that no citizen of the United States contributed more to the founding of our present Government, to the making of the Constitution, to its advocacy and its early application — than James Madison, of Virginia. In the 45th number of the "Federalist," p. 292, he says:

"The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

Mr. Madison's sound rule of construction as to whether a given power has been granted is that—

"Whenever a question arises concerning a particular power, the first question is whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be whether it is properly an incident to an expressed power and necessary to its execution. If it be, it may be exercised by Congress. If it be not, Congress cannot exercise it."

"A power to be incidental, must not be exercised for ends which make it a principal or substantive power, independent of the principal power to which it is an incident."

To illustrate the latter paragraph: the carrying trade is a part of commerce; shipbuilding is not a part, but it is a close incident; therefore, the same power that may be invoked to encourage commerce and navigation may also be applied to protect shipbuilding. We find no power in the Constitution authoriz ing subsidy to the general marine; if a power of incidental character, it must belong to the regulation of commerce and be necessary to its execution. But the power to regulate commerce has been successfully exercised without it, therefore, it cannot be necessary. And it cannot attach as an incident, for it is proposed as an independent power to supersede a principal or substantive power.

No Power whatever for Shipping Subsidies or Bounties. From the foregoing considerations, and from the early acts of Congress, it is positively certain, that encouragement of Navigation by regulations of commerce is Constitutional. Subsidy for the support of "Mail and Naval" steam lines can be referred to the powers granted " to establish post-offices and postroads," and "to provide and maintain a navy"-clauses seven and twelve of section eight of article one of the Constitution — but no clause, line, or word authorizes Treasury aid in any form to assist freighting vessels in gaining or maintaining ocean transportation, or for conducting any other business. The use of Treasury funds to promote the general carrying trade cannot be an incident to the power to regulate our commerce, because, for one reason, this power itself is granted for that purpose, has served it, and can serve it again; and because the incidental power cannot supersede the principal. It has been suggested that possibly there is power in clause one of section eight of article one of the Constitution, that may be availed of for the payment of subsidies, etc. That clause reads thus:

"The Congress shall have power: 1. To lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States."

There are businesses, trades, and callings innumerable in the United States. The "general welfare" requires that each and every one be prosperous, but, if not, is it meant that Congress shall help the situation by an exercise of the tax-collecting and distributing power? Such a view would be absurd, not alone from the number of trades frequently needing improvement, but from the amount of money to be provided, according to circumstances. The business of Government would be big, indeed, under such a system. Nothing of the kind could ever have been intended. Besides, if it were intended that navigation should be encouraged under clause one and its expression of "general welfare," why was also clause three inserted in section eight? And what can be its use? Of a certainty, its

first member would be superfluous, and without applicability — a perfect absurdity.

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Again, if gifts of money to the marine be considered necessary any time to revive or to sustain it, is Congress to exercise the power granted in clause two, "to borrow money on the credit of the United States"? When taxes fail, can we lawfully borrow money by selling bonds, to pay subsidies, bounties, and "compensation," to support the carrying trade? Surely no citizen can think so.

Madison's Understanding of "Common Defense and General Welfare." Almost the last official act of President Madison was the veto of a bill which he conceived to be unconstitutional. Congress had acted under the supposititious power of the "common defense and general welfare." On this point he said:

"The power to regulate commerce among the several States cannot include a power to construct roads and canals, and to improve the navigation of watercourses in order to facilitate, promote, and secure such a commerce without a latitude of construction departing from the ordinary import of the terms, strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

"To refer the power in question to the clause' to provide for the common defense and general welfare' would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation, instead of the defined and limited one hitherto understood to belong to them, the terms' common defense and general welfare' embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of several States, in all cases not specifically exempted, to be superseded by laws of Congress, it being expressly declared that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every State shall be bound thereby, anything in the

Constitution, or laws of any state, to the contrary notwithstanding.' Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

"A restriction of the power to provide for the common defense and general welfare' to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution."

In short, the history of shipping legislation in our country from the earliest times—in the Colonial period, after Independence, and since the adoption of the Constitution, and the history of the Constitution itself, proves that gratuities of Government never had a moment's consideration, and that we have but one way to encourage our general marine, and that is under the power to regulate commerce. That way is the most efficient that can be devised, is within our rights, is expedient, and need to infringe nowhere.

Wisdom of the Constitutional Way of encouraging Navigation. Having thus set forth the legal method of aiding and sustaining a marine, we might close our treatment of the subject and rest the case. But our people are prone to investigate thoroughly any cause in which their fortunes seem to be involved, and this of navigation is certainly deserving of our utmost concern. The question, then, is, virtually, the wisdom or folly of the Constitution in the particular of regulating our commerce, so as to have a marine of our own in the foreign trade. Some of our citizens affect the faith that regulations of trade and transportation are too old-fashioned for present usethat outright competition should provide us with shipping, or we should do without it of our own. They would not have the Constitution to sanction any sort of protection to what they would call a private interest. But the public interest is very

much like a bundle of private interests. If the objection of these good people has weight, it militates against having a Constitution or a marine.

We have another class of citizens whose minds seem dazzled

with the power of money. With them, it is money that makes everything go. Subsidy, say they, is the thing to support shipping. Why not? Besides, it is the present way the nations all take. It is, moreover, the "line of least resistance in respect to foreign sentiment. The longest purse will win, the shorter purses will cease opposing. What principle can be better than this? Our nation is the richest on earth I well able to contend with all the world in the payment of subsidies. The men of the Constitution were rustics fresh from the fields. Few of them knew the uses or the virtues of coin. They regulated commerce, because they had no money to buy it up. We understand the subject better.

Impolicy of Treasury Aid to Shipping. It may be conceded that money has power, but it is not yet the case that the public money of any country can be used considerably in reenforcing private capital in the carrying trade or any other. Public money comes from the pockets of the people. A rich nation may have a government that is poor. All governments are in debt. Good governments apply surplus revenue to the reduction of debt. It behooves the people of any country to economize the taxes. Demands for public purposes are often satisfied with reluctance. The Treasury might undertake to pay subsidy, but it would be the pockets of the people that would give up the funds. The Government, as a principal, would bestow nothing. Here is an interesting question: Would the people of the United States, at any time since the gaining of their Independence, have ratified a Constitution that provided for shipping subsidies? If they were to consent to "Treasury aid "to-day, could they be depended on to continue for this purpose to tax themselves year after year for future time? To illustrate practically, let us resort to supposition.

Suppose that in 1817, instead of making a regulation that only American vessels could have employment in our domestic trade, Congress had adopted (if it could have done so) the sub