Jany 6. 1831
I have recd. yours of inclosing the manuscript of J. M. Patton on the subjects of which it is intimated that my opinion would be acceptable.
The paper afford sufficient indication of the talents ascribed to the Author. Of his honorable principles, I believe no one doubts. And with these qualifications for serving his Country, it may be well for it that he is making its Institutions & interests, objects of systematic attention. It is with pleasure therefore that I comply, however, imperfectly with the request in your letter; regretting only that the compliance is so imperfect, and that it may less accord in some respects with the ideas of than might be agreeable to both of us. I am persuaded nevertheless, that his candor will be equal to my frankness.
For my opinion on a Tariff for the encouragement of domestic manufactures, I may refer to my letters to Mr. Cabell in 1828, which will shew the ground on which I maintained its Constitutionality. It avoids the question ’quo animo,’ in using an impost for another purpose, than revenue; a question which, tho’ not in such a case within a Judicial purview, would be asked & pressed in discussions appealing to public opinion.
If a duty can be constitutionally laid on imports, not for the purpose of revenue, which may be reduced or destroyed by the duty, but as a means of retaliating the commercial regulations of foreign Countries, which regulations have for their object, sometimes their sole object, the encouragemt. of their manufactures; it would seem strange to infer that an impost for the encouragement of domestic manufactures, was unconstitutional, because it was not for the purpose of revenue, and the more strange as an impost for the protection & encouraget of national manufactures, is of much more general & familiar practice than as a retaliation of the injustice of foreign regulations of Commerce; It deserves consideration whether there be not other cases in which an impost not for revenue, must be admitted, or necessary interests be provided for by a more strained construction of the specific powers of Congress.
With respect to the existing tariff, however justly it may be complained of in several respects, I can not but view the evils charged on it as greatly exaggerated. One cause of the excitement is an impression with many that the whole amount paid by the consumers goes into the pockets of the manufacturers; whilst that is the case so far only as the articles are actually manufactured in the Country, which in some instances is in a very inconsiderable proportion; the residue of the amount passing like other taxes into the Public Treasury and to be replaced if withdrawn, by other taxes. The other cause is the unequal operation of the tax resulting from an unequal consumption of the article paying it in different sections; and in some instances, this is doubtless a striking effect of the existing tariff. But to make a fair estimate of the evil, it must be enquired how far the Section overburdened in some instances, may not be underburdened in others, so as to diminish if not remove the inequality. Unless a tariff be a compound one, it can not in such a Country as this, be made equal either between different sections, or among different classes of Citizens; and as far as a compound tariff can be made to approach equality, it must be by such modifications as will balance inequalities against each other. The consumption of coarse woolens used by Negroes in the South may be greater than in the North, & the tariff on them be disproportionately felt in that section. Before the change in the duties on tea coffee & molasses, the greater consumption elsewhere of these articles and of the article of Sugar from habit, and a population without slaves, might have gone far towards equalizing the burden; possibly have exceeded that effect.
Be this as it may, I can not but believe, whatever well founded complaints may lie agst. the Tariff, that as a cause of the general sufferings of the country, it has been vastly overrated; that if wholly repealed, the limited relief, would be a matter of surprize; and that if the portion only having not revenue, but manufactures for its object were struck off, the general relief would be little felt.
In looking for the great and radical causes of the pervading embarrassments, they present themselves at once 1. in the fall almost to prostration, in the price of land, evidently the effect of the quantity of cheap western land in the market. 2. in the depreciating effect on the products of land, from the increased products resulting from the rapid increase of population and the transfer of labour from a less productive to a more productive soil, not in effect more distant from the common markets. It is not wonderful that the price of Tobo. should fall when the export thro’ N. Orleans has for the last three years added an annual average of near thirty thousand Hhds to the export of the old Tobo. States or that the price of Cotton should have felt a like effect from like causes. It has been admitted by the Southern Review: "that the fall of Cotton occurred prior even to the Tariff of 1824. The prices of both Tobo. & flour, have had a greater fall than that of Cotton.
To this solution of the problem of the depressed condition of the country may be added the fact not peculiar to Virginia that the fall in the prices of land & its products found the people much in debt, occasioned by the tempting liberality of the Banks, and the flattering anticipations of crops and prices.
It may not be out of place to observe, that in deciding the general question of a protective policy, the public opinion is in danger of being unduly influenced by the actual State of things, as it may happen to be a period of war or of peace. In the former case, the departure from the "Let alone" theory may be pressed too far. In the latter the fair exceptions to it may be too much disregarded. The remark will be verified by comparing the public opinion on the subject during the late war and at the close of it, with the change produced by the subsequent period of peace. It can not be doubted that on the return of a State of war even should the U. S. not be a party, the reasonings agst. the protection of certain domestic manufactures, would lose much of public favor; perhaps too much, considering the increased ability of the U. S. to protect their foreign commerce, which would greatly diminish the risks & expence of transportation: though not the war prices in the manufacturing countries.
For my general opinion on the question of Internal Improvements, I may refer to the Veto Message agst. the "Bonus Bill", at the close of the Session of Congs. in March 1817. The message denies the Constitutionality as well of the appropriating, as of the Executing and the Jurisdictional branches of the power. And my opinion remains the same, subject as heretofore, to the exception of particular cases, where a reading of the Constitution, different from mine may have derived from a continued course of practical sanctions an authority sufficient to overrule individual constructions.
It is not to be wondered that doubts & difficulties should occur in expounding the Constitution of the U. States. Hitherto the aim, in well organized Governments, has been, to discriminate & distribute the Legislative, Executive, & Judiciary powers; and these sometimes, touch so closely or rather run the one so much into the other, as to make the task difficult, and leave the lines of division obscure. A settled practice, enlightened by occurring cases and obviously conformable to the public good, can alone remove the obscurity. [ ] or new sources on complex subjects.
In the Constitution of the U. S. where each of those powers are divided, and, portions allotted to different Governments, and where a language technically appropriate, may be deficient the wonder wd. be far greater if different rules of exposition were not applied to the text, by different commentators.
Thus it is found that in the case of the Legislative department particularly where a division & definition of the powers according to their specific objects is more difficult, the Instrument is read by some as if it were a Constitution for a single Govt. with powers so extensive as the General welfare; and by others interpreted as if it were an ordinary Statute; and with the strictness almost of a penal one.
Between these adverse constructions an intermediate course must be the true one, and it is hoped that it [will?] finally if not otherwise settled be prescribed by an amendment of the Constitution. In no case is satisfactory more desirable than in that of Internal improvements", embracing [ ] Roads, Canals, Light Houses, Harbours, Rivers, and other lesser objects.
With respect to Post Roads the general view taken of them in the manuscript, shews a way of thinking on the subject with which mine substantially accords. Roads when plainly necessary for march of troops, and for military transportations, must speak for themselves, as occasions arise.
Canals as an Item in the general improvement of the Country have always appeared to me not to be embraced by the authority of Congs. It may be remarked that Mr. Hamilton in his Report on the Bank, when enlarging the range of construction to the utmost of his ingenuity, admitted that Canals were beyond the sphere of Federal Legislation.
Light Houses having a close and obvious relation to navigation & external commerce, and to the safety of public as well as private ships, and having recd a positive sanction and general acquiescence, from the commencement of the Federal Government, the Constitutionality of them is I presume not now to be shaken, if it were ever much contested. It seems however that the power is liable to great abuse, and to call for the most careful & responsible scrutiny into every particular case, before an application be complied with.
Harbours, within the above charact[er] seem to have a like claim on the Federal Authority. B[ut] what an interval, between such a Harbour as that of N. York or N. Orleans, and the mouth of a Creek, forming an outlet for the trade of a single State or part of a State, into a navigable stream; and the principle of which would authorize the improvement of every road leading out of the State towards a destined market.
What again the interval between clearing of it[s] Sawyers &c. the Mississippi the Commercial h[igh]way for half the Nation, and removing obstruction by which the navigation of an inconsiderable stream may be extended a few miles only within a single State.
The navigation of the Mississippi is so important in a national view so essentially belongs to the foreign Commerce of many States, and the task of freeing it from obstructions is so much beyond the means of a single State, and beyond a feasible concert of all who are interested in it, that claims on the authority and resources of the Nation, will continue to be, as they have been irresistable. Those who regard it as a case not brought by these features within the legitimate powers of Congress, must of course oppose the claim, and with it every inferior claim. Those who admit the power as applicable to a case of that description, but disown it is in every case not marked by adequate peculiarities, must find as they can a line separating this admissible class from the others; [ ] a necessity best, too often to be encountered in a legislative career.
Perhaps I ought not to omit the remark that altho’ I concur in the defect of powers in Congress on the subject of internal improvements, my abstract opinion has been that in the case of Canals particularly, the power would have been properly vested in Congress. It was more than once proposed in the Convention of 1787; & rejected from an apprehension, chiefly that it might prove an obstacle to the adoption of the Constitution. Such an addition to the Federal powers, was thought to be strongly recommended by several considerations. 1. As Congress would possess exclusively the sources of Revenue, most productive, and least unpopular, that body ought to provide & apply the means for the greatest & most costly works. 2. There would be cases where Canals would be highly important in a national view, and not so in a local view. 3. Cases, where tho’ highly important in a national view, they might violate the interest real or supposed of the State through which they would pass; of which an example might now be cited in the Chesapeake & Delaware Canal, known to have been viewed in an unfavorable light, by the State of Delaware. 4. There might be cases where Canals or a chain of Canals, would pass thro’ sundry States and create a channel and outlet for their & foreign Commerce, forming at the same time aligaments for the Union, and extending the profitable intercourse of its members; and yet be of hopeless attainment if left to the limited faculties, and joint exertions, of the States possessing the authority.
It cannot be denied that the abuse to which the exercise of the power in question has appeared to be liable in the hands of Congress, is a heavy weight in the scale opposed to it. But may not the evil have grown, in a great degree out of a casual redundancy of revenue, and a temporary apathy to a burden bearing indirectly on the people, and mingled moreover with the discharge of debts of peculiar sanctity. It might not happen, under ordinary circumstances, that taxes even of the most disguised kind, would escape a wakeful controul on the imposition & application of them. The late reduction of duties on certain imports and the calculated approach of an extinguishment of the public debt, have evidently turned the popular attention to the subject of taxation, in a degree quite new; and it is more likely to increase than to relax. In the event of an amendment of the Constitution, guards might be devised, against a misuse of the power, without defeating an important exercise of it. If I err or am too sanguine in the views I indulge it must be ascribed to my conviction that of canals railroads & turnpikes, are at once the criteria of a wise policy & causes of national prosperity, that the want of them will be a reproach to our Republican System, if excluding them, and that the exclusion to a mortifying extent will ensue if the power be not lodged where alone it can have its due effect:
Be assured of my great esteem & accept my cordial salutations.