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the present administration if it should be effected on equitable terms. The test of such a commercial tariff is a very simple one. You have only to propose the question whether Congress would abolish its own impost-duties, if other nations did so. If the answer be in the affirmative, and sincerely so, those duties are constitutional. If on the contrary the object be exclusion or prohibition—if our customs be raised just in proportion as those of other nations are reduced—such an exercise of the power to regulate commerce seems to us a fraud upon the law. That this pretence has lately been set up by the advocates of the “system,” we are well aware. It was a mere after-thought, and is wholly inconsistent with the professed principles and the uniform conduct of the majority of that party. We dare say that there are many in the tariff ranks who would desert them, if they saw what they deem a fair compensation offered to the government in a treaty of commerce. We have no doubt, for this reason, that, if the feelings of our government are properly understood, the British ministry might, for some time at least, abolish the protecting system of this country, by a concession to the corn trade. But the doctors of the Harrisburg Convention, and all others of the same farina, would be grossly scandalized at such a result. It is necessary, however, in the practical application of this principle, to make a distinction between the laws against which such retaliatory measures are employed. Where new restrictions are imposed by foreign governments, they may be more easily defeated by such a policy. Congress, therefore, in such cases, would be justified in trying the expedient without hesitation. The example of the West India trade is in point here, and be it remembered to the credit of our fellow-citizens of Charleston, that believing the government to have in view only the interest and honour of the whole in that step, politic or impolitic, they (although suffering much under the restriction) refused, after argument, even to petition for its removal. If, on the contrary, the restraints imposed by foreign countries were part of an ancient, settled, fundamental policy, it would be almost hopeless, and rather presumptuous to require that it should be abandoned. In such a case, the laws of a foreign conntry may well be regarded, as Mr. M’Duffie and others have expressed it, as so many laws of nature against which man rebels only to feel and to show his own impotence. Unquestionably, if it be ascertained that such a system abroad, cannot be shaken, it would be an unreasonable and unwarrantable exercise of the federal power over commerce, to restrain it on such a pretext.
We shonld have less confidence in our conclusions
this subject-sound as they appear to us in theory-if they were altogether novel and speculative. But the truth is, that the very distinctions we set up, and which have been pronounced altogether paradoxical, have been made by our old common lawyers, on analogous subjects long ago. And first, as to the difference between a tariff of protection, and countervailing duties with the bona fide purpose of increasing, in the end, the trade which they at first restrain. In the case of “customs, subsidies, and impositions,” Lord Coke reports the result of a conference between Popham, Chief Justice, and himself, upon a judgment (then) lately given in the Exchequer, concerning the impositions of currants. He states some preliminary matters and then proceeds. Upon all which, and divers records which we had seen, it appeared to us that the King cannot at his pleasure put any imposition upon any merchandize to be imported into this kivgdom or exported, unless it be for the advancement of trade and traffic, which is the life of every island, pro bono publico. And if in foreign parts any imposition is put upon the merchandize of our merchants, non pro bono publico; and to make equality for the purpose to advance trade and traffic, the king way put an imposition upon their merchandizes, for this is not against any of the statutes which were made for advancement of merchandize, or of the statutes of Magna Charta, c. 30, &c. for the end of all such restraints is salus populi, and so in the case of currants, &c. and also in the case of customer Smith, &c. both the impositions were imposed, upon the said reason to make equality, for this was the truth of both cases, (scil) the advancement of trade and traffic, and for this cause such imposition were lawful."
This, it will be observed, was a question concerning the prerogative—which is in derogation both of parliamentary privilege and of common right, and for that reason, called more strictly to account. So the General Government, transcendent as its prerogatives are, is in derogation of the original, and except where yielded in the Constitution, reserved sovereignty of the States and the people, and is bound, in all cases, to shew its authority. The case, therefore, is very much in point. At all events, the distinction drawn is perfectly applicable, and that was our main object in citing the authority. We are aware that Mr. Hargrave, in his preface to Bates' case, 11 State Trials, 30-objects to the doctrine of this case as leaning too much to the side of the prerogative, and inconsistent with the sentiments of Lord Coke in the 2d Institute, where he condemns the judgment in Bates' case without any reserve. But this, if any thing, only strengthens the authority for our purpose.
* 12 Rep. 33--34.
Next, as to the question whether a right to "regulate trade" vested in a government of limited powers, can be so exercised as to restrain trade, without any intention of accomplishing by such restraint, any other of its ascertained, enumerated purposes. We shall cite a case or two upon the law of corporations. These cases are very much in point. A civil or political corporation is a body politic, to which certain of the jura regalia, or attributes of sovereignty are delegated. Among these, the city of London has a right to regulate trade by by-law. If, therefore, we produce a case of authority, in which the right to regulate trade is ruled not to imply the right to restrain trade, we shall very much strengthen our previous reasonings upon this subject. Let it be remarked that the analogy between such a body politic and the Federal Government, as to the extent of their powers, is not at all disturbed by the fact, that the one is an inferior and the other a supreme jurisdiction. The best evidence of this, is to be found in the rules of pleading recognized by the courts of the United States. It is a well settled principle that whoever sues in an inferior (for instance, in a city) court, must shew on the face of the record that the court has jurisdiction of the cause, because the jurisdiction is in derogation of the common right to have controversies decided in the ordinary tribunals of the land, and the presumption of law is against it. For the very same reason, such a rule is necessary in the Federal Courts, and accordingly, such is the well established law of the land. Although the Federal Government is supreme within its sphere, yet that sphere is a limited one. The presumption is against the jurisdiction, because it is in derogation of the common right of the people of the different States, to be tried in their own forums. With these observations, we proceed to notice the case of Harrison, Knight Chamberluin of London, versus Godman.*
The question arose, in the usual way, upon a return of a habeas corpus cum cuusa directed to the Mayor, Aldermen and Sheriff's of London. The return after setting forth the general custom authorizing by-laws for the common good, goes on to shew, that a certain company of butchers was much diminished and fallen into decay, by reason of many persons obtaining freedom of other companies : for remedy whereof, it was ordained, that every person, &c. should take upon himself the freedom of this said company of butchers. In short, the ordinance gives the privilege of a monopoly, in the old corporate spirit, to this
1. Burr. 12. VOL. VI.-N0. 11.
favoured company : and the question was whether this was a mere regulation of trade, and so within the custom, or a restruint of trade against common right and common law, and therefore void. After full argument by eminent counsel, Lord Mansfield, and the whole King's Bench, decide thus: “this bylaw is a restruint of trade, and not a mere regulation of it.” (We beseech our readers to attend to the reason which follows.) “The preamble don't pretend it to be made to regulate the trade, but merely for the benefit of the butchers' company.” That is to say, the corporation being authorized only to pass ordinances for the benefit and furtherance of traffic, have no right to employ that authority for the purposes of monopoly and protection. If the Federal Constitution were the charter of a city, this case would be entirely conclusive in a court of justice. Then the question is, does the fact that the Government of the United States is supreme within the sphere of its enumerated powers, though those powers are as few and as much limited by their objects, as if they were vested in any inferior, political corporation, make a difference in the conclusion? We know, how very shocking, the bare surinise of such an analogy will be to persons accustomed to contemplate that government, in the light of a national, not a federal system. But we request them to reconsider their opinions, to read over the “Federalist" again, attentively, dispassionately; and then to answer the question which we put in a former page, has Congress any power, by direct legislation with a view to the protection of industry, to enact such laws as the Statute of Apprentices, and the other odious and tyrannical contrivances of monopoly and restriction, referred to at the same time? If not, then, how can it abuse another power, to that purpose? Where can it find any authority to shew that its right to regulate commerce, implies the right, against the whole spirit of our institutions, and the uniform voice of the Common Law-to restrain trade with a view to monopoly and encouragement for the artificer at home?
We are aware that in the bona fide exercise of its transcendent prerogatives a great latitude of discretion, must necessarily be allowed to the Federal Government. We say again, that we have no wish to curtail its usefulness-that we would not even impair its legitimate splendours—"the plumage, (as Junius happily expresses it,) which adorns the reyal bird." Let it only cover and protect us under the shadow of its mighty wings, and we yield to none in ascribing to it all strength and honour and glory. We are not for cavilling about hairs, where a great national object is concerned. For instance, it may, with our free consent, establish a post-road by making one
if there be none already made. So we do not agree with Mr. Madison, that it is at all dangerous to give it the full length of the reins, in honestly providing for the common defence. Salus populi suprema lex esto-is as much the maxim of republics as of despotisms. Every thing really necessary, therefore, either to prevent or to prosecute war, must, it should seem, be conceded to it. For this reason, we have no objection at all to the policy of the first Congress in laying the foundation, by a tariff of protection, of a complete independence upon foreign nations for military and other the like essential supplies. So, if Cuba were about to fall into the hands of a dangerous power-Haytı for instance-it would be, we conceive, the duty of the government, as it would be the interest of the country, to prevent it, and whether it did so by force or by purchase--that is to say, by money spent in war, or by money peaceably laid out in the way of bargain and sale-would seem to make no essential difference.* The bona fules of the measure is all that we have a constitutional right to exact. The truth is, that every thing depends upon the exercise of a power being honest and reasonable—and that, even in matters of strict law. It has, sometimes, struck us with great surprise, as we remarked on a former occasion,t to contrast our metaphysical and technical way of considering constitutional questions, “with the plain rules of liberty'--the downright, practical good sense and good faith-by which our English forefathers were governed in their struggles for popular rights. When an Englishman speaks of a course of policy as unconstitutional, he merely means that it is unreasonable and unjust-against Magna Charta and common right. An abuse of power with bim is an usurpation, and so, as the “Protest” of our Legislature affirms, it is, or ought to be, with us. And here we beg leave to have recourse, once more, to the lights, of the Common Law, for an illustration of the previous topics. In the Chamberlain of London's Case,” (5. Rep. 63.) a great leading case upon by-laws and ordinances, Lord Coke reports a decision upon the following points. It was ordained by the Common Council, &c. “that if any citizen, freeman or stranger within the city put any broad cloth to sale, within the city of London,' before it be brought to Blackwall-Hall, to be viewed and searched, so that it may appear to be saleable, and that halleage be paid for it, scil Id. for every cloth, that he shall forfeit
* We thought with “ Brutus,” the purchase of Louisiana justifiable in this point of view, until we learned that Mr. Jefferson had honestly confessed he considered it, at the time, as a stretch of the Constitution.
+ Southern Review, No. III. Art. 3.