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the war power, would be a more latitudinary construction of the text of the Constitution, than to consider it as embraced by the specified power to regulate trade; a power which has been exercised by all nations for those purposes, and which effects those purposes with less of interference with the authority and conveniency of the States, than might result from internal and direct modes of encouraging the articles, any of which modes would be authorized, as far as deemed necessary and proper,' by considering the power as an incidental power.
“8. That the encouragement of manufactures was an object of the power to regulate trade, is proved by the use made of the power for that object, in the first session of the First Congress under the Constitution; when among the members present were so many who had been members of the Federal Convention which framed the Constitution, and of the State Conventions which ratified it; each of these classes consisting also of members who had opposed and who had espoused, the Constitution in its actual form. It does not appear from the printed proceedings of Congress on that occasion, that the power was denied by any of them. And it may be remarked, that members from Virginia, in particular, as well as of the anti-federal as the federal party, the names then distinguishing those who had opposed and those who had approved the Constitution, did not hesitate to propose duties and to suggest even prohibitions in favour of several articles of her productions. By one a duty was proposed on mineral coal, in favor of the Virginia coal pits; by another, a duty on hemp was proposed, to encourage the growth of that article; and by a third, a prohibition even of foreign beef was suggested, as a measure of sound policy. [See Lloyd's Debates.)
“ A further evidence in support of the constitutional power to protect and foster manufactures by regulations of trade, an evidence that ought of itself, to settle the question, is the uniform and practical sanction given to the power, by the General Government, for nearly forty years; with a concurrence or acquiescence of every State Government, throughout the same period; and, it may be added, through all the vicissitudes of party which marked the period. No novel construction, however ingeniously devised, or however respectacle and patriotic its patrons, can withstand the weight of such authorities, or the unbroken current of so prolonged and universal a practice. And well it is that this cannot be done, without the intervention of the same authority which made the Constitution. If it could be so done there would be an end to that stability in Government, and in Laws, which is essential to good government and good laws, a stability, the want of which is the imputation which has at all times been levelled against republicanism, with most effect, by its most dexterous adversaries. The imputation ought never, therefore, to be countenanced, by innovating constructions, without any plea of a precipitancy, or a paucity of the constructive precedents they oppose; without any appeal to material facts newly brought to light, and without any claim to a better knowledge of the original evils and inconveniences, for which remedies were needed, the very best keys to the true object and meaning of all laws and constitutions."
The argument, as set forth in the South-Carolina protest, proceeds in the following order. 1. It considers the protecting system as a branch of the right to tax. 2. As authorized by the power to regulate trade. 3. In connexion with contemporaneous exposition. 4. As among the reserved rights of the States. 5. In reference to its inequality and excess, and especially with a view to its possible effects in South Carolina.
1. In the first place, we maintain that "the power to lay duties on imports, is, and in its very nature can be, only a means of effecting 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 (or 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.
“ Because we 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 defived trust and a perversion of the high powers vested in the Federal Government for Federal purposes only.”
Mr. Madison does not rest his defence of protecting duties upon this right to tax the people ad libitum, and to apply the money raised to any objects whatsoever, which may be considered as having any relation “to the common defence and general welfare." The author of this very dangerous doctrine, was the same celebrated man to whom, as we have seen, the early policy of the country was so much indebted for its vigour and stability. In the same Report upon Manufactures, Gen. Hamilton, adverting to the encouragement of domestic industry by bounties, holds the following language :
“A question has been made concerning the constitutional right of the Government of the United States to apply this species of encouragement, but there is, certainly, no good foundation for such a question. The National Legislature has express authority 'to lay and collect taxes, duties, imposts and excises ; to pay the debts, and provide for the common defence and general welfare,' with no other qualifications YOL. V.-NO. 11.
than that 'all duties, imposts and excises, shall be uniform throughout the United States; that no capitation or other direct tax shall be laid, unless in proportion to numbers ascertained by a census, or enumeration taken on the principles prescribed in the Constitution, and that no tax or duty shall be laid on articles exported from any
state.' "These three qualifications excepted, the power to raise money is plenary and indefinite ; and the objects to which it may be appropriated, are no less comprehensive than the payment of the public debts, and the providing for the common defence and general welfare. The terms 'general welfare' were, doubtless, intended to signify more than was erpressed or imported in those which preceded ; otherwise numerous exigencies incident to the affairs of a nation, would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues, should have been restricted within parrower limits than the 'general welfare ;' and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.
“ It is, therefore, of necessity, left to the discretion of the National Legislature, to pronounce, upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt, that whatever concerns the general interests of LEARNING, of AGRICULTURE, of MANUFACTURES, and of COMMERCE, are within the sphere of the National Councils, as far as regards an application of money.
The only qualification of the generality of the phrase in question, which seems to be admissible, is this--that the object to which an appropriation of money is to be made, be general and not local; its operation extending, in fact, or by possibility, throughout the Union, and not being confined to a particular spot."
It is plain that according to this doctrine, there is no imaginable constitutional restraint upon Congress in the disbursements of the public money. They may levy any tax they please upon the people, and appropriate it to objects having no sort of connexion with the legitimate or desiguated purposes of the Federal Union.
To any one at all versed in that living record of practical liberty in its agonies and its triumphs, the constitutional history of England, this pretended license to squander the funds of the people of the United States in projects which no definition can bring within the purposes of the Union, must appear in the light of a most startling political paradox. We have always understood that "the parliamentary” right of granting supplies would have been very incomplete had it not been accompanied with that of directing their application. “This principle of appropriating public monies” is considered by all sound thinkers
as one of the best fruits of a reign, during which the liberties of England made most signal progress-that of Richard II.* It was steadily maintained during the Lancasterian dynasty, and of course in more enlightened and auspicious times.
- The Parliament of Henry IV. granted two-fifteenths and twotenths, with tax on skins and wool, on condition that it should be expended in defence of the kingdom, and not otherwise, as Thomas, Lord Furnival and Sir John Pelham, obtained treasurers of war for this Parliament, to receive said subsidies, shall account and answer to the Coinmons at the next Parliament. These treasurers were sworn in Parliament to execute their trust."
The monstrous error that lies at the bottom of the doctrine we are discussing, is to separate the powers given to the Government of the United States from the trusts which they were intended to accomplish. Or to express the same thing, in another form, it is to suppose'that the objects of a trust or a power do not constitute in equity and reason, an essential part of it. An unlimited power to raise money for certain enumerated objects, is construed into an unlimited power to raise it for any
object whatsoever. Now we need not say that no principle can be more utterly at variance with all the maxims of the law and every dictate of common justice and of common sense. The distinction made between the bare power of doing any thing under the Constitution and the right of doing it in equity and good conscience, is worthy only of an inferior forum. Surely what is done in the way of a fraud upon the law, is as utterly void as if there were nothing at all in the letter of the law to countenance it. “Contra legem facit,” says Paullus, “qui id facit quod lex prohibet; in fraudem legis, qui salvis verbis legis, sententiam eam circumvenit.”+
The distinction attempted to be set up between national objects and objects not national, in the exercise of this supposed right to spend the monies of the United States upon projects connected with none of the enumerated powers, must ever be quite unsatisfactory. According to our rule, it is very easy to define a national object. You have nothing to do but to look into the federal covenant and see if the government have any authority to undertake the thing at all. If it have, then it may lay out money upon it as a matter of course. The power of levying a tax is only a power to provide the most general means of accomplishing the purposes of government, which money is. But the principle upon which this part of the
Hallam's Midd. Ages ii. 129.
+ L. i. D. de Leg. et Senatus Consts.
“ American System” proceeds is, that, exclusively of all the enumerated objects of the Constitution, there are some that may be called national by their great utility. They are not national in their character—but by their effects—they are not so in their inception, but become so ex post facto. Thus a road is not national as long as it is confined to a single Stale-but what if it pass through two, three, four, &c. Where does it cease to be local and become transformed into a general concern? A bonu file military road made flagrante bello, would be national, if it were only ten miles or one mile iong, because it were in that case, a means of accomplishing an object specified in the Constitution, but these new fangled internal improvements, never can derive that character from the same source. It is only so far forth, as they are generally useful, that they can ever aspire to be considered in that light. But it is evidently confounding things altogether distinct in their nature, and a mere vulgar abuse of language, to call such things national at all. We venture to affirm, that if Congress have power to aid in constructing the greatest work of the kind in this country-the Ohio and Chesapeake Canal for instance—there is not a creek or a cross road in the land, which it
not take under its superintendence. This is nothing short of demonstrable. Every improvement, however limited and insignificant, by the very fact that it was an improvement, would become national, Where one part is benefited and no part injured, the whole, of course, is benefited; so that no man who looks beyond the definitions of the Constitution itself, can stop short of an universal, unrestraived, indiscriminate expenditure of the public money. To such monstrous consequences do the slightest deviations from correct principles, frequently lead! There is precisely the same ditference between a truly federal and a local interest, as there is between the interests of a partnership in trade and the interests of the individual members of the concern. Every man of business understands this. If there were twenty-four partners and by some operation, not warranted by their articles, twenty-three of them were benefited, but the remaining one not, he might stand upon his bond and set aside their transactions, nor would it alter the case, as to the character of the proceeding, if he were let in for a share. The difference is between the acts or property of the whole, considered as a whole, and those of all the parts, as parts-a distinction perfectly intelligible in theory, and absolutely necessary in practice to prevent inequality and fraud. The exercise of the veto in the case of the Maysville Bill is, for this reason, fatal in our apprehension, to the whole system of internal improvements.