APPENDIX NO. II

THE CONSTITUTIONAL POWER OF CONGRESS TO LEVY PROTECTIVE DUTIES ON IMPORTS

F a long continued practice can legalize any exercise

If continued

of the power of Congress, then the authority of that body to lay duties on imports, in order to protect domestic trades and industries, is approved by usage. The power has, however, been strenuously denied for more than eighty years, and is still controverted by learned writers. The following notes on books and documents, although without pretensions to completeness, may, therefore, be of interest to the student of the subject.

The views of Alexander Hamilton in The Continentalist (Lodge, vol. i., 231–273), have been already noticed. His paper in The Federalist, (no. xxxiii) "Concerning an Indefinite Power of Taxation," implies the power of Congress to levy duties which afford protection to domestic trades and industries.

Hamilton's Report on Manufactures, presented to the House of Representatives, on December 5, 1791 (Lodge, vol. iii., 294 et seq.), takes the general power of Congress to lay protective duties for granted, but contains an elaborate argument in support of the power to grant bounties. Senator Lodge's historical note, pages 416 and following, is useful.

Of the first importance are Madison's letters to Joseph C. Cabell, in volume iii. of Works of Madison, Philadelphia, 1865. In the notes Madison states with great clearness a principle of constitutional interpretation which has been often resorted to by the Courts, as an aid to ascertaining the scope of the powers of Congress under the Constitution.

"It cannot be denied," writes Madison, "that a right to vindicate the commercial, manufacturing, and agricultural interests against unfriendly and reciprocal policies of other nations, belongs to every nation; that it has belonged at all times to the United States as a nation; that, previous to the present Federal Constitution, the right existed in the governments of the individual States, not in the Federal Government; that the want of such an authority in the Federal Government was deeply felt and deplored; that a supply of this want was generally and anxiously desired; and that the authority has, by the substituted Constitution of the Federal Government, been expressly or virtually taken from the individual States; so that if not transferred to the existing Federal Government, it is lost and annihilated for the United States as a nation. Is not the presumption irresistible, that it must have been the intention of those who framed and ratified the Constitution, to vest the authority in question in the substituted Government. And does not every just rule of reason allow to a presumption so violent a proportional weight in deciding on a question of such a power in the Congress, not as a source of power dis

tinct from and additional to the constitutional source, but as a source of light and evidence of the true meaning of the Constitution."

A useful reprint of the Cabell letters, which is also interesting from a bibliographical point of view, is the pamphlet entitled "Letters on the Constitutionality and Policy of Duties for the Protection and Encouragement of Domestic Manufactures. By James Madison, late President of the United States." Richmond, Printed by Thomas White, opposite the Bell Tavern (Lenox Branch of the New York Public Library, 1829). This pamphlet contains an Appendix of useful extracts from Debates, State Papers, etc., from Washington's to Monroe's administrations, inclusive.

"A Letter to Colonel William Drayton, of South Carolina, in assertion of the Constitutional Power of Congress to impose Protecting Duties," by Mr. Gulian C. Verplanck, published for E. Bliss in New York, 1831 (Lenox), is an able and thorough presentation of the constitutional argument in favor of the power of Congress to levy protective duties.

In the division of Professor F. W. Taussig's "The Tariff History of the United States," entitled "Protection to Young Industries as applied in the United States," there is a valuable discussion of the history of legislation both in its legal and its economic aspect, from the earliest days to 1868. (New York, 1910).

Professor William Hill's "Protective Purpose of the Tariff Acts of 1789" (Journal of Political Economy, vol. ii., p. 54), and his "Early Stages of the Tariff Policy of the United States" (Publications

of the American Economic Association, viii, 107), state concisely, but with great clearness and force, the facts bearing upon the question whether contemporary opinion, at the formation of the Constitution, did or did not attribute to Congress the power to impose protective duties.

The Financial History of the United States, by Davis Rich Dewey (New York, London, and Bombay, 1903), contains a concise argument in favor of the power.

The Financial History of the United States, from 1789 to 1860, by Albert S. Bolles (New York, 1885), contains a useful account of early tariff and other protective legislation.

American Tariff Controversies in the Nineteenth Century, by Edward Stanwood (Boston, 1903), presents the results of a thorough study of the question. The author considers that a great change of opinion with respect to the tariff took place among the leaders of the country, shortly before the meeting of the Constitutional Convention of 1787, in consequence of which the large majority of them came to favor protective duties.

A recent argument in favor of the power is contained in Conrad Reno's "Protective Tariff Laws and the Commerce Clause" (American Law Review, vol. xxvii., p. 519).

The works in opposition to the power are of less importance. But a vigorous argument on this side of the question is contained in "Is Congress a Sovereign Legislature?" by St. George T. Brooke (American Law Review, vol. xxvii., p. 33).

"The original draft of the South Carolina Exposi

tion, prepared for the Special Committee on the Tariff, and, with considerable alterations, adopted by the legislature of South Carolina, December, 1828," is contained in volume vi. of the Works of John C. Calhoun, edited by Richard K. Crallé. In this same volume are also contained Calhoun's Address "On the relation which the State and General Government bear to each other," the "Address to the people of South Carolina," the "Address to the People of the United States," and other papers by Calhoun touching upon the tariff controversy and the nullification proceedings of South Carolina. In these, however, the weight of Calhoun's argument goes rather to justify the power of the States to nullify the operation of an Act of Congress, than to the question of the Constitutional power of Congress to enact a protective tariff measure.

At least of some historical and bibliographical interest is "The Report, Ordinance and Addresses of the Convention of the people of South Carolina, adopted November 24, 1832, Columbia, S. C., printed by A. S. Johnston, Printer to the Convention, 1832" (Lenox). This pamphlet contains the report of the committee to which was referred the matter of providing for calling a convention of the people of the State of South Carolina. It also contains a nullification ordinance, states the constitutional grounds in opposition to the power of Congress to impose protective duties, and presents an Address to the people of South Carolina by their Delegates in Convention, and also an Address to the people of the United States, by the convention of the people of South Carolina.