criticism. The Financial Chronicle, in commenting on the decision, said: "All reliance upon the constitutional inhibition to do anything with the currency which Congress may have a whim to do must be abandoned henceforth and forever.'

E. Benjamin Andrews' says in commenting upon the Legal Tender cases that,

"An enactment by Congress the Supreme Court presumes to be constitutional unless it is certainly unconstitutional. If there is doubt upon the point there is no doubt. Congress is right. The authority to 'emit bills of credit' as legal tender was not expressly delegated to the Federal Government, but it may well claim place in the goodly families of 'implied powers,' apparently being implied by its prohibitions upon the States, or involved in the power to borrow money, or in that to regulate commerce. Again, if Congress could pass such a law to meet an exigency, as held in Parker v. Davis, Congress must be left to determine when the exigency exists. The intention of the Fathers to inhibit bills of credit cannot be conclusively shown. Even if it were certain it would be inconclusive; the question being not what they intended to do, but what they actually did in framing the Constitution.

"The wisdom of the legal tender law is a different question, but, like the other, should not be pronounced upon without reflection. It was easy to condemn it after the event.

At any event it proved one of the most perplexing

1 See Hawthorne-Schouler-Andrews, History of United States, vol. viii., p. 225.

problems that the Supreme Court was ever called upon to solve. This is evidenced by the fact that from first to last the Supreme Court decided the question in three different ways, a fact that is unique in the decisions of this tribunal. But in the diversity of opinion that existed in the Court, it can be clearly seen that an honest attempt was being made to reconcile the commercial and political interests of the country with the organic law of the land.

CHAPTER VIII

THEORY OF A PROTECTIVE TARIFF

No single issue has persisted so long, or proved

of so great historic consequence to our country as that of a protective tariff. It was one of the first matters under debate in the First Congress of the United States in 1789; it has been a persistent matter for consideration in many Congresses; it was the leading issue in the political campaign of 1912, and the effects of the recent tariff revision by the Democratic Congress and the President's approval will largely determine the results of the next presidential election. The second act that Washington signed was a tariff act. It was signed on July the fourth, 1789, and it has, on account of this fact, been called by its friends, "The Second Declaration of Independence." The act provided for a tariff on rum, molasses (which was principally used for rummaking), steel, coal, etc. James Madison was the author of the original measure. The first decided opposition to the bill came from South Carolina in opposing the tax on tallow candles. The clashing of commercial interests brought forth angry debate. Both protection and free

trade marshaled their forces in the First Congress, and these forces have continued to be arrayed against each other through the century and a quarter of our history.

Madison's bill was the result of a memorial sent to Congress by the merchants and manufacturers of Baltimore. This address presented conditions in the following language:

"Since the close of the late war, and the completion of the Revolution, they have observed with serious regrets the manufacturing and trading interests of the country rapidly declining, and the attempts of the State legislatures to remedy the evil failing of their object; that, in the present melancholy state of our country, the number of poor increasing for want of employment, foreign debts accumulating, houses and lands depreciating in value, and trade and manufactures languishing and expiring, they look up to the Supreme Legislature of the United States as the guardian of the whole empire, and from their united wisdom and patriotism, and ardent love of their country, expect to derive that aid and assistance which alone can dissipate their just apprehensions, and animate them with hopes of success in the future, by imposing on all foreign articles, which can be made in America, such duties as will give a just and decided preference to their labors; discountenancing that trade which tends so materially to injure them and impoverish their country; meas

• Madison claimed to believe in the principle of free trade, but admitted the necessity of protection in time of war, and for the encouragement of infant industries.-See his Works, vol. iii., p.

42.

ures which, in their consequences, may also contribute to the discharge of the national debt and the due support of the Government.

This memorial clearly lays the premise for a protective tariff. Its defenders saw hope for the languishing and expiring manufactures in imposing duties on "all foreign articles which can be manufactured in this country." It is not clear what position Madison occupied as to protection. His measure was, doubtless, intended as a revenue measure only, but he refused to define his position on the subject. It developed that the manufacturing states of Massachusetts, New York, Pennsylvania, and Connecticut seized upon the principle of "protection for our infant industries" as the solution to their commercial difficulties. As selfinterest fostered the doctrine in the manufacturing states, so the same spirit caused violent opposition to it in the non-manufacturing states. No other question in our political history, except that of slavery, has been so completely influenced by physiographical conditions.

The opponents of the protective principle questioned the soundness of this kind of legislation on constitutional grounds, this argument being the basis of attack in 1789 and 1816, and more earnestly resorted to in the famous tariff debates of 1824. Not only Clay, the sponsor of the protective system, but Adams, Crawford, and Jackson were declared to be advocates of this American system.1 1 See Taussig's Tariff History of the United States, p. 74.