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The power to impose duties on imports originally belonged to the several States. The right to adjust those duties, with a view to the encouragement of domestic branches of industry, is so completely identical with that power, that it is difficult to suppose the existence of the one without the other. The States have delegated their whole authority over imports to the general government, without limitation or restriction, saving the very inconsiderable reservation relating to their inspection laws. This authority having thus entirely passed from the States, the right to exercise it for the purpose of protection does not exist in them; and consequently, if it be not possessed by the general government, it must be extinct. Our political system would thus present the anomaly of a people stripped of the right to foster their own industry, and to counteract the most selfish and destructive policy which might be adopted by foreign nations. This surely cannot be the case ; this indispensable power, thus surrendered by the States, must be within the scope of the authority on the subject expressly delegated to Congress.
In this conclusion, I am confirmed as well by the opinions of Presidents Washington, Jefferson, Madison, and Monroe, who have each repeatedly recommended the exercise of this right under the Constitution, as by the uniform practice of Congress, the continued acquiescence of the States, and the general understanding of the people.
A year later, the morbid, inflammatory, dangerous excitement against the protective system had become so heated in South Carolina as to threaten to end in civil
It was when such were the prospects on the Rubicon of Nullification that Gulian C. Verplanck, a Representative in Congress, published his argumentative letter to Col. William Drayton, who had openly stigmatized the tariffs of 1816, 1824, and 1828 as unconstitutional, and demanded their unconditional repeal as an act of tardy justice to the South. Below are some instructive extracts from this important letter:
I could never agree with many of those with whom I acted in
and out of Congress, in denouncing these measures as not only impolitic and unequal, but as unconstitutional. The question of the constitutionality or unconstitutionality of the protecting system appeared to me to have no connection with the broader question of the strict or liberal construction of the Constitutionwith the admission or denial of those implied and constructive powers upon which our statesmen have heretofore differed. I looked upon it as a pure question on the meaning of words.
I argued thus: Congress is invested with the power “to regulate commerce with foreign nations and among the several States.” To regulate is to govern the action of anything by fixed rules. But the authority to impose rules for the government of trade cannot be confined solely to the manner of carrying it on. It must include the right of designating the persons or places with whom it may be allowed, and the commodities on which it is to be employed. Had anything short of this been meant, the Constitution would have said, “that Congress shall regulate the manner of carrying on commerce with foreign nations”; just as, in another clause, it has confined legislative power in the choice of Senators in Congress to “ regulating the times and manner” of election, to the exclusion of farther interference. But the regulation of the manner, the persons, the places, and the objects of commerce, comprehends, in its widest latitude, the whole protecting power. Then the imposition of duties is but the “necessary and proper means” expressly authorized by the Constitution to give effect to this substantive power. Those who understand the provisions of the Constitution as intending anything short of this, erred, I thought, by substituting in their minds a part for the whole—the idea of navigation simply for that of commerce—for they seemed to consider the laws of commerce as extending merely to shipping, transportation, and international communication, without reference to the commodities which form the objects of trade.
When it was denied, as you have lately done, that the power to regulate commerce could include the encouragement of manufactures, another and substantive part of public policy, it seemed to me to be a sufficient and satisfactory answer that it is upon commerce alone, not upon manufactures, that Congress has power to act; but the whole power of action upon that subject being given, the end or motive of such regulation is matter entrusted to legislative discretion wholly; whether it be with the view of retaliating upon the unjust policy of other nations, or the encouragement of our own fabrics, or the preparation for war, or possibly the preservation of public health. This is a power, doubtless, exposed to perilous abuse, but still less so than that of war, or of direct taxation, or of contracting debt, and, like those, one which every nation has thought it expedient to lodge somewhere. Thus, a war debt, like that of England, would require imposts as onerous as any restrictive system can impose, coupled with the burdens of heavy excises and oppressive internal taxes. Yet the only guard against such abuse is to be found in the discretion of Congress, and the watchfulness of their constituents.
When to these objections it was added (as in the address of the late Free Trade Convention) that “the power to regulate could not include the power to annihilate the objects it was intended to protect,” it seemed to me again to be a sufficient answer that no tariff as yet had in view the annihilation of commerce, but either the lopping off certain branches of it, or the turning them into new directions—the sacrifice frequently of a portion of foreign commerce, to promote and increase that “between the States.” Nay, when I considered that great public emergencies might dictate the necessity of a long and almost universal embargo, for the sake of peace, or for the preservation of neutrality; for the preparation for war, or for protection against foreign pestilence, I hesitated even to deny the power of total prohibition, injurious as the abuse of it might be.
But, without going farther into speculative reasoning, I thought that the ordinary and habitual acceptation of the words used in our Constitution, as they are employed. by good writers and in popular use, decidedly included this disputed power. It is remarkable that Adam Smith, the great father of the doctrines of free trade in their widest extent, in the very chapters and passages of his Wealth of Nations in which he denounces the restrictions and prohibitions of the British and other European tariffs, repeatedly and throughout calls them “regulations of trade”; that a similar use of the phrase is to be found in Burke, and almost all the English political economists and statesmen, down to our own days; that in the official commercial digests of the revenue laws of various countries, published both by the British
government and our own, the prohibitory and protecting tariffs are classed as commercial regulations; and that this use is so fixed and incorporated in our language, that even Dr. Cooper, of South Carolina, in that chapter of his work on political economy, in which he has summed up, with his accustomed power of lucid and condensed reasoning, all the arguments against encouragement of manufactures, by impost or restriction, expressly calls such “prohibitions on importation," " governmental regulations," and adopts as his own the very language of Adam Smith.(Cooper's Political Economy, page 107.)
Nevertheless, the constancy and confidence with which the constitutionality of these laws was denied, the high and merited authority of many who maintained this doctrine, my own reluctance to allow to the federal government a power so subject to misuse ; all combined to induce me certainly not to change or suspend my opinion—but to prevent any confident public expression of it, and to keep my mind open to conviction. I could not but presume that there might yet be some argument to which I had not allowed its due weight, or some positive evidence of the intention of the framers of the Constitution, familiar to older and abler politicians, but which had not yet been stated in sufficient force to be clear to my mind. It was to this last mode of proof that I chiefly looked. Every day's experience had taught me that words, which appear to be the clearest and most direct that could be selected, may yet, from some fact or circumstance familiar to those who use them, have a peculiar or limited meaning, widely differing from that which they bear in general use.
It was in this disposition of mind, and whilst in search of some such external evidence of the intention of the founders of our Constitution, that I was accidentally led, by the perusal of the early Diplomatic Correspondence of the United States, lately published by order of Congress, into a discursive but extensive study of the history and state papers of the Revolution.
The outline of that glorious narrative is familiar to all of us from our childhood; but, judging from my own observation and experience, I fear our best educated citizens are more conversant with the contests of Roman or Athenian politics, or with the struggles of English liberty under the Tudors or Stuarts, than with the details of the story of our own independence, as set forth in its original records—those models of political wisdom and simply majestic eloquence, the speeches and state papers of the American Revolution.
I cannot otherwise account for the strange oblivion of a fact, which I had myself hitherto overlooked, but the proof of which now flashed upon me from every quarter. It is this, that the words of our Constitution, conferring the several powers of “ laying taxes, duties, imposts, and excises,” and of “the regulation of commerce,” were not accidentally selected, or used in any loose and popular acceptation, but that they were the earliest phrases of our independence, and had acquired, by repeated discussion, and legal and parliamentary use, a precise and definite meaning. Such being the established meaning, in this sense alone could they have been employed by the great men of the Revolution, who framed our Constitution; and in this sense alone they must have been received by the people who adopted it. In this peculiar sense, then, the imposition of duties for the restriction of foreign trade and the fostering of other interests was included.
When, then, in 1787, the Convention selected these phrases to express the powers they meant to confer upon the new government, in what other sense than this could they have employed them? The members of that body were, all of them, men who must have been conversant with the discussions of which these phrases formed the watchword and the text. Many of them had themselves conducted those discussions. There was George Washington, their President; Hamilton, whose first political essay was said to have been an examination of the questions at issue between Great Britain and her colonies; Benjamin Franklin, John Dickinson, and Gouverneur Morris, of whose familiarity with this subject proofs have been above given.
It is worthy of observation that the chairman of the committee appointed to revise the style and arrange the articles of the Constitution, after the principles had been settled, was William Samuel Johnson, of Connecticut, who was doubtless selected for that post by the president of the Convention, from his union of legal eminence with distinguished literary acquirement; and this statesman had, in the Congress which met at New York, in 1765, drawn up a report on the object of American rights in relation to these very