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result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares, that no tax or duty shall be laid on articles exported from any State; in consequence of which qualification, it now only extends to the duties on imports. This answers to the second case. The third case will be found, in that clause which declares,, that Congress shall have power " to establish an uniform rule of naturalization throughout the United States." This must necessarily be exclusive; because if each State had power to prescribe a distinct rule, there could be no uniform rule.
"A case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. I mean the power of imposing taxes on all articles other than exports and imports. This I contend, is manifestly a concurrent and coequal authority in the United States, and in the individual States. There is plainly no expression in the granting clause, which makes that power exclusive in the Union. There is no independent clause or sentence which prohibits the States from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is deducible from the restraint made upon the States in relation to duties on imports and exports. This restriction implies an admission, that if it were not inserted, the States would possess the power it excludes ; and it implies a further admission, that as to all other taxes, the authority of the States remains undiminished. In any other view, it would be both unnecessary and dangerous; it would be unnecessary because, if the grant to the Union of the power of laying such duties, implied the exclusion of the States, or even their subordination in this particular, there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean that the States, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the Union. The restriction in question amounts to what lawyers call a negative pregnant; that is, a negation of one thing, and an affirmance of another: a negation of the authority of the States to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. It would be mere sophistry to argue, that it was meant to exclude them absolutely from the imposition of taxes of the former kind, and to leave them at liberty to lay others subject to the control of the national legislature. The restraining or prohibitory clause only says, that they shall not, without the consent of Congress, lay such duties; and if we are to understand this in the sense last mentioned, the Constitution would then be made to introduce a formal provision, for the sake of a very absurd conclusion; which is, that the States, with the consent of the national legislature, might tax imports and exports; and that they might tax every other article, unless controlled by the same body. If this was the intention, why was it not left, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the Union? It is evident that this could not have been the intention, and that it will not bear a construction of the kind."
We submit that, both as argument and authority, this passage is entirely conclusive of the point.
Mr. Madison, we have seen, relies much on the argument, ab inconvenienti-a topic entitled to great weight in a doubtful case, but which is only admissible in such a case. Now we submit that there is no sort of occasion to resort to it here. But if there were, we do not see its peculiar applicability or force. The exercise by the States, of the power of levying duties on imports, it is said, could not have been contemplated, from its experienced and notorious impracticability, even under the old confederation. But, admitting the inefficiency of this reserved power-as we certainly do-how does it follow, that such as it is, it was not meant to reside in the States, when we see a clause of the Constitution clearly indicating that purpose? How are the States in a worse condition, as to this policy now, than they would have been, had the Union never been formed-than they actually were in, according to Mr. Madison's own shewing, under the old confederation? To enforce a restrictive system, requires, in a continental nation, tens of thousands of sentinels and patrols—and the whole naval power of England is not sufficient to prevent the violation of her revenue laws. How could it be expected that any of these States, in its original independence of the rest, should be exempt from the necessary consequences of such an unnatural policy? Every thing goes to shew that an immense system of smuggling is already organizing in Canada, and that the existing tariff promises to become, in the end, only a bill for abolishing the custom houses of the United States, without effecting any other change in the commercial relations of the country. The framers of the Constitution, no doubt, foresaw such results whenever a restrictive policy should come to be adopted here-they would willingly have denied the States the right which these, according to Lather Martin's account, insisted on retaining-they thought the encouragement incidentally afforded by the revenue laws of the United States, quite enough for all purposes of moderate protection--but how does it follow, because the power, as it now exists in the States, is only as efficient as it would have been, had the States retained all their original sovereignty, that, therefore, it does not exist at all? It may be argued, that it ought to have been yielded to the General Government-even this, however, we should altogether deny-but how does that prove that it has, in fact, been yielded?
As to the absurdity implied in a State taxing itself for the benefit of the Federal Treasury, we see nothing half so unreasonable in it, as in its taxing, along with itself, other States, VOL. VI. NO. 11.
having no common interest with it in the object for which the imposition is laid—and such is the present system. The reason why the Convention would not allow the States to come in for a share of the revenue to be derived from the customs, was altogether financial. The Federal Government was expected to rely almost exclusively on that branch of income.* The temptation, therefore, of laying duties, professedly for protection of their domestic industry, but really to fill the coffers of the States, was taken away by this provision. As the Constitution now stands, the States may, with the consent of Congress, levy what duties they please for the benefit of their own manufacturers, but they are not allowed to tax the whole Union for a local purpose. They may secure to themselves-so far as it may be possible to enforce their restrictive laws-the monopoly of their own market; but then, it is a melancholy truth, that this interpretation of the Constitution, deprives them of every peculiar privilege in selling their goods to the other States. The language of Congress to such a State, is-"pursue your own measures you are not satisfied with the commercial policy of the confederacy-you wish to cultivate a distinct interest-be it so. Shut up your ports-line your frontiers with outposts-cover the whole face of your country with policemen and patrols. You have renounced, quoad hoc, your federal relations, and become as you were before the Union. You shall enjoy all the advantages of an independent State--but do not complain because you are allowed no more-because you may not abuse federal powers for local ends."
We have hitherto argued the question as it arises upon the face of the Constitution itself. But since Mr. Madison may be regarded as a witness as well as an expositor of what was meant by himself and his associates in the Convention, we beg leave, in conclusion, to refer our readers to the contemporaneous evidence of Mr. Luther Martin, to which we called their attention in a former article. We do not think it reasonable to require any thing more pointed, precise and unsuspected.
If we have succeeded in shewing that no power whatever has been vested in Congress, to be exercised with a view to the encouragement of domestic industry, and that the States retain all their original sovereignty, quoad hoc, with the single qualification of a superintending, and we will add, salutary control in the General Government over the right of taxing imports and exports, # we have done all that is generally expected in such discussions.
* Federalist, Nos. 30, 36.
+ Southern Review, No. II. Art. 1.
We refer our readers to our observations on the effect of bounties,-which the States may always grant.-Southern Review, No. IV. Article 10.
But in a doubtful matter, we admit that contemporaneous construction is entitled to great consideration, and we have been sorely pressed upon this point by the advocates of the "system."
We have already made many remarks bearing upon the topic now under consideration, but we will add a few more. As we have already been very prolix, they shall be as brief as possible. Let us first state how much we are willing to concede-perhaps, no more is assumed on the other side. We admit, then, that it was the universal expectation of the country, that manufactures and agriculture would derive protection and encouragement from the new government. We admit that this expectation was studiously excited and justified by its advocates before the adoption of the Constitution, and that the preamble of the first act to raise revenue, professing the additional purpose of helping our own industry, did no more than conform to the general wishes of the people. But we affirm, that we have never discovered in any contemporaneous paper of any kind, having the semblance of authority, an expression of a belief or a hope, that the powers of Congress would be exercised with a view to protection-where it would not be necessary to exercise them for the accomplishment of some one of the specified federal purposes of the government. The benefits to be derived to agriculture and manufactures were expected to be altogether incidental. But even with this qualification, the anticipations of men were high and justly high. A new and most beneficent order of things had been established. Public credit was rescued from the lowest depths of degradation, and established on a sure basis. The obligation of contracts became inviolable. All odious discriminating duties, all impediments in the intercourse of the States with each other, were swept away. Favourable commercial treaties might be negotiated. The act of navigation would give a sudden impetus to the activity of our marine. The immense natural capabilities of the country, in short, were to be warmed into life, and developed under the blessed influences of equal laws and rational liberty. In addition to all these things, such protection as the first acts gave to domestic industry, (and such protection Alexander Hamilton thought abundantly sufficient) was the fundamental policy of the country, because the duties then levied were not too high for the ordinary expenses of such a government. The people of that day were moderate men, and when their hopes were warmest they were satisfied with the encouragement given by the fiscal system of that financier. Is it fair under such circumstances to infer from ambiguous expressions, in one sense perfectly consistent with a constitutional exercise of the powers of
government, that those who used them looked to a usurpation of other powers? Legis constructio, say the books, non facit injuriam. If the members of the first Congress had been arraigned as criminals for a premeditated violation of the federal compact, in this particular, they must, on every sound canon of interpretation, have been fully acquitted.
In reference to the "Federalist"-a book of high authority, certainly, and referred to as such in the" Protest" of this Statewe feel perfectly safe in affirming, as the result of a most deliberate perusal, undertaken, on another occasion, with an eye single to this subject, that it gives no sort of countenance (not even in its most general expressions,) to the principles of "the system." We beseech those who still doubt, to follow our example in a thorough re-examination of that able work. If they do not come to the same conclusion with ourselves, we shall be willing to give up the controversy. They will find that the two engrossing topics of the discussion are commerce-properly defined and the raising of revenue by duties on imposts, as a necessary substitute for direct taxes. They will find agriculture and other modes of industry, treated of in some places as local concerns,* and no where considered as more than incidentally connected with the policy of the government. They will perceive that while indirect taxation was regarded as the only sure resource for the exigencies of the confederacy, the danger of any excess in that kind of imposition was represented as completely guarded against by the fact that duties (except in the cases already mentioned,) could be levied only for revenue, and so had a natural limit. They will be convinced that that hatred of unconstitutional, or inordinate taxation which has produced so many struggles between the governing and the governed, from Magna Charta down to our own Revolution, animated the whole people in relation to this very power of raising revenue by duties on foreign merchandize that one reason given for the reformation of the Union was, that the States which received their imports through other States, would never submit to pay arbitrary duties upon them, and that perpetual wars would be the consequence. They will learn that the powers of the Federal Government were thought to be very few, and expected to be but seldom put in requisition-that they were represented as almost exclusively confined to the foreign relations of the country-that the only one, not before, however imperfectly, exercised by the old confederation, was that of regulating commerce,
Federalist, No. 17.
† Ib_No. 35—where high duties are reprobated, notwithstanding the protection they afford. Ib. No. 21, sub. calc. Ib. No. 7, p. 36.