صور الصفحة
النشر الإلكتروني

foreign nations, to aid their manufactures and sustain their agriculture. Suppose cotton, rice, tobacco, wheat, corn, sugar, and other raw materials could be or should hereafter be abundantly produced in foreign countries, under the fostering hands of their governments, by bounties and commercial regulations, so as to become cheaper with such aids than our own; are all our markets to be opened to such products without any restraint, simply because we may not want revenue, to the ruin of our products and industry? Is America ready to give every thing to Europe, without any equivalent; and take, in return, whatever Europe may choose to give, upon its own terms? The most servile provincial dependence could not do more evils. Of what consequence would it be that the national government could not tax our exports, if foreign governments might tax them to an unlimited extent, so as to favor their own, and thus to supply us with the same articles by the overwhelming depression of our own by foreign taxation? When it is recollected with what extreme discontent and reluctant obedience the British colonial restrictions were enforced in the manufacturing and navigating States, while they were colonies, it is incredible that they should be willing to adopt a government which should or might entail upon them equal evils in perpetuity. Commerce itself would ultimately be as great a sufferer by such a system as the other domestic interests. It would languish, if it did not perish. Let any man ask himself if New England or the Middle States would ever have consented to ratify a constitution which would afford no protection to their manufactures or home industry. If the Constitution was ratified under the belief, sedulously propagated on all sides, that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?

§ 1085. It is idle to say that, with the consent of Congress, the States may lay duties on imports or exports, to favor their own domestic manufactures. In the first place, if Congress could constitutionally give such consent for such a purpose, which has been doubted, they would have a right to refuse such consent, and would certainly refuse it, if the result would be what the advocates of free trade contend for. In the next place, it would be utterly impracticable with such consent to protect their manufactures by

1 See Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828; 4 Elliot's Debates, App. 345.

any such local regulations. To be of any value, they must be general and uniform through the nation. This is not a matter of theory. Our whole experience under the confederation established beyond all controversy the utter local futility, and even the general mischiefs of independent State legislation upon such a subject. It furnished one of the strongest grounds for the establishment of the Constitution.1

§ 1086. In the next place, if revenue be the sole legitimate object of an impost, and the encouragement of domestic manufactures be not within the scope of the power of regulating trade, it would follow (as has been already hinted) that no monopolizing or unequal regulations of foreign nations could be counteracted. Under such circumstances, neither the staple articles of subsistence, nor the essential implements for the public safety, could be adequately insured or protected at home by our regulations of commerce. The duty might be wholly unnecessary for revenue; and, incidentally, it might even check revenue. But, if Congress may, in arrangements for revenue, incidentally and designedly protect domestic manufactures, what ground is there to suggest that they may not incorporate this design through the whole system of duties, and select and arrange them accordingly? There is no constitutional measure by which to graduate how much shall be assessed for revenue, and how much for encouragement of home industry. And no system ever yet adopted has attempted, and in all probability none hereafter adopted will attempt, wholly to sever the one object from the other. The constitutional objection in this view is purely speculative, regarding only future possibilities.

§ 1087. But if it be conceded (as it is) that the power to regulate commerce includes the power of laying duties to countervail the regulations and restrictions of foreign nations, then what limits are to be assigned to this use of the power ?2 If their commercial regulations, either designedly or incidentally, do promote their own agriculture and manufactures, and injuriously affect ours, why may not Congress apply a remedy coextensive with the evil? If congress have, as cannot be denied, the choice of the means, they may countervail the regulations, not only by the exercise of the lex talionis in the same way, but in any other way

1 Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828; 4 Elliot's Debates, App. 345.

2 See The Federalist, Nos. 11, 12. See ante, § 1079.

conducive to the same end. If Great Britain by commercial regulations restricts the introduction of our staple products and manufactures into her own territories, and levies prohibitory duties, why may not Congress apply the same rule to her staple products and manufactures, and secure the same market to ourselves? The truth is, that as soon as the right to retaliate foreign restrictions or foreign policy by commercial regulations is admitted, the question, in what manner, and to what extent it shall be applied, is a matter of legislative discretion, and not of constitutional authority. Whenever commercial restrictions and regulations. shall cease all over the world, so far as they favor the nation adopting them, it will be time enough to consider what America ought to do in her own regulations of commerce, which are designed to protect her own industry and counteract such favoritism. It will then become a question not of power, but of policy. Such a state of things has never yet existed. In fact, the concession, that the power to regulate commerce may embrace other objects than revenue, or even than commerce itself, is irreconcilable with the foundation of the argument on the other side.

§ 1088. Besides, the power is to regulate commerce. And in what manner regulate it? Why does the power involve the right to lay duties?1 Simply because it is a common means of executing the power. If so, why does not the same right exist as to all other means equally common and appropriate? Why does the power involve a right not only to lay duties, but to lay duties for revenue, and not merely for the regulation and restriction of commerce, considered per se? No other answer can be given but that revenue is an incident to such an exercise of the power. It flows from, and does not create the power. It may constitute the motive for the exercise of the power, just as any other cause may; as, for instance, the prohibition of foreign trade, or the retaliation of foreign monopoly; but it does not constitute the power.

§ 1089. Now, the motive of the grant of the power is not even alluded to in the Constitution. It is not even stated that Congress shall have power to promote and encourage domestic navigation and trade. A power to regulate commerce is not necessarily a power to advance its interests. It may in given cases suspend its operations and restrict its advancement and scope. Yet no man ever yet doubted the right of Congress to lay duties to promote and

1 See ante, § 1069, § 1079, § 1087.

encourage domestic navigation, whether in the form of tonnage duties, or other preferences and privileges, either in the foreign trade, or coasting trade, or fisheries.1 It is as certain as any thing human can be, that the sole object of Congress, in securing the vast privileges to American built ships, by such preferences, and privileges, and tonnage duties, was, to encourage the domestic manufacture of ships, and all the dependent branches of business.2 It speaks out in the language of all their laws, and has been as constantly avowed and acted on as any single legislative policy ever has been. No one ever dreamed that revenue constituted the slightest ingredient in these laws. They were purely for the encouragement of home manufactures, and home artisans, and home pursuits. Upon what grounds can Congress constitutionally apply the power to regulate commerce to one great class of domestic manufactures, which does not involve the right to encourage all? If it be said that navigation is a part of commerce, that is true. But a power to regulate navigation no more includes a power to encourage the manufacture of ships by tonnage duties. than any other manufacture. Why not extend it to the encouragement of the growth and manufacture of cotton and hemp for sails and rigging; of timber, boards, and masts; of tar, pitch, and turpentine; of iron and wool; of sheetings and shirtings; of artisans and mechanics, however remotely connected with it? There are many products of agriculture and manufactures which are connected with the prosperity of commerce as intimately as domestic ship-building. If the one may be encouraged, as a primary motive in regulations of commerce, why may not the others? The truth is, that the encouragement of domestic ship-building is within the scope of the power to regulate commerce, simply because it is a known and ordinary means of exercising the power. It is one of many, and may be used like all others, according to legislative discretion. The motive to the exercise of a power can never form a constitutional objection to the exercise of the power.

§ 1090. Here, then, is a case of laying duties, an ordinary means used in executing the power to regulate commerce; how can it be deemed unconstitutional? If it be said that the motive is not to collect revenue, what has that to do with the power?

1 See Mr. Jefferson's Report on the Fisheries, 1st Feb. 1791, 10 Amer. Mus. App. 1, &c., 8, &c.

2 See Mr. Williamson's Speech in Congress, 8 Amer. Mus. 140.

When an act is constitutional, as an exercise of a power, can it be unconstitutional, from the motives with which it is passed?1 If it can, then the constitutionality of an act must depend not upon. the power, but upon the motives of the legislature. It will follow, as a consequence, that the same act passed by one legislature will be constitutional, and by another unconstitutional. Nay, it might be unconstitutional, as well from its omissions as its enactments, since if its omissions were to favor manufactures, the motive would contaminate the whole law. Such a doctrine would be novel and absurd. It would confuse and destroy all the tests of constitutional rights and authorities. Congress could never pass any law without an inquisition into the motives of every member; and even then they might be re-examinable. Besides, what possible means can there be of making such investigations? The motives of many of the members may be, nay, must be utterly unknown, and incapable of ascertainment by any judicial or other inquiry they may be mixed up in various manners and degrees; they may be opposite to, or wholly independent of, each other. The Constitution would thus depend upon processes utterly vague and incomprehensible; and the written intent of the legislature upon its words and acts, the lex scripta, would be contradicted or obliterated by conjecture, and parol declarations, and fleetinġ reveries, and heated imaginations. No government on earth could rest for a moment on such foundation. It would be a constitution of sand, heaped up and dissolved by the flux and reflux of every tide of opinion. Every act of the legislature must therefore be judged of from its object and intent, as they are embodied in its provisions; and if the latter are within the scope of admitted powers, the act must be constitutional, whether the motive for it were wise or just, or otherwise. The manner of applying a power may be an abuse of it; but this does not prove that it is unconstitutional.

§ 1091. Passing by these considerations, let the practice of the government and the doctrines maintained by those who have

1 [If legislation is within the power of the legislative body, the motives of the body in adopting it must be assumed to be correct, and cannot be inquired into. Ex parte McCardle, 7 Wall. 514, per Chase, Ch. J.; Veazie Bank v. Fenno, 8 Wall. 533; Sunbury and Erie R. R. Co. v. Cooper, 33 Penn. St. 278; Baltimore v. State, 15 Md. 376; People v. Draper, 15 N. Y. 545, 555; Ex parte Newman, 9 Cal. 502; Johnson v. Higgins, 3 Met. (Ky.) 566; Wright v. Defrees, 8 Ind. 302; Bradshaw v. Omaha, 1 Neb. 16; Humboldt Co. v. Churchill Co. Com'rs, 6 Nev. 30.]

[blocks in formation]
« السابقةمتابعة »