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Number 3.- p. 258.
Mr. Madison to Mr. Cabell.
Montpelier, Sept. 18, 1828. DEAR SIR:
-Your late letter reminds me of our conversation on the constitutionality of the power in congress to impose a tariff for the encouragement of manufactures ; and of my promise to sketch the grounds of the confident opinion I had expressed, that it was among the powers vested in that body. I had not forgotten my promise, and had even begun the task of fulfilling it; but frequent interruption from other causes, being followed by billious indisposition, I have not been able sooner to comply with your request. The subjoined view of the subject might have been advantageously expanded, but I leave that improvement to your own reflections and researches.
The constitution vests in congress, expressly, “the power to lay and collect taxes, duties, imposts, and excises ;” and “the power to regulate trade.”
That the former power, if not particularly expressed, would have been included in the latter as one of the objects of a general power to regulate trade, is not necessarily impugned by its being so expressed. Examples of this sort cannot sometimes be easily avoided, and are to be seen elsewhere in the constitution. Thus the power to define and punish offences against the law of nations,” includes the power, afterwards particularly expressed,
to make rules concerning captures, &c. from offending neutrals.” So also a power “to coin money” would doubtless include that of “regulating its value," had not the latter power been expressly inserted. The term taxes, if standing alone, would certainly have included duties, imposts, and excises. In another clause it is said, “no tax or duties shall be laid on exports, &c." Here the two terms are used as synonymons. And in another clause, where it is said, no state shall lay any imposts or duties, &c," the terms imposts and duties are synonymous. Pleonasms, tautologies, and the promiscuous use of terins and phrases, differing in their shads of meaning, (always to be expounded with reference to the context, and under the control of the general character and manifest scope of the instrument in which they are found), are to be ascribed, sometimes to the purpose of greater caution—sometimes to the imperfections of language, and sometimes to the imperfection of mau himself. In this view of the subject, it was quite natural, however certainly the general power to regulate trade might include a power to impose duties on it, not to omit it in a clause enumerating the several modes of revenue authorized by the constitution. In a few cases could the ex majori cautela” occur with more claim to respect.
Nor can it be inferred, that a power to regulate trade does not involve a power to tax it, from a distinction made in the original controversy with Great Britain, between a power to regulate trade with the colonies, and a power tax them. A power to regulate trade between different parts of the empire, was confessedly necessary; and was admitted to lie, as far as that was the case, in the British parliament; the taxing part being at the same time denied to the parliament, and asserted to be necessarily inherent
in the colonial legislatures, as sufficient, and the only safe depositories of the power. So difficult was it, nevertheless, to maintain the distinction in practice, that the ingredient of revenue was occasionally overlooked or disregarded in the British regulations, as in the duty on sugar and molasses imported into the colonies. And it was fortunate that the attempt at an internal and direct tax, in the case of the stamp act, produced a radical examination of the subject before a regulation of trade with a view to revenue had grown into an established authority. One thing at least is certain, that the main and admitted object of the parliamentary regulations of trade with the colonies, was the encouragement of manufactures in Great Britain.
But the present question is unconnected with the former relation between Great Britain and her colonies, which were of a peculiar, a complicated, and, in several respects, of an undefined character. It is a simple question under the constitution of the United States, whether “the power to regulate trade with foreign nations" as distinct and substantive item in the enumerated powers, embraces the object of encouraging by duties, restrictions and prohibitions, the manufactures and products of the country? And the affirmative must be inferred from the following considerations :
1. The meaning of the phrase "to regulate trade,” must be sought in the general use of it; in other words, in the objects to which the power was generally understood to be applicable, when the phrase was inserted in the constitution.
2. The power has been understood and used by all commercial and manufacturing nations, as embracing the objects of encouraging manufactures. It is believed that not a single exception can be named.
3. This has been particularly the case with Great Britain, whose commercial vocabulary is the parent of ours. A primary object of her commercial regulations is well known to have been the protection and encouragement of her manufactures.
4. Such was understood to be a proper use of the power by the states most prepared for manufacturing industry, whilst retaining the power over their foreign trade.
5. Such a use of the power, by congress, accords with the intention and expectation of the states, in transferring the power over trade from themselves to the government of the United States. This was emphatically the case in the eastern, the more manufacturing members of the confederacy. Hear the language in the convention of Massachusetts.
By M. Dawes, an advocate for the constitution, it was observed, “our manufactures are another great subject which has received no encouragement by national duties of foreign manufactures, and they never can by any authority in the old confederation.” Again, “ if we wish to encourage our own manufactures, to preserve our own commerce, to raise the value of our own lands, we must give congress the power in question.”
By Mr. Widgery, an opponent: "all we hear is, that the merchant and farmer will flourish, and that the mechanic and tradesman are to make their fortunes directly, if the constitution goes down." The convention of Massachusetts was the only one in New England whose
debates have been preserved. But it cannot be doubted that the sentiment there expressed was common to the other states in that quarter, more especially to Connecticut and Rhode Island, the most thickly peopled of all the states, and having of course their thoughts most turned to the subject of manufactures. A like inference may be confidently applied to New Jersey, whose debates in convention have not been preserved. In the populous and manufacturing state of Pennsylvania, a partial account only of the debates having been published, nothing certain is known of what had passed in her convention on this point. But ample evidence may be found elsewhere, that regulations of trade, for the encouragement of manufactures, were considered as within the power to be granted to the new congress, as well as within the scope of the national policy. Of the states south of Pennsylvania, the only two in whose conventions the debates have been preserved are Virginia and North Carolina, and from these no adverse inferences can be drawn. Nor is there the slightest indication that either of the two states farthest south, whose debates in convention, if preserved, have not been made public, viewed the encouragement of manufactures, as not within the general power over trade to be transferred to the government of the United States.
6. If congress have not the power, it is annihilated for the nation ; a policy without example in any other nation, and not within the reason of the solitary one in our own. The example alluded to, is the prohibition of a tax on exports, which resulting from the apparent impossibility of raising, in that mode, a revenue from the states proportioned to the ability to pay it-the ability of some 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 consumer 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 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 wbich 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 of 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 snggest even prohibitions in favor of several articles of her production. By one a duty was proposed on mineral coal, in favor of 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.
[See Lloyd's debates.] A further evidence in support of the constitutional power to protect and foster manufactures by regulations of trade, an evidence that ought, of itself, to settle the question, is the uniform and practical sanction given to the power, 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 laws, a 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 countenanceil by innovating constructions without any plea of a precipitancy or a paucity of the constructive precedents they oppose, without any appeal to material facts newly brought to light; and 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 address of a few popular statesmen, ihemselves, 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 highly respectable 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 tenth section of article first of the constitution, which
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 sliall be subject to the revision and control of the congress."
To say nothing on 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 wish
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 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 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