you may choose between, with intent to bring out and sustain the domestic labor of America against the capital, the necessities, or the policy of foreigners, whether individuals or governments. Upon the words of the Constitution, if it were an open question to-day, this is clear. The history of the origin, construction, and adoption of that instrument demonstrates it. And, then, there is a weight of opinion, and a series of practical interpretation, which should put the matter forever at

rest.

Mr. President, the senate would hardly excuse me for assuming to offer a formal and laborious argument as an original one, in proof of this matter. Delicacy, honor, and good sense would forbid such an attempt to appropriate borrowed plumes. No man's ability or research could clothe the subject with any useful novelty; how much less can mine! I desire, therefore, only to recall to your mind the general nature and main points of an argument already and long ago familiar to you. And even this I should not venture on, if the state of opinion in the country and in congress did not appear to render such a discussion seasonable and useful. Sir, the tendency of the time is to regard this protecting power as stricken out of the Constitution. I have even heard judicious men speak of it as an exploded thing. We reason, some reason certainly not the honorable mover of these resolutions-but some reason as if it had been agreed somewhere, at some time, and by somebody or another, that the power should never again be asserted, or never again be exercised. They would persuade you that the people, nine years ago, to secure to themselves the peaceable enjoyment of their rights for nine years longer, had stipulated that, at the end of the time, they would surrender the principle of constitutional protection forever. For a fleeting term of possession, — nothing in the life of a nation; nothing in the life of a man, agreed to squander away the inheritance itself!

they

Now, Sir, without pausing to inquire into the origin of this opinion, without pausing to inquire how far it may be attributable to the silent influence of the Compromise Act in unsettling the tone of the public mind, still less to debate the merits of that celebrated arrangement, or to judge between the sagacity, patriotism, and firmness of those who suggested and those

who opposed it, I think it may not be unseasonable to ascend from that act to the contemplation of first principles. Let us turn from the stormy passions, and unconstitutional organizations, and extorted expedients of 1833, and breathe the pure and invigorating air of 1789! Let us see what our fathers framed the government for, and what they expected of it.

I find your authority then, Sir, to pass laws of protection, where the calm and capacious intelligence of Mr. Madison found it in 1789, in 1810, and 1828. That great man, among our greatest of the dead or the living; who had helped so much to frame the Constitution and procure its adoption, defending and expounding it with his tongue and pen to his own Virginia, and to the whole country; who had weighed, aye, Sir, and helped to coin and stamp, every word in it; and who knew the evils, the wants, the hopes, the opinions in which it had its origin, as well as any man ever knew why he removed from an old house to a new one; Mr. Madison, in 1789 sustaining in congress that celebrated law laying impost duties for the support of government, the discharge of the public debt, and the encouragement and protection of manufactures, in 1810, in a message to congress, and in 1828, in his letter to Mr. Cabell, at the beginning, in the midst, and at the close of his career; first when his faculties were at their best, his memory of events recent, his ambition high; again with the utmost weight of his official responsibilities upon him; and again in old age, when his passions were calmed, the measure of his fame full, and he looked round upon the widespread tribes of the people whom he had served, and who had honored him so long, and upon their diversities of interest and of sentiment with a parental and patriarchal eye, he found your authority always in the Constitution, and he found it in your "power to regulate commerce with foreign nations, among the several States, and with the Indian tribes." Let me read a passage from his speech in congress in 1789, upon Mr. Fitzsimons's proposition to combine the objects of protection and revenue in the bill laying duties on imports:

"The States that are most advanced in population, and ripe for manufactures, ought to have their particular interests attended to in some degree. While these States retained the power of making regulations of trade, they had the power to protect and cherish such institutions. By

adopting the present Constitution, they have thrown the exercise of this power into other hands; they must have done this with an expectation that those interests would not be neglected here."-James Madison, Gales and Seaton's Debates, old series, vol. i. p. 116.

In his message of the fifth of December, 1810, after adverting to a "highly interesting extension of useful manufactures, the combined product of professional occupations and of household industry," he observes, "how far it may be expedient to guard the infancy of this improvement in the distribution of labor, by regulations of the commercial tariff, is a subject which cannot fail to suggest itself to your patriotic reflections." His letter to Mr. Cabell, written in September, 1828, in which he defines his opinions upon the power more precisely, and produces a very strong argument in support of them, is known to everybody. "The question is," he says, whether, under the Constitution of the United States, the power to regulate trade with foreign nations,' as a distinct and substantive item in the enumerated powers, embraces the object of encouraging, by duties, restrictions, and prohibitions, the manufactures and products of the country? And the affirmative must be inferred from the following considerations; " which he proceeds to unfold and urge with that force of persuasive reason for which he was so remarkable.

6

I derive, then, your power to arrange duties, for the purpose of protection, from your power to regulate commerce. The "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." What does this language mean? How, and by what means, does the Constitution authorize you to regulate commerce, and for what ends to regulate it? The answer is, it authorizes you to regulate it, among other means, by the imposition of discriminating duties, or prohibitory duties on imports of foreign manufactures, or other articles, for the purpose, among other purposes, of encouraging domestic manufactures, and any and every other form of domestic industry. The presumption, certainly, in the first instance is, that these words of the Constitution mean to communicate the power to pass any law, to do law, to do any act, for any purpose, which, in the general and political language of the country in 1787, was deemed and called an ordinary and usual governmental

Then

commercial regulation. You may regulate commerce. you may do it by any and all such means, and for any and all such ends, as formed at that time the known and usual means and ends by and for which governments habitually regulated commerce. If you cannot do it by all such means, and for all such ends, you cannot by any, nor for any. All the known and usual modes, and all the known and usual ends, are committed to you; or none are so. This is the first and legal import, prima facie, of so general a grant. The presumption in the first instance is, that this language was used in the sense which it was generally understood to bear when asserted of or applied to other governments in other writings, or in the current speech of the age of the Constitution. If, in the contemporaneous written and spoken vocabulary, a "commercial regulation" comprised and meant a certain act, or certain classes of acts, a certain act for a certain purpose; if a law of England, or of one of the States, laying duties on imports for the encouragement of domestic labor, mechanical, manufacturing, navigating, or agricultural, was, in that vocabulary, held and called a common commercial regulation; one of the recognized and familiar exercises of the power to regulate commerce; the presumption is, that the words here mean what they meant everywhere else. If you can control this presumption by inspection of other parts of the Constitution, or of its general structure, or by other legitimate evidence, do so; but the burden will be on you. It was upon this presumption that the discussion in this body, the other day, upon the bankrupt law proceeded. To determine the nature and limits of your power to pass such a law, you inquired what bankruptcy meant, and what laws upon the subject of bankruptcy were, in the legal language of the time? The senators from Delaware, [Mr. Bayard,] and from Missouri, [Mr. Benton,] who debated this subject so ably, in opposition to the bill, did not argue that, from the nature of this government, the phrase "laws upon the subject of bankruptcy" must be supposed to mean less or more than the same phrase anywhere else. They treated it as a question on the meaning of language; and, assuming that the words in the Constitution meant what the same words meant elsewhere, they sought that meaning in the contemporaneous, popular, and technical vo

cabulary of the States, and of England. Just so here. To determine the nature and limits of this power to regulate commerce, to determine whether it enables you to construct a protecting tariff, inquire whether in the political and popular vocabulary of 1787 such a tariff was an ordinary form and kind of commercial regulation. If it were, the doubt is resolved.

And now is it not indisputable that, at that day, what we now call a discriminating tariff for protection was universally known and described as one familiar and recognized kind of commercial regulation? and that a power of government to regulate commerce was universally understood to include the power to make such a tariff? Sir, nothing is more certain. Nothing is more certain than that, by a concurrence of extraordinary circumstances, the expressions, commercial regulations, regulations of trade, the power to regulate commerce, the power to regulate trade, and the like, had acquired, in the political and popular language of the day, a definite and uniform sense; and that, according to that sense, a protecting tariff was a form of commercial regulation, and the power to regulate commerce included the power to construct such a tariff.

Go back, for a moment, in the first place, to the close of the war in 1783, and inquire what this language meant then. No other words, or combination of words, had so settled, so precise, and so notorious a signification. You remember how this came to pass. The discussions and the events of the twenty years before had given them currency, and fixed their meaning. They had been burned and graven, as it were, into the memory of America. The disputes of England and her colonies, which brought on the Revolution, had turned on the extent of her power over them. She asserted in 1764 an enlarged and a menacing extent of claim; a claim not only to regulate their trade, but to lay internal and external taxes, and to bind them in all cases whatsoever. They admitted the right to regulate trade; they admitted the right to do it by the imposition of duties on imports into the colonies, and on their imports into England; they admitted the right to do it for the purpose of developing and sustaining the manufacturing, mechanical, and navigating industry of the mother-country; but they denied the right, for the first time asserted in the Stamp