Slike strani

vessel could then trade with Europe, unless through a cu cuitous voyage to and froni a British port.

$ 160. But, as the power of taxation is not exclusive ly vested in the National Government, but inay also bei concurrently exercised by the State Governments, it became essential, in order fully to effectuate the same general purposes, and to prevent any State from securing undue preferences and monopolies in its own favor, to lay some restraints upon the exercise of this power by the States. Accordingly another clause in the Constitution declares,—“ No State shall, without the consent of Congress, lay any imposts or duties on imports, or exports, except what may be absolutely necessary for executing its inspection laws. And the net produce of all duties and imposts, laid by any State on imports and exports, shall be for the use of the treasury of the United States ; and all such laws shall be subject to the revision of Congress No State shall, without the consent of Congress, lay any tonnage duty.A petty warfare of regulation among the States is thus prevented, which might otherwise rouše resentments, and create dissensions, dangerous to the peace and harmony of the Union. The exceptions in favor of inspection laws, to a limited extent, is for the purpose of enabling each State to improve the quality of articles, produced by the labor and industry of its own inhabitants; and thus to fit them better for exportation, as well as for domestic use. Yet, even here, the superintending power of Congress is reserved, lest, under color of such laws, attempts should be made to injure the interests of other States. The net produce of all such duties and imposts is to be for the use of the National treasury ; and the laws themselves, by which they are imposed, are subject to the revision of Congress. Thus, the temptations on the - part of any State to levy heavy inspection duties are materially diminished, and an effectual remedy is provided to meet any intentional, or accidental excess. Having thus brought together all the various, but scattered articles of the Constitution, on the subject of taxation, the subject may be dismisse a with the single remark, that as no power is more likely, in its abuse, to be detrimental to the public welfare, so no one is guarded with more care, and adjusted with more anxious deference to local and sectional interests.

$ 161. Notwithstanding, however, all the solicitude manifested by the Constitution, on this subject, inasmuch as the power of taxation is concurrent in the National and State Governments, it is obvious, that many nice and delicate questions must perpetually arise (as indeed some have already arisen) as to the time and boundaries of the power and rights of each government. For, however true it may be, that in a direct conflict between the constitutional authority of the Union and that of a State, the former must be deemed paramount and superior in its obligatory force ; yet the question when, and how far, such a conflict does in fact exist, must often involve many

diffi cult and embarrassing inquiries, which do not admit of any universal solution.


Power to Borrow Money, and Regulate Commerce.

§ 162. The next power of Congress is, “to borrow money on the credit of the United States." This power, also, seems indispensable to the sovereignty and existence of the National Government ; for otherwise, in times of great public dangers, or severe public calamities, it might be impossible to provide, adequately, for the public exigencies. In times of peace, it may not, ordinarily, be necessary for the expenditures of a nation to exceed its revenues. But the experience of all nations must convince us, that, in times of war, the burdens and expenses of a single year may more than equal the ordinary revenue of ten years.

And, even in times of peace, there are occasions, in which loans may be the most facile, convenient, and economical means of supplying any extraordinary expenditure. The experience of the United States, has already shown the importance of the power, both in peace and in war. Without this resource, neither the war of Independence, nor the more recent war with Great Brit. ain could have been successfully carried on, or terminated. And the purchase of Louisiana was by the same means promptly provided for, without being felt by the nation, in its ordinary fiscal concerns.

$ 163. The next power of Congress is, “to regulate commerce with foreign nations, and

the several States, and with the Indian tribes.” The want of this power to regulate commerce was, as has been already suggested, a leading defect of the Confederation. In the different States, the most opposite and conflicting regulations existed ; each pursued its own real or supposed local interests; each was jealous of the rivalry of its neighbors ; and each was successively driven to retaliatory measures, in order to satisfy public clamor, or to alleviate private distress. In the end, however, all their measures became utterly nugatory, or mischievous, engendering mutual hostilities, and prostrating all their commerce at the feet of foreign nations. It is hardly possible to exaggerate the oppressed and degraded state of domestic commerce, manufactures, and agriculture, at the time of the adoption of the Constitution. Our ships were almost driven from the ocean ; our work-shops were nearly deserted ; our mechanics were in a starving condition; and our agriculture was sunk to the lowest ebb. These were the natural results of the inability of the General Government to regulate commerce, so as to prevent the injurious monopolies and exclusions of foreign nations, and the conflicting, and often ruinous regulations of the different States. If duties were laid by one State, they were rendered ineffectual by the opposite policy of another. If one State gave a preference to its own ships or commerce, it was counteracted by another. If one State endeavored to foster its own manufactures by any measures of protection, that made it an object of jealousy to others; and brought upon it the severe retaliation of foreign governments. State was peculiarly favored in its agricultural products, that constituted an inducement with others to load them with some restrictions, which should redress the inequality


If one

It was easy to foresee, that this state of things coul i not long exist, without bringing on a border warfare, and a deep-rooted hatred, among neighboring States, fatal to the Union, and, of course, fatal also to the liberty of every member of it.

§ 164. The power to regulate foreign commerce,' enabled the government at once to place the whole country upon an equality with foreign nations ; to compel them to abandon their narrow and selfish policy towards us ; and to protect our own commercial interests against their injurious competitions. The power to regulate commerce

among the several States," in like manner, annihilated the causes of domestic feuds and riva ries. It compelled every State to regard the interests of each, as the interests of all; and thus diffused over all the blessings of a free, active, and rapid exchange of commodities, upon the footing of perfect equality. The power to regulate commerce - with the Indian tribes,” was equally necessary to the peace and safety of the frontier States. Experience had shown the utter impracticability of escaping from sudden wars, and invasions, on the part of these tribes; and the dangers were immeasurably increased by the want of uniformity of regulations and control in the intercourse with them. Indeed, in nothing has the pro found wisdom of the framers of the Constitution been more displayed, than in the grant of this power to the Union. By means of it, the country has risen from poverty to opulence ; from a state of narrow and scanty resources to an ample national revenue ; from a feeble, and disheartening intercourse and competition with foreign nations, in agriculture, commerce, manufactures, and population, to a proud, and conscious independence in arts, in numbers, in skill, and in civil polity.

§ 165. 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 ex



tent of the power to regulate commerce with the Indian tribes.

$ 166. 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 inter

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 inter

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. It may, therefore, be safely affirmed, that the terms of the Constitution have, at all times, been anderstood to include a power over navigation, as well as over trade, over intercourse, as well as over traffic. It adds no small strength to this interpretation, that the practice of all foreign countries, as well as of our own, has uniformly conformed to this view of the subject.



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