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.1 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.2 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.

§ 1090. 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?

1 See Mr. Jefferson's Report on the Fisheries, 1st Feb. 1791, 10 Amer. Mus. App. 1, &c., 8, &c.

2 See Mr. Williamson's Speech in Congress, 8 Amer. Mus. 140.

When an act is constitutional, as an exercise of a power, can it be unconstitutional, from the motives with which it is passed?1 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 favor 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 degrees; 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.

§ 1091. Passing by these considerations, let the practice of the government and the doctrines maintained by those who have

1 [If legislation is within the power of the legislative body, the motives of the body in adopting it must be assumed to be correct, and cannot be inquired into. Ex parte McCardle, 7 Wall. 514, per Chase, Ch. J.; Veazie Bank v. Fenno, 8 Wall. 533; Sunbury and Erie R. R. Co. v. Cooper, 33 Penn. St. 278; Baltimore v. State, 15 Md. 376; People v. Draper, 15 N. Y. 545, 555; Ex parte Newman, 9 Cal. 502; Johnson v. Higgins, 3 Met. (Ky.) 566; Wright v. Defrees, 8 Ind. 302; Bradshaw v. Omaha, 1 Neb. 16; Humboldt Co. v. Churchill Co. Com'rs, 6 Nev. 30.]

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 fulfilment 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.2 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.

§ 1092. The very preamble of the second act 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

1 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. 2 See 1 Lloyd's Deb. 24, 160, 161, 243, 244; 4 Elliot's Deb. App. 351, 352. See Grimke's Speech, in Dec. 1828, p. 58, 59, 63.

4 Act of 4th July, 1789. 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.

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.1 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.2 Every successive Congress since that time have 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.3 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.

§ 1093. 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 favor 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 favor becomes as absolutely irresistible as any 1 Hamilton's Report on Manufactures, in 1791. 2 The Federalist, No. 10, 35, 41.

3 See 4 Elliot's Debates, App. 353, 354.

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 right to assert its equality and dignity and sovereignty among the other nations of the earth.2

66

§ 1094. 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 govern

ment.

§ 1095. 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 judgment.

§ 1096. 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." 4 This article was afterwards recommended, in a report of a committee, to be stricken out. In the second revised draft it was left

14 Jefferson's Correspondence, 280, 281; 1 Pitkin's Hist. ch. 3, p. 93 to 106.

2 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. 1828, 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. 1832; 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.

3 Journal of Convention, p. 261.

4 Journal of Convention, p. 222.