Part 152

Mr. LAURANCE said, from examining the section, he conceived it contemplated no more than what the merchant is entitled to by existing laws. The merchant is now entitled to the drawback; but it is found by experience that the effect has not been to produce that encouragement to the fishermen which was expected; and he presumed the way was perfectly clear to give a new direction to the drawback, and this is all that is aimed at in the bill. He supposed that the clause had no necessary connection with the question which had been started respecting the right of the Government to grant bounties; but, since the question has been brought forward, it may be proper to consider it. In discussing the question, he inquired, What has Congress already done? Have we not laid extra duties on various articles, expressly for the purpose of encouraging various branches of our own manufactures? These duties are bounties to all intents and purposes, and are founded on the idea only of their conducing to the general interest. Similar objections to those now advanced were not made to these duties. They were advocated, some of them, by gentlemen from the Southward. He traced the effects of these duties, and showed that they operated fully as indirect bounties.

Mr. L. then adverted particularly to the constitution, and observed that it contains general principles and powers only. These powers depend on particular laws for their operation; and on this idea, he contended that the powers of the Government must, in various circumstances, extend to the granting bounties. He instanced, in case of a war with a foreign power, will any gentleman say that the General Government has not a power to grant a bounty on arms, ammunition, &c., should the general welfare require it? The general welfare is inseparably connected with any object or pursuit which in its effects adds to the riches of the country. He conceived that the argument was given up by gentlemen in opposition to the bill, when they admit of encouragement to the fishermen in any possible modification of it. He then adverted particularly to the fisheries, stated the number of men employed, the tons of shipping necessary to export the fish taken, and inferred the sound policy of encouraging so important a branch of business.

Gentlemen say that we do not want a navy. Grant it; but can they say that we shall never have a war with any European power? May not the time arrive when the protection to the commerce of this country, derived from this source, may be of the utmost necessity to its existence? Adverting to Mr. WILLIAMSON's objection from the unequal operation of bounties, and who had referred to the article of the constitution which says that taxes shall be equal in all the States, Mr. L. observed, that this article in the constitution could only respect the rates of the duties, and that the same duties should be paid in Virginia that are paid in New York--at the Northward as at the Southward. It surely could not mean that every individual should pay exactly the same sum in every part of the Union. This was a provision that no law could possible contemplate.

He concluded by a summary recapitulation of his arguments, and saying he hoped the section would be retained.

Mr. MADISON.--In the conflict I feel between my disposition on one hand to afford every constitutional encouragement to the fisheries, and my dislike, on the other, of the consequences apprehended from some clauses of the bill, I should have forborne to enter into this discussion, if I had not found, that over and above such arguments as appear to be natural and pertinent to the subject, others have been introduced which are, in my judgment, contrary to the true meaning, and even strike at the characteristic principles of the existing constitution. Let me premise, however, to the remarks which I shall briefly offer, on the doctrine maintained by these gentlemen, that I make a material distinction, in the present case, between an allowance as a mere commutation and modification of a drawback, and an allowance in the nature of a real and positive bounty. I make a distinction also, as a subject of fair consideration at least, between a bounty granted under the particular terms in the constitution, "a power to regulate trade," and one granted under the indefinite terms which have been cited as authority on this occasion. I think, however, that the term "bounty," is in every point of view improper as it is here applied, not only because it may be offensive to some, and in the opinion of others carries a dangerous implication, but also because it does not express the true intention of the bill, as avowed and advocated by its patrons themselves. For if, in the allowance, nothing more is proposed than a mere reimbursement of the sum advanced, it is only paying a debt; and when we pay a debt, we ought not to claim the merit of granting a bounty.

It is supposed by some gentlemen, that Congress have authority not only to grant bounties in the sense here used, merely as a commutation for drawbacks, but even to grant them under a power by virtue of which they may do any thing which they may think conducive to the "general welfare." This, sir, in my mind, raises the important and fundamental question, whether the general terms which had been cited, are to be considered as a sort of caption or general description of the specified powers, and as having no further meaning, and giving no further power than what is found in that specification; or as an abstract and indefinite delegation of power extending to all cases whatever; to all such, at least, as will admit the application of money, which is giving as much latitude as any government could well desire.

I, sir, have always conceived--I believe those who proposed the constitution conceived, and it is still more fully known, and more material to observe that those who ratified the constitution conceived--that this is not an indefinite Government, deriving its powers from the general terms prefixed to the specified powers, but a limited Government, tied down to the specified powers which explain and define the general terms. The gentlemen who contend for a contrary doctrine are surely not aware of the consequences which flow from it, and which they must either admit or give up their doctrine.

It will follow, in the first place, that if the terms be taken in the broad sense they maintain, the particular powers afterwards so carefully and distinctly enumerated would be without any meaning, and must go for nothing. It would be absurd to say, first, that Congress may do what they please, and then that they may do this or that particular thing; after giving Congress power to raise money, and apply it to all purposes which they may pronounce necessary to the general welfare, it would be absurd, to say the least, to superadd a power to raise armies, to provide fleets, &c. In fact, the meaning of the general terms in question must either be sought in the subsequent enumeration which limits and details them, or they convert the Government from one limited, as hitherto supposed, to the enumerated powers, into a Government without any limits at all.

It is to be recollected, that the terms "common defence and general welfare," as here used, are not novel terms, first introduced into this constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the old Articles of Confederation, where, although they are susceptible of as great latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such power as is now assigned to them. On the contrary, it was always considered as clear and certain, that the old Congress was limited to the enumerated powers, and that the enumeration limited and explained the general terms. I ask the gentlemen themselves, whether it ever was supposed or suspected that the old Congress could give away the moneys of the States in bounties, to encourage agriculture, or for any other purpose they pleased? If such a power had been possessed by that body, it would have been much less impotent, or have borne a very different character from that universally ascribed to it.

The novel idea now annexed to these terms, and never before entertained by the friends or enemies of the Government, will have a further consequence, which cannot have been taken into the view of the gentlemen. Their construction would not only give Congress the complete Legislative power I have stated--it would do more--it would supersede all the restrictions understood at present to lie on their power with respect to the Judiciary. It would put it in the power of Congress to establish courts throughout the United States, with cognizance of suits between citizen and citizen, and in all cases whatsoever. This, sir, seems to be demonstrable; for if the clause in question really authorizes Congress to do whatever they think fit, provided it be for the general welfare, of which they are to judge, and money can be applied to it, Congress must have power to create and support a Judiciary Establishment, with a jurisdiction extending to all cases favorable, in their opinion, to the general welfare, in the same manner as they have power to pass laws and apply money, providing in any other way for the general welfare. I shall be reminded, perhaps, that according to the terms of the constitution, the Judicial Power is to extend to certain cases only, not to all cases. But this circumstance can have no effect in the argument, it being presupposed by the gentlemen that the specification of certain objects does not limit the import of general terms. Taking these terms as an abstract and indefinite grant of power, they comprise all the objects of Legislative regulation, as well such as fall under the Judiciary article in the constitution, as those falling immediately under the Legislative article; and if the partial enumeration of objects in the Legislative article does not, as these gentlemen contend, limit the general power, neither will it be limited by the partial enumeration of objects in the Judiciary article.

There are consequences, sir, still more extensive, which, as they follow clearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every State, county, and parish, and pay them out of the public Treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may undertake the regulation of all roads, other than post roads. In short, every thing, from the highest object of State legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.

The language held in various discussions of this House, is a proof that the doctrine in question was never entertained by this body. Arguments, wherever the subject would permit, have constantly been drawn from the peculiar nature of this Government, as limited to certain enumerated powers, instead of extending, like other Governments, to all cases not particularly excepted. In a very late instance--I mean the debate on the Representation bill--it must be remembered, that an argument much urged, particularly by a gentleman from Massachusetts, against the ratio of one for thirty thousand, was, that this Government was unlike the State Governments, which had an indefinite variety of objects within their power; that it had a small number of objects only to attend to, and therefore that a smaller number of Representatives would be sufficient to administer it.

Several arguments have been advanced to show, that because, in the regulation of trade, indirect and eventual encouragement is given to manufactures, therefore Congress have power to give money in direct bounties, or to grant it in any other way that would answer the same purpose. But surely, sir, there is a great and obvious difference, which it cannot be necessary to enlarge upon. A duty laid on imported implements of husbandry, would, in its operation, be an indirect tax on exported produce; but will any one say, that by virtue of a mere power to lay duties on imports, Congress might go directly to the produce or implements of agriculture, or to the articles exported? It is true, duties on exports are expressly prohibited; but if there were no article forbidding them, a power directly to tax exports could never be deduced from a power to tax imports, although such a power might directly and incidentally affect exports.

In short, sir, without going further into the subject, which I should not have here touched on at all but for the reasons already mentioned, I venture to declare it as my opinion, that were the power of Congress to be established in the latitude contended for, it would subvert the very foundation, and transmute the very nature of the limited Government established by the people of America; and what inferences might be drawn, or what consequences ensue from such a step, it is incumbent on us all well to consider.

With respect to the question before the House, for striking out the clause, it is immaterial whether it be struck out, or so amended as to rest on the avowed principle of a commutation for the drawback; but as a clause has been drawn up by my colleague, in order to be substituted, I shall concur in a vote for striking out, reserving to myself a freedom to be governed in my final vote by the modification which may prevail.

Mr. BOURNE, of Massachusetts--

Mr. Chairman: I think little can be added after so full a discussion of the subject before you. The object of the first section in this bill is intended for the relief of the fishermen and their owners. They complain that the law now in force was meant for their benefit, by granting a drawback on the fish exported; this they find by experience is not the case, for they say, that neither the fishermen who catch the fish, nor the importer of the salt, receive the drawback; and I rather suppose, sir, it is the case. The owners of the greater part of the fishing vessels are not merchants, neither do they import the salt they consume; but when the fish they take are cured for market, they are sold at the market price; and it frequently happens that those persons who purchase the fish are not the exporters of them, or the importers of the salt, but a third person, who purchases with a prospect of selling them at a profit, is the exporter; and when it so happens, neither the fisherman who catches the fish, nor the importer of the salt, receives any benefit from the drawback, unless the purchaser (the third person) give a greater price in contemplation of the drawback, which I think is not to be supposed.

Is it worthy the attention of Government that the cod fishery should be preserved? It appears to me that it is. When we consider the labor and assiduity bestowed on this object by our Ministers, at the settlement of peace between us and Great Britain, and the care then taken to secure this privilege, as appears by the treaty--[here Mr. B. read that part of the treaty which secures to us the fishery, he then proceeded]--and consider the struggle made to deprive us of this inestimable branch of commerce, I cannot suppose that any one would, at this day, voluntarily relinquish it, and suffer Great Britain to monopolize this branch, and supply the Mediterranean, French, and other markets. Great Britain, at present, enjoys a sufficient portion of this commerce, while France is confined to the narrow limits of St. Peters and Miquelon. If we relinquish this branch of the cod fishery, what is left us? Our whale fishery is nearly at an end, and unless Government speedily interpose, by granting relief, we shall totally lose it. Does not the British Government wish to deprive us of this branch also? Have not letters of agents been sent to the island of Nantucket, as well as New Bedford, where this branch of business is principally prosecuted, inviting the whale fishermen to remove, and offering them permanent settlements at Milford-Haven, at the expense of their Government? This must be viewed as a great encouragement, in addition to their bounties on oil, to a class of poor men employed in that business. If the cod fishery is relinquished, the fishermen have only to remove to the opposite shore of Nova Scotia, where they will find encouragement fully adequate to their services--of all which they are not unapprised. By encouraging this class of men, your revenue will be increased; for in return for the fish exported, you will receive sugar, coffee, cocoa, indigo, molasses, pimento, cotton, dye-woods, rum, wine, salt, fruit, and other articles subject to duty, and consumed in the country. And again, your Treasury will receive an excess by the provision in this bill; for I presume the greater proportion of vessels employed in this business are from twenty to forty tons; the town of Marblehead, perhaps, has principally large ones. Suppose, then, a vessel of thirty tons obtains, in a season, six hundred quintals of fish? (a very moderate voyage indeed,) her tonnage is seventy-five dollars; the drawback on exportation would be seventy-eight dollars; so that your Treasury retains three dollars gain by this bill, which would be a loss on the drawback.

Mr. Chairman, I think, upon the whole, that granting the encouragement to the fishermen and their owners, held out in the bill, would prove very beneficial to the United States; I hope, therefore, the section before you will not be struck out.

At this point, the committee rose, and had leave to sit again.

TUESDAY, February 7.

Ordered, That the petitions of the tanners of the town of Newark, in the State of New Jersey, which was presented yesterday, be referred to Mr. BOUDINOT, Mr. WHITE, Mr. THATCHER, Mr. BOURNE, of Rhode Island, and Mr. NILES; that they do examine the matter thereof, and report the same, with their opinion thereupon, to the House.

Mr. BENSON, from the committee appointed, presented a bill for an apportionment of Representatives among the several States, according to the first enumeration, and making provision for another enumeration, and apportionment of Representatives thereon, to compose the House of Representatives after the third day of March, 1797; which was received and read the first time.

The SPEAKER laid before the House a letter from the Secretary of the Treasury, accompanying his report stating the amount of the subscriptions to the loans proposed by the act making provision for the public debt, as well in the debts of the respective States as in the domestic debt of the United States, and of the parts which remain unsubscribed, together with such measures as are, in his opinion, expedient to be taken on the subject, pursuant to an order of this House of the 1st of November last; which were read, and ordered to be committed to a Committee of the whole House on Monday next.

The Fishery Bill

The House again resolved itself into a Committee of the whole House on the bill sent from the Senate, entitled "An act for the encouragement of the Bank and other Cod Fisheries, and for the regulation and government of the fishermen employed therein."

Mr. PAGE said no man in this House was more heartily disposed to encourage the fisheries of the United States than he was; nor could any one more sincerely wish to encourage the bold, active, and enterprising adventurers in that branch of our commerce to persevere in it, than he did; being sensible of the importance of their traffic in peace, and of their defence of their country and annoyance of their enemies in war. But, sir, (said Mr. P.,) I much doubt whether Congress can give that encouragement to the fisheries to which they are entitled, and which policy would lead the General Government to give, were it not restricted by the constitution. I consider, sir, the constitution as intended to remedy the defects of the Confederation to a certain degree; so far only as would secure the independence and general welfare of the Confederated States, without endangering the sovereignty and independence of the individual States. Congress, therefore, was authorized to pay the debts of the Union, and to regulate commerce, partly for that purpose, and partly to prevent improper and dangerous commercial combinations, jealousies, and altercations between the States. But Congress was not intrusted with any regulation of exports which could admit of an interposition which might be dictated by partiality; nor was Congress permitted to lay any tax which could by any possibility operate unequally on the States in general. It is said, indeed, that, if a drawback be not allowed on the salt used in salting fish, there will be, in fact, a duty on the exportation of the fish. But to this I think it may be replied, that the constitution guards the exports of each State against the possibility of a partial restriction by Congress, or even by the States themselves; that Congress cannot lay a duty on the exportation of rice, indigo, tobacco, &c., or any other article exported from any State, because this might be done to the injury of the State where such duty would operate, and to the advantage and aggrandizement of some particular States, its competitors more favored by the General Government, or possessing more influence in the debates of Congress; and that the States are also individually restrained from laying such duties without the consent of Congress, to prevent acts which might produce jealousies, commercial combinations, and, perhaps, at length, civil dissensions. That this restriction, if it be intended to prevent partiality, therefore, cannot extend to authorize drawbacks, which may be productive of partial preferences and their consequent jealousies; that if drawbacks be granted at all, they ought to be universally extended to every article which is or can be exported from any of the States, having in its composition a dutiable ingredient; that hence, ships and other vessels, &c., should have drawbacks on the sails, cordage, iron, &c.; but it may also be said that, as to the duty on salt, that is amply repaid to the merchant by the price annexed to his fish; the sums laid out in salt and fish together form a capital on which he takes care to have a sufficient profit. Those merchants employed in this traffic, if allowed a drawback, would have a preference to other merchants, who import largely, pay heavy duties, and have no other advantage than the usual advance on their goods. The exporter of any article, with a drawback, must have an advantage over his fellow-citizens, who purchase through necessity many dutiable articles, and are obliged to consume them, without any other benefit than the use of them. I mention this because it has been said (by Mr. AMES) that, having made the men of Marblehead pay for salt, they have a right to demand the money expended in that salt on the exportation of their fish; for it would be as reasonable for the man who had ate his fish on which his salt was expended, or who had used any other article for which he had paid a duty, to claim of Congress a return of his money expended therein, as the exporter of fish. The only difference is, that, if both were paid the exact sum so expended by them, the exporter of fish would get twice paid. The purchaser or consumer of his fish would pay him for his salt therein, as if it were substantial fish, and the State for it as mere salt. Here, then, is a field for partiality, discontent, and complaints, which the constitution wisely guards against. It cannot, therefore, be to any purpose to tell us that a bounty, or allowance, as it is now called, is preferable to a drawback, as there is not so great room for fraud in the one as in the other; nor can it be of importance to show that the fishermen have not the profits to which they are entitled. That their services in the last war deserve rewards, &c., their country shared with them the glory of their gallant behavior; but they alone received the rewards they aimed at. The twelve hundred ships they took were a compensation for services and a reward for those exploits. It is true, they annoyed the enemy; it is certain their prizes sometimes fed, armed, and clothed our armies; but it is not said that they did not receive payment for furnishing those things.

But here we are asked, Is it not of great consequence to the United States to employ those bold, skilful seamen in our service, that we may enjoy the commercial advantage they give us in peace, and their powerful assistance in war? To this I reply, that it ought first to be proved that Congress has the power and authority to give them the encouragement demanded; and even if Congress have that power, it ought to be shown that it can be extended to the benefit of the sailors of some of the States, and not to those of every State. It may be said that Congress may with as much propriety give bounties to our hunters in the Western country, to raise up a nursery of soldiers as a barrier against the Indians, and to promote the fur trade, as to give drawbacks and bounties to the fishermen of the Eastern States, with a view to encourage fisheries, and to raise a nursery of seamen for their defence against enemies who may invade our Eastern frontiers. Indeed, if defence be the object in view, we might as well give bounties to sturdy landsmen to be in readiness and constant training for war.