TO JOSEPH C. CABELL.
MAD. MSS.
Montpellier, Mar. 22d, 1827
My Dear Sir, ... I had noticed the loss of the proposed
amendment to the Resolution on the subject of the Tariff, and
the shaft levelled at yourself. Intemperance in politics is bad
enou'; Intolerance has no excuse. The extreme to which the
Resolution goes in declaring the protecting duty as it is called
unconstitutional is deeply to be regretted.[94]
It is a ground
which cannot be maintained, on which the State will probably
stand alone, and which by lessening the confidence of other
States in the wisdom of its Councils, must impede the progress
of its sounder doctrines. In compliance with your request
I offer a few hasty remarks on topics and sources of information
which occur to me.
1.
- The meaning of the Power to regulate commerce is to be
sought in the general use of the phrase, in other words, in the
objects generally understood to be embraced by the power,
when it was inserted in the Constitution.
2.
- The power has been applied in the form of a tariff, to
the encouraging of particular domestic occupations by every
existing Commercial Nation.
3.
- It has been so used & applied particularly & systematically
by G. Britain whose commercial vocabulary is the
Parent of ours.
4.
- The inefficacy of the power in relation to manufactures
as well as to other objects, when exercised by the States
separately, was among the arguments & inducements for
revising the Old Confederation, and transferring the power
from the States to the Govt. of the U. S. Nor can it be supposed
that the States actually engaged in certain branches
of Manufactures, and foreseeing an increase of them, would
have surrendered the whole power [over] commerce to the
General Govt. unless expected to be more effectual for that as
well as other purposes, in that depositary, than in their
own hands. Nor can it be supposed that any of the States,
meant to annihilate such a power, and thereby disarm the
Nation from protecting occupations & establishments, important
to its defence & independence, agst. the subversive
policy of foreign Rivals or Enemies. To say that the States
may respectively encourage their own manufactures, and may
therefore have looked to that resource when the Constitution
was formed, is by no means satisfactory. They could not
protect them by an impost, if the power of collecting one had
been reserved, a partial one having been found impracticable;
so, also as to a prohibitory regulation. Nor can they do it
by an excise on foreign articles, for the same reason, the trade
being necessarily open with other States which might concur
in the plan. They could only do it by a bounty, and
that bounty procured by a direct tax, a tax unpopular for any
purpose, and obviously inadmissible for that. Such a state
of things could never have been in contemplation when the
Constitution was formed.
5.
- The Printed Journal of the Convention of 1787 will
probably shew positively or negatively that the Commercial
power given to Congress embraced the object in question.
6.
- The proceedings of the State Conventions may also
deserve attention.
7.
- The proceedings & debates of the first Congress under
the present Constitution, will shew that the power was generally,
perhaps universally, regarded as indisputable.
8.
- Throughout the succeeding Congresses, till a very late
date, the power over commerce has been exercised or admitted,
so as to bear on internal objects of utility or policy,
without a reference to revenue. The University of Virginia
very lately had the benefit of it in a case where revenue was
relinquished; a case not questioned, if liable to be so. The
Virginia Resolutions, as they have been called, which were
proposed in Congress in 1793–4, and approved throughout the
State, may perhaps furnish examples.
9.
- Every President from Genl. W. to Mr. J. Q. Adams inclusive
has recognised the power of a tariff in favor of Manufactures,
without indicating a doubt, or that a doubt existed
anywhere.
10.
- Virginia appears to be the only State that now denies,
or ever did deny the power; nor are there perhaps more than a
very few individuals, if a single one, in the State who will not
admit the power in favor of internal fabrics or productions
necessary for public defence on the water or the land. To
bring the protecting duty in those cases, within the war power
would require a greater latitude of construction, than to refer
them to the power of regulating trade.
11.
- A construction of the Constitution practised upon
or acknowledged for a period, of nearly forty years, has received
a national sanction not to be reversed, but by an evidence
at least equivalent to the National will. If every new
Congress were to disregard a meaning of the instrument
uniformly sustained by their predecessors, for such a period
there would be less stability in that fundamental law, than is
required for the public good, in the ordinary expositions of
law. And the case of the Chancellor's foot, as a substitute
for an established measure, would illustrate the greater as
well as the lesser evil of uncertainty & mutability.
12.
- In expounding the Constitution, it is as essential as it
is obvious, that the distinction should be kept in view, between
the usurpation, and the abuse of a power. That a
Tariff for the encouragement of Manufactures may be abused
by its excess, by its partiality, or by a noxious selection of its
objects, is certain. But so may the exercise of every constitutional
power; more especially that of imposing indirect taxes,
though limited to the object of revenue. And the abuse
cannot be regarded as a breach of the fundamental compact,
till it reaches a degree of oppression, so iniquitous and intolerable
as to justify civil war, or disunion pregnant with wars,
then to be foreign ones. This distinction may be a key to
the language of Mr J——n, in the letter you alluded to. It is
known that he felt and expressed strongly, his disapprobation
of the existing Tariff and its threatened increase.
13.
- If mere inequality, in imposing taxes, or in other
Legislative Acts, be synonymous with unconstitutionality,
is there a State in the Union whose constitution would be
safe? Complaints of such abuses are heard in every Legislature,
at every session; and where is there more of them than
in Virginia, or of pretext for them than is furnished by the
diversity of her local & other circumstances; to say nothing
of her constitution itself, which happens to divide so unequally
the very power of making laws?
I wish I could aid the researches to which some of the above
paragraphs may lead. But it would not be in my power, if
I had at my command, more than I have, the means of doing
it. It is a satisfaction to know that the task, if thought
worth the trouble, will be in better hands. ...
