being derived, in a great measure, not from their exports, but from their fisheries, from their freights, and from commerce at large, in some of its branches altogether external to the United States; the profits from all which, being invisible and intangible, would escape a tax on exports. A tax on imports, on the other hand, being a tax on consumption, which is in proportion to the ability of the consumers, whencesoever derived, was free from that inequality.

7. If revenue be the sole object of a legitimate impost, and the encouragement of domestic articles be not within the power of regulating trade, it would follow that no monopolizing or unequal regulations of foreign nations could be counteracted; that neither the staple articles of subsistence, nor the essential implements for the public safety, could, under any circumstances, be insured or fostered at home, by regulations of commerce, the usual and most convenient mode of providing for both; and that the American navigation, though the source of naval defence, of a cheapening competition in carrying our valuable and bulky articles to market, and of an independent carriage of them during foreign wars, when a foreign navigation might be withdrawn, must be at once abandoned, or speedily destroyed; it being evident that a tonnage duty, in foreign ports, against our vessels, and an exemption from such a duty in our ports, in favor of foreign vessels, must have the inevitable effect of banishing ours from the ocean.

To assume a power to protect our navigation, and the cultivation and fabrication of all articles requisite for the public safety, as incident to the war power, would be a more latitudinary construction of the text of the Constitution, than to consider it as embraced by the specified power to regulate trade — a power which has been exercised by all nations for those purposes, and which effects those purposes with less of interference with the authority and conveniency of the states than might result from internal and direct modes of encouraging the articles, any of which modes would be authorized, as far as deemed “necessary and proper," by considering the power as an incidental power.

8. That the encouragement of manufactures was an object of the power to regulate trade, is proved by the use made of the power for that object, in the first session of the first Congress under the Constitution; when among the members present were so many who had been members of the Federal Convention which framed the Constitution, and of the state Conventions which ratified it; each of these classes consisting also of members who had opposed, and who had espoused, the Constitution in its actual form. It does not appear, from the printed proceedings of Congress on that occasion, that the power was denied by any of them; and it may be remarked that members from Virginia, in particular, as well of the anti-federal as the federal party, the names then distinguishing those who had opposed and those who had approved the Constitution, did not hesitate to propose duties, and to suggest even prohibitions in favor of several articles of her productions. By one a duty was proposed on mineral coal, in favor of the Virginia coal-pits; by another, a duty on hemp was proposed, to encourage the growth of that article; and by a third, a prohibition even of foreign beef was suggested, as a measure of sound policy. A further evidence in support of the constitutional power to protect and foster manufactures by regulations of trade, settle the question, is the uniform and practical sanction given to the power, -an evidence that ought of itself to by the general government, for nearly forty years, with a concurrence or acquiescence of every state government throughout the same period, and, it may be added, through all the vicissitudes of party which marked the period. No novel construction, however ingeniously devised, or however respectable and patriotic its patrons, can withstand the weight of such authorities, or the unbroken current of so prolonged and universal a practice. And well it is that this cannot be done without the intervention of the same authority which made the Constitution. If it could be so done, there would be an end to that stability in government, and in laws, which is essential to good government and good lawsa stability, the want of which is the imputation which has at all times been levelled against republicanism, with most effect, by its most dexterous adversaries.

The imputation ought never, therefore, to be countenanced, by innovating

constructions, without any plea of precipitancy, or a paucity of the constructive precedents they oppose; without any appeal to material facts newly brought to light; without any claim to a better knowledge of the original evils and inconveniences for which remedies were needed — the very best keys to the true object and meaning of all laws and constitutions.

And may it not be fairly left to the unbiased judgment of all men of experience and of intelligence, to decide, which is most to be relied on for a sound and safe test of the meaning of a constitution, a uniform interpretation by all the successive authorities under it, commencing with its birth, and continued for a long period, through the varied state of political contests; or the opinion of every new legislature, heated as it may be by the strife of parties—or warped, as often happens, by the eager pursuit of some favorite object-or carried away, possibly, by the powerful eloquence or captivating addresses of a few popular statesmen, themselves, perhaps, influenced by the same misleading causes? If the latter test is to prevail, every new legislative opinion might make a new constitution, as the foot of every new chancellor would make a new standard of measure.

It is seen, with no little surprise, that an attempt has been made, in a highlyrespectable quarter, and at length reduced to a resolution, formally proposed in Congress, to substitute, for the power of Congress to regulate trade so as to encourage manufactures, a power in the several states to do so, with the consent of that body; and this expedient is derived from a clause in the 10th section of article 1st of the Constitution, which says, "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 and control of the Congress."

To say nothing of the clear indications in the Journal of the Convention of 1787, that the clause was intended merely to provide for expenses incurred by particular states, in their inspection laws, and in such improvements as they might choose to make in their harbors and rivers, with the sanction of Congress, - objects to which the reserved power has been applied, in several instances, at the request of Virginia and Georgia, — how could it ever be imagined that any state would wish to tax its own trade for the encouragement of manufactures, if possessed of the authority or could, in fact, do so, if wishing it?

A tax on imports would be a tax on its own consumption; and the net proceeds going, according to the clause, not into its own treasury, but into the treasury of the United States, the state would tax itself separately for the equal gain of all the other states; and as far as the manufactures, so encouraged, might succeed in ultimately increasing the stock in market, and lowering the price by competition, this advantage, also, procured at the sole expense of the state, would be common to all the others.

But the very suggestion of such an expedient to any state would have an air of mockery, when its experienced impracticability is taken into view. No one, who recollects or recurs to the period when the power over commerce was in the individual states, and separate attempts were made to tax, or otherwise regulate it, need be told that the attempts were not only abortive, but, by demonstrating the necessity of general and uniform regulations, gave the original impulse to the constitutional reform which provided for such regulations.

To refer a state, therefore, to the exercise of a power, as reserved to her by the Constitution, the impossibility of exercising which was an inducement to adopt the Constitution, is, of all remedial devices, the last that ought to be brought forward. And what renders it the more extraordinary is, that, as the tax on commerce, as far as it could be separately collected, instead of belonging to the treasury of the state, as previous to the Constitution, would be a tribute to the United States, the state would be in a worse condition, after the adoption of the Constitution, than before, in reference to an important interest, the improvement of which was a particular object in adopting the Constitution.

Were Congress to make the proposed declaration of consent to state tariffs in favor of state manufactures, and the permitted attempts did not defeat them

selves, what would be the situation of states deriving their foreign supplies through the ports of other states? It is evident that they might be compelled to pay, in their consumption of particular articles imported, a tax for the common treasury, not common to all the states, without having any manufacture or product of their own, to partake of the contemplated benefit.

Of the impracticability of separate regulations of trade, and the resulting necessity of general regulations, no state was more sensible than Virginia. She was accordingly among the most earnest for granting to Congress a power adequate to the object. On more occasions than one, in the proceedings of her legislative councils, it was recited, "that the relative situation of the states had been found, on trial, to require uniformity in their commercial regulations, as the only effectual policy for obtaining, in the ports of foreign nations, a stipulation of privileges reciprocal to those enjoyed, by the subjects of such nations, in the ports of the United States; for preventing animosities which cannot fail to arise among the several states from the interference of partial and separate regulations; and for deriving from commerce such aids to the public revenue as it ought to contribute, &c.

During the delays and discouragements experienced in the attempts to invest Congress with the necessary powers, the state of Virginia made various trials of what could be done by her individual laws. She ventured on duties and imposts as a source of revenue; resolutions were passed, at one time, to encourage and protect her own navigation and ship-building; and in consequence of complaints and petitions from Norfolk, Alexandria, and other places, against the inonopolizing navigation laws of Great Britain, particularly in the trade between the United States and the British West Indies, she deliberated, with a purpose controlled only by the inefficacy of separate measures, on the experiment of forcing a reciprocity by prohibitory regulations of her own.

The effect of her separate attempts to raise revenue by duties on imports soon appeared in representations from her merchants that the commerce of the state was banished by them into other channels, especially of Maryland, where imports were less burdened than in Virginia.

Such a tendency of separate regulations was, indeed, too manifest to escape anticipation. Among the projects prompted by the want of a federal authority over commerce, was that of a concert, first proposed on the part of Maryland, for a uniformity of regulations between the two states; and commissioners were appointed for that purpose. It was soon perceived, however, that the concurrence of Pennsylvania was as necessary to Maryland as of Maryland to Virginia, and the concurrence of Pennsylvania was accordingly invited. But Pennsylvania could no more concur without New York than Maryland without Pennsylvania, nor New York without the concurrence of Boston, &c.

These projects were superseded, for the moment, by that of the Convention at Annapolis in 1786, and forever by the Convention at Philadelphia in 1787, and the Constitution which was the fruit of it.

There is a passage in Mr. Necker's work on the finances of France which affords a signal illustration of the difficulty of collecting, in contiguous communities, indirect taxes, when not the same in all, by the violent means resorted to against smuggling from one to another of them. Previous to the late revolutionary war in that country, the taxes were of very different rates in the different provinces; particularly the tax on salt, which was high in the interior provinces and low in the maritime, and the tax on tobacco, which was very high in general, whilst in some of the provinces the use of the article was altogether free. The consequence was, that the standing army of patrols against smuggling had swollen to the number of twenty-three thousand; the annual arrest of men, women, and children, engaged in smuggling, to five thousand five hundred and fifty; and the number annually arrested on account of salt and tobacco alone, to seventeen or eighteen hundred, more than three hundred of whom were consigned to the terrible punishment of the galleys.

May it not be regarded as among the providential blessings to these states, that their geographical relations, multiplied as they will be by artificial channels of intercourse, give such additional force to the many obligations to cherish that union which alone secures their peace, their safety, and their prosperity! Apart

from the more obvious and awful consequences of their entire separation into independent sovereignties, it is worthy of special consideration, that, divided from each other as they must be by narrow waters and territorial lines merely, the facility of surreptitious introductions of contraband articles would defeat every attempt at revenue, in the easy and indirect modes of impost and excise: so that, whilst their expenditures would be necessarily and vastly increased by their new situation, they would, in providing for them, be limited to direct taxes on land or other property, to arbitrary assessments on invisible funds, and to the odious tax on persons.

You will observe that I have confined myself, in what has been said, to the constitutionality and expediency of the power in Congress to encourage domestic products by regulations of commerce. In the exercise of the power, they are responsible to their constituents, whose right and duty it is, in that as in all other cases, to bring their measures to the test of justice and of the general good. With great esteem and cordial respect,

Jos. C. CABELL, Esq.

JAMES MADISON.

LETTER II.

MONTPELIER, October 30, 1828. In my letter of September 18th, I stated briefly the grounds on which I rested my opinion, that a power to impose duties and restrictions on imports, with a view to encourage domestic productions, was constitutionally lodged in Congress. In the observations then made was involved the opinion, also, that the power was properly there lodged. As this last opinion necessarily implies that there are cases in which this power may be usefully exercised by Congress, the only body within our political system capable of exercising it with effect, — you may think it incumbent on me to point out cases of that description.

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I will premise that I concur in the opinion, that, as a general rule, individuals ought to be deemed the best judges of the best application of their industry and

resources.

I am ready to admit, also, that there is no country in which the application may, with more safety, be left to the intelligence and enterprise of individuals, than the United States.

Finally, I shall not deny, that, in all doubtful cases, it becomes every government to lean rather to a confidence in the judgment of individuals, than to interpositions controlling the free exercise of it.

With all these concessions, I think it can be satisfactorily shown that there are exceptions to the general rule, now expressed by the phrase "Let us alone," forming cases which call for the interposition of the competent authority, and which are not inconsistent with the generality of the rule.

1. The theory of "Let us alone" supposes that all nations concur in a perfect freedom of commercial intercourse. Were this the case, they would, in a commercial view, be but one nation, as much as the several districts composing a particular nation; and the theory would be as applicable to the former as to the latter. But this golden age of free trade has not yet arrived; nor is there a single nation that has set the example. No nation can, indeed, safely do so, until a reciprocity, at least, be insured to it. Take, for a proof, the familiar case of the navigation employed in a foreign commerce. If a nation, adhering to the rule of never interposing a countervailing protection of its vessels, admits foreign vessels into its ports free of duty, whilst its own vessels are subject to a duty in foreign ports, the ruinous effect is so obvious, that the warmest advocate for the theory in question must shrink from a universal application of it.

A nation leaving its foreign trade, in all cases, to regulate itself, might soon find it regulated, by other nations, into a subserviency to a foreign interest. In the interval between the peace of 1783 and the establishment of the present Constitution of the United States, the want of a general authority to regulate trade is known to have had this consequence. And have not the pretensions and policy latterly exhibited by Great Britain given warning of a like result from a renunciation of all countervailing regulations on the part of the United

exiles from the Netherlands; and that her silk manufactures - now a flourishing and favorite branch were not less indebted to emigrants flying from the persecuting edicts of France. - Anderson's History of Commerce.

It appears, indeed, from the general history of manufacturing industry, that the prompt and successful introduction of it into new situations has been the result of emigration from countries in which manufactures had gradually grown up to a prosperous state; as into Italy on the fall of the Greek empire; from Italy into Spain and Flanders, on the loss of liberty in Florence and other cities; and from Flanders and France into England, as above noticed. Franklin's Canada Pamphlet.

In the selection of cases here made as exceptions to the "let alone" theory, none have been included which were deemed controvertible. And if I have viewed them, or a part of them only, in their true light, they show, what was to be shown, that the power granted to Congress to encourage domestic products, by regulations of foreign trade, was properly granted, inasmuch as the power is, in effect, confined to that body, and may, when exercised with a sound legislative discretion, provide the better for the safety and prosperity of the nation. With great esteem and regard, JAMES MADISON.

Jos. C. CABELL, Esq.

BANKS.

LETTER FROM J. MADISON TO CHAS. J. INGERSOLL,

OF THE PENNSYLVANIA LEGISLATURE,

ON THE SUBJECT OF "BILLS OF CREDIT;"

Dated MONTPELIER, February 22, 1831. DEAR SIR: I have received your letter of January 21, asking 1. Is there any state power to make banks?

2. Is the federal power, as has been exercised, or as proposed to be exercised, by President Jackson, preferable?

The evil which produced the prohibitory clause in the Constitution of the United States, was the practice of the states in making bills of credit, and, in some instances, appraised property, a "legal tender." If the notes of state banks, therefore, whether chartered or unchartered, be made a legal tender, they are prohibited; if not made a legal tender, they do not fall within the prohibitory clause. The number of the Federalist referred to was written with that view of the subject; and this, with probably other contemporary expositions, and the uninterrupted practice of the states in creating and permitting banks, without making their notes a legal tender, would seem to be a bar to the question, if it were not inexpedient now to agitate it.

A virtual and incidental enforcement of the depreciated notes of the state banks, by their crowding out a sound medium, though a great evil, was not foreseen; and, if it had been apprehended, it is questionable whether the Constitution of the United States, (which had many obstacles to encounter,) would have ventured to guard against it, by an additional provision. A virtual, and, it is hoped, an adequate remedy, may hereafter be found in the refusal of state paper, when debased, in any of the federal transactions, and the control of the federal bank; this being itself controlled from suspending its specie payments by the public authority.

On the other question, I readily decide against the project recommended by the President. Reasons, more than sufficient, appear to have been presented to the public in the reviews, and other comments, which it has called forth. How far a hint for it may have been taken from Mr. Jefferson, I know not. The