POWER TO BORROW MONEY AND REGULATE COMMERCE.
§ 1050. Having finished this examination of
the power of taxation, and of the accompanying restrictions and prohibitions,
the other powers of congress will be now examined in the order, in which they
stand in the eighth section.
§ 1051. The next, is the power of congress
"to borrow money on the credit of the United States." This power
seems indispensable to the sovereignty and existence of a national government.
Even under the confederation this power was expressly delegated. The remark is unquestionably just, that
it is a power inseparably connected with that of raising a revenue, and with
the duty of protection, which that power imposes upon the general government.
Though in times of profound peace it may not be ordinarily necessary to
anticipate the revenues of a state; yet the experience of all nations must
convince us, that the burthen and expenses of one year, in time of war, may
more than equal the ordinary revenue of ten years. Hence, a debt is almost
unavoidable, when a nation is plunged into a state of war. The least
burthensome mode of contracting a debt is by a loan. Indeed, this recourse
becomes the more necessary, because the ordinary duties upon importations are
subject to great diminution and fluctuations in times of war; and a resort to
direct taxes for the whole supply would, under such circumstances, become
oppressive and ruinous to the agricultural interests of the country.
 Even in times of peace exigencies may
occur, which render a loan the most facile, economical, and ready means of
supply, either to meet expenses, or to avert calamities, or to save the country
from an undue depression of its staple productions. The government of the
United States has, on several occasions in times of profound peace, obtained
large loans, among which a striking illustration of the economy and convenience
of such arrangements wilt be found in the creation of stock on the purchase of
Louisiana. The power to borrow money by the United States cannot (as has been
already seen) in any way be controlled, or interfered with by the states. The
granting of the power is incompatible with any restraining or controlling
power; and the declaration of supremacy in the constitution is a declaration,
that no such restraining or controlling power shall be exercised.
§ 1052. The next power of congress is,
"to regulate commerce with foreign nations, and among the several states,
and with the Indian tribes."
§ 1053. The want of this power (as has been
already seen) was one of the leading defects of the confederation, and
probably, as much as any one cause, conduced to the establishment of the
constitution. It is a power vital to
the prosperity of the Union; and without it the government would scarcely
deserve the name of a national government; and would soon sink into discredit
and imbecility. It Would stand, as a
mere shadow or sovereignty, to mock our hopes, and involve us in a common ruin.
§ 1054. The oppressed and degraded state of
commerce, previous to the adoption of the constitution, can scarcely be
forgotten. It was regulated by foreign nations with a single view to their own
interests; and our disunited efforts to counteract their restrictions were
rendered impotent by a want of combination. Congress, indeed, possessed the
power of making treaties; but the inability of the federal government to
enforce them had become so apparent, as to render that power in a great degree
useless. Those, who felt the injury arising from this state of things, and
those, who were capable of estimating the influence of commerce on the
prosperity of nations, perceived the necessity of giving the control over this
important subject to a single government. It is not, therefore, matter of
surprise, that the grant should be as extensive, as the mischief, and should
comprehend all foreign commerce, and all commerce among the states.
§ 1055. But this subject has been already so
much discussed, and the reasons for conferring the power so fully. developed,
that it seems unnecessary to dwell farther upon its importance and necessity.
 In the convention there does not
appear to have been any considerable (if, indeed, there was any) opposition to
the grant of the power. It was reported in the first draft of the constitution
exactly, as it now stands, except that the words, "and with the Indian
tribes," were afterwards added; and it passed without a division.
§ 1056. In considering this clause of the
constitution several important inquiries are presented. In the first place,
What is the natural import of the terms; in the next place, how far the power
is exclusive of that of the states; in the third place, to what purposes and
for what objects the power may be constitutionally applied; and in the fourth
place, what are the true nature and extent of the power to regulate commerce
with the Indian tribes.
§ 1057. In the first place, then, what is the
constitutional meaning of the words, "to regulate commerce;" for the
constitution being (as has been aptly said) one of enumeration, and not of
definition, it becomes necessary, in order to ascertain the extent of the
power, to ascertain the meaning of the words. The power is to regulate; that is, to
prescribe the rule. by which commerce is to be governed. The subject to be regulated is commerce.
Is that limited to traffic, to buying and selling, or the interchange of
commodities? Or does it comprehend navigation and intercourse? If the former
construction is adopted, then a general term applicable to many objects is
restricted to one of its significations. If the latter, then a general term is
retained in its general sense. To adopt the former, without some guiding
grounds furnished by the context, or the nature of the power, would be
improper. The words being general, the sense must be general also, and embrace
all subjects comprehended under them, unless there be some obvious mischief or
repugnance to other clauses to limit them. In the present case there is nothing
to justify such a limitation. Commerce undoubtedly is traffic; but it is
something more. It is intercourse. It describes the commercial intercourse
between nations, and parts of nations, in all its branches; and is regulated by
prescribing rules for carrying on that intercourse. The mind can scarcely
conceive a system for regulating commerce between nations, which shall exclude
all laws concerning navigation; which shall be silent on the admission of the
vessels of one nation into the ports of another; and be confined to prescribing
rules for the conduct of individuals in the actual employment of buying and
selling, or barter.
§ 1058. If commerce does not include
navigation, the government of the Union has no direct power over that subject,
and can make no law prescribing, what shall constitute American vessels, or
requiring, that they shall be navigated by American seamen. Yet this power has
been exercised from the commencement of the government; it has been exercised
with the consent of all America; and it has been always understood to be a
commercial regulation. The power over navigation, and over commercial
intercourse, was one of the primary objects, for which the people of America
adopted their government; and it is impossible, that the convention should not
so have understood the word "commerce," as embracing it.
 Indeed, to construe the power, so as
to impair its efficacy, would defeat the very object, for which it was
introduced into the constitution; for
there cannot be a doubt, that to exclude navigation and intercourse from its
scope would be to entail upon us all the prominent defects of the
confederation, and subject the Union to the ill-adjusted systems of rival
states, and the oppressive preferences of foreign nations in favour of their
own navigation. 
§ 1059. The very exceptions found in the
constitution demonstrate this; for it would be absurd, as well as useless, to
except from a granted power that, which was not granted, or that, which the
words did not comprehend. There are plain exceptions in the constitution from
the power over navigation, and plain inhibitions to the exercise of that power
in a particular way. Why should these be made, if the power itself was not
understood to be granted? The clause already cited, that no preference shall be
given by any regulation of commerce or revenue to the ports of one state over
those of another, is or this nature. This clause cannot be understood, as
applicable to those laws only, which are passed for purposes of revenue,
because it is expressly applied to commercial regulations; and the most obvious
preference, which can be given to one port over another, relates to navigation.
But the remaining part of the sentence directly points to navigation. "Nor
shall vessels, bound to or from one state, be obliged to enter, clear, or pay
duties in another." In short, our
whole system for the encouragement of navigation in the coasting trade and
fisheries, is exclusively founded upon this supposition. Yet no one has ever
been bold enough to question the constitutionality of the laws, creating this
§ 1060. Foreign and domestic intercourse has
been universally understood to be within the reach of the power. How,
otherwise, could our systems of prohibition and non-intercourse be defended?
From what other source has been derived the power of laying embargoes in a time
of peace, and without any reference to war, or its operations? Yet this power
has been universally admitted to be constitutional, even in times of the
highest political excitement. And although the laying of an embargo in the form
of a perpetual law was contested, as unconstitutional, at one period of our
political history, it was so, not because an embargo was not a
regulation of commerce, but because a perpetual embargo was an
annihilation, and not a regulation of commerce. It may, therefore, be safely affirmed,
that the terms of the constitution have at all times been understood to include
a power over navigation, as well as trade, over intercourse, as well as
traffic; and, that, in the practice of
other countries, and especially in our own, there has been no diversity of
judgment or opinion. During our whole colonial history, this was acted upon by
the British parliament, as an uncontested doctrine. That government regulated
not merely our traffic with foreign nations, but our navigation, and
intercourse, as unquestioned functions of the power to regulate commerce.
§ 1061. This power the constitution extends
to commerce with foreign nations, and among the several states, and with the
Indian tribes. In regard to foreign nations, it is universally admitted, that
the words comprehend every species of commercial intercourse. No sort of trade
or intercourse can be carried on between this country and another, to which it
does not extend. Commerce, as used in the constitution, is a unit, every part
of which is indicated by the term. If this be its admitted meaning in its
application to foreign nations, it must carry the same meaning throughout the
sentence. The next words are
"among the several states." The word "among" means
intermingled with. A thing, which is among others, is intermingled with them.
Commerce among the states cannot stop at the external boundary line of each
state, but may be introduced into the interior. It does not, indeed, comprehend
any commerce, which is purely internal, between man and man in a single state,
or between different parts of the same state, and not extending to, or
affecting other states. Commerce among the states means, commerce, which
concerns more states than one. It is not an apt phrase to indicate the mere
interior traffic of a single state. The completely internal commerce of a state
may be properly considered, as reserved to the state itself.
§ 1062. The importance of the power of
regulating commerce among the states, for the purposes of the Union, is
scarcely less, than that of regulating it with foreign states. A very material object of this power is
the relief of the states, which import and export through other states, from
the levy of improper contributions on them by the latter. If each state were at
liberty to regulate the trade between state and state, it is easy to foresee,
that ways would be found out to load the articles of import and export, during
their passage through the jurisdiction, with duties, which should fail on the
makers of the latter, and the consumers of the former. The experience of the American states
during the confederation abundantly establishes, that such arrangements could
be, and would be made under the stimulating influence of local interests, and
the desire of undue gain. Instead of
acting as a nation in regard to foreign powers, the states individually
commenced a system of restraint upon each other, whereby the interests of
foreign powers were promoted at their expense. When one state imposed high
duties on the goods or vessels of a foreign power to countervail the
regulations of such powers, the next adjoining states imposed lighter duties to
invite those articles into their ports, that they might be transferred thence
into the other states, securing the duties to themselves. This contracted
policy in some of the states was soon counteracted by others. Restraints were
immediately laid on such commerce by the suffering states; and thus a state of
affairs disorderly and unnatural grew up, the necessary tendency of which was
to destroy the Union itself. The
history of other nations, also, furnishes the same admonition. In Switzerland,
where the union is very slight, it has been found necessary to provide, that
each canton shall be obliged to allow a passage to merchandise through its
jurisdiction into other cantons without an augmentation of tolls. In Germany,
it is a law of the empire, that the princes shall not lay tolls on customs or
bridges, rivers, or passages, without the consent or the emperor and diet. But
these regulations are but imperfectly obeyed; and great public mischiefs have
consequently followed. Indeed, without
this power to regulate commerce among the states, the power of regulating
foreign commerce would be incomplete and ineffectual. The very laws of the Union in regard to
the latter, whether for revenue, for restriction, for retaliation, or for
encouragement or domestic products or pursuits, might-be evaded at pleasure, or
rendered impotent. In short, in a
practical view, it is impossible to separate the regulation of foreign commerce
and domestic commerce among the states from each other. The same public policy
applies to each; and not a reason can be assigned for confiding the power over
the one, which does not conduce to establish the propriety of conceding the
power over the other.
§ 1063. The next inquiry is, whether this
power to regulate commerce is exclusive or the same power in the states, or is
Concurrent with it. It has been
settled upon the most solemn deliberation, that the power is exclusive in the
government of the United States. The
reasoning, upon which this doctrine is founded, is to the following effect.
'The power to regulate commerce is general and unlimited in its terms. The full
power to regulate a particular subject implies the whole power, and leaves no
residuum. A grant of the whole is incompatible with the existence of a
right in another to any part of it. A grant of a power to regulate necessarily
excludes the action of all others, who would perform the same operation on the
same thing. Regulation is designed to indicate the entire result, applying to
those parts, which remain as they were, as well as to those, which are altered.
It produces a uniform whole, which is as much disturbed and deranged by
changing, what the regulating power designs to have unbounded, as that, on
which it has operated.
§ 1064. The power to regulate commerce is not
at all like that to lay taxes. The latter may well be concurrent, while the
former is exclusive, resulting from the different nature of the two powers. The
power of congress in laying taxes is not necessarily, or naturally inconsistent
with that of the states. Each may lay a tax on the same property, without
interfering with the action of the other; for taxation is but taking small.
portions from the mass of property, which is susceptible of almost infinite
division. In imposing taxes for state purposes, a state is not doing, what
congress is empowered to do. Congress is not empowered to tax for those
purposes, which are within the exclusive province of the states. When, then,
each government exercises the power of taxation, neither is exercising the
power of the other. But when a state proceeds to regulate commerce with foreign
nations, or among the several states, it is exercising the very power, which is
granted to congress; and is doing the very thing, which congress is authorized
to do. There is no analogy, then, between the power of taxation, and the power
of regulating commerce.
§ 1065. Nor can any power be inferred in the
states to regulate commerce from other clauses in the constitution, or the
acknowledged rights exercised by the states. The constitution has prohibited
the states from laying any impost or duty on imports or exports; but this does
not admit, that the state might otherwise have exercised the power, as a
regulation of commerce. The laying of such imposts and duties may be, and
indeed often is used, as a mere regulation of commerce, by governments
possessing that power. But the laying
of such imposts and duties is as certainly, and more usually, a right exercised
as a part of the power to lay taxes; and with this latter power the states are
clearly entrusted. So, that the prohibition is an exception from the
acknowledged power of the state to lay taxes, and not from the questionable
power to regulate commerce. Indeed, the constitution treats these as distinct
and independent powers. The same remarks apply to a duty on tonnage.
§ 1066. Nor do the acknowledged powers of the
states over certain subjects, having a connexion with commerce, in any degree
impugn this reasoning. These powers are entirely distinct in their nature from
that to regulate commerce; and though the same means may be resorted to, for
the purpose of carrying each of these powers into effect, this by no just
reasoning furnishes any ground to assert, that they are identical.
 Among these, are inspection laws,
health laws, laws regulating turnpikes, roads, and ferries, all of which, when
exercised by a state, are legitimate, arising from the general powers belonging
to it., unless so far as they conflict with the powers delegated to congress.
 They are not so much regulations of
commerce, as of police; and may truly be said to belong, if at all to commerce,
to that which is purely internal. The pilotage laws of the states may fall
under the same description. But they have been adopted by congress, and without
question are controllable by it.
§ 1067. The reasoning, by which the power
given to congress to regulate commerce is maintained to be exclusive, has not
been of late seriously controverted; and it seems to have the cheerful
acquiescence of the learned tribunals of a particular state, one of whose acts
brought it first under judicial examination.
§ 1068. The power to congress, then, being
exclusive, no state is at liberty to pass any laws imposing a tax upon
importers, importing goods from foreign countries, or from other states. It is
wholly immaterial, whether the tax be laid on the goods imported, or on the
person of the importer. In each case, it is a restriction of the right of
commerce, not conceded to the states. As the power of congress to regulate
commerce reaches the interior of a state, it might be capable of authorizing the
sale of the articles, which it introduces. Commerce is intercourse; and one of
its most ordinary ingredients is traffic. It is inconceivable, that the power
to authorize traffic, when given in the most comprehensive terms, with the
intent, that its efficacy should be complete, should cease at the point, when
its continuance is indispensable to its value. To what purpose should the power
to allow importation be given, unaccompanied with the power to authorize the
sale of the thing imported? Sale is the object of importation; and it is an
essential ingredient of that intercourse, of which importation constitutes
apart. As congress has the right to authorize importation, it must have a right
to authorize the importer to sell. What would be the language of a foreign
government, which should be informed, that its merchants after importation were
forbidden to sell the merchandize imported? What answer could the United States
give to the complaints and just reproaches, to which such extraordinary conduct
would expose them? No apology could be received, or offered. Such a state of
things would annihilate commerce. It is no answer, that the tax may be
moderate; for, if the power exists in the states, it may be carried to any
extent they may choose. If it does not exist, every exercise of it is, pro
tanto, a violation of the power of congress to regulate commerce.
§ 1069. How far any state possesses the power
to authorize an obstruction of any navigable stream or creek, in which the tide
ebbs and flows, within its territorial limits, as by authorizing the erection
of a dam across it, has been a subject of much recent discussion. If congress,
in regulating commerce, should pass any act, the object of which should be to
control state legislation over such navigable streams or creeks, there would be
little difficulty in saying, that a state law in conflict with such an act
would be void. But if congress has passed no general or special act on the
subject, the invalidity of such a state act must be placed entirely upon its
repugnancy to the power to regulate commerce in its dormant Mate. Under such
circumstances, it would be difficult to affirm, that the sovereignty of a
state, acting on subjects within the reach of other powers, beside that of
regulating commerce, and which belonged to its general territorial
jurisdiction, would be intercepted by the exclusive power of commerce,
unexercised by congress, over the same subject matter. The value of the
property on the banks of such streams and creeks may be materially enhanced by
excluding the waters from them and the adjacent low and marshy grounds, and the
health of the inhabitants be improved. Measures calculated to produce these
objects, provided they do not come into collision with the power of the general
government, are undoubtedly within those, which are reserved to the states.
§ 1070. In the next place, to what extent,
and for what objects and purposes the power to regulate commerce may be
§ 1071. And first, among the states. It is
not doubted, that it extends to the regulation of navigation, and to the
coasting trade and fisheries, within, as well as without any state, wherever it
is connected with the commerce or intercourse with any other state, or with
foreign nations. It extends to the
regulation and government of seamen on board of American ships; and to
conferring privileges upon ships built and owned in the United States in
domestic, as well as foreign trade. It
extends to quarantine laws, and pilotage laws, and wrecks of the sea.
 It extends, as well to the navigation
of vessels engaged in carrying passengers, and whether steam vessels or of any
other description, as to the navigation of vessels engaged in traffic and
general coasting business. It extends
to the laying of embargoes, as well on domestic, as on foreign voyages.
 It extends to the construction of
light-houses, the placing of buoys and beacons, the removal of obstructions to
navigation in creeks, rivers, sounds, and bays, and the establishment of
securities to navigation against the inroads of the ocean. It extends also to
the designation of particular port or ports of entry and delivery for the
purposes of foreign commerce. These
powers have been actually exerted by the national government under a system of
laws, many of which commenced with the early establishment of the constitution;
and they have continued unquestioned unto our day, if not to the utmost range
of their reach, at least to that of their ordinary application.
§ 1072. Many of the like powers have been
applied in the regulation of foreign commerce. The commercial system of the
United States has also been employed sometimes for the purpose of revenue;
sometimes for the purpose of prohibition; sometimes for the purpose of
retaliation and commercial reciprocity; sometimes to lay embargoes;
 sometimes to encourage domestic
navigation, and the shipping and mercantile interest by bounties, by
discriminating duties, and by special preferences and privileges;
 and sometimes to regulate intercourse
with a view to mere political objects, such as to repel aggressions, increase
the pressure of war, or vindicate the rights of neutral sovereignty. In all
these cases, the right and duty have been conceded to the national government
by the unequivocal voice of the people.
§ 1073. A question has been recently made,
whether congress have a constitutional authority to apply the power to regulate
commerce for the purpose of encouraging and protecting domestic manufactures.
It is not denied, that congress may, incidentally, in its arrangements for
revenue, or to countervail foreign restrictions, encourage the growth of
domestic manufactures. But it is earnestly and strenuously insisted, that,
under the colour of regulating commerce, congress have no right permanently to
prohibit any importations, or to tax any unreasonably for the purpose of
securing the home market to the domestic manufacturer, as they thereby destroy
the commerce entrusted to them to regulate, and foster an interest, with which
they have no constitutional power to interfere. This opinion constitutes the leading
doctrine of several states in the Union at the present moment; and is
maintained, as vital to the existence of the Union. On the other hand, it is as
earnestly and strenuously maintained, that congress does possess the
constitutional power to encourage and protect manufactures by appropriate
regulations of commerce; and that the opposite opinion is destructive of all
the purposes of the Union, and would annihilate its value.
§ 1074. Under such circumstances, it becomes
indispensable to review the grounds, upon which the doctrine of each party is
maintained, and to sift them to the bottom; since it cannot be disguised, that
the controversy still agitates all America, and marks the divisions of party by
the strongest lines, both geographical and political, which have ever been seen
since the establishment of the national government.
§ 1075. The reasoning, by which the doctrine
is maintained, that the power to regulate commerce cannot be constitutionally
applied, as a means, directly to encourage domestic manufactures, has been in
part already adverted to in considering the extent of the power to lay taxes.
It is proper, however, to present it entire in its present connexion. It is to
the following effect. — The constitution is one of limited and enumerated
powers; and none of them can be rightfully exercised. beyond the scope of the
objects, specified in those powers. It is not disputed, that, when the power is
given, all the appropriate means to carry it into effect are included. Neither
is it disputed, that the laying of duties is, or may be an appropriate means of
regulating commerce. But the question is a very different one, whether, under
pretence of an exercise of the power to regulate commerce, congress may in fact
impose duties for objects wholly distinct from commerce. The question comes to
this, whether a power, exclusively for the regulation of commerce, is a power
for the regulation of manufactures? The statement of such a question would seem
to involve its own answer. Can a power, granted for one purpose, be transferred
to another? If it can, where is the limitation in the constitution? Are not
commerce and manufactures as distinct, as commerce and agriculture? If they
are, how can a power to regulate one arise from a power to regulate the other?
It is true, that commerce and manufactures are, or may be, intimately connected
with each other. A regulation of one may injuriously or beneficially affect the
other. But that is not the point in controversy. It is, whether congress has a
right to regulate that, which is not committed to it, under a power, which is
committed to it, simply because there is, or may be an intimate connexion
between the powers. If this were admitted, the enumeration of the powers of
congress would be wholly unnecessary and nugatory. Agriculture, colonies,
capital, machinery, the wages of labour, the profits of stock, the rents of
land, the punctual performance of contracts, and the diffusion of knowledge
would all be within the scope of the power; for all of them bear an intimate
relation to commerce. The result would be, that the powers of congress would
embrace the widest extent of legislative functions, to the utter demolition of
all constitutional boundaries between the state and national governments. When
duties are laid, not for purposes of revenue, but of retaliation and
restriction, to countervail foreign restrictions, they are strictly within the
scope of the power, as a regulation of commerce. But when. laid to encourage
manufactures, they have nothing to do with it. The power to regulate
manufactures is no more confided to congress, than the power to interfere with
the systems of education, the poor laws, or the road laws of the states. It is
notorious, that, in the convention, an attempt was made to introduce into the
constitution a power to encourage manufactures; but it was withheld.
 In stead of granting the power to
congress, permission was given to the states to impose duties, with the consent
of that body, to encourage their own manufactures; and thus, in the true spirit
of justice, imposing the burthen on those, who were to be benefited. It is
true, that congress may, incidentally, when laying duties for revenue, consult
the other interests of the country. They may so arrange the details, as
indirectly to aid manufactures. And this is the whole extent, to which congress
has ever gone until. the tariffs, which have given rise to the present
controversy. The former precedents of congress are not, even if admitted to be
authoritative, applicable to the question now presented.
§ 1076. The reasoning of those, who maintain
the doctrine, that congress has authority to apply the power to regulate
commerce to the purpose of protecting and encouraging domestic manufactures, is
to the following effect. The power to regulate commerce, being in its terms
unlimited, includes all means appropriate to the end, and all means, which,
have been usually exerted under the power. No one can doubt or deny, that a
power to regulate trade involves a power to tax it. It is a familiar mode,
recognised in the practice of all nations, and was known and admitted by the
United States, while they were colonies, and has ever since been acted upon
without opposition or question. The American colonies wholly denied the
authority of the British parliament to tax them, except as a regulation of
commerce; but they admitted this exercise of power, as legitimate and
unquestionable. The distinction was with difficulty maintained in practice
between laws for the regulation of commerce by way of taxation, and laws, which
were made for mere monopoly, or restriction, when they incidentally produced
revenue. And it is certain, that the
main and admitted object of parliamentary regulations. of trade with the
colonies was the encouragement of manufactures in Great-Britain. Other nations
have, in like manner, for like purposes, exercised the like power. So, that
there is no novelty in the use of the power, and no stretch in the range of the
§ 1077. Indeed, the advocates of the opposite
doctrine admit, that the power may be applied, so as incidentally to give
protection to manufactures, when revenue is the principal design; and that it
may also be applied to countervail the injurious regulations of Foreign powers,
when there is no design of revenue. These concessions admit, then, that the
regulations of commerce are not wholly for purposes of revenue, or wholly
confined to the purposes of commerce, considered per se. If this be true, then
other objects may enter into commercial regulations; and if so, what restraint
is there, as to the nature or extent of the objects, to which they may reach,
which does not resolve itself into a question of expediency and policy? It may
be admitted, that a power, given for one purpose, cannot be perverted to
purposes wholly opposite, or beside its legitimate scope. But what perversion
is there in applying a power to the very purposes, to which it has been usually
applied? Under such circumstances, does not the grant of the power without
restriction concede, that it may be legitimately applied to such purposes? If a
different intent had existed, would not that intent be manifested by some
§ 1078. Now it is well known, that in
commercial and manufacturing nations, the power to regulate commerce has
embraced practically the encouragement of manufactures. It is believed, that
not a single exception can be named. So, in an especial manner, the power has
always been understood in Great-Britain, from which we derive our parentage,
our laws, our language, and our notions upon commercial subjects. Such was
confessedly the notion of the different states in the Union under the
confederation, and before the formation of the present constitution. One known
object of the policy of the manufacturing states then was, the protection and
encouragement of their manufactures by regulations of commerce. And the exercise of this power was a
source of constant difficulty and discontent; not because improper of itself;
but because it bore injuriously upon the commercial arrangements of other
states. The want of uniformity in the regulations of commerce was a source of
perpetual strife and dissatisfaction, of inequalities, and rivalries, and
retaliations among the states. When the constitution was framed, no one ever
imagined, that the power of protection of manufactures was to be taken away
from all the states, and yet not delegated to the Union. The very suggestion
would of itself have been fatal to the adoption of the constitution. The
manufacturing states would never have acceded to it upon any such terms; and
they never could, without the power, have safely acceded to it; for it would
have sealed their ruin. The same reasoning would apply to the agricultural
states; for the regulation of commerce, with a view to encourage domestic
agriculture, is just as important, and just as vital to the interests of the
nation, and just as much an application of the power, as the protection or
encouragement of manufactures. It would have been strange indeed, if the people
of the United States had been solicitous solely to advance and encourage
commerce, with a total disregard of the interests of agriculture and
manufactures, which had, at the time of the adoption of the constitution, an
unequivocal preponderance throughout the Union. It is manifest from
contemporaneous documents, that one object of the constitution was, to
encourage manufactures and agriculture by this very use of the power.
§ 1079. The terms, then, of the constitution
are sufficiently large to embrace the power; the practice of other nations, and
especially of Great-Britain and of the American states, has been to use it in
this manner; and this exercise of it was one of the very grounds, upon which
the establishment of the constitution was urged and vindicated. The argument,
then, in its favour would seem to be absolutely irresistible under this aspect.
But there are other very weighty considerations, which enforce it.
§ 1080. In the first place, if congress does
not possess the power to encourage domestic manufactures by regulations of
commerce, the power is annihilated for the whole nation. The states are
deprived of it. They have made a voluntary surrender of it; and yet it exists
not in the national government. It is then a mere nonentity. Such a policy,
voluntarily adopted by a free people, in subversion of some of their dearest
rights and interests, would be most extraordinary in itself, without any
assignable motive or reason for so great a sacrifice, and utterly without
example in the history of the world. No man can doubt, that domestic
agriculture and manufactures may be most essentially promoted and protected by
regulations of commerce. No man can doubt, that it is the most usual, and
generally the most efficient means of producing those results. No man can
question, that in these great objects the different states of America have as
deep a stake, and as vital interests, as any other nation. Why, then, should
the power be surrendered and annihilated? It would produce the most serious
mischiefs at home; and would secure the most complete triumph over us by
foreign nations. It would introduce and perpetuate national debility, if not
national ruin. A foreign nation might, as a conqueror, impose upon us this
restraint, as a badge of dependence, and a sacrifice of sovereignty, to
subserve its own interests; but that we should impose it upon ourselves, is
inconceivable. The achievement of our independence was almost worthless, if
such a system was to be pursued. It would be in effect a perpetuation of that
very system of monopoly, of encouragement of foreign manufactures, and
depression of domestic industry, which was so much complained of during our
colonial dependence; and which kept all America in a state of poverty, and
slavish devotion to British interests. Under such circumstances, the
constitution would be established, not for the purposes avowed in the preamble,
but for the exclusive benefit and advancement of foreign nations, to aid their
manufactures, and sustain their agriculture. Suppose cotton, rice, tobacco,
wheat, corn, sugar, and other raw materials could be, or should hereafter be,
abundantly produced in foreign countries, under the fostering hands of their
governments, by bounties and commercial regulations, so as to become cheaper
with such aids than our own; are all our markets to be opened to such products
without any restraint, simply because we may not want revenue, to the ruin of
our products and industry? Is America ready to give every thing to Europe,
without any equivalent; and take in return whatever Europe may choose to give,
upon its own terms? The most servile provincial dependence could not do more
evils. Of what consequence would it be, that the national. government could not
tax our exports, if foreign governments might tax them to an unlimited extent,
so as to favour their own, and thus to supply us with the same articles by the
overwhelming depression of our own by foreign taxation? When it is recollected,
with what extreme discontent and reluctant obedience the British colonial
restrictions were enforced in the manufacturing and navigating states, while
they were colonies, it is incredible, that they should be willing to adopt a
government, Which should, or might entail upon them equal evils in perpetuity.
Commerce itself would ultimately be as great a sufferer by such a system, as
the other domestic interests. It would languish, if it did not perish. Let any
man ask himself, if New-England, or the Middle states would ever have consented
to ratify a constitution, which would afford no protection to their
manufactures or home industry. If the constitution was ratified under the
belief, sedulously propagated on all sides, that such protection was afforded,
would it not now be a fraud upon the whole people to give a different
construction to its powers?
§ 1081. It is idle to say, that with the
consent of congress, the states may lay duties on imports or exports, to favour
their own domestic manufactures. In the first place, if congress could
constitutionally give such consent for such a purpose, which has been doubted;
 they would have a fight to refuse
such consent, and would certainly refuse it, if the result would be what the
advocates of free trade contend for. In the next place, it would be utterly
impracticable with such consent to protect their manufactures by any such local
regulations. To be of any value they must be general, and uniform through the
nation. This is not a matter of theory. Our whole experience under the
confederation established beyond all controversy the utter local futility, and
even the general mischiefs of independent state legislation upon such a
subject. It furnished one of the strongest grounds for the establishment of the
§ 1082. In the next place, if revenue be the
sole legitimate object of an impost, and the encouragement of domestic
manufactures be not within the scope of the power of regulating trade, it would
follow, (as has been already hinted,) that no monopolizing or unequal
regulations of foreign nations could be counteracted. Under such circumstances,
neither the staple articles of subsistence, nor the essential implements for
the public safety, could be adequately ensured or protected at home by our
regulations of commerce. The duty might be wholly unnecessary for revenue; and
incidentally, it might even check revenue. But, if congress may, in
arrangements for revenue, incidentally and designedly protect domestic
manufactures, what ground is there to suggest, that they may not incorporate
this design through the whole system of duties, and select and arrange them
accordingly? There is no constitutional measure, by which to graduate, how much
shall be assessed for revenue, and how much for encouragement of home industry.
And no system ever yet adopted has attempted, and in all probability none
hereafter adopted will attempt, wholly to sever the one object from the other.
The constitutional objection in this view is purely speculative, regarding only
§ 1083. But if it be conceded, (as it is,)
that the power to regulate commerce includes the power of laying duties to
countervail the regulations and restrictions of foreign nations, then, what
limits are to be assigned to this use of the power? If their commercial regulations, either
designedly or incidentally, do promote their own agriculture and manufactures,
and injuriously affect ours, why may not congress apply a remedy coextensive
with the evil? If congress have, as cannot be denied, the choice of the means,
they may countervail the regulations, not only by the exercise of the lex
talionis in the same way, but in any other way conducive to the same end.
If Great Britain by commercial regulations restricts the introduction of our
staple products and manufactures into her own territories, and levies
prohibitory duties, why may not congress apply the Same rule to her staple
products and manufactures, and secure the same market to ourselves? The truth
is, that as soon as the right to retaliate foreign restrictions or foreign
policy by commercial regulations is admitted, the question, in what manner, and
to what extent, it shall be applied, is a matter of legislative discretion, and
not of constitutional authority. Whenever commercial restrictions and
regulations shall cease all over the world, so far as they favour the nation
adopting them, it will be time enough to consider, what America ought to do in
her own regulations of commerce, which are designed to protect her own industry
and counteract such favoritism. It will then become a question, not of power,
but of policy. Such a state of things has never yet existed. In fact the
concession, that the power to regulate commerce may embrace other objects, than
revenue, or even than commerce itself, is irreconcilable with the foundation of
the argument on the other side.
§ 1084. Besides; the power is to regulate
commerce. And in what manner regulate it? Why does the power involve the right
to lay duties? Simply, because it is a common means of executing the power. If
so, why does not the same right exist as to all other means equally common and
appropriate? Why does the power involve a right, not only to lay duties, but to
lay duties for revenue, and not merely for the regulation and
restriction of commerce, considered per se? No other answer can be
given, but that revenue is an incident to such an exercise of the power. It
flows from, and does not create the power. It may constitute the motive for the
exercise of the power, just as any other cause may; as for instance, the
prohibition of foreign trade, or the retaliation of foreign monopoly; but it
does not constitute the power.
§ 1085. Now, the motive of the grant of the
power is not even alluded to in the constitution. It is not even stated, that
congress shall have power to promote and encourage domestic navigation and
trade. A power to regulate commerce is not necessarily a power to advance its
interests. It may in given cases suspend its operations and restrict its
advancement and scope. Yet no man ever yet doubted the right of congress to lay
duties to promote and encourage domestic navigation, whether in the form of
tonnage duties, or other preferences and privileges, either in the foreign
trade, or coasting trade, or fisheries. It is as certain, as any thing human can
be, that the sole object of congress, in securing the vast privileges to
American built ships, by such preferences, and privileges, and tonnage duties,
was, to encourage the domestic manufacture of ships, and all the dependent
branches of business. It speaks out in
the language of all their laws, and has been as constantly avowed, and acted
on, as any single legislative policy ever has been. No one ever dreamed, that
revenue constituted the slightest ingredient in these laws. They were purely
for the encouragement of home manufactures, and home artisans, and home
pursuits. Upon what grounds can congress constitutionally apply the power to
regulate commerce to one great class of domestic manufactures, which does not
involve the right to encourage all? If it be said, that navigation is a part of
commerce, that is true. But a power to regulate navigation no more includes a
power to encourage the manufacture of ships by tonnage duties, than any other
manufacture. Why not extend it to the encouragement of the growth and
manufacture of cotton and hemp for sails and rigging; of timber, boards, and
masts; of tar, pitch, and turpentine; of iron and wool; of sheetings and
shirtings; of artisans and mechanics, however remotely connected with it? There
are many products of agriculture and manufactures, which are connected with the
prosperity of commerce as intimately, as domestic ship building. If the one may
be encouraged, as a primary motive in regulations of commerce, why may not the
others? The truth is, that the encouragement of domestic ship building is
within the scope of the power to regulate commerce, simply, because it is a
known and ordinary means of exercising the power. It is one of many, and may be
used like all others. according to legislative discretion. The motive to the
exercise of a power can never form a constitutional objection to the exercise
of the power.
§ 1086. Here, then, is a case of laying
duties, an ordinary means used in executing the power to regulate commerce; how
can it be deemed unconstitutional? If it be said, that the motive is not to
collect revenue, what has that to do with the power? When an act is
constitutional, as an exercise of a power, can it be unconstitutional from the
motives, with which it is passed? If it can, then the constitutionality of an
act must depend, not upon the power, but upon the motives of the legislature.
It will follow, as a consequence, that the same act passed by one legislature
will be constitutional, and by another unconstitutional. Nay, it might be
unconstitutional, as well from its omissions as its enactments, since if its
omissions were to favour manufactures, the motive would contaminate the whole
law. Such a doctrine would be novel and absurd. It would confuse and destroy
all the tests of constitutional rights and authorities. Congress could never
pass any law without an inquisition into the motives of every member; and even
then, they might be re-examinable. Besides; what possible means can there be of
making such investigations? The motives of many of the members may be, nay must
be utterly unknown, and incapable of ascertainment by any judicial or other
inquiry: they may be mixed up in various manners and degress; they may be
opposite to, or wholly independent of each other. The constitution would thus
depend upon processes utterly vague, and incomprehensible; and the written
intent of the legislature upon its words and acts, the lex scripta,
would be contradicted or obliterated by conjecture, and parol declarations, and
fleeting reveries, and heated imaginations. No government on earth could rest
for a moment on such a foundation. It would be a constitution of sand heaped up
and dissolved by the flux and reflux of every tide of opinion. Every act of the
legislature must therefore be judged of from its object and intent, as they are
embodied in its provisions; and if the latter are within the scope of admitted
powers, the act must be constitutional, whether the motive for it were wise, or
just, or otherwise. The manner of applying a power may be an abuse of it; but
this does not prove, that it is unconstitutional.
§ 1087. Passing by these considerations, let
the practice of the government and the doctrines maintained by those, who have
administered it, be deliberately examined; and they will be found to be in
entire consistency with this reasoning. The very first congress, that ever sat
under the constitution, composed in a considerable degree of those, who had
framed, or assisted in the discussion of its provisions in the state
conventions, deliberately adopted this view of the power. And what is most
remarkable, upon a subject of deep interest and excitement, which at the time
occasioned long and vehement debates, not a single syllable of doubt was
breathed from any quarter against the constitutionality of protecting
agriculture and manufactures by laying duties, although the intention to
protect and encourage them was constantly avowed. Nay, it was contended to be a paramount
duty, upon the faithful fulfillment of which the constitution had been adopted,
and the omission of which would be a political fraud, without a whisper of
dissent from any side. It was demanded
by the people from various parts of the Union; and was resisted by none.
 Yet, state jealousy was never more
alive than at this period, and state interests never more actively mingled in
the debates of congress. The two great parties, which afterwards so much
divided the country upon the question of a liberal and strict construction of
the constitution, were then distinctly formed, and proclaimed their opinions
with firmness and freedom. If, therefore, there had been a point of doubt, on
which to hang an argument, it cannot be questioned, but that it would have been
brought into the array of opposition. Such a silence, under such circumstances,
is most persuasive and convincing.
§ 1088. The very preamble of this act
 (the second passed by congress) is,
"Whereas it is necessary for the support of the government, for the
discharge of the debts of the United States, and the encouragement and
protection of manufactures, that duties be laid on goods, wares, and
merchandises imported, Be it enacted," &c. Yet, not a solitary voice was raised
against it. The right, and the duty, to pass such laws was, indeed, taken so
much for granted, that in some of the most elaborate expositions of the
government upon the subject of manufactures, it was scarcely alluded to.
 The Federalist itself, dealing with
every shadow of objection against the constitution, never once alludes to such
a one; but incidentally commends this power, as leading to beneficial results
on all domestic interests. Every
successive congress since that time has constantly acted upon the system
through all the changes of party and local interests. Every successive
executive has sanctioned laws on the subject; and most of them have actively
recommended the encouragement of manufactures to congress. Until a very recent period, no person in
the public councils seriously relied upon any constitutional difficulty. And
even now, when the subject has been agitated, and discussed with great ability
and zeal throughout the Union, not more than five states have expressed an
opinion against the constitutional right, while it has received an unequivocal
sanction in the others with an almost unexampled degree of unanimity. And this
too, when in, most other respects these states have been in strong opposition
to each other upon the general system of politics pursued by the government.
§ 1089. If ever, therefore, contemporaneous
exposition, and the uniform and progressive operations of the government
itself, in all its departments, can be of any weight to settle the construction
of the constitution, there never has been, and there never can be more decided
evidence in favour of the power, than is furnished by the history of our
national laws for the encouragement of domestic agriculture and manufactures.
To resign an exposition so sanctioned, would be to deliver over the country to
interminable doubts; and to make the constitution not a written system of
government, but a false and delusive text, upon which every successive age of
speculatists and statesmen might build any system, suited to their own views
and opinions. But if it be added to this, that the constitution gives the power
in the most unlimited terms, and neither assigns motives, nor objects for its
exercise; but leaves these wholly to the discretion of the legislature, acting
for the common good, and the general interests; the argument in its favour
becomes as absolutely irresistible, as any demonstration of a moral or
political nature ever can be. Without such a power, the government would be
absolutely worthless, and made merely subservient to the policy of foreign
nations, incapable of self-protection or self-support; with it, the country will have a fight
to assert its equality, and dignity, and sovereignty among the other nations of
§ 1089[a]. In regard to the rejection of the
proposition in the convention "to establish institutions,
rewards, and immunities for the promotion of agriculture,
commerce, trades, and manufactures," it is manifest, that it has no bearing
on the question. It was a power much more broad in its extent and objects, than
the power to encourage manufactures by the exercise of another granted power.
It might be contended with quite as much plausibility, that the rejection was
an implied rejection of the right to encourage commerce, for that was equally
within the scope of the proposition. In truth, it involved a direct power to
establish institutions, rewards, and immunities for all
the great interests of society, and was, on that account, deemed too broad and
sweeping. It would establish a general, and not a limited power of government.
§ 1090. Such is a summary (necessarily
imperfect) of the reasoning on each side of this contested doctrine. The reader
will draw his own conclusions; and these Commentaries have no further aim, than
to put him in possession of the materials for a proper exercise of his
§ 1091. When the subject of the regulation of
commerce was before the convention, the first draft of the constitution
contained an article, that "no navigation act shall be passed, without the
assent of two thirds of the members present in each house." This article was afterwards recommended
in a report of a committee to be stricken out. In the second revised draft it
was left out; and a motion, to insert such a restriction to have effect until
the year 1808, was negatived by the vote of seven states against three.
 Another proposition, that no act,
regulating the commerce of the United States with foreign powers, should be
passed without the assent of two thirds of the members of each house, was
rejected by the vote of seven states against four. The rejection was, probably, occasioned
by two leading reasons. First, the general impropriety of allowing the minority
in a government to control, and in effect to govern all the legislative powers
of the majority. Secondly, the especial inconvenience of such a power in regard
to regulations of commerce, where the proper remedy for grievances of the worst
sort might be withheld from the navigating and commercial states by a very
small minority of the other states. A
similar proposition was made, after the adoption of the constitution, by some
of the states; but it was never acted upon.
§ 1092. The power of congress also extends to
regulate commerce with the Indian tribes. This power was not contained in the
first draft of the constitution. It was afterwards referred to the committee on
the constitution (among other propositions) to consider the propriety of giving
to congress the power "to regulate affairs with the Indians, as well
within, as without the limits of the United States." And, in the revised
draft, the committee reported the clause, "and with the Indian
Tribes," as it now stands.
§ 1093. Under the confederation, the
continental congress were invested with the sole and exclusive right and power
"of regulating the trade and managing all affairs with the Indians, not
members of any of the states, provided, that the legislative right of
any state within its own limits be not infringed or violated."
§ 1094. Antecedently to the American
Revolution the authority to regulate trade and intercourse with the Indian
tribes, whether they were within, or without the boundaries of the colonies,
was understood to belong to the prerogative of the British crown.
 And alter the American Revolution,
the like power would naturally fall to the federal government, with a view to
the general peace and interests of all the states. Two restrictions, however, upon the
power were, by the above article, incorporated into the confederation, which
occasioned endless embarrassments and doubts. The power of congress was
restrained to Indians, not members of any of the states; and was not to be
exercised, so as to violate or infringe the legislative right of any state
within its own limits. What description of Indians were to be deemed members of
a state was never settled under the confederation; and was a quest ion of
frequent perplexity and contention in the federal councils. And how the trade
with Indians, though not members of a state, yet residing within its
legislative jurisdiction, was to be regulated by an external authority, without
so far intruding on the internal rights of legislation, was absolutely
incomprehensible. In this case, as in some other cases, the articles of
confederation inconsiderately endeavoured to accomplish impossibilities; to
reconcile a partial sovereignty in the Union, with complete sovereignty in the
states; to subvert a mathematical axiom, by taking away a part, and letting the
whole remain. The constitution has
wisely disembarrassed the power of these two limitations; and has thus given to
congress, as the only safe and proper depositary, the exclusive power, which
belonged to the crown in the ante-revolutionary times; a power indispensable to
the peace of the states, and to the just preservation of the rights and
territory of the Indians. In the
former illustrations of this subject, it was stated, that the Indians, from the
first settlement of the country, were always treated, as distinct, though in
some sort, as dependent nations. Their territorial rights and sovereignty were
respected. They were deemed incapable of carrying on trade or intercourse with
any foreign nations, or of ceding their territories to them. But their right of
self-government was admitted; and they were allowed a national existence, under
the protection of the parent country, which exempted them from the ordinary
operations of the legislative power of the colonies. During the revolution and
afterwards they were secured in the like enjoyment of their rights and
property, as separate communities. The
government of the United States, since the constitution, have always recognised
the same attributes of dependent sovereignty, as belonging to them, and claimed
the same right of exclusive regulation of trade and intercourse with them, and
the same authority to protect and guarantee their territorial possessions,
immunities, and jurisdiction.
§ 1095. The power, then, given to congress to
regulate commerce with the Indian tribes, extends equally to tribes living
within or without the boundaries of particular states, and within or without
the territorial limits of the United States. It is (says a learned commentator)
wholly immaterial, whether such tribes continue seated within the boundaries of
a state, inhabit part of a territory, or roam at large over lands, to which the
United States have no claim. The trade with them is, in all its forms, subject
exclusively to the regulation of congress. And in this particular, also, we
trace the wisdom of the constitution. The Indians, not distracted by the
discordant regulations of different states, are taught to trust one great body,
whose justice they respect, and whose power they fear.
§ 1096. It has lately been made a question,
whether an Indian tribe, situated within the territorial boundaries of a state;
but exercising the powers of government, and national sovereignty, under the
guarantee of the general government, is a foreign state in the sense of the
constitution, and as such entitled to sue in the courts of the United States.
Upon solemn argument, it has been held, that such a tribe is to be deemed
politically a state; that is, a distinct political society, capable of
self-government; but it is not to be deemed a foreign state, in the
sense of the constitution. It is rather a domestic dependent nation. Such a
tribe may properly be deemed in a state of pupillage; and its relation to the
United States resembles that of a ward to a guardian. [90,91]
1. Article 9.
2. 1 Tuck. Black. Comm. App. 245, 246; The
Federalist, No. 41.
3. Weston v. City Council of
Charleston, 2 Peters's R. 449, 468.
4. Gibbons v. Ogden, 9 Wheat. R. 1,
225, Johnson J.'s Opinion; Brown v. Maryland, 12 Wheat. R. 445,
5. The Federalist, No. 4, 7, 11, 22,
6. Brown v. State of Maryland, 12
Wheat. R. 419, 445, 446; 1 Tucker's Black. Comm. App. 248 to 252; 1 Amer.
Museum, 8, 272, 273, 281, 282, 288; 2 Amer. Museum, 263 to 276; Id. 371, 372;
The Federalist, No. 7, 11, 22; Mr. Madison's Letter to Mr. Cabell, 18th Sept.
1828; 5 Marshall's Life of Washington, ch. 2, p. 74 to 80; 2 Pitkin's Hist.
7. The Federalist, No. 7. 11, 12, 22, 41,
8. Journal of Convention, 220, 257, 260,
9. Gibbons v. Ogden, 9 Wheat. R.
10. 9 Wheat. R. 196.
11. Gibbons v. Ogden, 9 Wheat. 189,
190; Id. 229, 230.
12. 9 Wheat. R. 190, 191; Id. 215, 216,
217; Id. 229, 230; 1 Tucker's Black. Comm. App. 249 to 252.
13. 12 Wheat. R. 446.
14. 1 Tucker's Black. Comm. App. 247, 248,
15. 9 Wheat. R. 191.
16. 9 Wheat. R. 191, 215, 216; North
River Steamboat Company v. Livingston, 3 Cowen's R. 713.
17. 9 Wheat. 193; 1 Kent's Comm.
Lect. 19, p. 404, 405; The Brigantine William, 2 Hall's Law Journal,
265; Sergeant on Const. ch. 28, p. 290, &c.
18. 9 Wheat. 193, 215, 216, 217; Id. 226;
12 Wheat. R. 446, 447; North River Steamboat Company v. Livingston, 3
Cowen's R. 713.
19. Gibbons v. Ogden, 9 Wheaton's
R. 1, 201; Ib. 224; Ib. 225 to 228. See Mr. Verplank's letter to Col. Drayton
in 1831; Resolves of Congress, 14th Oct. 1774, (1 Journal of Congress,
27); 2 Marshall's Life of Washington, (in five volumes,) p. 77, 81; Dr.
Franklin's Examination, before the house of commons, in 1766; Dickerson's
Farmer's Letters, No. 2, 1767; 1 Jefferson's Corresp. 7; Burke's Speech
on American Taxation, 1774.
20. Gibbons v. Ogden, 9 Wheaton's
21. Gibbons v. Ogden, 9 Wheaton's
R. 194, 195, 196; Brown v. Maryland, 12 Wheaton, 446, 447.
22. See the Federalist, No. 6, 7, 11, 12,
22, 41, 42; N. R. Steamboat Company v. Livingston, 3 Cowen's R.
23. 12 Wheaton's R. 448, 449; 9 Wheaton,
199 to 204.
24. The Federalist, No. 42; 1 Tuck. Black.
Comm. App. 247 to 252.
25. See President Monroe's Exposition and
Message, 4 May, 1822, p. 31, 32.
26. The Federalist, No. 42, 22.
27. The Federalist, No. 42.
28. The Federalist, No. 11, 12.
29. See the opinion of Mr. Justice
Johnson, 9 Wheaton's R. 224 to 228.
30. In the convention, it was moved to
amend the article, so as to give to congress "the sole and exclusive"
power; but the proposition was rejected by the vote of six states against five.
31. Journal of Convention, 220,
32. Gibbons v. Ogden, 9 Wheaton's
R. 1; Brown v. Maryland, 12 Wheaton's R. 419, 445. 446; 1 Tucker's
Black. Comm. App, 180, 309; N. R. Steam Boat Company v. Livingston, 3
Cowen's R. 713.
33. 9 Wheaton's R. 196, 198, 209; Id. 227,
34. Wheaton's R. 199, 200.
35. 9 Wheaton's R. 201, 202; 1 Jefferson's
Corresp. 7; The Federalist, No. 56; 12 Wheaton's R. 446, 447.
36. 9 Wheaton's R. 201, 202.
37. See Corfield v. Cargill, 4
Wash. Cir. R. 371, 379, &c.
38. 9 Wheaton's R. 203 to 207, 209.
39. 9 Wheaton's R. 207, 208, 209.
40. 1 Kent's Comm. Lect 19, p. 404, 410,
411. See also Rawle on the Constitution, ch. 9, p. 81 to 84; Sergeant on Const.
ch. 98, p. 291, 292.
— There is a very able and candid review of the whole subject by Mr.
Chancellor Kent in his excellent commentaries. (1 Kent's Comm. Lect. 19, p.
404.) I gladly avail myself of this, as well as of all other occasions, to
recommend his learned labours to those, who seek to study the law, or the
constitution, with a liberal and enlightened spirit.
41. 9 Wheaton's R. 197 to 204.
42. Brown v. State of Maryland, 12
Wheaton's R. 419, 445 to 447; 9 Wheaton's R. 197. &c. — Mr. Justice
Thompson dissented from this doctrine, as will be seen in his opinion in 12
Wheaton's R. 449, &c.
43. Wilson v. Blackbird Creek
Company, 2 Peters's R. 245.
44. Gibbons v. Ogden, 9 Wheat. R.
189 to 198; Id. 211 to 215; 1 Tuck. Black. Comm. App. 247 to 249; Id.
45. 1 Tuck. Black. Comm. App. 252.
46. 9 Wheat. R. 203, 204, 205, 206, 207,
208; 1 Tuck. Black Comm. App. 251, 252.
47. 9 Wheat. R. 214, 915 to 221.
48. 9 Wheat. R. 191, 192; 1 Kent's Comm.
Lect. 19, p. 404, 405.
49. 1 Tuck. Black. Comm. App. 249, 251; 9
Wheat. R. 208, 209.
50. Mr. Hamilton, in his celebrated
argument on the national bank, (23d Feb. 1791,) enumerates the following as
within the power to regulate commerce, viz. the regulation of policies of
insurance, of salvage upon goods found at sea, and the disposition of such
goods; the regulation of pilots; and the regulation of bills of exchange drawn
by one merchant upon a merchant of another state; and, of course, the
regulation of foreign bills of exchange.
51. Sergeant on Const. Law ch. 28, (ch.
30, 2d edit.)
52. See 1 Elliot's Debates, 144.
53. 1 Hamilton's Work's, 134.
54. See Address of the Philadelphia Free
Trade Convention, in September and October 1831.
55. A proposition was referred to the
committee of Details and Revision "to establish public institutions,
rewards, and immunities, for the promotion of agriculture, commerce, trade, and
manufactures." The committee never reported on it. Journ. of Convention,
56. The above arguments and reasoning have
been gathered, as far as could be, from documents admitted to be of high
authority by those, who maintain the restrictive doctrine. See the Exposition
and Protest of the South Carolina legislature, in Dec. 1828, attributed to Mr.
Vice President Calhoun; the Address of the Free Trade Convention at
Philadelphia, in Oct. 1831, attributed to Mr. Attorney General Berrien; the
Oration of the Hon. Mr. Drayton, on the 4th of July, 1831; and the Speech of
Mr. Senator Hayne, 9th of Jan. 1832 — See also 4 Jefferson's Corresp.
57. See Mr. Madison's Letter to Mr.
Cabell, 18th Sept. 1828; Mr. Verplanck's Letter to Col. Drayton, in 183 1;
Address of the New-York Convention in favour of Domestic Industry, November,
1831, p. 12, 13, 14 9 Wheat. K. 202; 1 Pitk. Hist. ch. 3, p. 93 to 106.
58. 1 American Museum, 16.
59. 1 Elliot's Debates, 74, 75, 76, 77,
115; 3 Elliot's Debates, 31, 32, 33; 2 Amer. Museum, 371, 372, 373; 3 Amer.
Museum, 62, 554, 556, 557; The Federalist, No. 12, 41; 1 Tuck. Black. Comm.
App. 237, 238; 1 American Museum, 16, 282, 289, 429, 432; Id. 434, 436;
Hamilton's Report on Manufactures, in 1791; 4 Elliot's Debates, App. 351
60. See Mr. Madison's Letter to Mr.
Cabell, 18th Sept. 1828; 4 Elliot's Debates, App. 345.
61. Mr. Madison's Letter to Mr. Cabell,
18th Sept. 1828; 4 Elliot's Debates, App. 345.
62. See the Federalist, No. 11, 12.
63. See Mr. Jefferson's Report on the
Fisheries, 1st Feb. 1791, 10 Amer. Mus. App. 1, &c., 8, &c.
64. See Mr. Williamson's Speech in
Congress, 8 Amer. Mus. 140.
65. See 1 Lloyd's Deb. 17, 19, 22, 23, 24,
26, 27, 28, 31, 34, 39, 43, 46, 47, 50, 51, 52, 55, 64 to 69, 71, 72, 74 to 83,
94, 95, 97. 109, 116, 145, 160, 161, 211, 212, 243, 244, 254; Id. 144, 183,
194, 206, 207. See also 5 Marshall's Wash. ch. 3, p. 189, 190.
66. See 1 Lloyd's Deb. 24, 160, 161, 243,
244; 4 Elliot's Deb. App. 351, 351.
67. See Grimke's Speech, in Dec. 1828, p.
58, 59, 63.
68. Act. of 4th July, 1789.
69. It is not a little remarkable, that
the culture of cotton was just then beginning in South Carolina; and her
statesmen then thought a protecting duty to aid agriculture was in all respects
proper, and constitutional. 1 Lloyd's Deb. 79; Id. 210, 211, 212, 244.
70. Hamilton's Report on Manufacturers, in
71. The Federalist, No. 10, 35, 41.
72. See 4 Elliot's Debates, App. 353,
73. 4 Jefferson's Correspondence, 280,
281; 1 Pitkin's Hist. ch. 3, p. 93 to 106.
74. The foregoing summary has been
principally abstracted from the Letter of Mr. Madison to Mr. Cabell, 18th Sept.
1828; 4 Elliot's Deb. 345; Mr. Grimke's Speech in Dec. 1898, in the South
Carolina senate; Mr. Huger's Speech in the South Carolina legislature, in Dec.
1830; Address of the New York Convention of the Friends of Domestic Industry,
in Oct. 1831; Mr. Verplanck's Letter to Col. Drayton, in 1831; Mr. Clay's
Speech in the senate, in Feb. 1839; Mr. Edward Everett's Address to the
American Institute, in Oct. 1831; Mr. Hamilton's Report on Manufactures, in
1791; Mr. Jefferson's Report on the Fisheries, in 1791. See, also, 4
Jefferson's Correspondence, 280, 281.
75. Journal of Convention, p. 961.
76. Journal of Convention, p. 222.
77. Journal of Convention, 222. 285, 286,
293, 358, 387. See, also, 3 American Museum, 62, 419, 420; 2 American Museum,
553; 2 Pitkin's Hist. 261.
78. Journal of Convention, 306.
79. See The Federalist, No. 22; 1 Tucker's
Black. Comm. App. 253, 375.
80. 1 Tucker's Black. Comm. App. 253,
81. Journal of Convention, 220, 260,
82. Art. 9.
83. Worcester v. State of Georgia,
6 Peters's R. 515; Johnson v. McIntosh, 8 Wheat. R. 543; Journal of
Congress, 3 August, 1787, 12th vol. p. 81 to 86.
85. The Federalist, No. 42; 1 Tuck. Black.
Comm. App. 253; 12 Jour. of Congress, 3 August, 1787, p. 81 to 84.
86. Worcester v. The State of
Georgia, 6 Peters's R. 515; 12 Journ. of Congress, 3 August, 1787, p. 81 to
87. Johnson v. McIntosh, 8 Wheat.
R. 543; Fletcher v. Peck, 6 Cranch, 146, 147, per Johnson J.; The
Cherokee Nation v. Georgia, 5 Peters's R 1; Worcester v. The State of
Georgia, 6 Peters's R. 515; Jackson v. Goodell, 20 Johnson's R. 193;
3 Kent's Comm. Lect. 50, p. 303 to 318.
88. Worcester v. State of Georgia,
6 Peters's R. 515; Journ. of Congress, 3 August, 1787, vol. 12, p. 81 to 84.
— Mr. Blunt, in his valuable Historical Sketch of the Formation of the
Confederacy, &c. has given a very full view of the ante-revolutionary, as
well as post-revolutionary authority exercised in regard to the Indian tribes.
See Blunt's Historical Sketch, &c. (New-York, 1825.) Mr. Jefferson's
opinion was, that the United States had no more than a right of pre-emption of
the Indian lands, not amounting to any dominion, or jurisdiction, or permanent
authority whatever; and that the Indians possessed a full, undivided, and.
independent sovereignty. 4 Jefferson's Corresp. 478.
89. Rawle on the Constitution, ch. 9, p.
84. See also 1 Tuck. Black. Comm. App. 254; 1 Kent's Comm. Lect. 50, p.
508 to 318.
90. The Cherokee Nation v. Georgia,
5 Peters's R. 1, 16, 17; Jackson v. Goodell, 20 John. R. 193; 3 Kent's
Comm. Lect. 50. p. 308 to 318. In the first volume of Bioren & Duane's
edition of the laws of the United States, there will be found a history of our
Indian Treaties and Laws regulating Intercourse and Trade with the Indians. 1
United States Laws, 597 to 620.
91. While this sheet was passing through
the press, President Jackson's Proclamation of the 10th of December, 1832,
concerning the recent Ordinance of South-Carolina on the subject of the tariff,
appeared. That document contains a most elaborate view of several questions,
which have been discussed in this and the preceding volume, especially
respecting the supremacy of the laws of the Union; the right of the judiciary
to decide upon the constitutionality of those laws; and the total repugnancy to
the constitution of the modern doctrine of nullification asserted in that
ordinance. As a state paper it is entitled to very high praise for the
clearness, force, and eloquence, with which it has defended the rights and
powers of the national government. I gladly copy into these pages some of its
important passages, as among time ablest commentaries ever offered upon the
"Whereas, a convention assembled in the
state of South-Carolina have passed an ordinance, by which they declare, 'That
the several acts and parts of acts of the congress of time United States,
purporting to be laws for the imposing of duties and imposts on the importation
of foreign commodities, and now having actual operation and effect within the
United States, and more especially,' two acts for the same purpose passed on
the 29th of May, 1828, and on the 14th of July, 1832, are unauthorized by the
constitution of the United States, and violate the true meaning and intent
thereof, and are null and void, and no law,' nor binding on the citizens of
that state or its officers: and by the said ordinance, it is further declared
to be unlawful for any of the constituted authorities of the state, or of the
United States, to enforce the payment of the duties imposed by the said acts
within the same state, and that it is the duty of the legislature to pass such
laws, as may be necessary to give full effect to the said ordinance:
"And whereas, by the said ordinance, it is further
ordained, that in no ease of law or equity, decided in the courts of said
state, wherein shall be drawn in question the validity of the said ordinance,
or of the acts of the legislature, that may be passed to give it effect, or of
the said laws of the United States, no appeal shall be allowed to the Supreme
Court of the United States, nor shall any copy of the record be permitted or
allowed for that purpose, and that any person attempting to take such appeal
shall be punished as for a contempt of court: "And, finally, the said
ordinance declares, that the people of South Carolina will maintain the said
ordinance at every hazard; and that they will consider the passage of any act
by congress, abolishing or closing the ports of the said state, or otherwise
obstructing the tree ingress or egress of vessels to and from the said ports,
or any other act of the federal government to coerce the state, shut up her
ports, destroy or harass her commerce, or to enforce the said acts otherwise,
than through the civil tribunals of the country, as inconsistent with the
longer continuance of South-Carolina in the Union; and that the people of the
said state will thenceforth hold themselves absolved from all further
obligation to maintain or preserve their political connexion with the people of
the other states, and will forthwith proceed to organize a separate government,
and do all ether acts and things, which sovereign and independent states may of
"And whereas, the said ordinance prescribes to the
people of South Carolina a course of conduct, in direct violation of their
duty, as citizens of the United States, contrary to the laws of their country,
subversive of its constitution, and having for its object the destruction of
the Union, — that Union, which, coeval with our political existence, led
our fathers, without any other ties to unite them, than those of patriotism and
a common cause, through a sanguinary struggle to a glorious independence,
— that sacred Union, hitherto inviolate, which, perfected by our happy
constitution, has brought us, by the favour of Heaven, to a state of prosperity
at home, and high consideration abroad, rarely, if ever, equalled in the
history of nations. To preserve this bond of our political existence from
destruction, to maintain inviolate this state of national honour and
prosperity, and to justify the confidence my fellow-citizens have reposed in
me, I, Andrew Jackson, President of the United States, have thought proper to
issue this my Proclamation, stating my views of the constitution and laws,
applicable to the measures adopted by the convention of South-Carolina, and to
the reasons they have put forth to sustain them, declaring the course, which
duty will require me to pursue, and, appealing to the understanding end
patriotism of the people, warn them of the consequences, that must inevitably
result from an observance of the dictates of the convention.
"Strict duty would require of me nothing more, than the
exercise of those powers, with which I am now, or may hereafter be, invested,
for preserving the peace of the Union, and for the execution of the laws. But
the imposing aspect, which opposition has assumed in this case, by clothing
itself with state authority, and the deep interest, which the people of the
United States must all feel in preventing a resort to stronger measures, while
there is a hope, that any thine, will be yielded to reasoning and remonstrance,
perhaps demand, and will certainly justify, a full exposition to South-Carolina
end the nation of the views I entertain of this important question, as well as
a distinct enunciation of the course, which my sense of duty will require me to
"The ordinance is founded, not on the indefeasible
right of resisting acts, which are plainly unconstitutional and too oppressive
to be endured; but on the strange position, that any one state may not only
declare an act of congress void, but prohibit its execution, — that they
may do this consistently with the constitution, — that the true
construction of that instrument permits a state to retain its place in the
Union, and yet be bound by no other of its laws, than those it may choose to
consider as constitutional. It is true, they add, that to justify this
abrogation of a law, it must be palpably contrary to the constitution; but it
is evident, that to give the right of resisting laws of that description,
coupled with the uncontrolled right to decide, what laws deserve that
character, is to give the power of resisting all laws. For, as by the theory
there is no appeal, the reasons alleged by the state, good or bad, must
prevail. If it should be said, that public opinion is a sufficient check
against the abuse of this power, it may be asked, why it is not deemed a
sufficient guard against the passage of an unconstitutional act by congress.
There is, however, a restraint in this last case, which makes the assumed power
of a state more indefensible, and which does not exist in the other. There are
two appeals from an unconstitutional act passed by congress, — one to the
judiciary, the other to the people, and the states. There is no appeal from the
state decision in theory, and the practical illustration shows, that the courts
were closed against an application to review it, both judges and jurors being
sworn to decide in its favour. But reasoning on this subject is superfluous,
when our social compact in express terms declares, that the laws of the United
States, the constitution, and treaties made under it, are the supreme law of
the land; and for greater caution adds, 'that the judges in every state shall
be bound thereby, any thing in the constitution or laws of any state to the
contrary notwithstanding.' And it may be asserted without fear of refutation,
that no federative government could exist without a similar provision. Look for
a moment to the consequence. If South-Carolina considers the revenue laws
unconstitutional, and has a right to prevent their execution in the pert of
Charleston, there would be a clear constitutional objection to their collection
in every other port, and no revenue could be collected any where; for all
imposts must be equal. It is no answer to repeat, that an unconstitutional law
is no law, so long as the question of its legality is to be decided by the
state itself; for every law, operating injuriously upon any local interest,
will be perhaps thought, and certainly represented, as unconstitutional, and,
as has been shown, there is no appeal.
"If this doctrine had been established at an earlier
day, the Union would have been dissolved in its infancy. The excise law in
Pennsylvania; the embargo and non-intercourse law in the Eastern states; the
carriage tax in Virginia, were all deemed unconstitutional, and were more
unequal in their operation, than say or the laws now complained or; but
fortunately none or those states discovered, that they had the right now
claimed by South-Carolina. The war, into which we were forced, to support the
dignity or the nation and the right or our citizens, might have ended in defeat
and disgrace, instead or victory and honour. If the states, who supposed it a
ruinous and unconstitutional measure, had thought they possessed the right of
nullifying the act, by which it was declared, and denying supplies for its
prosecution. Hardly and unequally, as those measures bore upon several members
of the Union, to the legislatures of none did this efficient and peaceable
remedy, as it is called, suggest itself. The discovery of this important
feature in our constitution was reserved to the present day. To the statesmen
or South-Carolina belongs the invention; and upon the citizens of that state
will unfortunately fail the evils of reducing it to practice.
"If the doctrine of a state veto upon the laws of the
Union carries with it internal evidence or its impracticable absurdity our
constitutional history will also afford abundant proof, that it would have been
repudiated with indignation, had it been proposed to form a feature in our
"In our colonial state, although dependent on another
power, we very early considered ourselves, as connected by common interest with
each other. Leagues were formed for common defence, and before the Declaration
of Independence we were known in our aggregate character, as The United
Colonies of America. That decisive and important step was taken jointly. We
declared ourselves a nation by at joint, not by several acts; and when the
terms of our confederation were reduced to form, it was in that of a solemn
league of several states, by which they agreed, that they would collectively
form one nation, for the purpose of conducting some certain domestic concerns,
and all foreign relations in the instrument forming that union is found an
article, which declares, that 'every state shall abide by the determinations of
congress on all questions, which by that confederation should be submitted to
"Under the confederation, then, no state could legally
annul a decision of the congress, or refuse to submit to its execution; but no
provision was made to enforce these decisions. Congress made requisitions, but
they were not complied with. The government could not operate on individuals.
They had no judiciary; no means of collecting revenue.
"But the defects of the confederation need not be
detailed. Under its operation we could scarcely be called a nation. We had
neither prosperity at home, nor consideration abroad. This state of things
could not be endured; and our present happy constitution was formed, but formed
in vain, if this fatal doctrine prevails. It was formed for important objects,
that are announced in the preamble, made in the name and by the authority or
the people of the United States, whose delegates framed, and whose conventions
approved it. The most important among these objects, that. which is placed
first in rank, on which all the others rest, is, 'form a more perfect Union.'
Now, is it possible, that even if there were no express provision giving
supremacy to the constitution and laws of the United States over those of the
states, it can be conceived, that an instrument, made for the purpose of
'forming a more perfect Union,' than that of the confederation, could be so
constructed by the assembled wisdom of our country, as to substitute for that
confederation a form of government dependent for its existence on the local
interest, the party spirit of a state, or of a prevailing faction in a state?
Every man of plain. unsophisticated understanding, who hears the question, will
give such an answer, as will preserve the Union. Metaphysical subtlety, in
pursuit of an impracticable theory, could alone have devised one, that is
calculated to destroy it.
"I consider, then, the power to annul a law or the
United States, assumed by one state, incompatible with the existence of the
Union; contradicted expressly by the letter of the constitution; unauthorized
by its spirit; inconsistent with every principle, on which it was founded; and
destructive of the great object, for which it was formed.
"After this general view of the leading principle, we
must examine the particular application of it, which is made in the
"The preamble rests its justification on these grounds:
— It assumes as a fact, that the obnoxious laws, although they purport to
be laws for raising revenue, were, in reality, intended for the protection of
manufactures, which purpose it asserts to be unconstitutional; that the
operation of these laws is unequal; that the amount raised by them is greater
than is required by the wants of the government; and finally, that the proceeds
are to be applied to objects unauthorized by the constitution. These are the
only causes alleged to justify an open opposition; to the laws of the country,
and a threat of seceding from the Union, if any attempt should be made to
enforce them. The first virtually acknowledges, that the law in question was
passed under a power expressly given by the constitution, to lay and collect
imposts; but its constitutionality is drawn in question from the motives of
those, who passed it. However apparent this purpose may be in the present case,
nothing can be more dangerous, than to admit the position, that an
unconstitutional purpose, entertained by the members, who assent to a law
enacted under a constitutional power, shall make that law void; for how is that
purpose to be ascertained? Who is to make the scrutiny? How often may bad
purposes be falsely imputed? In how many cases are they concealed by false
professions? In how many is no declaration of motive made? Admit this doctrine,
and you give to the states an uncontrolled fight to decide; and every law may
be annulled under this pretext. If, therefore, the absurd and dangerous
doctrine should be admitted, that a state may annul an unconstitutional law, or
one that it deems such, it will not apply to the present case.
"The next objection is, that the laws in question
operate unequally. This objection may be made, with truth, to every law that
has been or can he passed. The wisdom of man never yet contrived a system of
taxation, that would operate with perfect equality. If the unequal operation of
a law makes it unconstitutional, and if all laws of that description may be
abrogated by any state for that cause, then, indeed, is the federal
constitution unworthy of the slightest. effort for its preservation. We have
hitherto relied on it, as the perpetual bond of our union. We have received it,
as the work of the assembled wisdom of the nation. We have trusted to it, as
the sheet-anchor of our safety in the stormy times of conflict with a foreign
or domestic foe. We have looked to it with sacred awe, as the palladium of our
liberties, and with all the solemnities of religion have pledged to each other
our lives and fortunes here, and our hopes of happiness hereafter, in its
defence and support. Were we mistaken, my countrymen, in attaching this
importance to the constitution of our country? Was our devotion paid to the
wretched, inefficient, clumsy contrivance, which this new doctrine would make
it? Did we pledge ourselves to the support of an airy nothing, a bubble, that
must be blown away by the first breath of disaffection? Was this
self-destroying, visionary theory, the work of the profound statesmen, the
exalted patriots, to whom the task of constitutional reform was
"Did the name of Washington sanction, did the states
deliberately ratify such an anomaly in the history of fundamental legislation?
No. We were not mistaken. The letter of this great instrument is free from this
radical fault: its language directly contradicts the imputation: its spirit,
its evident intent, contradicts it. No, we did not err! Our constitution does
not contain the absurdity of giving power to make laws, anti another power to
resist them. The sages, whose memory will always be reverenced, have given us a
practical, and, as they hoped, a permanent constitutional compact. The father
of his country did not affix his revered name to so palpable an absurdity. Nor
did the states, when they severally ratified it, do so under the impression,
that a veto on the laws of the United States was reserved to them, or that they
could exercise it by implication. Search the debates in all their conventions,
examine the speeches of the most zealous opposers of federal authority; look at
the amendments, that were proposed; they are all silent; not a syllable
uttered, not a vote given, not a motion made to correct the explicit supremacy
given to the laws of the Union over those of the states, or to show that
implication, as is now contended, could defeat it. No; we have not erred! The
constitution is still the object of our reverence, the bond of our Union, our
defence in danger, and the source of our prosperity in peace. It shall descend,
as we have received it, uncorrupted by sophistical construction, to our
posterity; and the sacrifices of local interest, of state prejudices, of
personal animosities, that were made to bring it into existence, will again be
patriotically offered for its support.
"The two remaining objections made by the Ordinance to
these laws are, that the sums intended to be raised by them are greater, than
are required, and that the proceeds will be unconstitutionally employed.
"The constitution has given expressly to congress the
right of raising revenue, and of determining the sum the public exigencies will
require. The states have no control over the exercise of this right, other than
that, which results from the power of changing the representatives, who abuse
it, and thus procure redress. Congress may undoubtedly abuse this discretionary
power, but the same may be said of others, with which they are vested. Yet the
discretion must exist somewhere. The constitution has given it to the
representatives of all the people, checked by the representatives of the
states, and by the executive power. The South-Carolina construction gives it to
the legislature or the convention of a single state, where neither the people
of the different states, nor the states in their separate capacity, nor the
chief magistrate elected by the people, have any representation. Which is the
most discreet disposition of the power? I do not ask you, fellow citizens,
which is the constitutional disposition; that instrument speaks a language not
to be misunderstood. But if you were assembled in general convention, which
would you think the safest depository of this discretionary power in the last
resort? Would you add a clause, giving it to each or the states, or would you
sanction the wise provisions already made by your constitution? If this should
be the result of your deliberations, when providing for the future, are you,
can you be ready to risk all, that we hold dear, to establish, for a temporary
and a local purpose, that, which you must acknowledge to be destructive and
even absurd, as a general provision? Carry out the consequences of this right
vested in the different states, and yes must perceive, that the crisis your
conduct presents at this day would recur, whenever any law of the United States
displeased any of the states, and that we should soon cease to be a
"The Ordinance, with the same knowledge of the future,
that characterizes a former objection, tells you, that the proceeds of the tax
will be unconstitutionally applied. If this could be ascertained with
certainty, the objection would, with more propriety, be reserved for the law so
applying the proceeds; but surely cannot be urged against the laws levying the
"These are the allegations contained in the Ordinance.
Examine them seriously, my fellow citizens, — judge for yourselves. I
appeal to you to determine, whether they are so clear, so convincing, as to
leave no doubt of their correctness; and even if you should come to this
conclusion, how far they justify the reckless, destructive course, which you
are directed to pursue. Review these objections, and the conclusions drawn from
them, once more. What are they? Every law, then, for raising revenue, according
to the South-Carolina Ordinance, may be rightfully annulled, unless it be so
framed, as no law ever will or can be framed. Congress have a right to pass law
for raising revenue, and each state has a right to oppose their execution, two
rights directly opposed to each other; — and yet is this absurdity
supposed to be contained in an instrument, drawn for the express purpose of
avoiding collisions between the states and the general government, by an
assembly of the most enlightened statesmen and purest. patriots ever embodied
for a similar purpose.
"In vain have these sages declared, that congress shall
have power to lay and collect taxes, duties, imposts, and excises; in vain have
they provided, that they shall have power to pass laws, which shall be
necessary and proper to carry those powers into execution; that those laws and
that constitution shall be the 'supreme law of the land, and that the judges in
every state shall be bound thereby, any thing in the constitution and law, of
any state to the contrary notwithstanding.' In vain have the people of the
several states solemnly sanctioned these provisions, made them their paramount
law, End individually sworn to support them whenever they were called on to
execute any office. Vain provisions! ineffectual restrictions! vile
profanations of oaths! miserable mockery of legislation! if the bare majority
of the voters in any one state may, On a real or supposed knowledge of the
intent, with which a law has been passed, declare themselves free from its
operation, — say here it gives too little, there too much, and operates
unequally, — here it suffers articles to be free, that ought to be
taxed,.— there it taxes those, that ought to be free in this case the
proceeds are intended to be applied to purposes, which we do not approve, in
that the amount raised is more than is wanted. Congress, it is true, are
invested by the constitution with the right or deciding these questions
according to their sound discretion; congress is composed of the
representatives of all the states, and of all the people of all the states; but
we, part of the people of one state, to whom the constitution has given no
power on the subject, from whom it has expressly taken it away, — we, who
have solemnly agreed, that this constitution shall be our law, — we. most
of whom have sworn to support it, — we now abrogate this law, and swear,
and force others to swear, that it shall not be obeyed; — and we do this,
not because congress have no right to pass such laws; this we do not allege;
but because they have passed them with improper views. They are
unconstitutional, from the motives of those, who passed them. which we can
never with certainty know, from their unequal operation, although it is
impossible, from the nature of things, that they should be equal, and from the
disposition which we presume may be made of their proceeds, although that
disposition has not been declared. This is the plain meaning of the ordinance
in relation to laws, which it abrogates for alleged unconstitutionality. But it
does not stop there. It repeals, in express terms, an important part of the
constitution itself, and of laws passed to give it effect, which have never
been alleged to be unconstitutional. The constitution declares, that the
judicial powers of the United States extend to cases arising under the laws of
the United State, and that such laws, the constitution and treaties, shall be
paramount to the state constitutions and laws. The judiciary act prescribes the
mode, by which the cue may be brought before a court of the United States by
appeal, when a state tribunal shall decide against this provision of the
constitution. The ordinance declares, that there shall be no appeal —
makes the state law paramount to the constitution and laws of the United States
— forces judges and jurors to swear, that they will disregard their
provisions; and even makes it penal in a suitor to attempt relief by appeal. It
further declares, that it shall not be lawful for the authorities of the United
States, or of that state, to enforce the payment of duties imposed by the
revenue laws within its limits.
"Here is a law of the United States, not even pretended
to be unconstitutional, repealed by the authority of a small majority of the
voters of a single state. Here is a provision of the constitution, which is
solemnly abrogated by the same authority.
"On such expositions and reasonings, the ordinance
grounds not only an assertion of the right to annul the laws, of which it
complains, but to enforce it by threat of seceding from the Union, if any
attempt is made to execute them.
"This right to secede is deduced from the nature of the
constitution, which they say is a compact between sovereign states, who have
preserved their whole sovereignty, and therefore are subject to no superior;
that because they made the compact, they can break it, when, in their opinion,
it has been departed from by the other states. Fallacious as this course of
reasoning is, it enlists state pride, and finds advocates in the honest
prejudices of those, who have not studied the nature of our government
sufficiently to see the radical error, on which it rests.
"The people of the United States formed the
constitution, acting through the state legislatures in making the compact, to
meet and discuss its provisions, and acting in separate conventions, when they
ratified those provisions; but the terms used in its construction, show it to
be a government, in which the people of all the states collectively are
represented. We are one People in the choice of president and vice-president.
Here the states have no other agency, than to direct the mode, in which the
votes shall be given. The candidates having the majority of all. the votes are
chosen. The electors of a majority of states may have given their votes for one
candidate, and yet another may be chosen. The people, then, and not the states,
are represented in the executive branch.
"In the house of representatives there is this
difference, that the people of one state do not, as in the case of president
and vice-president, all vote for the same officers. The people of all the
states do not vote for all the members, each state electing its own
representatives. But this creates no material distinction. When chosen, they
are all representatives or the United States, not representatives of the
particular state from whence they come. They are paid by the United States, not
by the state; nor are they accountable to it for any act done in the
performance or their legislative functions; and however they may in practice,
as it is their duty to do, consult and prefer the interests of their particular
constituents, when they come in conflict with any other partial or local
interest, yet it is their first and highest duty, as representatives of the
United States, to promote the general good.
"The constitution of the United States, then, forms a
government, not a league; and whether it be formed by compact between the
states or in any other manner, its character is the same. It is a government,
in which all the people are represented, which operates directly on the people
individually, not upon the states; they retained all the power they did not
grant. But each state having expressly parted with so many powers, as to
constitute jointly with the other states a single nation, cannot from that
period possess any right to secede, because such secession does not break a
league, but destroys the unity of a nation; and any injury to that unity is not
only a breach, which would result from the contravention of a compact; but it
is an offence against the whole Union To say, that any state may at pleasure
secede from the Union, is to say, that the United States were not a nation;
because it would be a solecism to contend, that any part or a nation might
dissolve its connexion with the other parts, to their injury or ruin, without
committing any offence. Secession, like any other revolutionary act, may be
morally justified by the extremity of oppression; but to call it a
constitutional right, is confounding the meaning of terms; and can only be done
through gross error, or to deceive those, who are willing to assert a right,
but would pause before 'they made a revolution, or incur the penalties
consequent on a failure.
"Because the Union was formed by compact, it is said
the parties to that compact may, when they feel themselves aggrieved, depart
from it; but it is precisely because it is a compact, that they cannot. A
compact is an agreement, or binding obligation. It may, by its terms, have a
sanction or penalty for its breach, or it may not. If it contains no sanction,
it may be broken with no other consequence, than moral guilt: if it have a
sanction, then the breach incurs the designated or implied penalty. A league
between independent nations, generally, has no sanction, other than a moral
one; or, if it should contain a penalty, as there is no common superior, it
cannot be enforced. A government, on the contrary, always has a sanction,
express or implied; and in our case, it is both necessarily implied, and
expressly given. An attempt by force of arms to destroy a government, is an
offence, by whatever means the constitutional compact may have been formed; and
such. government has the right, by the law of self-defence, to pass acts for
punishing the offender, unless that right is modified, restrained, or resumed
by the constitutional act. In our system, although it is modified in the case
of treason, yet authority is expressly given to pass all laws necessary to
carry its powers into effect, and under this grant provision has been made for
punishing acts, which obstruct the due administration or the laws.
"It would seem superfluous to add any thing to show the
nature of that Union, which connects us; but as erroneous opinions on this
subject are the foundation of doctrines the most destructive to our peace, I
must give some further development to my views on this subject. No one, fellow
citizens, has a higher reverence for the reserved rights of the states, than
the magistrate, who now addresses you. No one would make greater personal
sacrifices, or official exertions to defend them from violation; but equal care
must be taken to prevent, on their pert, an improper interference with, or
resumption of the rights they have vested in the nation. The line has not been
so distinctly drawn, as to avoid doubts in some cases of the exercise of power.
Men of the best intentions, and soundest views may differ in their construction
of some parts of the constitution; but there are others, on which dispassionate
reflection can leave no doubt. Of this nature appears to be the assumed right
of secession. It rests, as we have seen, on the alleged undivided sovereignty
of the states, and on their having formed, in this sovereign capacity, a
compact, which is called the constitution. From which, because they made it,
they have the right to secede. Both of these positions are erroneous, and some
of the arguments to prove them so have been anticipated.
"The states severally have not retained their entire
sovereignty. It has been shown, that, in becoming parts of a nation, not
members of a league, they surrendered many of their essential parts of
sovereignty. The right to make treaties, declare war, levy taxes, exercise
exclusive judicial and legislative powers, were all of them functions of
sovereign power. The states, then, for all these important purposes, were no
longer sovereign. The allegiance of their citizens was transferred, in the
first instance, to the government of the United States; they became American
citizens, and owed obedience to the constitution of the United Staten, and to
laws made in conformity with the powers it vested in congress. This last
position has not been, and cannot be denied. How, then. can that state be said
to be sovereign and independent, whose citizens owe obedience to laws not made
by it, and whose magistrates are sworn to disregard those laws, when they come
in conflict with those passed by another? What shows conclusively. that the
states cannot be said to have reserved an undivided sovereignty, is, that they
expressly ceded the right to punish treason; not treason against their separate
power, but treason against the United States. Treason is an offence against
sovereignty, and sovereignty must reside with the power to punish it. But the
reserved rights of the states are not less sacred, because they have, for their
common interest, made the general government the depositary of these
"The unity our political character, (us has been shown
for another purpose) commenced with its very existence. Under the royal
government we had no separate character; our opposition to its oppressions
began as United Colonies. We were the United States under the confederation,
and the name was perpetuated, and the Union rendered more perfect by the
Federal constitution. In none of these stages did we consider ourselves in any
other light, than as forming one nation. Treaties and alliances were made in
the name of all. Troops were raised for the joint defence. How, then, with all
these proofs, that under all changes of our position we had, for designated
purposes and with defined powers, created National governments; how is it, that
the most perfect of those several modes of Union should now be considered as a
mere league, that may he dissolved at pleasure? It is from an abuse of terms.
'Compact' is used, as synonymous with 'league,' although the true term is not
employed, because it would at once show the fallacy of the reasoning. It would
not do to say, that our constitution was only a league; but it is laboured to
prove it a compact, (which in one sense it is,) and then to argue, that, as a
league is a compact, every compact between nations must of course he a league,
and that from such an engagement every sovereign power has a right to recede.
But it has been shown, that in this sense the states are not sovereign, and
that even if they were, and the national constitution had been formed by
compact, there would be no right in any one state to exonerate itself from its
"So obvious are the reasons, which forbid this
secession, that it is necessary only to allude to them. The Union was Formed
for the benefit of all. It was produced by mutual sacrifices of interests and
opinions. Can those sacrifices be recalled? Can the states, who magnanimously
surrendered their title to the territories of the West, recall the grant? Will
the inhabitants of the inland states agree to pay the duties, that may be
imposed without their assent, by those on the Atlantic or the Gulf, for their
own benefit? Shall there be a free port in one state, and onerous duties in
another? No one believes, that any right exists, in a single state, to involve
the others in these and countless other evils, contrary to the engagements
solemnly made. Every one must see, that the other states, in self-defence, must
oppose at all hazards.
"These are the alternatives, that are presented by the
convention: A repeal of all the acts for raising revenue, leaving the
government without the means of support; or an acquiescence in the dissolution
of our Union by the secession of one of its members. When the first was
proposed, it was known, that it could not be listened to for a moment. It was
known, if force was applied to oppose the execution of the laws, that it must
be repelled by force; that congress could not, without involving itself in
disgrace, and the country in ruin, accede to the proposition; and yet, if this
is not done on a given day, or if any attempt is made to execute the laws, the
state is, by the ordinance, declared to be out of the Union. The majority of a
convention assembled for the purpose have dictated these terms, or rather this
rejection of all terms, in the name of the people of South Carolina. It is
true, that the governor of the state speaks of the submission of their
grievances to a convention of all the states, which, he says, they 'sincerely
and anxiously seek and desire.' Yet this obvious and constitutional mode of
obtaining the sense of the other states, on the construction of the federal
compact, and amending it, if necessary, has never been attempted by those, who
have urged the state on to this destructive measure. The state right have
proposed to call for a general convention to the other states; and congress, if
a sufficient number of them concurred, must have called it. But the first
magistrate of South Carolina, when he expressed a hope, that, 'on a review by
congress and the functionaries of the general government of the merits of the
controversy,' such a convention will be accorded to them, must have known, that
neither congress, nor any functionary of the general government, has authority
to call such a convention, unless it be demanded by two thirds of the states.
This suggestion, then, is another instance of the reckless inattention to the
provisions of the constitution, with which this crisis has been madly hurried
on; or of the attempt to persuade the people, that a constitutional remedy had
been sought and refused. If the legislature of South Carolina 'anxiously
desire' a general convention to consider their complaints, why have they not
made application for it, in the way the constitution points out? The assertion,
that they 'earnestly seek' it, is completely negatived by the
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