State's Advocate

              THE STATE'S ADVOCATE.
lET OUB PUBLIC MEN ««BE JUDGBB BY THE^ MEASrRBS.*'^Craw/ordi
".¦JIJ'ITU
MILTON, NORTHUMBERLAND COUNTY, (PA.) THUJISDAY MORNING, JANUARY i5, 18S9. No. 4^.
If
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"from the J^ational InteUigencer, I^ETTERS OF MR. MADISON, 'fiie history of the two letters which ^ygare about to publish is britfly as [ollows:
The letters were not originally writ- f.I, fur the press, but are now author! • yell to be published, on the earnest rep -fsentation of some of the friepds of Mr. Madt!io<^> to whom the publication ap- paieil to be of great interest, and of ,if/) imiiortancc to the nation.
In the present state of our country (liosc papers cannot but be highly ac¬ ceptable to the public, the opinions of l^lig distinguished author, one of the iiainers oi" tbe constitution, if not the father of it, cannot but carry with them arsat weight. Tliey are of the greater autliority, from hia having been appealed U) by those iviio sustain doctrines oppo site to tliose which he avows and defend.". He stftjMlsin tliis respect, as the arbitor Ot^tiveeii contending parties; and it is /ii;ped that his lucid exposition will go far to convince many who have hereto f;)i'8 seriously questioned the power of cuugress which he maintained.
In the calm philosophy of his retire ment from the turmoil of the world, the judge.iient which he has deliberately foiroed, and now argumentatively sus- taintj, cannot be suspected of being influ enced by any political bias of casual excitement. His is tbe wisdom of age— (be fruit of experience plucked from the tree of knowledge.
LETTER. L
Montpelier, Sept, 18,18S8.
Dear Sir;—Your late letter re. minds me of our conversation on the constitutionality of the power in con gress to impose a tariff for the encour¬ agement of manufactures ; and of my promise to sketch the grounds of the cooSdeat opinion I had expressed that il was among the powers vested in that body. I bad not forgotten my promise and bad even begun tbe task of fulfilling it; but frequent interruptions, from other causes, being followed by a billious indisposition, I have not been able sooner to comply with your request.— The subjoined view of tbe subject might have been advantageously expanded, but I leave that improvement to your own reflections and researches. . The constitution vests in congress,expressly, " the power to lay and collect taxes, du lies, imposts, and excises;** and "the power to regulate trade."
That the former power, if not partic ularly expressed, would have been included in the latter as one of tbe ob¬ jects of a general power to regulate trade, it is not necessarily impugned by its being so expressed. Examples of iliis sort cannot sometimes be easily avoided, and are to be seen elsewhere in tbe constitution. Thus tbe power " to define and punish offences against the law of nations,*' includes the power, afterwards particularly expressetl, « to make rules concerning captures; and from offending neutrals." So also power " to coin money" would doubtless include that of •* regulating its value," had not the latter power been expres sively inserted. The term taxes, if standing alone, would certainly liave included duties, imposts, and excises. In another clause it is said, *<no tax or duties shall be laid on exports, &c."— Here the two terms are used as synony mous. And in another clause, where it is said « no state shall lay any imposts, or duties, &c" the terms imposts and duties are synonymous. Pleonasms, tautologies, and the promiscuous use of terms and phrases, different in their shades of meaning, (always to be ex¬ pounded with reference to the context and under the control of the general character and manifest scope of the in- strument in whieh they are found) are to be ascribed sometimss to the imper¬ fections of language, and sometimes to theltiperfections of man himself. In this view of the subject, it was quite natural, however certainly the general power to regulate trado might include a imver to impose duties on it, not to omit in a clause enumerating the several modes of revemte, authorized, by the constitution. In few cases could tbe *' ex major ca^ela" occur with more <'lniin to respect.
Nor can it be inferred, that a power to regulate trade does not involve a pow¬ er to tax it, from the distinction made in the original controversy with Great Britain, between a power, ta regulate trade with the colonies, and a power to tax them. A power to regulate trade between different parts of the Empire, was confessedly necessary; and was ad¬ mitted to lie, as I'ar as that Was tbe ease, in the British Parliament; the taxing part being at the same time denied to tbe Parliament, and asserted to be ne¬ cessarily inherent to the colonial Legis¬ lature, as sufficient; and the only safe dispositories of the taxing power. So difficult was it, nevertheless to uaintain the distinction in practice, that the in gredient of revenue was occasionally overlooked or disregarded 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 direct tax, in tbe case of the Stamp Act, produced a radical examination of the subject before a regulation of trade with a view to reve nue had grown into an established au thority. One thing at least is certain, that the main and admitted object of the Parliament regulations of trade with the colonies, was the encouragement of manufactures in Great Britain.
But the present question is uncon necled with the former relations between Great Britain and her colonies, which were a peculiar, a complicated, and, in several respects, of an undefined char¬ acter. It is a simple question under the constitution of the United Slates, whether the <  power of regulating trade with foreign nations," as a distinct and substantive item in the enumerated powers embraces the object of encour¬ aging by duties restrictions, and prohi bilious, the roauufactures and products of the country. And the aflirmative must be inferred from the" follov^ing considerations:
1. The meaning of the phrase " lo 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 and used by all commereial and man¬ ufacturing nations, as embracing the object of encouraging manufactures. It is believed that not a single exception can be named.
3. This has been particularly tbe case 'vith Great Britain, whose commercial vocabulary is the parent of ours. A primary object of her commercial regit lations is well known to have been the protection and encouragement of her manufactures.
4. Such was   understood   to   be proper use of the power by tbe states most  prepared  for manufacturing in dustry, whilst retaining the power over their foreign trade.
5. Such a use of the power, by con gress, accords with the intention and expectations of the states, in transfer¬ ring the power over trade from them¬ selves to the Government of the United States. This was emphatically the case in the Eastern, the more manufacturing members of the Confederacy. Hear the "anguage held in the convention of Mas¬ sachusetts.
By Mr. Dawes, an advocate for the constitution, it was observed, •* Our manufactures are another great subject which has received no encouragement by national duties on foreign manufac- turesi and they never can by any au thority in the old confederation."— Again, " if we wish to encourage our own manufactures, to preserve our own commerce, to raise the value of our own lands, we must give congress the power in question."
By Mr. WIdgery, an opponent: «< All we bear is that the merchant and farmer will flourish, and that the mechanic and tradesman are to make their fortune directly, ifthe constitution goes down."
The convention of Ma.ssachusetts was the only one in N. England whose debates have been preserved. But it cannot be doubted that the sentiment there expressed was common to the other states in that quarter, more espe¬ cially lo Connecticut and Rhode Island, the mjst thickly peopled of all the states, and having, of course, their thoughts most turned to the subject of manufac¬ tures. A little inference may be confi¬ dently applied to New Jersey, whose de¬ bates in convention have not been pre¬ served. In the populous and manufac turing state of Pennsylvania, a partial account only of the debates having been published, nothing certain is known of what passed in her convention on this point. But ample evidence may be found  elsewhere,  that regulations of
trade, fop the encouragement of manu facttires, were consideaed as within the power to be granted to the new con gress, as well as within the scope of the national policy.   Of tbe states South of Pennsylvania, the onl)^ two in whose conventions the debates Vave been pre served are Virginia & Kwth Carolina, and from these no adv^its^ inferences can be drawn.   Nor is there the slight est  indication that either of the two states farthest South, whose debates in convention, if preserved have i\ot  been made public, viewed the encourigement of "manufactures, as   not   witlin  the general power over trade to be yaos- ferred to tbe government of tbe United States.
6. If congress have not the pover, it is annihilated for the nation ; a pofey without example in any other natioi, and not without the reason of the soliti ry one in our own. The example allii- ded to, is the prohibition of a tax oji exports, which resulted from the appa¬ rent impossibility of raising, in thai mode, a revenue from the states, pro¬ portioned to the ability to pay it, the ability of some being derived i^ a great measure, not from their exports, but from their fisheries, from their freights, and from commerce at large, in some of its branches altogether exterual to the United States; the profits from all which, being invisible and intangible, would escape a tax, on exports.    A tax
(foster manufactures by regulations of trade, an evidence that ought of itself to settle the question, is the uniform and practical sanction given to the po#er, by the general government for nearly forty years ; with a concurrence or ac¬ quiescence of every state Government, throughout the same period; and it may be added, through all tbe viscissitudes of party which marked the period. No novel construction however ingeniously devised, and however patriotic and res pectable its patrons, can withstand the weight of such authorities, or the unbro¬ ken current of so prolonged and univer¬ sal a practice. And well it is that this cannot be done, without the intervention of the same authority which made the constitution. If It could be so dtme, there would be an end to that stability in government and in laws, which is es¬ sential to good government and good laws, a stability the want of which is the imputation which has at all times been levelled against Republicanistn, with most effect, by its most dexterous adversaries. The imputation ought never, therefore, to be countenanced, by innovating constructions, without anv plea c)f a precipitancy, or a paucity tjf the constructive precedents they oppose; without appeal (o material facts newly brought to light; and without any claim to a better knowledge of the original evils   and    inconveniences,   for   whieh
remediBS were needed, the very best
on imports, on tbe other hand, being a; keys to the true object and meaning of tax on consumption, which is |n propor-jail laws and constitutions, tion to   the ability of the consumers,;    And may it not be fairly left to the whencesoever derived was free fromiunbiassed judgement of all men of expe- that inequaltly. ^ j rience and intelligence, to decide, which
7, If revenue be the sole object of aiis most tv» be relied on for a sound and legitimate impost, and the encourage-jsafe test of the meaViing of a constifufion. ment of domestic articles be, not within a uniform interpretation by all the suc- the power of regulating tr^de, it would eessive authorities' u^der it. commencing follow that no monopoliziagor iin^'qualwith its birth, and continued fur a long regulations of foreign natcpiis could be period, through tbe varied state of po- counteracted ; that neithe|' the staple litical contests ; or the opinion of every aitides ofsubsistance, noif the^essential new legislature, heated as it may be by implements for the publicisafety, could, the spirit of parties—or warped, as often under any circumstances, be insured or; Happens, by the eager pursuit of some fostered at home, by regulations of c'»m-| favourite object—or carried away, pos meree, th-j usual and most convenientjsibly, by the powerful eloquence or mode of providing for both; and that! captivating address ofa few popular the American navigati<in, though theistatcsinen, themselves, perhaps influen- source of naval defeuce, cf a cheapeningjced by the same misleading causes 2 If competition in carrying^ our valuable the latter test is to prevail, every new and bulky articles to mai^et* and of an legislative opinion might make anew independent carriage of them during!constitution, as the foot of every new foreign wars, when a foreign navigation Chancellor would make a new standard
might be withdrawn, must be at once abandoned, or destroyed : it being evi¬ dent that a tonnage duty in  foreign
of measure.
It is seen, with no little surprise, that an attempt iias been made, in a highly
ports against our vessels, and an ex-1 respectable quarter, and at length re- emption from such duty in our ports,] duced to a resolution, formally proposed in favour of foreign vessels, must have in Congress to substitute for the power the inevitable effect of banishing ours of congress to regulate trade so as to from the ocean.. encourage manufactures, a    power  in
To assume a power to protect our the several States to do so, with tbe navigation, and (he cultivation and fab- Consent of that body ; and this expe- ricalion of all articles requisite for the dient is derived from a clause in the public safety, as incident to the war tenth section of article 1st of the Con-
was in the individual states, and sepa¬ rate attempts were made to tax, oi^ otherwise regulate it, need be told tha^ the attempts were not only abortive^ but, by demonstrating the necessity o£ general aod uniform regulations, gavo the original impalse to tbe constitutional reform which provided for such regula* tions.
To refer a sfate^ th'erefjre, to tha exercise ofa power, as reserved to her by the constitution, the impossibility of exercising which was an inducement to adopt the constitution, is, of all remedial devices, tbe last that ought to be brought forward. And what renders it the moro extraordinary is, that as tbe tax oa commerce, as far as it could be sepa¬ rately collected, instead of belonging to the treasnry of the state, as previous to tho constitution, would be a tribute to the United States, the state v/ould bo in a worse Condition, after the adoption of the constitution, than before, in re« ferencc to an important interest, the improvement of which was a particular object in adopting the Constitution.
Were Congress to make the proposed declaration of consent to state tariffs ia favour of state manufactures, and tbd^ permitted attempts did not defeat theiQ- selves, what would be the situation of states deriving their foreign supplies through the ports of other states ? It is evident that they might be compelled tO pay, in their consumption of particular articles imported a tax for the common treasury, not common to all the states^ without having any manufacture or product of their own, to partake of th6 contemplated benefit.
Of tbe impracticability of separate regulations of trade, and the resulting necessity of general regulations, no state was more sensible than Virginia. She was accordingly among the most earnesi for granting to Congress a power ade» quale to the object. On more occasions than one in the proceeding of her legis¬ lative councils it was recited «* that tho relative situation of the States has been found on fna^ to require unif&rmity in their commercial regtilations as the on/v eff'^ctu'fil policy for obtaining in tho ports of foreign nations a stipulation of privileges reciprocal to those enjoyed by the subjects of such nations iu tho ports uf the United StaCea; for prevent>i ing animosities which cannot fail to arise among the several states from tb» interference of partial and separate re¬ gulations; and for deriving from~com- merce such aids to tbe public revenuo as it ought to contribute^ &c.
During tbe delays and disCourage-^ ments experienced in tira attempts ttf invest Congress with the necessary powers, tbe state of Virginia made va¬ rious trials of what could be done by her individual laws; She ventared otf duties and imposts as a souree of reve¬ nue : Resolutions  were passed at onef
power, would be a more latudi nary con-stitution, which says: No state shall,i time to encourage and protect her own
struction of the text of the constitution, without consent of congress, lay any than to consider it as embraced by the imposts or duties on imports or exports, specified power to regulate, trade ; a except what may be absolutely necessa- power which has been exerted by all ry for executing its inspection laws ; nations for those purposes, and wiiich land the nett produce of all duties and effects those purposes with less of inter-!imposts, laid by any state on imports ference with the authority the convent- and exports, shall be for the use of the
ency of the states,   might result   from internal and direct modes of encourag ing the articles,  any of which  modes would be authorized, as far as deemed " necessary and proper," by consider ing the power as an incident power.
8. That the encouragement of man¬ ufactures 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 first congress under the constitution ; when among the mem¬ bers present were so many who had been members of the federal convention which framed the constitution, and of the state conventions which ratified it;each of these classes consisting also of mem bers who had opposed and who had es¬ poused the constitution in its actual form. Il does not appear from the print¬ ed proceedings in congress on that occa¬ sion, that the power was denied by any of them. Ancl it may be remarked that members from Virginia, in particular, as well of the anli federal as the federal party, the names then distinguishing those who had opposed and those who had approved the constitution, did not hesitate to propose duties and suggest even prohibition in favour of several articles of her production.
By one a duty was proposed on min¬ eral coal, in favour of tbe Virginia coal pits; by another, a duty on hemp was proposed to encourage the growth of that articlc;& by a third,a prohibition even of foreign beef was suggested as a measure of sound policy. (See Lloyd's Debates.)
Treasury of the United States : and all isuch laws shall be subject to tbe revi sion and control of tbe Congress.
To say nothing of the clear indica tions in the journal of the convention of 1787, that the clause was intended merely to provide for expenses incurred by particular states, in their inspection laws, and in such improvemeuts as they might choose to make in their harbours and rivers, with the sanction of con¬ gress—obj^cts to which the reserved power has been applied, in several in¬ stances, at the request of Virginia and Georgia—how could it ever be imagined that any state would wish to tax its own trade for the encouragement of manufactures, if possessed of the autho rity, or could, in fact, do so, if wishing it?
A tax on imposts would be a tax on its own consumption ; and the nett pro¬ ceeds going, according to the clause, not in its own treasury, but into the trea¬ sury of the United States, the state would tax itself separately for the equal gain of all the other states; and as far as (he manufactures, so encouraged, might succeed in ultimately increasing the stock in market, and lowering the price by competition, this advantage alsOf procured at tbe sole expense of the state, would be common to all tbe itbers.
navigation and ship building; aod in consequence of complaints and petitions from Norfolk, Alexandria, and otbep places, against the monopuliziffg naVi-' gallon laws of Great Britain, particu¬ larly in tbe trade between the tinited States and the Bniish West Indies* sho deliberated with a purpose controlled only by theinefficacy of separate mea^ sures, on the experiment of fiircio^ & reciprocity by prohibitory regulations of her own.—[See Joarnal of House oft Delegates in 1785.]
The effect of ber separate attempts to raise revenue by duties on imports sooa appeared iU representatiotis froiii ber merchants, that tbe commerce of tho State was banished by them into other' channels, especially of Maryland whero imports were less boidened than id Virginia [See do. for 1786.}
Such a tendency of separate regula¬ tions was indeed too manifest to escape anticipation. Among the projects prompted by the want of a Federal au¬ thority over commerce, was that of a concert first proposed on the part of* Maryland for a aniformity of rtgula- tions between the two states, and com¬ missioners were appointed for that pur¬ pose. It was soon perceived, however^ that tbe concurrence of Pennsylvania was as nncessary to Maryland as of Maryland to Virginia, and the concur* rences of Pennsylvania was accordingly invited. But Pennsylvania could 60 more concur without New York thao Maryland Without Pennsylvania, nor New York without the concurrence of Boston, &c.
These projects were superceded for the moment by that of the convention at Annapolis in 1786, and forever by
But the very suggestions of such an expedient to any state j would have an
air of mockery, when its experienced the convention at Philadelphia in 1787« ^ impracticability is taken into view.    Noj and the constitution whicb was the fruit A further evidence in support of theionfl, who recollects or recurs to the pe-of it. constitutional power to  protect and^riod when tbe power over commerce'   There is a passage io Mr, JHecker's