomplishment of certain specified objects which limit and control them, and that every exercise of them for any other purposes is a violation of the constitution as unwarrantable as the undisguised assumption of substantive, independent powers not granted or expressly withheld.

"2. Because the power to lay duties on imports is, and in its very nature can be, only a means of affecting the objects specified by the constitution: since no free government, and least of all a government of enumerated powers, can of right impose any tax (any more than a penalty,) which is not at once justified by public necessity, and clearly within the scope and purview of the social compact, and since the right of confining the appropriations of the public money to such legitimate and constitutional objects, is as essential to the liberties of the people, as their unquestionable privilege to be taxed only by their own

consent.

"3. Because they believe that the Tariff Law, passed by Congress at its last session, and all other acts of which the principal object is the protection of manufactures, or any other branch of domestic industry— if they be considered as the exercise of a supposed power in Congress, to tax the people at its own good will and pleasure, and to apply the money raised to objects not specified in the constitution-is a violation of these fundamental principles, a breach of a well defined trust and a perversion of the high powers vested in the Federal Government for Federal purposes only.

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4. Because such acts considered in the light of a regulation of commerce are equally liable to objection-since, although the power to regulate commerce, may, like other powers, be exercised so as to protect domestic manufactures, yet it is clearly distinguished from a power to to do so, eo nomine, both in the nature of the thing and in the common acceptation of the terms; and because the confounding of them would lead to the most extravagant results, since the encouragement of domestic industry implies an absolute control over all the interests, recources and pursuits of a people, and is inconsistent with the idea of any other than a simple consolidated government.

"5. Because from the contemporaneous exposition of the constitution, in the numbers of the Federalist, (which is cited only because the Supreme Court has recognized its authority,) it is clear that the power to regulate commerce was considered by the convention as only incidentally connected with the encouragement of agriculture and manufactures; and because the power of laying imposts and duties on imports, was not understood to justify in any case a prohibition of foreign commodities except as a means of extending commerce by coercing foreign nations to a fair reciprocity in their intercourse with us, or for some other bona fide commercial purpose.

"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.

"7. Because even admitting Congress to have a constitutional right to protect manufactures by the imposition of duties or by regulations of commerce, designed principally for that purpose, yet a Tariff of which the operation is grossly unequal and oppressive, is such an abuse of power, as is incompatable with the principles of a free government and the great ends of civil society, justice and equality of rights and protection.

"8. Finally, because South-Carolina, from her climate, situation, and peculiar institutions, is, and must ever continue to be, wholly dependent upon agriculture and commerce, not only for her prosperity, but for her very existence as a State-because the abundant and valuable products of her soil-the blessings by which Divine Providence seems to have designed to compensate for the great disadvantages under which she suffers in other respects- are among the very few that can be cultivated with any profit by slave labour-and if by the loss of her foreign commerce, these products should be confined to an inadequate market, the fate of this fertile State would be poverty and utter desolation-her citizens in despair would emigrate to more fortunate regions, and the whole frame and constitution of her civil polity be impaired and deranged, if not dissolved entirely.

"Deeply impressed with these considerations, the Representatives of the good people of this Commonwealth, anxiously desiring to live in peace with their fellow citizens, and to do all that in them lies to preserve and perpetuate the union of the states and the liberties of which it is the surest pledge-but feeling it to be their bounden duty to expose and to resist all encroachments upon the true spirit of the constitution, lest an apparent acquiescence in the system of protecting duties should be drawn into precedent, do, in the name of the Commonwealth of South-Carolina, claim to enter upon the journals of the Senate, their Protest against it as unconstitutional, oppressive, and unjust.

One of the most serious objections to these views is the attention paid to the encouragement of manufactures by the first Congress. As early as the 15th January, 1790, the then Secretary of the Treasury, was instructed by the House of Representatives to inquire into the means of promoting such manufactures as would tend to render the United States independent on foreign nations for military and other essential supplies. The views of that department were accordingly embodied in one of those celebrated reports which contributed so much to the reputation of General Hamilton. Let it be remembered that this gentleman, was originally favourable to a monarchical form of constitution for this country, and that he seems to have looked with prophetic sagacity into the capabilities of the constitution, for a gradual and silent enlargement of its powers; and we shall not be surprised to find him setting up pretensions of an extravagant kind at the very outset. Nothing was to be lost and every thing to be gained by them. These pretensions, in some instances, as in the case of the bank, gave umbrage to the anti

federal politicians-in others, (the principle of indefinite appropriation of money for example,) they were suffered to pass sub silentio, until some years after they had been first broachedin others, again, it has required the experience of nearly forty years to discover the shadowy lines that distinguish the just from the unjust, the constitutional from the unconstitutional exercise of power. Nor is this to be wondered at. Upon the formation of the Constitution, men's minds were excited with enthusiasm and filled with hopes. The relief it afforded was so great, so instantaneous, that an overflowing gratitude was the universal feeling. Even those who had most strenuously opposed the great change in the government, became converts and rejoiced in promoting its success. The dangers of a feeble, disjointed confederation were fresh in the recollection of all; the same apprehensions were still entertained from the structure, improved though it was, of the existing government; and the wisest men in the nation leaned to what they thought its weaker side. It would have been very wonderful, if, in the outset of so vast an experiment, some mistakes had not been made-if every principle had been ascertained with a rigorous, mathematical precision-if no precedent had been set which should lead to unforeseen consequences at a time when every precedent might be said to teem with important consequences. We may meet the arguments drawn from such anomalous cases with one general maxim of law, quod contra rationem juris receptum est, non est producendum ad consequentias,* and when we are told that a principle must be considered as settled, because it has been acted on for thirty or forty years, it ought to be remembered, that the real character of a system may not be fully developed in a shorter period than that. These remarks are especially just, as applied to the exercise of a power, which, in one view, is constitutional, and in another, unconstitutional. Certainly, the first acts of Congress for raising revenue, were adapted, and ought to have been adapted to protect the industry of the country-that is to say, to make the taxes necessary to the support of the government as little onerous as possible to the people, by affording them this indirect, consequential compensation. The earlier federal legislation, therefore, professes to keep this incidental advantage always in view, and thus comes recommended by a "two-fold virtue." Gradually, however, men acquiesced in the notion, that the secondary object was a principal one, and when, in 1816, the war-tariff came to be reduced, it seems to have been universally conceded, that duties,

N Celsus.

higher than were requisite for the financial arrangements of the country, might be levied on imports, in order to save the great amount of capital previously invested in domestic manufactures. From that to the levying of still greater imposts, with a view to future investments of capital, was a very small step, and it was soon taken. When the burthen, however, became too heavy to be borne with patience, the question was asked, for the first time, by what right it was imposed, and if we are not very much mistaken, the constitutional scruples about that right have been gaining ground every day. Dr. Channing admits that there is, at least, a good deal of plausibility in our view of the subject, and thinks it, at any rate, highly inexpedient to exercise the power.

Shortly after the Legislature of South-Carolina had sent forth its Protest, we learned that Mr. Madison had written the Letters at the head of this article, in which he expresses himself, very confidently, in favour of the power, and seems, indeed, rather surprised that it should ever have been drawn into question. The authority of this gentleman, in all matters of constitutional law, is so deservedly high, that we felt very much shaken in our own opinions when we heard of his. Fortunately, however, Mr. Madison did not give his decision without reasons, and it is a settled rule that when a judge condescends to argue, his decree is no further good than as it is supported by his logic. We shall take the liberty, therefore, of suggesting some objections to the view of this subject presented by this distinguished statesman. But first let us quote his words.

"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 encourag ing 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 Massachu

6

setts:

"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 com'merce, 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.'

"6. If Congress have not the power, it is annihilated for the nation; a policy without example in any other nation and not within the reason of the solitary one in our own. The example alluded to, is the prohibition of a tax on exports, which resulted from the apparent impossibility of raising, in that mode, a revenue from the States, proportioned to the ability to pay it-the ability of some being derived, in a great measure, not from their exports, but from their fisheries, from their freights, and from commerce at large, in some of its branches altogether external to the United States; the profits from all which, being invisible and intangible, would escape a tax on exports. A tax on imports on the other hand, being a tax on consumption, which is in proportion to the ability of the consumers, whencesoever derived, was free from that inequality. "7. If revenue be the sole object of a legitimate impost, and the encouragement of domestic articles be not within the power of regulating trade, it would follow that no monopolizing or unequal regulations of foreign nations could be counteracted; that neither the staple articles of subsistence, nor the essential implements for the public safety, could, under any circumstances, be insured or fostered at home, by regulations of commerce, the usual and most convenient mode of providing for both: and that the American navigation, though the source of naval defence, of a cheapening competition in carrying our valuable and bulky articles to market, and of an independent carriage of them during foreign wars, when a foreign navigation might be withdrawn, must be at once abandoned, or speedily destroyed: it being evident that a tonnage duty in foreign ports against our vessels, and an exemption from such a duty in our ports, in favour of foreign vessels, must have the inevitable effect of banishing ours from the ocean.

"To assume a power to protect our navigation, and the cultivation and fabrication of all articles requisite for the public safety, as incident to