REPORT

OF THE

SELECT COMMITTEE

ON THE

RESOLUTIONS OF GEORGIA AND SOUTH CAROLINA.

The Select Committee to whom were referred the communication of the Governor, transmitting the proceedings of the Legislature of Georgia, in relation to resolutions from the States of South Carolina and Ohio, and the proceedings of the State of South Carolina on the subjects of the Tariff and Internal Improvements, have bestowed on those subjects their most profound consideration.

Having subjected the preambles and resolutions to strict examination and severe criticism, they find the annunciations and results to be mainly sustainable, so far as they pertain to the Acts of Congress, usually denominated the Tariff Laws, and thus designated in those several proceedings.

The proceedings of the Legislature of the State of Georgia, as well as those on which they are founded, emanating from the Legislature of South Carolina, announce and sustain the opinions of Virginia, heretofore proclaimed by successive Legislatures; opinions, which rest on truth and reason; which your committee can discern no cause to relinquish: but which they are ready to defend and sustain, as involving the most essential interests of the Commonwealth.

Respect for the dignity and character of Virginia, and an anxious regard for the tranquility of the Union, admonish your committee to withhold ash romarke might ha querosted he the sansaiquenose of oppression: cush re marks could have no other tendency than to excite hostile emotions, ill adapted to the grave consideration of the momentous question which they are deputed to examine. Your committee will, therefore, proceed with calmness and temperance, to examine the opinion heretofore expressed by preceding Legislatures of this State, that the several Acts of Congress, passed avowedly for the protection of domestic manufactures, are manifest infractions of the Federal Constitution, and dangerous violations of the sovereignty of the States.

The Government of the United States, has ever been regarded by the sovereignty of Virginia, as Federative in character, and limited in power; as deriving its powers from concessions by the States, which concessions were clear and explicit, plainly declarative of all which was delegated, and actually containing a specific enumeration of every power designed to be transferred. The purposes for which these powers may be exerted, have been regarded as distinctly defined, and it was considered that the Government was prohibited, alike, from the exercise of any power not contained in the specific enumeration, as from the perversion of those actually delegated, to any purpose not contemplated in the grant. The Convention which, on the part of Virginia, ratified the Constitution of the United States, gave this interpretation to the instrument. Its advocates then urged its adoption, as constituting such a Government, as is here described. It was insisted, on many occasions, that the powers of the Government were expressly enumerated; and that none others could be claimed. It was insisted, with equal earnestness, that the purposes for which these powers might be exerted, were as distinctly ascertained, and that they could not be perverted, to any other object. The ablest and most zealous advocates of the Constitution insisted, that such was its just construction, even according to the terms of the original text, and it must be acknowledged, that this construction is strengthened, by the subsequent adoption of amendments to the Constitution. Those who opposed the ratification of the Constitution, founded their objection on a supposed absence of limitation, according to the plan originally submitted; and proposed, as an expedient to remedy this defect, the amendments which were subsequently adopted. A majority, however, of the Convention, determined on the ratification of the original text, explained and defined by its advocates, as organizing a Government with limited powers, specifically enumerated, and restrained in the exercise of those powers, to the attainment of specific ends. An anxious solicitude to establish indisputably this construction, induced the recommendation of those amendments which have since been engrafted on the Constitution, establishing this construction even in the opinion of those who opposed the adoption of the Constitution.

This being the sense in which the Constitution of the United States was originally accepted, your committee have anxiously examined the record of succeeding time, to discover if any thing have since occurred, calculated to change the import of the instrument; and after the most patient examination, they confidently report, that nothing has trans

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pired, which could in any manner modify its just construction. If at any succeeding period, attempts have been made to pervert the import of the original compact, Virginia has ever been prompt to avow her unqualified disapprobation, and manifest her undisguised discontent. The imperishable history of '98, has perpetuated the memory of her laudable zeal, in sustaining the true principles of the Constitution, in maintaining the sovereign rights of the States, in successfully resisting the lawless usurpations of a Government bent on the acquisition of boundless power. The deliberations of the Legislature of this Commonwealth, during the period of '98 and '99, in relation to the construction of the Constitution, by a felicitous combination of circumstances, resulted in a just and luminous exposition of the true principles of the Federal Compact. This expose clearly ascertained the just limitations of Federal power, and happily pointed out to future generations, the just rule of interpreting the instrument. The construction then placed on the Constitution, was submitted to the decision of the most august of all tribunals, and sustained by the judgment of United America.

The history of Virginia discloses several occasions, on which the Constitution was brought in review, and the committee have found that on every occasion where the question was involved, the former Legislatures of this Commonwealth have insisted on a limited construction of the instrument. Sustained by the concurrence of our predecessors, from the earliest history of the Constitution, your committee find but little difficulty in determining the Government of the United States, to be Federative in its character, and limited in its powers: That the powers vested in the Government, are conveyed in an express enumeration: That no power can be Constitutionally exercised, which is not contained in that enumeration: That the purposes for which the Government was instituted, are explained in the instrument; and that the powers specified in the enumeration, cannot be legitimately exerted, for any purpose not designated by the Constitution.

Regarding these propositions as true, it seems to your committee, that to determine on the constitutionality of laws, passed for the protection of American manufactures, it can only be necessary to examine the enumeration of grants. If the power be there expressly delegated, then, indeed, the question ends. If, on the contrary, no such power be there expressly conveyed, we must recur to further reflection.

In examining this enumeration of grants, your committee have not been able to discover any such express delegation, authorising the protection of American manufactures, by means of prohibitory, or protecting duties. They find, however, a clause in the Constitution, empowering Congress "to promote the progress of science and the useful arts, by securing for limited times, to authors and inventors the exclusive right to their respective writings and discoveries." On a critical examination of this clause, it will be found to bear with much force, on the question, whether or not Congress have the right to advance the manufacturing interest of America, by the imposition of prohibitory, or protecting duties? The ends which the government may attempt, are plainly ascertained by the terms of the compact. The means which may be legitimately exerted, for the accomplishment of these ends, are as plainly

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art; and it is deemed competent for Congress to promote its progress, by securing for a time, to any fortunate or scientific artificer, the exclusive use of all his discoveries. The interest, then, of the manufacturing art may be promoted after the manner indicated in this clause; but the suggestion of this particular mode operates as an exclusion of all other modes, and it seems to follow as a natural consequence, that the manufacturing interest may not be promoted by the imposition of prohibitory, or protecting duties.

The proceedings which were had in the Federal Convention, confirms this construction of this clause. The plan of government finally adopted, was submitted to the consideration of the Convention on the 29th May, 1787, by an honorable member from the State of South Carolina. No such clause as the one now under consideration, was contained in the original draft, nor was any such engrafted on that draft, by the select committee, to whose examination the plan was subjected. On the 18th day of August, succeeding, it was proposed to consider the propriety of conferring on the government additional powers; and among others, the following were suggested for reflection: To give to Congress the power "to secure to literary authors, their copy rights for a limited time."

"To encourage, by proper premiums and provisions, the advancement of useful knowledge and discoveries." "To grant patents for useful inventions."

"To establish public institutions, rewards, and immunities, for the promotion of agriculture, commerce, trades and manufactures."

These propositions were referred to a select committee, who, after mature reflection, reported on the 5th of September following, the clause as it now stands in the body of the Constitution; investing Congress with the power "to promote the progress of science and the useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." It became the duty of that committee, in the examination of the subjects to them referred, to enquire into the expediency of investing Congress with powers "for the promotion" of "manufactures." In the event that they should find it expedient, it became their duty further to ascertain, the "proper premiums and provisions" over which Congress should be invested with power; what public institutions, rewards, and immunities" Congress should be authorised to "establish" "for the promotion of agriculture, commerce, trades, and manufactures:" and after due deliberation, occupying the attention of the committee from the 18th of August to the 5th of September, it was determined that the only provision which should be made, was contained in the clause which at present occupies our attention. Thus, actually rejecting the propositions which were referred, and negatively declaring their intention, that Congress should have no other power "to promote the progress" of "manufactures," than that of "securing for limited times" "to inventors, the exclusive right to their

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respective" "discoveries." This report was sustained by the Convention, who thereby afforded unequivocal evidence of their will and design, in relation to the subject of domestic manufactures. Manufactures had become the subject of their thoughts: They gravely deliberated on the powers necessary to be vested in the government, for the promotion of the manufacturing art, and after consultation of 17 days, solemnly determined, that the only power over the subject, which it was wise to confer on the government, was, that of securing temporarily to inventors, any exclusive advantages which might result from their discoveries. Your committee cannot but regard these occurrences as a virtual, if not an actual rejection of the proposition to invest Congress with any other powers, for the promotion of manufactures. And they are, therefore, the more confirmed in their conviction, that manufactures cannot be legitimately promoted, by the imposition of prohibitory, or protecting duties.

Your committee would not rest assured, of a faithful discharge of the important duties which devolve upon them, were they to withhold all comment on such clauses of the Constitution, as have been claimed to convey to Congress, the right to protect domestic manufactures. The 8th section of 1st article, has been relied on as conveying that right. This section provides, that "Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States." It is insisted by the advocates of protecting duties, that Con. gress is invested by this clause, with unqualified power over the subject of duties and imposts; which may be well exerted for the advancement or advantage of the American manufacturer; but this proposition appears to your committee to be entirely unsustainable. So far from conveying to the Government of the United States, unqualified power over the subject of duties and imposts, that Government is restrained in the exercise of its power over the subject, to the accomplishment of objects, enumerated in the very clause itself. The words "to pay the debts, and provide for the common defence and general welfare of the United States," are ascertained by the plainest rules of grammatical construction, to be a limitation on the preceding member of the sentence, restraining Congress in the exercise of the power "to lay and collect taxes, duties, imposts, and excises," to the objects of paying the debts, and providing for the common defence and general welfare of the United States. If this be true, the section contains an express enumeration of all the purposes for which the power may be exerted: the care and attention of American manufactures, are not embraced within this enumeration: and it would seem to your committee necessarily to follow, that the power conveyed by the section, cannot be exerted for the protection or promotion of American manufactures.

It would be uncandid in your committee to elude or evade the examination of the question, whether or not the words "to pay the debts, and provide for the common defence and general welfare of the United States," convey to Congress distinct and substantive grants of power. The affirmative of this proposition has been maintained by the advocates of protecting duties; but, your committee confess, that after the most mature deliberation, they have not been able to arrive at a similar conclusion. The collocation of the words excludes the idea of such a construction. They are inserted after the terms "duties and imposts." and are immediately succeeded by the words "but all duties, imposts and excises, shall be uniform throughout the United States." This concluding member of the section proves, that the attention of its framers had not been diverted from their primary subject. They had not introduced another subject, but were engaged in modifying, restraining, or regulating the power over the subject first introduced. Their provisions were to have reference to it; there was nothing else on which they could attach, and the words "to pay the debts, and provide for the common defence and general welfare of the United States," could no otherwise affect the power ❝to lay and collect taxes, duties, imposts and excises," than as creating a limitation, restraining Congress in its exercise, to the raising of money for the purpose of paying the debts, and providing for the common defence and general welfare of the United States. Had the Convention designed these words as conveying any substantive grant, they would have been separated by more distinct marks of punctuation. They would have been thrown into a separate sentence. This was done in every other instance. All other subjects of grants of power have been treated of in sentences. The grants and provisions on each subject, are perfected and concluded before the introduction of another subject, and it would seem to your committee to be unaccountable, if in this particular instance the Convention had introduced a distinet grant between the clause which relates to the raising of money, and an acknowledged limitation on that clause. To construe the words as containing a substantive grant of power, is to convict the framers of the Constitution of the gross impropriety of interpolating one substantive grant between another substantive grant and its acknowledged limitation. If these words, "to pay the debts, and provide for the common defence and general welfare of the United States," were designed as a limitation on the first member of the sentence, the collocation cannot be improved: They follow immediately the words which they were intended to qualify, and have a natural and obvious connexion with them.

If, on the contrary, they be designed to inpart additional energies to the Government, the Convention are convicted of this confused interpolation, when by a natural transposition of the members of the sentence, the design would have been clear. The difficulty would have been rendered less, had the section been constructed thus: Congress shall have power:

To lay and collect taxes, duties, imposts and excises; but all duties, imposts and excises, shall be uniform throughout the United States.

Congress shall have power to pay the debts, and provide for the common defence and general welfare of the United States.

Had this subject been thus arranged it would have strengthened the argument for protecting duties; but, as the members of the sentence are at present disposed, to construe the words "to pay the debts, and provide for the common

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defence and general welfare of the United States," as conveying substantive grants, is to convict the framers of the Constitution of disjoining the limitation, "but all duties, imposts and excises, shall be uniform throughout the United States," from the power to lay and collect taxes, duties, imposts and excises," which it was designed to limit, and of appending it to the power "to pay the debts, and provide for the common defence and general welfare of the United States," which it was not designed to affect at all. But, the Convention is relieved from the imputation of these inaccuracies of composition, by giving to their proceedings their rational explication, that the latter members of the sentence were designed as limitations on the power to raise money: The one declarative of the purposes for which it might be raised, the other prescribing that it should not be raised in unequal proportions on the several sections of the Union.

If this conviction wanted confirmation, it would be found in the history of the section, as it was originally introduced to the consideration of the Convention. It contained unlimited authority over the subject of taxes, duties, imposts and excises. It was submitted in these words: "The Legislature of the United States shall have power to lay and collect taxes, duties, imposts and excises." In this form it was referred to a select committee, who reported it without amendment or appendage. On the 16th of August, it was proposed to insert at the end of the section: "Provided, That no tax, duty or imposition, shall be laid by the Legislature of the United States, on articles exported from any State." The consideration was postponed, and the subject referred. Six days afterwards, the committee reported the section with amendments, so as to make it stand: "The Legislature of the United States shall have power to lay and collect taxes, duties, imposts and excises, for payment of the debts and necessary expenses of the United States, provided that no law for raising any branch of revenue, except what may be specially appropriated for the payments of interest on debts or loans, shall continue in force for more than years. Your committee here discover the origin of the clause which relates to the payment of the debts, and the provision for the common defence and general welfare of the United States. Under the terms in which it was introduced, no doubt can exist as to its object. It was a manifest limitation on the preceding member. The powe. to raise money had been granted without limitation, and the amendment restrained its exercise to the raising of money "for payment of the debts and necessary expenses of the United States," with the addition of a proviso containing even a further limitation. On the 23d of August, it was moved to amend this section so as to make it "The Legislature shall fulfil the engagements, and discharge the debts of the United States, and shall have power to lay and collect taxes, duties, imposts and excises." This motion prevailed, but was re-considered on the ensuing day, and the subject re committed. On the 31st of August, it was agreed that "duties, imposts and excises, laid by the Legislature, shall be uniform throughout the United States." On the 4th of September, the committee fully and finally reported the section, in these words, thus punctuated: "The Legislature shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States." It does not appear from the Journal of the Convention, that this part of the section ever again came under consideration after the confirmation of this repart; except that perhaps, on the 14th of September, it received as an amendment the addition of these words: "but all duties, imposts and excises, shall be uniform throughout the United States." A committee of five members was appointed "to revise the style of, and arrange the articles agreed to by the House." This committee was invested with no power to adopt any amendment affecting in any manner the import of the sentence, and whatever modification it subsequently experienced, was adopted from a regard to propriety of arrangement, and accuracy of style. It is obvious from this plain relation, that the original design in introducing this member of the sentence, was the creation of a limitation on the power to raise money, prohibiting the exertion of that power, except "for payment of the debts and necessary expenses of the United States." This limitation was had constantly in view, and whatever modifications the language experienced, were adopted from a regard to the propriety of style.

Various and numerous are the reflections which have suggested themselves to your committee, demonstrating the truth of the proposition, that Congress cannot legitimately lay and collect taxes. duties, imposts and excises," to advance the interest of the American manufacturer. It will not be contended, that Congress have power, to impose and collect taxes or excises, to confer gratuities on any favored portion of the community; none would contend for such a power, and for the honor of the American people, it is hoped, that few would submit to its practical operation; but the power of Congress over duties and imposts, is not more ample than that over taxes and excises. The power over all is precisely the same; conferred by the very same section of the Constitution; by the use of the very same terms; under precisely the same limitations. Any object which may be accomplished or attempted, by the exertion of the power, to lay and collect duties and imposts, may be as constitutionally accomplished or attempted, by the exertion of the power to lay and collect taxes or excises. The selection from ong these various means, is left to the wisdom and discretion of Congress. The propriety of selecting the one or the other, must be resolved into a question of expediency, and on occasions where Congress may not select at discretio has no power to select at all. If then taxes and excises may not be legitimately imposed, to confer gratuities favourites of Government, it would seem to your committee to be difficult to demonstrate the competency of the Government to lay and collect duties and imposts, to further the interest of the American manufacturer, who, far from rendering any equivalent, for the advantage which he derives from the operation of the Tariff, occasions a great and incalculable loss to the Treasury.

Acting under the influence of these reflections, your committee are constrained to adopt the opinion, that there is nothing in this section, which confers on Congress, the right to foster domestic manufactures, by the imposition of prohibitory or protecting duties.

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This right has been claimed for the Government, under the clause, which gives to Congress, the power "to ret gulate commerce with foreign nations, and among the several States, and with the Indian tribes." But it seems to your committee, that the authority to regulate commerce, involves no power over domestic manufactures. The phrases are entirely dissimilar, and cannot be construed as synonimous. Each is a distinct, determinate subject, and they cannot possibly be identified. Commerce being the interchange of commodities, implies the exchange of one thing for another, between different individuals or nations. Domestic manufactures are local establishments, founded for the production of commodities, and the phrase in:plies no exchange at all. The term commerce associates a general idea of trade. The term manufactures associates the idea of fixed, permanent, local foundations. Commerce supplies to the American citizen, in return for the product of his labour, the varied products of distant climes. Manufactures convert his raw material into fabricks for consumption. Sophistry itself cannot identify things thus substantive and distinct; nor render synonimous, the terms or phrases by which they are represented. Yet the argument which derives the power to protect domestic manufactures from the power to regulate commerce, does indeed identify the subjects, and render the terms substantially synonimous.

The power too to regulate commerce, was granted with a view to its perfection. Independent of the consideration of revenue, it was delegated to secure the most advantageous arrangements in foreign trade, and to ensure domestic tranquillity, by extinguishing all subjects of cavil among the States, originating in particular conflicting legislation. But the policy of the protecting duty's system, is by no means the advancement of commercial interest. Its object is to extinguish foreign trade; whilst it surely disturbs domestic tranquillity, by furnishing a subject of loud and heavy complaint, of severe and angry recrimination. To derive, then, the right to protect domestic manufactures, from the power to regulate commerce, would be to pervert the design of the framers of the Constitution, defeat the ends of the instrument itself, and to establish the paradoxical proposition, that it is the same thing to perfect and to destroy.

Having concluded this minute examination of the several clauses of the Constitution, which were supposed to refer to the subject of protecting duties, or which have been claimed to have such reference, your committee find themselves occupying a position whence they may proceed with greater advantage to the contemplation of this momentous subject. The great design of the Federal Compact, as conceived by the wisdom of its illustrious authors, was the establishment of a Government, competent to combine the energies of the several States, for the purposes of mutual and reciprocal safety and protection, against foreign insult and aggression: A government, adequate to secure the harmony and tranquillity of America, by exterminating all subjects of feud, and interposing its friendly and impartial adjudication, on occasion of cavil or dispute among the States. Experience had shewn to our sagacious Statesmen, that these were subjects of a general concern, in which the States held a common interest; the advantages of which were mainly sacrificed, by the particular, conflicting legislation of the State. The jurisdiction over these, it was obviously proper, to vest in some common tribunal, having authority to legislate for the general weal, and in relation to these subjects, to secure the greatest possible advantages, to the common family of American States. The difficulty and delicacy of erecting such a tribunal, with powers adequate to these ends, yet so constructed as to ensure the perpetual independence of the States, with unimpaired authority over all other subjects, forcibly suggested itself to the sagacity of those who then controuled the destinies of America. They despaired of this vast achievement, by the efforts and under the sanctions of individual man, and wisely determined to bring to its accomplishment, the energies and sanctions of independent sovereignties.

In con

Your committee will not impose on themselves the labour of compiling an historical sketch of the transactions, which induced the foundation of the Federal Government. This history, it is presumed, is familiar to all. formity with arrangements previously understood, the distinct and independent States of America assembled in General Convention at Philadelphia, and in their sovereign, corporate characters, proceeded to consider the nature of the Compact, which it might be deemed wise to establish among themselves. All the proceedings which were then had, were dispatched in their characters of sovereign States, and a Government was instituted, not sustained by the sanc tion of a majority of the people of America, but by the sanctions of the people of the several States. The plan of Government, then established, was conformable to suggestions heretofore made. Each of the sovereignties then assembled, determined to cede to the Federal Government, certain portions of its sovereignty, reserving the residue unimpaired. In the cessions which were made, the Government was enabled to concentrate the whole strength of the Union, for the assertion and vindication of our national rights. It was invested with sufficient power, to tranquilize disturbances among the States; together with a general jurisdiction, over such matters of general concern, as involved the common interests of the States, but which could not be wisely arranged, by the rival, partial, and conflicting legislation of the particular States. The jurisdiction over all other subjects was expressly reserved to the States respectively. All subjects of a local nature, the internal police of the States, the jurisdiction over the soil, the definition and punishment of crime, the regulation of labour, and all subjects which could be advantageously disposed, by the authority of a particular State, were reserved to the jurisdiction of the State Governments. The wisdom of this regulation will not be questioned; for, it surely must be sufficiently obvious, that to subject our local or domestic affairs, to any other authority than our own Legislature, would be to expose to certain destruction, the happiness and prosperity of the people of Virginia This principle was accordingly established: That all subjects of a general nature should be confided to the Federal Government, whilst those which were local in their character, were reserved for the jurisdiction of the States respectively.

This distribution of political power having been established by the Constitution, the happiness and prosperity of the American people demand, that it should be preserved. The theory of government as established in America, contemplates the Federal and State Governments as mutual checks on one another, constraining the various authori

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