University of Virginia Library

TO REYNOLDS CHAPMAN.

Dear Sir,—I have recd yours, enclosing the manuscript
of J. M. Patton, on the subject of which it is intimated that my
opinion would be acceptable.

The paper affords sufficient indication of the talents ascribed
to the author. Of his honourable principles I believe no one
doubts. And with these qualifications for serving his country,
it may be well for it that he is making its Institutions & interests
objects of systematic attention. It is with pleasure,
therefore, that I comply, however imperfectly, with the
request in your letter, regretting only that the compliance is
so imperfect, and that it may less accord in some respects
with the ideas of [Mr. Patton] than might be agreeable to both
of us. I am persuaded, nevertheless, that his candor will be
equal to my frankness.

For my opinion on a Tariff for the encouragement of domestic

manufactures I may refer to my letters to Mr. Cabell in 1828,
which will show the ground on which I maintained its constitutionality.
It avoids the question quo animo? in using an
impost for another purpose than revenue; a question which,
tho' not in such a case within a judicial purview, would be
asked & pressed in discussions appealing to public opinion.

If a duty can be constitutionally laid on imports, not for the
purpose of revenue, which may be reduced or destroyed by the
duty, but as a means of retaliating the commercial regulations
of foreign countries, which regulations have for their object,
sometimes their sole object, the encouragemt. of their manufactures,
it would seem strange to infer that an impost for the
encouragement of domestic manufactures was unconstitutional
because it was not for the purpose of revenue, and the
more strange, as an impost for the protection & encouragemt.
of national manufactures is of much more general & familiar
practice than as a retaliation of the injustice of foreign
regulations of commerce. It deserves consideration whether
there be not other cases in which an impost not for revenue
must be admitted, or necessary interests be provided for by a
more strained construction of the specified powers of Congress,

With respect to the existing tariff, however justly it may be
complained of in several respects, I cannot but view the evils
charged on it as greatly exaggerated. One cause of the excitement
is an impression with many, that the whole amount
paid by the consumers goes into the pockets of the manufacturers;
whilst that is the case so far only as the articles are actually
manufactured in the country, which in some instances is
in a very inconsiderable proportion; the residue of the amount
passing like other taxes into the Public Treasury, and to be

replaced if withdrawn by other taxes. The other cause is the
unequal operation of the tax resulting from an unequal consumption
of the article paying it in different sections; and in
some instances, this is doubtless a striking effect of the existing
tariff. But, to make a fair estimate of the evil, it must be inquired
how far the sections, overburdened in some instances,
may not be underburdened in others, so as to diminish if not
remove the inequality. Unless a tariff be a compound one, it
cannot, in such a country as this, be made equal either between
different sections or among different classes of citizens;
and as far as a compound tariff can be made to approach
equality, it must be by such modifications as will balance
inequalities against each other. The consumption of coarse
woollens used by the negroes in the South may be greater than
in the North, and the tariff on them be disproportionately
felt in that section. Before the change in the duties on tea
coffee & molasses, the greater consumption elsewhere of these
articles, and of the article of sugar, from habit, and a population
without slaves, might have gone far towards equalizing
the burden; possibly have exceeded that effect.

Be this as it may, I cannot but believe, whatever well-founded
complaints may be agst. the tariff, that, as a cause of
the general sufferings of the country, it has been vastly
overrated; that if wholly repealed, the limited relief would
be a matter of surprize; and that if the portion only having
not revenue, but manufactures for its object, were struck off,
the general relief would be little felt.

In looking for the great and radical causes of the pervading
embarrassments, they present themselves at once 1. in the
fall almost to prostration in the price of land, evidently the
effect of the quantity of cheap Western land in the market.
2. in the depreciating effect on the products of land, from the
increased products resulting from the rapid increase of population,
and the transfer of labour from a less productive to a
more productive soil, not in effect more distant from the common
markets.

It is not wonderful that the price of Tobo. should fall when
the export thro' N. Orleans has for the last three years added
an annual average of near thirty thousand Hhds. to the
export of the old Tobo. States, or that the price of cotton
should have felt a like effect from like causes. It has been admitted
by the "Southern Review" that the fall of cotton occurred
prior even to the tariff of 1824. The prices of both
Tobo. & flour have had a greater fall than that of cotton.

To this solution of the problem of the depressed condition of
the country may be added the fact not peculiar to Virginia
that the fall in the prices of land & its products found the
people much in debt, occasioned by the tempting liberality of
the banks and the flattering anticipations of crops and prices.

It may not be out of place to observe, that in deciding the
general question of a protective policy, the public opinion is in
danger of being unduly influenced by the actual state of things,
as it may happen to be a period of war or of peace. In the
former case, the departure from the "Let alone" theory may be
pressed too far. In the latter, the fair exceptions to it may be
too much disregarded. The remark will be verified by comparing
the public opinion on the subject, during the late war
and at the close of it, with the change produced by the subsequent
period of peace. It cannot be doubted, that on the
return of a state of war, even should the U. S. not be a party,
the reasonings agst. the protection of certain domestic manufactures
would lose much of the public favour; perhaps too
much, considering the increased ability of the U. S. to protect
their foreign commerce; which would greatly diminish the
risks & expence of transportation, though not the war prices
in the manufacturing countries.

For my general opinion on the question of Internal Improvements,
I may refer to the veto message agst. the "Bonus Bill,"
at the close of the session of Congs. in March 1817.[129] The
message denies the constitutionality as well of the appropriating
as of the Executing and Jurisdictional branches of

the power. And my opinion remains the same, subject, as
heretofore, to the exception of particular cases, where a reading
of the Constitution, different from mine may have derived
from a continued course of practical sanctions an authority
sufficient to overrule individual constructions.

It is not to be wondered that doubts & difficulties should
occur in expounding the Constitution of the U. States.
Hitherto the aim, in well-organized Governments, has been to
discriminate & distribute the Legislative, Executive, and
Judiciary powers; and these sometimes touch so closely or
rather run the one so much into the other, as to make the task
difficult, and leave the lines of division obscure. A settled
practice, enlightened by occurring cases, and obviously conformable
to the public good, can alone remove the obscurity.
The case is parallel in new statutes on complex subjects.

In the Constitution of the U. S. where each of these powers
is divided, and portions alloted to different Governments, and
where a language technically appropriate may be deficient,
the wonder wd. be far greater if different rules of exposition
were not applied to the text by different commentators.

Thus it is found that in the case of the Legislative department
particularly, where a division & definition of the powers
according to their specific objects is most difficult, the Instrument
is read by some as if it were a Constitution for a single
Govt. with powers co-extensive with the general welfare,
and by others interpreted as if it were an ordinary statute, and
with the strictness almost of a penal one.

Between these adverse constructions an intermediate course
must be the true one, and it is hoped that it will finally if not
otherwise settled be prescribed by an amendment of the Constitution.
In no case is a satisfactory one more desirable than
in that of internal improvements, embracing Roads, Canals,
Light Houses, Harbours, Rivers, and other lesser objects.

With respect to Post Roads, the general view taken of them
in the manuscript, shows a way of thinking on the subject with
which mine substantially accords. Roads, when plainly, necessary

for the march of troops and for military transportations,
must speak for themselves, as occasions arise.

Canals as an Item in the general improvement of the Country
have always appeared to me not to be embraced by the
authority of Congs. It may be remarked that Mr. Hamilton,
in his Report on the Bank, when enlarging the range of construction
to the utmost of his ingenuity, admitted that Canals
were beyond the sphere of Federal Legislation.

Light Houses having a close and obvious relation to navigation
and external commerce, and to the safety of public as
well as private ships, and having recd. a positive sanction and
general acquiescence from the commencement of the Federal
Government, the constitutionality of them is I presume not
now to be shaken if it were ever much contested. It seems,
however, that the power is liable to great abuse, and to call
for the most careful & responsible scrutiny into every particular
case before an application be complied with.

Harbours, within the above character, seem to have a like
claim on the Federal authority. But what an interval between
such a Harbour as that of N. York or N. Orleans and the
mouth of a creek forming an outlet for the trade of a single
State or part of a State into a navigable stream; and the principle
of which would authorize the improvement of every
road leading out of the State towards a destined market.

What again the interval between clearing of its sawyers &c.
the Mississippi the commercial highway for half the nation,
and removing obstructions by which the navigation of an
inconsiderable stream may be extended a few miles only within
a single State.

The navigation of the Mississippi is so important in a national
view, so essentially belongs to the foreign commerce of many
States, and the task of freeing it from obstructions is so much
beyond the means of a single State, and beyond a feasible concert
of all who are interested in it, that claims on the authority
and resources of the nation will continue to be, as they have
been irresistible. Those who regard it as a case not brought

by these features within the legitimate powers of Congress,
must of course oppose the claim, and with it every inferior
claim. Those who admit the power as applicable to a case
of that description, but disown it in every case not marked
by adequate peculiarities, must find, as they can, a line
separating this admissible class from the others; a necessity
but too often to be encountered in a legislative career.

Perhaps I ought not to omit the remark that altho' I concur
in the defect of powers in Congress on the subject of internal
improvements, my abstract opinion has been that in the case
of Canals particularly, the power would have been properly
vested in Congress. It was more than once proposed in the
Convention of 1787, & rejected from an apprehension, chiefly
that it might prove an obstacle to the adoption of the Constitution.
Such an addition to the Federal powers was thought to
be strongly recommended by several considerations. 1. As
Congress would possess, exclusively, the sources of Revenue
most productive and least unpopular, that body ought to provide
& apply the means for the greatest & most costly works.
2. There would be cases where Canals would be highly important
in a national view, and not so in a local view. 3.
Cases where, tho' highly important in a national view, they
might violate the interest real or supposed of the State
through which they would pass; of which an example might
now be cited in the Chesapeake & Delaware canal, known to
have been viewed in an unfavourable light by the State of
Delaware. 4. There might be cases where Canals, or a chain
of Canals, would pass through sundry States, and create a
channel and outlet for their foreign commerce, forming at the
same time a ligament for the Union, and extending the profitable
intercourse of its members, and yet be of hopeless attainment
if left to the limited faculties and joint exertions of the
States possessing the authority.

It cannot be denied, that the abuse to which the exercise of
the power in question has appeared to be liable in the hands of
Congress, is a heavy weight in the scale opposed to it. But

may not the evil have grown, in a great degree, out of a
casual redundancy of revenue, and a temporary apathy to
a burden bearing indirectly on the people, and mingled,
moreover, with the discharge of debts of peculiar sanctity.
It might not happen, under ordinary circumstances, that
taxes even of the most disguised kind, would escape a wakeful
controul on the imposition & application of them. The
late reduction of duties on certain imports and the calculated
approach of an extinguishment of the public debt, have
evidently turned the popular attention to the subject of
taxes, in a degree quite new; and it is more likely to increase
than to relax. In the event of an amendment of the Constitution,
guards might be devised against a misuse of the
power without defeating an important exercise of it. If
I err or am too sanguine in the views I indulge it must be
ascribed to my conviction that canals, railroads, and turnpikes
are at once the criteria of a wise policy and causes
of national prosperity; that the want of them will be a reproach
to our Republican system, if excluding them, and
that the exclusion, to a mortifying extent will ensue if the
power be not lodged where alone it can have its due effect.

Be assured of my great esteem & accept my cordial salutations.