to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare." The objection here is more extraordinary, as it appears the language used by the Convention is a copy of the articles of confederation. The objects of Union among the States, as described in Article 3d, are, "Their common defense and general welfare." The terms of the 8th article are more identical: "All charges of war and other expenses, that shall be incurred for the common defense and general welfare, and allowed by the United States in Congress, shall be defrayed out of the common treasury." A similar language occurs in Article 9th. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would, in that case, have employed the same reasoning in justification of Congress, as they now make use of it against the Convention? "How difficult is it for error to escape its own condemnation !" (Page 315.)

Suppose, however, for argument's sake, we were to admit that Congress could enact laws, although based upon no delegated power, and not "necessary and proper" to carry into execution foregoing powers, upon the ground that they were conducive to the "general welfare." Such an admission would in no way extricate the consolidationists from their difficulties. For how can a law be of general utility, stamped as it is by the veto of one or more States, because subversive of the common principles of justice, to wit: that of taxing one portion of the Union for the benefit of another? Having thus traced the origin, progress, and ultimate signification of this ominous phrase, we candidly believe that there can not exist an ingenious mind which will not promptly admit that the phrase can not be regarded as of serious import; because if aught be attached to it, we find ourselves unavoidably hurried to the conclusion that the remainder of the Constitution is a dead letter; this phrase alone empowering Congress with unlimited legislative authority. "How difficult is it for error to escape its own condemnation." Having, as we conceive, sufficiently examined into these portentous phrases, and having denuded them of all their would-be potency, and having incontestably established the fact that they had their origin in the pecuniary exigencies of the government, and that they could by no fair mode of reasoning be made to empower the federal legislature with an authority to foster the interests of one portion of the United States at the expense of the other, we now pass to the second clause, namely, to that which invests Congress with power to regulate commerce with foreign nations.

We were scarcely prepared for this subterfuge on the part of our opponents. We scarcely expected to find them sheltering themselves under a clause which has so little connection with the occult design of protective tariff laws, whose effect is to protect manufactures at the expense of the agricultural and commercial interests of the United States. This clause, as all well know, had its origin in the necessity of investing the general government with power over all subjects involving the interests of more than one State, and to which the legislation of a single State was necessarily in. competent. Such was the case with the commercial interests of the States when intrusted to Congress. Taught by the embarrassments which had involved the government of the old confederacy, for the want of this power over commerce, it was cheerfully resigned, by the insertion of this clause of the Constitution. How difficult would it have been at that time to have divined that this clause, arising as it did in the commercial depression of the country, extending as it does to the federal legislature the power of extending to the remotest parts of the earth our commercial relations, should have been perverted to its present purposes; that it ever should have been deemed as investing this body with the power of prostrating, at one "fell swoop," this most lucrative and extensive branch of industry, for the protection of that of manufactures, which embraces but a small portion of the capital of these United States, and certainly not a dollar of many of the States. That Congress may, when acting within its constitutional sphere of legislation, as prescribed by the litera scripta of the Constitution, pass laws restricting the importation of foreign manufactures, as a bona fide measure of retaliation for previous aggression upon our commerce by other nations, no one can reasonably doubt. Such retaliation would originate in a desire to extend our commercial relations, and thus be agrecable to the very letter of the Constitution itself. But to argue, that by the same provision of that instrument, this body can organize and perpetuate a system of protection to this or that branch of industry, would be such an assumption in argument, that even in the absence of all other evidence to the contrary, it must fall to the ground by its own weakness. If, by virtue of this clause, the federal legis. lature can legislate upon the subject of manufactures, because they are remotely connected with commerce, by the same course of reasoning, legislation might be made to extend to any and every branch of industry; and thus this clause alone invests Congress with a grant of universal legislative power. So extensive are the ramifications of each branch of industry, and so intimately are they woven together, that it would be impossible to assign any limits to the boundaries of legislation, if this latitudinarianism were admissible. Would it be doing any violence to the premises of these ultraconstructionists of a written Constitution, to deduce, by the same course of reasoning, the right of Congress to fit out an exploratory expedition to the Antarctic Pole, to establish a university, or to incorporate companies for the purpose of commercial intercourse, or for the encouragement of domestic

manufacture? These are all as essentially connected with commerce "with foreign nations" as is the present system of protective policy. New discoveries in the polar regions may open new channels for our commerce. Science is so intimately connected with navigation, that the latter could never have attained its present state of perfection without the assistance of the former; as regards the last supposition, it would be equally reasonable to encourage commerce and manufactures by the incorporation of companies, as well as by tariff restrictions upon commerce, or the adoption of retaliatory duties. The one or the other might have been adopted with equal propriety, as the discretion of the legislature might have determined. To such absurdities does a departure from the letter of a written constitution lead. Once launched upon the sea of implied powers, a deep and boundless ocean of universal legislation lies before us, without a rock or a shoal to intimidate or interrupt our headlong progress.

It has been said, with an air of triumph, that if the tariff laws be in contravention to the Constitution, the tonnage laws are equally an infraction of the provisions of that instrument. As this argument is specious, it deserves some consideration. These laws, it is known, impose certain duties upon all vessels entering our harbors, discriminating in favor of those owned by our citizens. This certainly partakes of the nature of protection; but the system of discriminating tonnage duties is strictly a bona-fide commercial retaliation, instituted and kept up as a mean to induce a more liberal intercourse with foreign nations. But when they shall have had their retaliatory effect, or it is apparent that there is no hope of their accomplishing such an end; when they shall have been carried to such an extent that they exclude the foreign navigator, and restrict the carrying trade to the native merchant, and are maintained as a means of protection to this branch of industry, it is evident that they in no way differ from laws for the protection of manufactures. These laws, however, as they have hitherto existed, have been retaliatory, and in no way onerous to any branch of industry, and are chiefly to be justified as a revenue measure. These laws date as early as the third legislative act of the general government, and were thus early enacted to restrict the privileges of foreign vessels, and to induce a desire in all nations wishing to trade with us to enter into treaties conferring reciprocal advantages. And in effecting this object, these laws have undergone material modifications, varying in each case, as the nation treated with was disposed to abandon the old and obsolete doctrine of restriction, and adopt the more generally received principles of free trade. Viewed in this light, these laws are in accordance both with the letter and the spirit of the Constitution. When, however, they shall be perverted from these their legitimate objects, especially to protect the native shipowner, they necessarily are no longer of general utility to the community at large, but are limited in their operations to the advancement of the interests of a small portion of society; and that, too, at the expense of the mass of the

people, who are thus restricted from the benefits arising from the employment of those who will carry cheapest. Under such circumstances, it is evident that they would be unconstitutional; such partial legislation can not be in unison with the provisions of a Constitution, the very existence of which is attributable to the want of a common government, to regulate those interests of general and not partial utility.

Whatever degree of truth the above arguments may possess, there are others, too cogent in their nature, and the source from which they are drawn, not to carry conviction to the minds of all not strongly fortified by interest or prejudice. We allude to those arguments and sources of information to be collected from the Journal of the Convention, where may be seen recorded the proceedings of that body while these clauses were under discussion. We therefore again invite the attention of the reader to this invaluable work, the true receptacle of the spirit of the Constitution. By a reference to this Journal, we find that the clause of the Constitution, investing the legislature of the general government with a power "to regulate commerce with foreign nations and among the States," was introduced on the 16th of August, in the draft of a constitution submitted by the committee to whom the previous resolutions of the Convention had been referred. As might have been expected, we find no objections made to this clause; and all that we know of this clause is the subsequent addition made to it relative to the regulation of intercourse with the "Indian tribes." This regulation of commerce by a general government having been the chief cause which gave rise to the calling of the Convention, this clause met with not the slightest opposition, and passed into the present Constitution without discussion.

On the 18th of August, we find the Convention engaged in discussing the propriety of extending the powers of the new government, and in accordance with these views, it was proposed, among many other powers to be vested in Congress, that it was expedient "to establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades, and manufactures." Again, on the 20th day of August, it was proposed "that a Council of State should assist the President, to be composed of the chiefjustice and five secretaries," etc. It devolved upon the Secretary of Domestic Affairs to attend to matters of general police, the state of agriculture and manufactures, the opening of roads and navigation, and the facilitating of communication throughout the United States, and to recommend such measures and establishments as might tend to promote such objects." In pursuing our subject, we find, that on the 31st of August there was appointed a committee, consisting of a member from each State, to act upon such parts of reports as had not been previously acted upon. On the 1st of September this grand committee reported partially, but did not touch the subject of science, trades, canals, or manufactures. On the 4th, the committee again reported partially, but said nothing of manufactures. On the 5th, the committee further and finally reported, recommending alterations

and additions in five instances.. The last is to insert the following clause, that "Congress shall have power to promote the progress of science and the useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective rights and discoveries." Thus answering to the many applications which had been made, to invest the proposed government with a power to legislate for the protection of manufactures, science, etc. This clause, then, specifies the only mode in which Congress can rightfully legislate upon the subject of manufactures, namely, as a branch of the useful arts. This clause, emanating from the committee to whom had been referred certain resolutions, proposing to extend the legislative power of the government to the subject of manufactures, without taking any other notice of the subject referred to them, namely, that of manufactures, speaks to our mind a language too explicit to be misunderstood. Their silence upon a specific resolution, which had been referred to them, would alone have been indicative of their disapprobation of embracing the power in question; but when we perceive them proposing a clause which embraced the power desired by the projectors of the resolutions, the inference that they designed to restrict the federal legislature, in the manner of protecting manufactures, is irresistible. We therefore find ourselves forced to the conclusion, that it is only by granting patents and securing to individuals the rights and privileges resulting from their inventions, that the government can foster an individual or local interest.

As regards the argument, that the power to regulate commerce with foreign nations involves the power to protect manufactures, we think it fully refuted in the preceding extracts from the Journal of the Convention. From the introduction of these resolutions subsequent to the clause conferring the power over commerce, it is certain that the consolidation party in the Convention did not so understand it. To suppose that they, who had so ardently desired to invest the general government with a power over manu; factures, could have been so ignorant of the preceding day's transactions, as not to be aware that the power that they were then contending for had been already conferred, and that, too, nemine contradicente, would be yielding our assent to an impossibility. We are aware, however, that it may be retorted, that this argument is more striking than forcible; that the term commerce, having also obtained in those resolutions, by the same reasoning it would be inferred that the power over the regulation of commerce had not yet been conferred. This position, as formidable as, at first sight, it may appear, in no way militates against our argument as to the constitutionality of these laws; it rather assures us, that the framers of our Constitution did not deem the power over commerce in such a latitudinarian light as those of the present day who advocate implied powers. The authors of the Constitution no doubt understood this clause, which grants the power over commerce, simply as authorizing Congress to make treaties and laws regulating this branch of industry in a uniform manner throughout the United States, and not in the slightest manner supposing that this clause