The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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TO JOSEPH C. CABELL. |
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 | The writings of James Madison, |  |
TO JOSEPH C. CABELL.
Dear Sir Your late letter reminds me of our
Conversation on the constitutionality of the power
in Congs. to impose a tariff for the encouragemt. 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, & had even begun
the task of fulfilling it; but frequent interruptions
from other causes, being followed by a bilious 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.[102]
The Constitution vests in Congress expressly "the
power to lay & collect taxes duties imposts & excises;"
and "the power to regulate trade"
That the former Power, if not particularly expressed,
one of the objects of a general power to regulate
trade, is not necessarily impugned, as has been
alledged, by its being so expressed. Examples of
are to be seen elsewhere in the Constitution. Thus
the power "to define & punish offences agst. the law
of Nations" includes the power, afterward particularly
&c., from offending Neutrals." So also, a
power "to coin money," would doubtless include
that of "regulating its value," had not the latter
standing alone, would certainly have included, duties,
imposts & excises. In another clause it is said, "no
tax or duty shall be laid on imports [exports]," &c.
in another clause where it is said, "no State shall
lay any imposts or duties" &c, the terms imposts
& duties are synonymous. Pleonasms, tautologies
in their shades of meaning, (always to be expounded
with reference to the context and under the controul
of the general character & manifest scope of
ascribed sometimes to the purpose of greater caution;
sometimes to the imperfections of language; & sometimes
to the imperfection of man himself. In this
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
could the "ex majori cautela" occur with more claim
to respect.
Nor can it be inferred, as has been ingeniously
attempted, that a power to regulate trade does not
involve a power to tax it, from the distinction made
in the original controversy with G. Britain, between
a power to regulate trade with the Colonies & a power
to 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
to be necessarily inherent in the Colonial Legislatures,
as sufficient & the only safe depositories of
the taxing 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 & 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
at least is certain, that the main & admitted object
of the Parliamentary regulations of trade with the
Colonies, was the encouragement of manufactures
in G. B.
But the present question is unconnected, with the
former relations between G. B. 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 U.
S. whether "the power to regulate trade with foreign
nations" as a distinct & substantive item in the
enumerated powers, embraces the object of encouraging
by duties restrictions and prohibitions the
manufactures & products of the Country? And the
affirmative must be inferred from the following
considerations:
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 Constn.The power has been understood and used by all
commercial & manufacturing Nations as embracing
the object of encouraging manufactures. It is believed
that not a single exception can be named.This has been particularly the case with G.
B., 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.Such was understood to be a proper use of the
power by the States most prepared for manufacturing
industry, while retaining the power over their
foreign trade. It was the aim of Virginia herself,
as will presently appear, tho' at the time among the
least prepared for such a use of her power to regulate
trade.Such a use of the power by Cong accords with
the intention and expectation of the States in transferring
the power over trade from themselves to the
Govt. of the U. S. This was emphatically the case
in the Eastern, the more manufacturing members
of the Confederacy. Hear the language held in the
Convention of Massts. p. 84, 86, 136.By Mr. Dawes an advocate for the Constitution,
it was observed: "our manufactures are another
great subject which has recd. no encouragement by
national Duties on foreign manufactures, and they
never can by any authority in the Old Confedn"
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 Congs. the
powers in question.By Mr. Widgery, an opponent, "All we hear is,
that the mercht. & farmer will flourish, & that the
mechanic & tradesman are to make their fortunes
directly, if the Constitution goes down.The Convention of Massts. was the only one in N.
Engd. whose debates have been preserved. But it
cannot be doubted that the sentiment there expressed
was common to the other States in that
330quarter, more especially to Connecticut & Rh Isld.,
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 N. Jersey, whose debates in
Convention have not been preserved. In the populous
and manufacturing State of Pa., a partial account
only of the debates having been published, nothing
certain is known of what 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 Pena., the only two in whose Conventions
the debates have been preserved are Virga &
N. Carola., 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 Govt. of the U. S.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 resulted
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
331in 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 U. S.; the profits from all which being
invisible & 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.If revenue be the sole object of a legitimate
impost, and the encouragt. of domestic articles be
not within the power of regulating trade it wd. 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 ensured or fostered at home by
regulations of commerce, the usual & most convenient
mode of providing for both; and that the
American navigation, tho the source of naval defence,
of a cheapening competition in carrying our
valuable & 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 merely in foreign
ports agst. 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, &
332the cultivation & 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 & conveniency
of the States, than might result from internal
& direct modes of encouraging the articles, any
of which modes would be authorized as far as deemed
"necessary & proper," by considering the Power as
an incidental Power.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
& 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 Virga. in particular, as well of the
antifederal 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, & to suggest even prohibitions, in favor of
333several articles of her production. 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. (See Lloyd's Debates.)
1.
2.
3.
4.
5.
6
7
8
A further evidence in support of the Cons, power
to protect & foster manufactures by regulations of
trade, an evidence that ought of itself to settle the
question, is the uniform & practical sanction given
to the power, by the Genl. Govt. for nearly 40 years
with a concurrence or acquiescence of every State
Govt. throughout the same period; and it may be
added thro 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
& 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 Govt. and in Laws which is essential to
good Govt. & good Laws; a stability, the want of
which is the imputation which has at all times been
levelled agst. Republicanism with most effect by its
most dexterous adversaries. The imputation ought
never therefore to be countenanced, 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
of the original evils & inconveniences, for
which remedies were needed, the very best keys to
the true object & meaning of all laws & constitutions.
And may it not be fairly left to the unbiased judgment
of all men of experience & 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, thro' 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 favourite
object; or carried away possibly by the powerful
eloquence, or captivating address of a few popular
Statesmen, themselves influenced, perhaps, 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 surprize, 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 Congs. 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 10 sect, of Art: I. of the Const;
Which says: ["No State shall, without the consent of
Congress, lay any imposts or duties on imports or exports,
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 expences incurred
by particular States in their inspection laws, and in
such improvements as they might chuse to make
in their Harbours & rivers with the sanction of Congr.,
objects to which the reserved power has been applied
in several instances, at the request of Virginia & of
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 nett proceeds going, according
to the clause, not into its own treasury, but into the
treasury of the U. S., 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 expence 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
power over Commerce was in the individual States,
& separate attempts were made to tax or otherwise
regulate it, needs 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 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 Constn. would be a tribute to the
U. S.; the State would be in a worse condition,
after the adoption of the Constitution, than before,
in relation 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 favour of State manufactures,
and the permitted attempts did not defeat
themselves, 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
the contemplated benefit.
Of the impracticability of separate regulations of
trade, & the resulting necessity of general regulations,
no State was more sensible than Virga.. 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 comercial 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 U.S., for preventing animosities
which cannot fail to arise among the several States
from the interference of partial & separate regulations;
and for deriving from comerce such aids to
the public revenue as it ought to contribute," &c.
During the delays & discouragts. experienced in the
attempts to invest Congs. with the necessary powers,
the State of Virga. made various trials of what could
be done by her individual laws. She ventured on
duties & imposts as a source of Revenue; Resolutions
were passed at one time to encourage & protect her
own navigation & ship-building; and in consequence
of complaints & petitions from Norfolk, Alexa. &
other places, agst. the monopolizing navigation laws
of G. B., particularly in the trade between the U. S.
& the British W. Indies, she deliberated with a
purpose controuled only by the inefficacy of separate
reciprocity by prohibitory regulations of her own.
(See Journal of Hs. of Delegates in 1785.)
The effect of her separate attempts to raise revenue
by duties on imports, soon appeared in Representations
from her Merchts., that the commerce of the
State was banished by them into other channels,
especially of Maryd., where imports were less burdened
than in Virginia. (See do. 1786.)
Such a tendency of separate regulations was indeed
too manifest to escape anticipation. Among the projects
prompted by the want of a federal authy. over
Comerce, was that of a concert, first proposed on
the part of Maryd. for a uniformity of regulations
between the 2 States, and comissioners were appointed
for that purpose. It was soon perceived however
that the concurrence of Pena. was as necessy.
to Maryd. as of Maryd. to Virga., and the concurrence
of Pennsylvania was accordingly invited. But Pa.
could no more concur witht. N. Y. than Md. witht.
Pa. nor N. Y. witht. 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 Convn at Pha in 1787, and the Consn.
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
taxes were of very different rates in the different
Provinces; particularly the tax on salt which was
high in the interior Provinces & 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 agst
smuggling, had swollen to the number of twenty
three thousand; the annual arrests of men women
& children engaged in smuggling, to five thousand
five hundred & fifty; and the number annually
arrested on account of Salt & 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 & 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 & 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
would, in providing for them, be limited to direct taxes
on land or other property, to arbitrary assessments
on invisible funds, & to the odious tax on persons.
You will observe that I have confined myself,
in what has been said to the constitutionality &
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 & duty it is, in that
as in all other cases, to bring their measures to the
test of justice & of the general good.
On Sept. 27 Cabell wrote Madison asking permission to print this
letter and on October 15 Madison replied that because of the all-absorbing
interest in the impending presidential election it must not be
printed until the election was over and the public mind should be in a
tranquil state.—Mad. MSS.
Madison wrote to Cabell again October 30:
"In my letter of September 18th, I stated briefly the grounds on
which I rested my opinion that a power to impose duties & 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
the 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.
"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
enterprize of individuals, than the U. 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 controuling the free exercise of it.
"With all these concessions, I think it can be satisfactorily shewn,
that there are exceptions to the general rule, now expressed by the
phrase 'Let us alone,' forming cases which call for interpositions
of the competent authority, and which are not inconsistent with the
generality of the rule.
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 ensured 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 U. States, the want
of a General Authority to regulate trade, is known to have had this
consequence. And have not the pretensions & policy latterly exhibited
by G. Britain, given warning of a like result from a renunciation
of all countervailing regulations, on the part of the U. States.
Were she permitted, by conferring on certain portions of her Domain
the name of Colonies, to open from these a trade for herself, to foreign
Countries, and to exclude, at the same time, a reciprocal trade to such
colonies by foreign Countries, the use to be made of the monopoly needs
not be traced. Its character will be placed in a just relief, by supposing
that one of the Colonial Islands, instead of its present distance,
happened to be in the vicinity of G. Britain, or that one of the Islands
in that vicinity, should receive the name & be regarded in the light of
a Colony, with the peculiar privileges claimed for colonies. Is it not
manifest, that in this case, the favored Island might be made the sole
medium of the commercial intercourse with foreign nations, and the
parent Country thence enjoy every essential advantage, as to the
terms of it, which would flow from an unreciprocal trade from her other
ports with other nations."Fortunately the British claims, however speciously coloured or
adroitly managed were repelled at the commencement of our comercial
career as an Independent people; and at successive epochs under
the existing Constitution, both in legislative discussions and in diplomatic
negotiations. The claims were repelled on the solid ground,
that the Colonial trade as a rightful monopoly, was limited to the intercourse
between the parent Country & its Colonies, and between one
Colony and another; the whole being, strictly in the nature of a coasting
trade from one to another port of the same nation; a trade with which
no other nation has a right to interfere. It follows of necessity, that
the Parent Country, whenever it opens a Colonial port for a direct trade
to a foreign Country, departs itself from the principle of Colonial
Monopoly, and entitles the foreign Country to the same reciprocity
in every respect, as in its intercourse with any other ports of the nation."This is common sense, and common right. It is still more, if more
could be required; it is in conformity with the established usage of
all nations, other than Great Britain, which have Colonies; notwithstanding
British representations to the contrary. Some of those
Nations are known to adhere to the monopoly of their Colonial trade,
with all the rigor & constancy which circumstances permit. But it is
also known, that whenever, and from whatever cause, it has been
found necessary or expedient, to open their Colonial ports to a foreign
trade, the rule of reciprocity in favour of the foreign party was not
refused, nor, as is believed, a right to refuse it ever pretended."It cannot be said that the reciprocity was dictated by a deficiency
of the commercial marine. France, at least could not be, in every
instance, governed by that consideration; and Holland still less; to
say nothing of the navigating States of Sweden and Denmark, which
have rarely if ever, enforced a colonial monopoly. The remark is
indeed obvious, that the shipping liberated from the usual conveyance
of supplies from the parent Country to the Colonies, might be employed
in the new channels opened for them in supplies from abroad."Reciprocity, or an equivalent for it, is the only rule of intercourse
among Independent communities; and no nation ought to admit a
doctrine, or adopt an invariable policy, which would preclude the
counteracting measures necessary to enforce the rule.The Theory supposes moreover a perpetual peace, not less chimerical,
it is to be "feared, than a universal freedom of commerce."The effect of war among the commercial and manufacturing nations
of the World, in raising the wages of labour and the cost of its products,
with a like effect on the charges of freight and insurance, needs neither
proof nor explanation. In order to determine, therefore, a question of
economy between depending on foreign supplies, and encouraging
domestic substitutes, it is necessary to compare the probable periods
of war, with the probable periods of peace; and the cost of the domestic
encouragement in times of peace, with the cost added to foreign
articles in times of War."During the last century the periods of war and peace have been
nearly equal. The effect of a state of war in raising the price of imported
articles, cannot be estimated with exactness. It is certain,
however, that the increased price of particular articles, may make it
cheaper to manufacture them at home."Taking, for the sake of illustration, an equality in the two periods,
and the cost of an imported yard of cloth in time of war to be 9 1/2 dollars,
and in time of peace to be 7 dollars, whilst the same could, at all times,
be manufactured at home, for 8 dollars; it is evident that a tariff of
1 1/4 dollar on the imported yard, would protect the home manufacture
in time of peace, and avoid a tax of 1 1/2 dollars imposed by a state of war."It cannot be said that the manufactories, which could not support
themselves in periods of peace, would, spring up of themselves at the
recurrence of war prices. It must be obvious to every one, that, apart
from the difficulty of great & sudden changes of employment, no prudent
capitalists would engage in expensive establishments of any sort,
at the commencement of a war of uncertain duration, with a certainty
of having them crushed by the return of peace."The strictest economy, therefore, suggests, as exceptions to the
general rule, an estimate, in every given case, of war & peace periods
and prices, with inferences therefrom, of the amount of a tariff which
might be afforded during peace, in order to avoid the tax resulting
from war. And it will occur at once, that the inferences will be
strengthened, by adding to the supposition of wars wholly foreign,
that of wars in which our own country might be a party.[103]It is an opinion in which all must agree, that no nation ought
to be unnecessarily dependent on others for the munitions of public
defence, or for the materials essential to a naval force, where the nation
has a maritime frontier or a foreign commerce to protect. To this
class of exceptions to the theory may be added the instruments of
agriculture and of mechanic arts, which supply the other primary
wants of the community. The time has been when many of these
were derived from a foreign source, and some of them might relapse
into that dependence were the encouragement to the fabrication of
them at home withdrawn. But, as all foreign sources must be liable
to interruptions too inconvenient to be hazarded, a provident policy
would favour an internal and independent source as a reasonable
exception to the general rule of consulting cheapness alone.There are cases where a nation may be so far advanced in the
pre-requisites for a particular branch of manufactures, that this, if
once brought into existence, would support itself; and yet, unless aided
in its nascent and infant state by public encouragement and a confidence
in public protection, might remain, if not altogether, for a long time
unattempted, or attempted without success. Is not our cotton manufacture
a fair example ? However favoured by an advantageous command
of the raw material, and a machinery which dispenses in so
extraordinary a proportion with manual labour, it is quite probable
that, without the impulse given by a war cutting off foreign supplies
and the patronage of an early tariff, it might not even yet have established
itself; and pretty certain that it would be far short of the
prosperous condition which enables it to face, in foreign markets, the
fabrics of a nation that defies all other competitors. The number
must be small that would now pronounce this manufacturing boon
not to have been cheaply purchased by the tariff which nursed it into
its present maturity.Should it happen, as has been suspected, to be an object, though
not of a foreign Government itself, of its great manufacturing capitalists,
to strangle in the cradle the infant manufactures of an extensive
customer or an anticipated rival, it would surely, in such a case,
be incumbent on the suffering party so far to make an exception to the
'let alone' policy as to parry the evil by opposite regulations of its
foreign commerce.It is a common objection to the public encouragement of particular
branches of industry, that it calls off labourers from other
branches found to be more profitable; and the objection is, in general,
a weighty one. But it loses that character in proportion to the effect
of the encouragement in attracting skilful labourers from abroad.
Something of this sort has already taken place among ourselves, and
much more of it is in prospect; and as far as it has taken or may take
place, it forms an exception to the general policy in question."The history of manufactures in Great Britain, the greatest manufacturing
nation in the world, informs us, that the woollen branch, till of
late her greatest branch, owed both its original and subsequent growths
to persecuted exiles from the Netherlands; and that her silk manufactures,
now a flourishing and favourite 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 emigrations 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
Canadian 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."
"1.
"2.
"3.
"4.
"5.
"6.
Notes.
"It does not appear that any of the strictures on the letters from J.
Madison to J. C. Cabell have in the least invalidated the constitutionality
of the power in Congress to favour domestic manufactures
by regulating the commerce with foreign nations.
That this regulating power embraces the object remains fully
sustained by the uncontested fact that it has been so understood and
exercised by all commercial and manufacturing nations, particularly
by Great Britain; nor is it any objection to the inference from it, that
those nations, unlike the Congress of the United States, had all other
powers of legislation as well as the power of regulating foreign commerce,
since this was the particular and appropriate power by which
the encouragement of manufactures was effected.It is equally a fact that it was generally understood among the
States previous to the establishment of the present Constitution of the
United States, that the encouragement of domestic manufactures by
regulations of foreign commerce, particularly by duties and restrictions
on foreign manufactures, was a legitimate and ordinary exercise
of the power over foreign commerce; and that, in transferring this
power to the Legislature of the United States, it was anticipated that
it would be exercised more effectually than it could be by the States
individually. [See Lloyd's Debates and other publications of the
period.]"It cannot be denied that a right to vindicate its commercial, manufacturing,
and agricultural interests against unfriendly and unreciprocal
policy of other nations, belongs to every nation; that it has belonged
at all times to the United States as a nation; that, previous to the
present Federal Constitution, the right existed in the governments of
the individual States, not in the Federal Government; that the want
of such an authority in the Federal Government was deeply felt and
deplored; that a supply of this want was generally and anxiously desired;
and that the authority has, by the substituted Constitution of the
Federal Government, been expressly or virtually taken from the individual
States; so that, if not transferred to the existing Federal Government
it is lost and annihilated for the United States as a nation. Is
not the presumption irresistible, that it must have been the intention of
those who framed and ratified the Constitution, to vest the authority
in question in the substituted Government? and does not every just
rule of reasoning allow to a presumption so violent a proportional
weight in deciding on a question of such a power in Congress, not as a
source of power distinct from and additional to the constitutional
source, but as a source of light and evidence as to the true meaning of
the Constitution?It is again a fact, that the power was so exercised by the first
session of the first Congress, and by every succeeding Congress, with
the sanction of every other branch of the Federal Government, and
with universal acquiescence, till a very late date. [See the Messages
of the Presidents and the Reports and Letters of Mr. Jefferson.]That the surest and most recognized evidence of the meaning
of the Constitution, as of a law, is furnished by the evils which were
to be cured or the benefits to be obtained; and by the immediate and
long-continued application of the meaning to these ends. This species
of evidence supports the power in question in a degree which cannot
be resisted without destroying all stability in social institutions, and
all the advantages of known and certain rules of conduct in the intercourse
of life.Although it might be too much to say that no case could arise
of a character overruling the highest evidence of precedents and practice
in expounding a constitution, it may be safely affirmed that no
case which is not of a character far more exorbitant and ruinous than
any now existing or that has occurred, can authorize a disregard
of the precedents and practice which sanction the constitutional power
of Congress to encourage domestic manufactures by regulations of
foreign commerce."The importance of the question concerning the authority of precedents,
in expounding a constitution as well as a law, will justify a more
full and exact view of it."It has been objected to the encouragement of domestic manufactures
by a tariff on imported ones, that duties and imposts are in the clause
specifying the sources of revenue, and therefore cannot be applied
to the encouragement of manufactures when not a source of revenue."But, 1. It does not follow from the applicability of duties and
imposts under one clause for one usual purpose, that they are excluded
from art applicability under another clause to another purpose, also
requiring them, and to which they have also been usually applied.
"2. A history of that clause, as traced in the printed journal of the
Federal Convention, will throw light on the subject."It appears that the clause, as it originally stood, simply expressed
'a power to lay taxes, duties, imposts, and excises,' without pointing
out the objects; and, of course, leaving them applicable in carrying
into effect the other specified powers. It appears, farther, that a
solicitude to prevent any constructive danger to the validity of public
debts contracted under the superseded form of government, led to the
addition of the words 'to pay the debts.'"This phraseology having the appearance of an appropriation limited
to the payment of debts, an express appropriation was added 'for the
expenses of the Government,' &c."But even this was considered as short of the objects for which taxes,
duties, imposts, and excises might be required; and the more comprehensive
provision, was made by substituting 'for expenses of Government'
the terms of the old Confederation, viz.: and provide for the
common defence and general welfare, making duties and imposts, as
well as taxes and excises, applicable not only to payment of debts,
but to the common defence and general welfare."The question then is, What is the import of that phrase, common
defence and general welfare, in its actual connexion? The import
which Virginia has always asserted, and still contends for, is, that they
are explained and limited to the enumerated objects subjoined to them,
among which objects is the regulation of foreign commerce; as far,
therefore, as a tariff of duties is necessary and proper in regulating
foreign commerce for any of the usual purposes of such regulations, it
may be imposed by Congress, and, consequently, for the purpose of
encouraging manufactures, which is a well-known purpose for which
duties and imposts have been usually employed. This view of the
clause providing for revenue, instead of interfering with or excluding
the power of regulating foreign trade, corroborates the rightful exercise
of power for the encouragement of domestic manufactures.It may be thought that the Constitution might easily have been
made more explicit and precise in its meaning. But the same remark
might be made on so many other parts of the instrument, and, indeed,
on so many parts of every instrument of a complex character, that,
if completely obviated, it would swell every paragraph into a page
and every page into a volume; and, in so doing, have the effect of
multiplying topics for criticism and controversy.The best reason to be assigned, in this case, for not having made
the Constitution more free from a charge of uncertainty in its meaning,
is believed to be, that it was not suspected that any such charge would
ever take place; and it appears that no such charge did take place,
during the early period of the Constitution, when the meaning of its
authors could be best ascertained, nor until many of the contemporary
lights had in the lapse of time been extinguished. How often does it
happen, that a notoriety of intention diminishes the caution against
its being misunderstood or doubted! What would be the effect of the
Declaration of Independence, or of the Virginia Bill of Rights, if not
expounded with a reference to that view of their meaning?"Those who assert that the encouragement of manufactures is not
within the scope of the power to regulate, foreign commerce, and that
a tariff is exclusively appropriated to revenue, feel the difficulty of
finding authority for objects which they cannot admit to be unprovided
for by the Constitution; such as ensuring internal supplies of necessary
articles of defence, the countervailing of regulations of foreign countries,
&c., unjust and injurious to our navigation or to our agricultural
products. To bring these objects within the constitutional power of
Congress, they are obliged to give to the power "to regulate foreign
commerce" an extent that at the same time necessarily embraces the
encouragement of manufactures; and how, indeed, is it possible to
suppose that a tariff is applicable to the extorting from foreign Powers
of a reciprocity of privileges and not applicable to the encouragement
of manufactures, an object to which it has been far more frequently
applied?"He wrote again December 5:
"Has not the passage in Mr. Jefferson's letter to Mr. Giles, to which
you allude, denouncing the assumptions of power by the General
Government, been in some respects misunderstood? 'They assume,'
he says, 'indefinitely that also over Agriculture and Manufactures.'
It would seem that writing confidentially, & probably in haste, he did
not discriminate with the care he otherwise might have done, between
an assumption of power and an abuse of power; relying on the term
'indefinitely' to indicate an excess of the latter, and to imply an admission
of a definite or reasonable use of the power to regulate trade
for the encouragement of manufacturing and agricultural products.
This view of the subject is recommended by its avoiding a variance
with Mr. Jefferson's known sanctions, in official acts & private correspondence,
to a power in Congress to encourage manufactures by
comercial regulations. It is not easy to believe that he could have
intended to reject altogether such a power. It is evident from the context
that his language was influenced by the great injustice, impressed
on his mind, of a measure charged with the effect of taking the earnings
of one, & that the most suffering class, & putting them into the pockets
of another, & that the most flourishing class. Had Congress so regulated
an impost for revenue merely, as in the view of Mr. Jefferson to
oppress one section of the Union & favor another, it may be presumed
that the language used by him, would have been not less indignant,
tho the Tariff, in that case, could not be otherwise complained of, than
as an abuse, not as a usurpation of power; or, at most, as an abuse
violating the spirit of the Constitution, as every unjust measure must
that of every Constitution, having justice for a cardinal object. No
Constitution could be lasting without an habitual distinction between
an abuse of legitimate power, and the exercise of a usurped one. It
is quite possible that there might be a latent reference in the mind of
Mr. Jefferson to the reports of Mr. Hamilton & Executive recommendations,
to Congress favorable to indefinite power over both Agriculture
and Manufactures. He might have seen also the report of a Committee
of a late Congress presented by Mr. Steward, of Pennsylvania,
which in supporting the cause of internal improvement, took the broad
ground of 'General Welfare,' (including, of course, every internal as
well as external power,) without incurring any positive mark of disapprobation
from Congress."—Mad. MSS.
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"2.
"3.
"4.
"5.
| The writings of James Madison, | |