Indiana Palladium, Volume 5, Number 2, Lawrenceburg, Dearborn County, 17 January 1829 — Page 1

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. 1 : : " : : EQUALITY OF RIGHTS IS NATURE'S PLAN AND FOLLOWING NATURE IS THE MARCH OF MAN. Barlow. V Volume V. LAWRENCEBURGH, INDIANA; SATURDAY, JANUARY 17, 1829. , Number 2.

LETTERS OF MR. MADISON. From lbe National lotelligencer. The history of the two letters which we are about to publish, is briefly as follows: These letters were not originally written for the press, but are now authorized to be published, on the earnest represent ttions of some of the friends of Mr. Madison, to whom the publication ap

peared to be of great interest, a;id of

deep imprortance to the nation.

In the present state of our country

these papers cannot but be highly ac

ceptable to the public. I he opinions

of the distinguished author, one ot the

frame rs of the constitution, if not the

father of it, cannot but carry with (hem

great weight. They are of the greater

authority, from hi- having been appealed

to b' those who sustain doctrines opposite to those which he avows and defends. He stands, in this respect, as the arbiter between contending nrt's; and it is hoped that his lucid expositions will go far to convince many whs have heretofore seriously questioned the power of congrcss which he maintains. In the calm philo ophy of his retirement from the turmoil of the world, the judgment which he has deliberately formed, and now nrgumentatively sus

tains, cannot be suspected ot being influ enced by any political bias or casual ex

citem nt. il is is tiie wisdom of aire

the fruit of experience, plucked from the

tree of knowledge.

LETTER 1 . Montpelier September 1 8, 1 328

Deah Sir: Your late letter remind?

me of our conversation on the constitu

. tionality of the power in congress to im

pose a tartli tor the encouragement oi manufactures; and of my promise to sketch the grounds of the confident opinion I had expressed, that it was amonp the powers vested in that body. 1 had not forgotten my promise, and had even begun the task of fulfilling it; but frequent interruptions, from other causes, being followed by a billions indisposition, I have not been able sooner to comply with your request. The subjoined view of the subject might have b en ad vantageously expanded; but 1 leave that improvement to your own reflections and researches. The constitution vests in congress, ex pressly, "the power to lay and collect taxes, duties, imposts and excises ;v and "the power to regulate trade."

That the former power, if not partic

ularly expressed, would have been in

eluded in the latter as one of ihe objects

of a general power to regulate trade, is not necessarily impugned by it? being so

expressed. Examples of this sort cannot sometimes be easily avoided, and are

to be seen elsewhere in Ihe constitution. Thus the power fc4to define and punish offences against the law of nations," includes the power, afterwards particularly expressed, to make ru! .s concerning captures, fee." from offending neutrals.

So also a power t coin money would doubtless include that of "'regulating its value,' had not the latter power been

standing uo?ir, would certainly have in-

at the same time denied to the parlia ment, and asserted to be necessarily in

herent in the colonial legislatures, as

sufficient, and the only safedepositorieso

the taxing power. So difficult was it

nevertheless, to maintain the distinction

in practice, that the ingredient of reven ue was occasionally overlooked or dis

regarded in the British regulations, as in

the duty on sugar and molasses imported

into the colonies. And it was fortunate

that the attempt at an internal and di

rect lax, in the case of the stamp act

produced a radical examination of the

subject bt-fbre a regulation of trade with

a view to revenue had grown into an es

tablishcd authority. One thing at least

is certain, that the main and admitted

object of the parliamentary regulations

oi trade with the colonies, was the en

coumgemcrit of manufactures in Great

britain.

But the present question is unconnect

ed with the former relations between

Great Britain and her colonies, which

were of a peculiar, a complicated, and, i

several respects, of an undefined char

acter. It is a simple question under the

constitution of tne United States, whether the power to regulate trade with

i -

foreign nations as a dis..inct .and sub

stantive item in the enumerated pow

ers, embraces the object of encouraging

by duties, restrictions and prohibitions,

the manufactures and products of the country? An i the affirmative must be inferred from the following considerations: I. 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 constitution.

2. The power has been understood find used bv all commercial and manufac-

'uring nations, as embracing the object

of encouraging manufactures. It is be

lieved that nat a single exception can be

amed.

3. This had been particularly the

case with Great Britain, whose commercial vocabulary is the parent ofours. A

primary onject of commercial regula

tions is well known to have been the

protection and encouragement of her

manufactures.

4. Such was understood to be a pro

per use of the power by the state most

prepared for manufacturing industry,

whilst re'aining the power over theii- for eign trade.

5. Such a use of the power, by con

gress, accords with tl e in'ention and x-

pectation ofthe state, in transferring the power over trade f om themselves to the government of the United States. This was emphatically the case in the eastern, the more manufacturing members ofthe confederacy. Hear the language livid in the convention of Massachusetts. By Mr. Dawes, an advocate for the constitution, it was observed, "our manufactures are another great subject

which has received no encouragement bv national duties on foreign manufac-

tures, and they never can by any author

ity in the old confederation." Again,

"If we wish to encourage our men manu

expressly inserted. The term taxes, ffactures to preserve our own commerce,

to raise the value of our own lands, we

eluded duties, imposts ar.d excises. Inj must give congress the powers in quesanother clause it is said, "no tax or du-:tion."

ofthe 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 government of the United States. 6. II Congress have not the power, it is annihilated for the nation; a policy

without example in any other nation, and not within the reason ot the solitary one in our own. The example alluded to U

he 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

in a great measure, not from their ex

ports, but from iheii fisheries, from their

freigh's,and from commerce at large, in

some of its branches altogether external

to ihe United States; the profits from all

which, beieg invisible and intangible,

would escape a fax, on exports. A tax

on imports, on the other hand, being a

'ax on consumption, which is in propor

tion to the ability of the consumer.

whencesover derived, was free from that

inequality.

7. If revenue be the sole object of a pgiiimate impost, and tiie encourage

ment of domestic articles be not within

power of regulating trade, it would

follow that no monopolizing or unequal

r gulations of foreign nations could be

ounieracted ; that neither the staple ar

ticles of subsistence, nor the essential

implements for the public safety, could,

under any circumstances, be insured or

ostered at home, by regulations of com

merce, the usual and most convenieni mode of providing for both; and that the

American navigation, though the source

f naval defence, of cheapening compe

tition in carrying our valuable and bulky articles to market, and of an independent carriage of them during foreign wars, when a foreign navigation might be wiHidrawn, must be at once abandoned, or speedily destroyed: it being evident that a tonnage duty in foreign ports a-

g unsl our vessels, aiwl an exemption from

such a duty in our porls, in favor of

foreign vessels, must have the inevitable . fleet of banishing ours from the ocean. To assume a power to protect our nav

igation, and the cultivation and fabri.ea iion of all articles requisite for the pub

!ie safety, as incident to the war power,

vuld be a more latihidinary construction of the t xl of the Constitution, than jo t oosider it as embraced by the specified power to regula e trade; i power which has been exercised by all nations for those purposes, arid which effects those purposes with lese. f interference

a i t h the authority and coi.veniency of

the Spates, than might result from internal and direct modes of encouragh g the articles, any of which modes wnuid he authorized, as far as deemed "necessary and proper," by considering the power as an incidental power. 8. 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 firs! Congress under the Constitution; when among the mem-.

bers present were s many who had been

devised, or however respectable and pat- the Constitution, the impossibility of ex5

notic its patrons, can withstand the

weight of such authorities, or the unbroken current of so prolonged and universal a practice. And well it is that this cannot be done, without the intervention ofthe same authority which made the

Constitution. If it could be so done,

there would be an end to that stability in Government, and m Lws, which is

essential to good government and good laws, a stability, the want of which is the imputation which has at all times been levelled agaiust Republicanism, with most effect by its most dexterous adversaries. The imputation ought never, therefore, to be countenanced, by inno

vating Constructions, without any plea

ercising which was an inducement to a-

dopt the Constitution, is, of all remedial devicrs, 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 Constitution, would be a tribute to the United States, the State would be in a worse condition, after the adoption of the Constitution, than before, in reference to an important interest, the improvement of which was a particular ob

ject in adopting the Constitution.

ere Congress to make the proposed declaration of consent to State tariffs in

of a precipitancy, or a paucity of thejfavor of State manufactures, and the per

constructive precedents they oppose;

wiihout any appeal to material fact newly brougnt to light; and without any

claw- to a better knowledge of the original evils and inconveniences, for which

remedies were needed, the very best

key s to the true object and meaning of

all laws and constitutions.

And may it not be fairly left to the unbiassed judgment of all men of experi

ence and of intelligence, to decide, which is most to be relied on for a a und ai d

safe test of the meaning of the Constitu

tion, a uniform interpretation by all the

succehsive authorities under ii, commen

cing with its birth, and continued for a long period, through the varied state of political contests; r the opinion of eve

ry new Legislature , heated a it may be

by the strife of parties or warped, as often happens, by the eager pursuit of some favorite object or carried away, possibly, by the powerful eloquence or captivating address of a few popilar statesmen, themselves, perhaps, influen

ced by the same mmeading causes? If

the latter test is to pievail, every new le gislative opinion might make a new Constitution, as the foot of every new Chancellor would make a new standard ol measure.

Il is seen with no little surprise, that

an attempt has been made, in a highly

respectable quarter, and at length redu

ced to a resolution, formally proposed in

Congress, to substitute, for ihe power of

Congress 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 deri

ved fro ii a clause in the tenth section of

article 1st of the constitution, whichsays:

"No State shall, without the c nsent of

Congiess,lay any imposts or duties on imports or exports, except what may be

absolutely necessary for executir g its inspection laws; and Ike nett produce el all duties and imposts, laid by any Stale on imports and exports, shall be for the

use of the Treasury ofthe United Slates;

and all such laws shall be subject to the

reviMon and control ofthe Congress."

To say nothing ofthe clear indication

in the Journal of the Convention of 1787,

that the clause was intended rnerelv to

provide for expenses incurred by particular States, in their inspection laws, and

in such improvements as they might

choose to make in their harbors and rivers, with the sanction of Congress ob

jects to which the reserved power has

members of he Federal Convention been applied, in several instances, at the

which framed the Constitution, and ofj request of v irginia and Georgia how

the State Conventions which ratifn d it:

could it ever be imagined that any State

ties shall be laid on exports, fee1 Here; By Mr. Widgery, an opponent: "Alljeach of these classes consisting also ofj would wish to tax its own trade for the

the two terms are used as synonymous. J we hear is, that the merchant and farmer members who had opposed and who had And in another clause, where it is saidj will flourish, and that ?he mechanic and espoused the Constitution in its actual "no state shall lay any imposts, or du tradesmen are to make their fortunes! form. It does not appear from the

printed proceedings of Congress on that

occason, that the power was denied by any of them. And it may be remarked,

that members from V irginia, in particu

ties, &c." the terms imposts and duties directly, if the constitution goes down."'

are synonymous. Pleonasms, tautolo-; I he convention of iMassacnusetts was gies, and tiie promiscuous use of terms the only one in New England whose deand phrases, differing in their shades of1 bates have been preserved. But it cam

meaning, (always to be expounded withiimt be doubted that the sentiment there! lar, as well of the anti-federal as the fedrcference to the context and under the expressed was common to the other! eral party, the names then distinguisbcontrol ofthe general character andjstates in that quarter, more especially tojing those who had opposed and those manifest scope of the instrument inj Connecticut and Rhode Island, -he most! w ho had approved the Constitution, did which they are found), are to be ascrib-j thickly peopled of all the stat s, hav-!not hesitate to propose duties and to sugcd, sometimes to the purpose of greater' injj, of course, their thoughts most turned! gest even prohibitions in favor of several caution; sometimes to the imperfections! to the subject of manufacture. A like articles of her production. By one a of man himself. In this view of the snh- inference mav be rnnfidenrlv annlied trvdutv was proposed on mineral coal, in

New Jersey, whose debates in conven- favor of the Virginia coal pits; by antion have not been preserved. In thejother, a duty on hemp was proposed, to populous and manufacturing state oflencourage the growth of that article;

ject, it was quite natural, however 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 reven

ue, authourized by the constitution. In

few cases could the "ex majori cautela"

occur with more claim to respect.

Nor can it be inferred, that a power to

regulate trade does not involve a power to tax it, from the distinction made in the original controversy with Great Britain, between a power to regulate trade "ith tiie colonies, and a power to tax tnem. A power to regulate trade be i ween different parts of the empire, was confessedly necessary; and was admitted to l.e, as far as that was the case, in the British parliament j the taxing Part being

Pennsylvania, a partial account only of

the debates having been published, nothing certain is known of what passed in her convent;on 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 tne new congress, as well a? within

and bv a third, a prohibition even of for

eign beef was suggested, as a measure oft-ound policy. See Lloyd's Debates. A further evidence in support of the constitutional power to protect and foster manufactures by regulations of trade, an evidence that ought of itself to settle the question, is the uniform and practi

cal sanction given to the power, by ihe

the scope of tiie national policy. Of thcjGeneral Government, for nearly .forty

states south of Pennsylvania, the only

iwo m who- conventions the debates have been preserved, are Virginia and North Carolina, and frm these no adverse inferences can be drawn. Nor is there the slightest indication that cither

years; with a concurrence or acquiescence of every State Government, throughout the same period ; and, it may

be added, through all the vicissitudes of

party which marked the period. No novel construction, however ingeniously

mitted attempts did not defeat them

selves, what would be the situation of States deriving their foreign supplies through the ports of other States? It is evident that they might de compelled to pay , iu their consumption of particular articles imported, a t;?x for the common treasury, not common to ll the States, wiihout having any manufacture or product of their own, to partake of the con templated benefit. Of ihe impracticability of separate emulations of trade, and the resulting necessity cf general regulations, no State was more sensible than Virginia. She was, accordii gly, 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 he relative situation of the States had been round, on trials to require uniformity in their commercial 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 pons

ofthe United Stales; for preventing an

imosities which cannot fail to arise among the several States from the interference

of partial and separate regulations; and

for deriving from commerce such aids to the public revenue as it ought to contribute, &c." During ihe delays and discouragements experienced in the attempts to invest Congress with the necessary powers, the State of Virginia made various trials of what could be done by her individual laws. She ventured on duties and imposts as a source of revenue: Resolutions were passed at one time to encourage and protect her own navigation and ship building; and in Consequence

of complaints and petitions from Nor folk, Alexandria and other places, against the monopolizing navigation laws of

Great Britain, particularly in the trade beizvein the United States and the British

West Indies she deliberated, with a pur

pose controlled onlv by the incflScieney

of separate measures, on the experiment of forcing a reciprocity by prohibitory

regulations of hei own. See Journal ot Mouse of Delegates in 1785. The effect of her separate attempts to raise revenue by duties on imports, scorj appeared in r presentations from her merchants, that the commerce of the State was banished by them into other channels, especially of Maryland, where imports were less burdened than in Virginia. See Document for 178G.J Such a tendency of separate regulations was indeed too manifest to escape anticipation. Among the projects prompted by the want of a Federal authority over commerce, was that of a eonceit first proposed on the part of Mary land for a uniformity ot regulations between the two States, and Commissioners were appointed for that purpose. It was soon perceived, however, that the concur-, rence f Pennsylvania was as necessary to Maryland as of Maryland to Virginia, and the concurrence of Pennsylvania was accordingly invited. But Pennsylvania could no more concur w ithout New York than Maryland without Pennsylvania, nor New York without the concurrence of Boston, vtc. These projects were superseded for the moment by that of the Convention at Annapolis in 17E6, and forever by the ' Convention at Philadelphia in 1787and the Constitution which was the fruit of it. There is a passage in Mr. NeckerV 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. Previoue to the Revolutionary war in that country, the taxes w ere cf very dif

ferent rak in. the different Provinces;

particularly the ta on salt, which was

encouragement of manufactures, if pos

sessed ot the authority, or could, m fact, do so, if wishing it? A tax on imports would be a tax on its own consumption ; and the net proceeds going, according to the clause, not into its own Treasury, but into the Treasury of the United States, the State would tax itself separately for the equal gain of all the other States; and as far as the mauufacturts, so encouraged, might succeed in ultimately increasing the stock in market, and lowering the pi ice by competition, this advantage, also, procured at the so!e expense of the Stale, 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 one who recollects, or recurs to the period when the power over commerce wa& in the individual States, and separate attempts were made to tax, or otherwise regulate it, need be told that the attempts were not only abortive, but, b demonstrating the necessity of general and uniform regulations, gave the oiiginal impulse to the constitutional reform which provided for such regulations. To refer a Slate, therefore, to the ex

ercise of afowcr,as reseveS to her hyjhigb iu the interior provinces and low in