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cannot afford the protection in the mode contemplated, inasmuch as they are prohibited from laying any duties on imports, except such as may be necessary for executing their own health and inspection laws, and have no power whatsoever to regulate commerce. Whatever, therefore, may be the opinions of the most enlightened men as to the policy of protecting domestic manufactures, or, in other words, as to the question whether the "general welfare" is promoted by the imposition of duties on imports with that view, those opinions must necessarily be founded on facts and principles of political economy, concerning which none but the National Legislature can, for any practical purpose, authoritatively decide. The necessity of vesting in Congress the power of determining such a question, may be illustrated by analogy from the power of the President to judge of the existence of the exigency upon which his power of calling forth the militia is made to depend. Without such authority, we have seen that both the existence of the exigency and the legality of the proceedings would turn, not on his knowledge or belief of the one, or his judgment on the other, but upon the verdict of a jury as to the facts, and the judgment of the court on the legal questions they might present. So with respect to the power now under consideration: unless Congress have authority to decide on the circumstances upon which the exercise of their legislative discretion depends, both facts and principles of a complicated character, concerning which great conflict of opinions exists, would be subject to judicial examination, and a construction given to the Constitution, not merely by the judgment of the court on the question whether Congress is authorized "to lay duties to provide for the general welfare," but upon the opinion of the jury whether "the general welfare"

was, upon sound principles of public policy, in fact promoted by protecting duties.

With regard to the existing laws imposing duties on imported articles, the objection, so far as founded on the nature of the objects to which the revenue thus produced is applied, loses much of its force, from the circumstance that these laws were passed before the extinction of the public debt, for the payment of which, as well as to the support of the national institutions, the proceeds of those duties were intended to be applied. Whether they have in fact been so applied, or to what purposes the surplus arising from them has been, from time to time, appropriated, are questions wholly independent of the constitutional validity of laws merely authorizing such duties to be collected. When collected, and paid into the national treasury, they are mingled with the general mass of funds, and are at the disposal of Congress; and as, by the Constitution, "no money can be drawn from the treasury but in pursuance of appropriations made by law," the question as to the constitutionality of the objects to which any part of the public revenues may be applied can never arise, until a law be proposed or enacted for their specific appropriation.

It has been, moreover, objected that the existing laws, imposing duties on imports, are unequal in their operation, and therefore contrary to that provision of the Constitution which requires all duties to be "uniform throughout the United States." But the uniformity required is plainly in the imposition, and not in the operation of the duties; and whatever may be the fact as to the inequality of their operation, it is equally plain that it never can be controlled by the Legislature, but must always be regulated by the consumption of the article; for all indirect taxes,

except imposts on articles of absolute necessity, may be said to be voluntary in their operation; as the amount paid by any individual must always depend on his spontaneous purchase of the article.

The power of borrowing money on the credit of the United States is conferred on the National Government in general terms; but as the public credit of the Union must depend on the sources of revenue placed at its command, this power must have been intended to be exercised in anticipation of the national resources, and must, consequently, be subject to the same restrictions as to its objects, to which the power of taxation is limited and confined.

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When the present Constitution was adopted, the United States were indebted to foreign nations for the expenses of our Revolutionary war; and many of our own citizens had large claims either upon the confederacy, or upon its separate members, for services and supplies during that eventful contest. liquidate and consolidate those debts, discharge a part of them, and secure the remainder, were measures necessary to the preservation of the public faith, and the maintenance of the public interests, both at home and abroad. But to have resorted to taxation, in order immediately to accomplish these objects, would, had it even been practicable, have proved injurious to the nation, and ruinous to private individuals. It was foreseen that many of the public creditors would be satisfied with the assumption or recognition by the new government of the principal, and the payment of the interest of the public debts. Under the power conferred on Congress to borrow money, it was enabled to make the necessary provisions for combining the whole expenses of the war, whether incurred by the confederacy or the states, in one general amount, and funding it as one

consolidated debt. The sources of revenue placed at the disposal of the Federal Government have since enabled it to discharge, not only the whole of this debt, but that, also, which occurred in the late war. But in case of future exigencies, or a failure of the usual supplies of revenue, similar means are at its command for continuing its operations, maintaining its existence, and vindicating its honour.

LECTURE VIII.

ON THE POWERS VESTED IN THE FEDERAL GOVERNMENT FOR REGULATING INTERCOURSE WITH FOREIGN NATIONS.

THE powers vested in the General Government for regulating foreign intercourse, consist, First. Of the powers to make treaties; and to send and receive ambassadors, and other public ministers, and consuls.,

Secondly. Of the power to define and punish piracies, and felonies committed on the high seas, and other offences against the law of nations; and,

Thirdly. Of the power of regulating foreign commerce; including a power to prohibit, after a certain period, now elapsed, the importation

of slaves.

This class of powers forms an obvious and essential branch of Federal administration; for if the United States are one nation in any respect, they are most clearly so in respect to other nations.

I. The powers to make treaties, and to send and receive ambassadors and other public minis

ters, are essential attributes of national sovereignty, and of that international equality which the interests of every sovereignty require it to preserve. Both powers were possessed by Congress under the Confederation, but not to the extent to which they are now enjoyed; for then the former power was embarrassed by an exception, under which treaties might be substantially frustrated by regulations of the states, and the latter did not comprehend "other public ministers and consuls."

As treaties with France and Holland, and especially the treaty of peace with Great Britain, existed when the Constitution was adopted, it became necessary to vary its terms in regard to treaties, from those relative to the laws of the United States; the declaration it contains in respect to the supremacy of the latter operating only in future, while in reference to the former the terms are, "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." These terms were intended to apply equally to previously existing treaties, as well as to those made subsequently to the Constitution; and it has, accordingly, been adjudged, by the Supreme Court, that they effectually repeal so much of the state laws and constitutions as are repugnant to them.*

More general and extensive terms, also, are used in vesting the power with respect to treaties, than in conferring that relative to laws; and, while the latter is laid under several restrictions, there are none imposed on the exercise of the former, notwithstanding it is committed to the

* 3 Dallas, 199.

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