Imágenes de páginas
PDF
EPUB

factures, plain as it seems to you, is not proved. It is mere assumption. The testimony of LUTHER MARTIN, though he had sat by the death-bed of the Convention, and penned down their last words, will not do to rely on here. It does not bear directly on the point. He does not say that the clause was inserted in the present shape, for this purpose. His testimony shows, perhaps, that it might be so; but does not prove that it was so. He only says, that this object was urged, among others, as a reason why the States should not be deprived of the power to lay imposts. Even if I were to allow, therefore, that your conjecture as to the intention of this clause was probably correct I should still deny that it furnished any firm basis for such an argument as you build upon it. It is only conjecture still. It is altogether too uncertain to rest a concluston upon. But this is not all. Were it ever so clear that the protection of manufactures by the States, was the object contemplated in forming this clause, still the inference you have drawn, is palpably unsound, notwithstanding you regard it as “irresistible.” How does it follow, that Congress has not the right to legislate on the general interests of manufactures, because a single State may, with the consent of Congress, do the same for its own interests? By what process do you bring these extremes together? What is the copula that unites them? There is none—there can be none. In order to form one, it would be necessary to show, that the exercise, or the right to exercise the general power by Congress, was incompatible with the exercise of the particular power by an individual State, with the consent, and under the supervision of Congress. Nothing less than this will sustain your inference. But this incompatibility has not been proved. It cannot be proved; for it does not exist. There is no difficulty in supposing, that even if the general power to protcct domestic industry had been expressly vested in Congress, the right might still have been reserved to an individual State, to lay imposts, subject to their direction and controul, for the purpose of more effectually protecting some particular interest of its own I say not that such reservation has actually been made in this article of the Constitution. I say not, that such a provision would have been wise or expedient. This is not to the purpose. But surely it is quite plain, that it might have been made ; and that without involving any sort of inconsistency whatever : And if so, then your “inference’ is any thing but “irresistible.” But as I have already remarked, it is by no means certain that such was the design with which this article was framed. It may be probable ; it may be true, but it is not certain ; and nothing less than undoubted certainty will answer your purpose. What evidence is there of such design? Not a hint of it is to be found in the Constitution. But you ask, “if it does not mean this, what can it mean? If it does not mean this, it is a useless and a stupid clause.” . But if it be so very clear that such is the purport of this article, how happens it, that you were so puzzled in making it out? How happens it, that not more than one man in a hundred would be likely to light on the true solution? That no other solution than one can be given, is any thing but a valid reason to assign for the obscurity of a passage. The difficulty of ascertaining the import of a sentence, where the language is not obscure— which this certainly is not, but only ambiguous—consists in deciding between two or more senses. If this can bear but one sense, there * to be no difficulty in the case. ut “the matter is now plain, because the discussion on the subject of domestic manufactures has thrown light upon it, and especially is it made clear by the debates of the convention.” To this, I answer, that I am unwilling to suppose, that the convention would wrap up a purpose so important—one out of which, such sweeping conclusions were to grow—thus slyly, and conceal it away where no one would be likely ever to discover it ; and where but for the accidental publication of Mr. LUTHER MARTIN’s tissue of violence and misrepresentation, it would probably have lain concealed forever: If I mistake not, you admit that the clause has not, till recently, been understood; and claim the discovery as your own. I would not pluck one feather from your plume, but I may suggest, that it is rather late to look for new disclosures concerning the great principles of our Constitution. Where were all the framers of this instrument, when, at the very first session of Congress, a law was passed for the express purpose of encouraging manufactures? Why did no one of them step forward, and laying his finger on this decisive clause, say to these erring statesmen; ‘you are agitating a question, which you are precluded from entertaining. A right is here reserved to the States to lay imposts. This can be for no other purpose than to protect their manufactures; and therefore the inference is irresistible,” that you cannot exercise the power. Such, we may fairly suppose, would have been the language of these men, had they understood this clause as you understand it. Mr. MAD1son was present, and spoke on the question at some length. I will give you a quotation from his speech, which you may digest as you find ability. “The States that are most advanced in population, and ripe for manufactures, ought to have their particular interests attended to in some degree. While these States retained the power of making regulations of trade, they had the power to protect and cherish such institutions. By adopting this Constitution, they have thrown the exercise of this power into other hands. They must have done this with an expectation that those interests would not be neglected here.” I could not, if I had stood by Mr. MADison, and dictated his expressions for this special purpose, have wished to add a single word. All present seem to have forgotten the existence of this clause; and the Legislature proceeded in their work of “usurpation.” And this work has gone on, from that day to this, unchecked, so far as I know, in any instance, by a reference to this conclusive argument. I have dwelt on this subject perhaps too long. I proceed to another objection, drawn, in part, at least, from the same source. In your 14th No. you endeavour to show, that Congress are precluded from the exercise of a general power to foster Agriculture and Manufactures, by the grant of a special power ‘to promote the progress of Science and the useful Arts, by securing to authors and Inventors, the exclusive right to their writings and discoveries.” Your first position here, is, that this is a grant of power to encourage Agriculture and Manufactures; and your next, that the words of the grant limit the encouragement to be afforded, to the particular method specified. If either of these positions fail, your argument fails likewise. We shall see that neither of them can be maintained. The argument, on a superficial view, is certainly plausible, and it is forcibly urged. You have made the most of it. But it rests on a foundation altogether fallacious. You have yourself made an admission, shall I call it, which one would think should have suggested to your own mind some doubts of your correctness, when you say, that heretofore this clause has not been relied on as prohibiting the general protection of domestic industry. I am extremely suspicious of these new discoveries in the Constitution. I fully believe, that everty thing true and solid, has long been quite familiar. What is new, will, I apprehend, be found to be of a different character. But to the point. You place much reliance on the records of the Convention, in this case. But really, I see nothing there which can afford you the slightest support. I should honestly consider it a waste of time to follow you through this part of the argument, and shall dismiss it with this single remark—that there is not any valid reason to suppose that this clause of the Constitution was intended as a substitute for the various propositions made in Convention, on the subject of Education, Universities, Manufactures, &c. And until this is shown, no inference in favour of your doctrine can be drawn from this quarter. There are good reasons enough to be assigned for vesting this particular power in the Government—reasons which have no direct connection whatever with Universities or Manufactures. You must then rest your argument on the clause as it stands. If this will not sustain it, it must sink. In the first place, then, I utterly deny that Agriculture, and Manufactures are included in the plain popular import of the terms “science and useful arts.” I appeal to every man’s experience of his own con sciousness, whether in any one of the thousand times this combination of terms has met his eye, the idea of hoeing corn, or spinning cotton, ever crossed his imagination. To tell me that the term “Arts,” may be applied to these processes, is nothing. No one doubts that Agriculture is an art, that weaving cotton is an art, that mending shoes is an art. Yet every one knows that these are not the objects suggested to his mind by the terms “Science and Arts;” nor would any reasonable man, who had no theory to support, ever have dreamed that these objects were in the minds of the framers of the Constitution. These men, doubtless, used words in the common and ordinary acceptation. If they did not, they were unfit for their business—or ought, at least, to have sent out their work with a running commentary annexed. And no man is fit to meddle with this instrument, who comes to it with his metaphysical and philological apparatus for clipping, stretching and shaping terms to his purpose. Such a man ought to be remanded to his true vocation; which is that of ferretting out the minute subtleties of verbal logic; or the petty warfare of our tribunals for the “trial of cases small and mean.” Pueri colludant paribus. I will tell you the distinction between ‘Arts' and ‘Manufactures,’ as the terms are used in the Constitution. When ARKwRIGHT was devising his splendid machines for spinning cotton, he was engaged in the practice of an Art—the operatives who watch their motions, and make up the results, are Manufacturers. When WATT was constructing the steam engines, which have revolutionized the world, he was practising

[ocr errors]

an Art—those who employ these engines to drive their machinery for
spinning and weaving, or for cutting nails and rolling hoops, are Ma-
nufacturers. When Whitney was building the cotton gin, he was an
artist—the Negro who feeds it is not so.
When Gen. WASHINGTON recommended the establishment of a “Na-
tional University,” to promote the progress of the ‘Arts and Sciences'—
think you that his mind was bent on the encouragement of Waltham
Sheetings or Taunton Calicoes? And when one of our young aspi-
rants after fame, had received from his Alma JMater, the diploma which
constituted him flrtium Magister, would he be gratified to find that the
world insisted on translating it Master Manufacturer?
You will say, that the reference in these cases, is to the class of li-
beral arts. It doubtless is so; and I am willing to admit that the epi-
thet “useful,” directs our attention to other arts than those usually taught
in “Colleges and Halls.” Still, the application of the epithet is not
to Agriculture or Manufactures. The arts meant here, are such as
were proposed, in the Convention, to be encouraged under the name
of “ingenious discoveries” and “useful inventions;” several exam-
ples of which I have given above. Discoveries and inventions, for
which patents are asked and given, have no more connexion with Agri-
culture or Manufactures, than they have with commerce. And you
might, with just the same propriety, assume, that the object of this
clause was the promotion of the latter, as of the former.
There is a broad and palpable distinction between the meaning of
Arts and Manufactures, which nothing but the hot pursuit of a favourite
notion could have made you overlook. I could fill a volume with quo-
tations illustrative of this distinction—but it surely is not requisite.
The thing is too plain. I will, however, transcribe one or two now be-
fore me. Mr. JEFFERson writes thus: “The oppression of our Agri-
culture in foreign parts, would thus be made the occasion of relieving it
from a *: on the councils and conduct of others; and of pro-
moting Järts, Manufactures and population.” ADAM SMITH says:
“Whatever tends to diminish in any country the number of Artificers
and JManufacturers—tends to discourage Agriculture.” We every where,
in fact, meet with such combinations of terms as these; Agriculture
and the Arts—Manufactures and Arts—Arts and Manufactures; which,
according to your view, must be the veriest tautology.
The Ship-builder and the Architect, in strictness of definition, are
unquestionably Manufacturers; yet whoever heard of employing a man
to manufacture, a Liverpool Packet, a Church, or a dwelling house?
“Summum jus,” says the law maxim, “summa injuvia.” So in regard
to the use of language, overstrained correctness often leads to down-
right absurdity. Let us not imagine that the framers of the Constitu-
tion were such a set of precisionists, as to speak in such a case, ‘by the
card.’ They spoke like men of the world, to men of the world; and
if we mean to interpret their language, we must catch their spirit. The
. ‘auceps syllabarum,’ will not catch this, whatever else he may
Catch.

[ocr errors]

*** **

NO. XXIV.

In my last number, I endeavoured to show, that “Agriculture and Manufactures” are not included in the meaning of the terms, “Science and useful Arts,” as used in the Constitution. But, admitting that they were. Are the fair import and construction of the clause such as to preclude Congress from bestowing any other encouragement than is here specified, on these interests? I conceive not. f What is the plain import of the language, in which this grant is conveyed? What is the power it confers? Simply to grant letters patent, and copy rights. he words, “to promote Science, &c.” express only the object which these privileges were intended ultimately to subserve. It was intended, in the exercise of this power, to hold out encouragement to studious and ingenious men, to pursue their inquiries and discoveries, by securing to their own behoof, the results of their intellectual labors. This was the immediate object of this clause. The public good which might be expected to result from these labors, was the proper object to be assigned in framing it, and incorporating it into the fundamental code of the Republic. This is the true object of all constitutional provisions, as well as of all legislation; and this object is most effectually promoted by securing the rights, and thus encouraging the exertions of all classes, and all individuals. Now, the fruits of intellectual research and industry, constitute a species of property, which can no otherwise be secured to the right owner, than by an expedient of this sort. The usual course of legislation, will not touch the case. This class of interests, therefore, is of a character sufficiently peculiar, and stands out distinctly enough from the mass of interests in the community, to justify and require a special provision for its protection. And it is of too valuable a character; too intimately blended with the improvement of the social state; too conducive to the highest welfare of the community, to have been overlooked, or disregarded, by such Statesmen as were assembled in that Convention. It was important, too, to vest the charge of this peculiar class of interests in the National Government, and not leave it to be provided for by the individual States—because, these last would not have had it in their power to hold out, in this way, to the scholar, and the man of genius, the prospect of a reward at all proportioned to the value of his labors. A copy, or a patent right, valid only in a single State, would be of little comparative worth. Men of this description, the richest benefactors of their race, ought to be permitted to reap their harvest from the soil of the whole commonwealth. Considerations of this sort, worthy of themselves and of the occasion, doubtless influenced the minds of these wise and provident men, in framing this part of our political common law. But to suppose that they intended, in this covert and indirect manner, to rid themselves of the whole subject of the protection of domestic industry; or that they meant to be understood as affording efficient encouragement to manufactures, by giving a patent to the inventor of a carding machine; or to agriculture, by giving another to the inventor of a plough; or to suppose, that they meant to foster these peculiar interests exclusively,

« AnteriorContinuar »