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points of taxation and regulation of trade, in which very report this distinction was strongly marked.
Now, to my mind, it seems plain that such men must of course have intended to use these phrases in the very same sense (neither wider nor narrower) which fifteen years of discussion had given them in England and America. They were familiar with the well-settled distinction in principle between the power of taxation for revenue, which they decried to the mother country, and that of laying duties for commercial regulation, which they allowed, whilst they complained of its oppressive use. At the same time, knowing from experience that it was practically difficult sometimes to draw the precise line between duties for regulation and duties for revenue, they meant to confer both powers upon the new government of their formation in the broadest latitude, and thus to cut off all doubt. This, therefore, they designed to do, not by implication or construction, but by words to which common use had then affixed the clearest sense.
They gave to Congress the authority to regulate commerce to the full extent of that power, as then understood, limited only by the accompanying words, “with foreign nations, among the several States, and with the Indian tribes,” so that it might not, like some of the offensive British regulations, be directly exercised upon what might be strictly internal within the several States.
They gave also the power of “laying and collecting taxes, duties, and imposts, to pay the debts and provide for the common defense and general welfare of the United States.” No disciple of the strictest school of republicanism can go beyond myself in opposing the unfounded and dangerous notion of
power providing for the general welfare” having ever been granted as a separate and sweeping authority of general legislation. But these words must have been intended for some purpose; and the history of our discussions with Great Britain seem to me to indicate clearly that they meant that taxation might be imposed, not merely for revenue, but to provide for the common good in relation to the several specific powers specially entrusted to Congress, that of commercial regulation being one of them. Thus, it might have been expected that there would be no room left for any of those doubts which had occasionally been raised under the British trade laws, whether any particular duty was imposed as a tax, or merely
as a regulation of trade. Yet the sense of these phrases, so familiar at that time, has already been clouded by the lapse of forty years. So vain are the precautions of human wisdom!
Among the men with giant faculties, who made thorough searches regarding the historical basis of the constitutional power to protect home industry by means of duties on imports, was Daniel Webster. Repeatedly, on public occasions, he gave voice, in words unmistakable and decided, to the conclusions which had grown out of his investigations. In his remarks to the citizens of Buffalo, June, 1833, he expressed his views thus:
The protection of American labor against the injurious competition of foreign labor, so far, at least, as respects general handicraft productions, is known historically to have been one end designed to be obtained by establishing the Constitution; and this object, and the constitutional power to accomplish it, ought never in any degree to be surrendered or compromised.
In his address delivered to the citizens of Pittsburgh, July 8, 1833, he outlined another phase of the same subject, as follows:
Gentlemen, it is an historical truth, manifested in a thousand ways by the public proceedings and public meetings of the times, that the necessity of a general and uniform impost system, which, while it should provide revenue to pay the public debt, and foster the commerce of the country, should also encourage and sustain domestic manufactures, was the leading cause in producing the present national Constitution. No class of persons was more zealous for the new Constitution than the handscraftsmen, artisans, and manufacturers.
Ten years later his views had become still more fixed and emphatic. In his address at the Whig convention held at Andover, November 9, 1843, he made the more pointed and detailed statement given below:
There are two propositions to which I invite your attention:
1. Congress has power to lay duties of impost. No State has this power. This is a most important consideration.
2. Before the adoption of the Constitution, and while the States could lay impost duties, several of them had laid such duties, with discriminations avowedly intended to foster their own products. They now can do no such thing. It must accordingly be done by Congress or not at all.
Now the power of Congress is to regulate commerce. And in all English history, and all our own history, down to the Revolution, and to the time of the adoption of the Constitution, importation of some articles was encouraged, and of others discouraged or prohibited, by regulations of trade. The regulation of trade, therefore, was a term of well-known meaning, and did comprehend the duty or object of discriminating, with a view to favor home productions. We find this to have been so, from the time of the Tudors and Stuarts down; and in America, the opinion I have stated was held by Otis, Adams, and the other great and eminent men of the Revolution.
The whole history of the country from 1783 to 1788 proves this. That history is as important as that of any period of our national existence. We see in it the then infant States struggling under a load of debt incurred in the sacred cause of the Revolution, struggling under the extinction of commerce and prostration of manufactures, and struggling all in vain. These things produced that strong disposition which prevailed from 1784 to 1788 to establish a uniform system of commercial regulations, and extend also all proper encouragement to manufactures.
In his speech at the mass-meeting held at Albany, August 27, 1844, he sketched the nature and extent of the protecting power in these vigorous and decisive terms:
Now, in the early administration of the government, some trusts and duties were conferred upon the general government, about which there could not be much dispute. It belonged to the general government to make war and peace, and to make treaties. There was no room for dispute as to these powers; they were liable to no great diversity of opinion. But then comes the other power, which has been, and is now, of the utmost importancethat of regulating commerce. What does that import? On this part of the Constitution there has sprung up in our day a great diversity of opinion. But it is certain that when the Constitution had been framed, and the first Congress assembled to pass laws under it, there was no diversity of opinion upon it, no contradictory sentiments. The power of regulating commerce granted to Congress was most assuredly understood to embrace all forms of regulation belonging to those terms under other governments—all the meaning impleid in the terms, in the same language, employed in all laws and in the intercourse of modern nations. And I consider it as capable of mathematical demonstration, as capable of demonstration as any proposition in Euclid, that the power of discriminating in custom-house duties, for the protection of American labor and industry, was understood, not by some, but by all, by high and low, everywhere, as included in the regulation of trade.
These extracts embody only a part of Daniel Webster's published utterances on the subject. He had a very clear conception of the conclusiveness of the historical method of treating this question, and he presented the results of his own investigations in many different points of view.
Another of the eminent and gifted men, who diligently explored the colonial, revolutionary, and subsequent sources of information, in search of the true meaning of the Constitution, was Rufus Choate. When he was ready to sum up his conclusions, he waved the magical wand of his descriptive power over that distant past, until the revived circumstances and emotions of those historic times came thronging into the enchanted procession of his words, saying, in his speech in the United States Senate, March 14, 1842, what follows:
I hold it to be susceptible of as rigorous, moral demonstration as any truth of history: 1. That, before the Constitution was presented to them, the people of this country, generally, demanded a government which should have power to mould their whole foreign intercourse into the most beneficial form, and, among other things, should have power to mould it into such form as might bring out American labor, agricultural, mechanical, manufacturing, navigating, and commercial, into its completest development, and for that end to make discriminating tariffs; 2. That when, at length, the doors of the Convention were thrown open, and the Constitution, the object of so many hopes, of so much solicitude, was presented to their eager view, they believed that they found in it just the power they had looked for so long, and they adopted it in that confidence; 3. That every member of the Convention itself supposed it to contain the power; and 4. That the new government, from its first organization, proceeded to execute it vigorously and usefully by a broad policy of protection openly avowed protection of agriculture, protection of navigation, protection of manufactures; and that, although particular exertions of the policy were vehemently resisted on grounds of expediency, and although other national legislation was denied to be authorized by the Constitution, the power to push this policy to the utmost limit of Congressional discretion was never called in question for more than thirty, or certainly more than twenty years.
Sir, if this be so, and yet the Constitution contains no such power, vain is the search after moral truth - idle the attempt to embody the ideas of a people in the frame of their government, and in the language of their fundamental law. You were as wisely employed in writing them upon the clouds of the summer evening western sky, in the dream of seeing them carried round the world in the train of the next day's sun.
Well, is it not so? I have shown you already that the country demanded and expected beforehand a government which should possess this power; that it had done so for years; that the events of every hour, from the peace to the rising of the Convention, only increased the urgency of the demand, and the confidence of the expectation. I proceed to show, in the next place, that when at last the Constitution was given to the longing sight of the people, and they threw themselves upon it as a famished host upon miraculous bread, their faculties sharpened and prepared by so many years of discussions, and by the more instructive discipline