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ing the propriety of the amendment, we should consider the intention of the Constitution. When it speaks of regulating the militia, was it for organizing, arming, and disciplining, the militia of the several states, that Congress ought to provide ? I think it was not the militia of the nation, but that which existed in the several states. It is impossible the Convention could have had any thing else in contemplation ; because the Constitution says that Congress shall have the power of such parts of them as may be employed in the service of the United States. If we are, then, to govern the militia, it must be such men as the particular states have declared to be militia.
Mr. BOUDINOT. With respect to the power of exempting from militia duty, I believe little doubt will remain on the mind of any gentleman, after a candid examination of the Constitution, but that it is vested in Congress. This, then, reduces the question to the doctrine of expediency. Is it more expedient that the general government should make the exemptions, or leave it to the state legislatures? For my part, I think we ought to exercise the power ourselves; because I can see neither necessity, propriety, nor expediency, in leaving that to be done by others which we ourselves can do without inconvenience.
Mr. JACKSON, (a gentleman of superior talents, who had been an active meniber of the Federal Convention, in framing the general Constitution, and who is one of the judges of the Supreme Court of the United States; was likewise a member of the late Convention of Pennsylvania ; and it is in evidence that he gave his assent to the present Constitution of that state, one article of which declared that persons conscientiously scrupulous of bearing arms shall be exempted from performing militia duty, upon the condition of their paying an equivalent.) Is not this a declaration of the sense of the people of Pennsylvania, that they, and they only, had the right to determine exemptions so far as relates to their own citi. zens? And it is observable that this Constitution has been framed whilst the federal government was in full operation. If this privilege belongs to the state, as they have declared it does, why shall Congress attempt to wrest it from them, first by undertaking exemptions for them, and then depriving them of a tax, which they contemplate to receive into the state treasury, as an equivalent for such exemption ? Certainly such conduct must excite alarm, and occasion no inconsiderable degree of jealousy. These circumstances and considerations are forcible arguments with me to desist.
December 24, 1790. Mr. LIVERMORE. He saw no reason why Congress should grant an exemption to those who are conscientiously scrupulous of bearing arms, more than to any other description of men. They ought, in his opinion, to be exempted by the state legislatures. As to the money accruing from such exemptions, he could not conceive that Congress was authorized to raise a revenue for the United States by the militia bill; nor was any such thing ever intended by the Constitution.
Bill to determine the Time when the Electors of President and
Vice-President shall be chosen.
House of REPRESENTATIVES, January 14, 1791 Mr. SHERMAN showed, from the Constitution, that Congress possess the power of appointing the time of choosing the electors, and the time
when they should meet to give in their votes. He was in favor of Con. gress exercising this power, in order to guard against all intrigue; and this, he conceived, was agreeable to the people ; for in none of the conventions was an amendment of this article ever moved for.
On the Post-Office Bill. - On a Motion to authorize the President to choose the Mail Route.
HOUSE OF REPRESENTATIVES, December 6, 1791. Mr. SEDGWICK. As to the constitutionality of this delegation, (of power to establish post-roads,) it was admitted by the committee themselves, who brought in the bill; for, if the power was altogether indelegable, no part of it could be delegated; and if a part of it could, he saw no reason why the whole could not. The 2d section was as unconstitutional as the 1st; for it is there said, that “it shall be lawful for the postmaster-general to establish such other roads, or post-roads, as to him may seem necessary.”
Congress, he observed, are authorized not only to establish post-offices and post-roads, but also to borrow money. But is it understood that Congress are to go, in a body, to borrow every sum that may be requisite? Is it not rather their office to determine the principle on which the business is to be conducted, and then delegate the power of carrying their resolves into execution ?
Mr. GERRY observed, that, since the words of the Constitution expressly vested in Congress the power of establishing post-offices and postroads, and since the establishing of post-roads cannot possibly mean any thing else but to point out what roads the post shall follow, the proposed amendment cannot take effect without altering the Constitution. The house could not transfer the power which the Constitution had vested in them. Supposing even they could; still it must be allowed that they, assembled from every quarter of the Union, must collectively possess more of that kind of information which the present subject required, than could be obtained by any executive officer. If it was thought necessary, in the present instance, to transfer the power from their own to other hands, with what degree of propriety could they be said to have undertaken to determine the ports of entry throughout the United States, since the Constitution mentions nothing further on that subject than the power of laying duties, imposts, and excises ? According to the arguments now advanced, the legislature might have contented themselves with simply determining the amount of the duties and excises, and left the rest to the executive. But is such conduct would have been improper in that instance, much more so would it appear in the present case; since, on the one hand, there is no provision in Congress that should establish ports of entry, whereas there is no other for the establishment of post-roads.
Mr. B. BOURNE was in favor of the amendment, which he thought both expedient and constitutional. In speaking of post-offices and postroads, the Constitution, he observed, speaks in general terms, as it does of a mint, excises, &c. In passing the excise law, the house, not thinking themselves possessed of sufficient information, empowered the President go mark out the districts and surveys; and if they had a right to delegate such power to the executive, the further delegation of the power of mark. ing out the roads for the conveyance of the mail could hardly be thought dangerous. The Constitution meant no more than that Congress should VOL. IV.
possess the exclusive right of doing that by themse.ves, or by any other person, which amounts to the same thing: the business he thought much more likely to be well executed by the President, or the postmaster-general, than by Congress.
Post-Offices and Post-Roads.
HOUSE OF REPRESENTATIVES, January 3, 1792. On a motion of Mr. FITZSIMONS, to allow stage proprietors, who transport the mail, to carry passengers also, it was argued
That clause of the Constitution which empowers the federal government to establish post-offices and post-roads, cannot (it was said) be understood to extend farther than the conveyance of intelligence, which is the proper subject of the post-office establishment: it gives no power to send men and baggage by post. The state governments have always possessed the power of stopping or taxing passengers. That power they have never given up; and the proposition now made to wrest it from them might be viewed as an attempt to lay the state legislatures prostrate at the feet of the general government, and will give a shock to every state in the Union.
If, by the construction of that clause of the Constitution which authorizes Congress to make all laws necessary for carrying into execution the several powers vested in them, they should establish the proposed regulations for the conveyance of the mail, they may proceed farther, and so regulate the post-roads as to prevent passengers from travelling on them; they may say what weights shall be carried on those roads, and at what seasons of the year; they may remove every thing that stands in the way; they may level buildings to the ground, under the pretence of making more convenient roads; they may abolish tolls and turnpikes; they may, where an established ferry has been kept for a hundred years past in the most convenient place for crossing a river, give the post-rider authority to set up a new one beside it, and ruin the old establishment; they may say, that the person who carries the mail shall participate in every privilege that is now exclusively enjoyed by any man or body of men ; — and allege, as a reason for these encroachments, that they are only necessary encouragements to carry the mail of the United States : in short, the ingenuity of man cannot devise any new proposition so strange and inconsistent, as not to be reducible within the pale of the Constitution, by such a mode of construction. If this were once admitted, the Constitution would be a useless and dead letter; and it would be to no purpose that the states, in convention assembled, had framed that instrument, to guide the steps of Congress. As well might they at once have said, “There shall be a Congress who shall have full power and authority to make all laws which to their wisdom will seem meet and proper."
On the Cod Fishery Bill, granting Bounties.
House of REPRESENTATIVES, February 3, 1792. Mr. GILES. The present section of the bill (he continued) appears to contain a direct bounty on occupations; and if that be its object, it is the first attempt as yet made by this government to exercise such authority ; - and its constitutionality struck him in a doubtful point of view; for in no part of the Constitution could he, in express terms, find a power given o Congress to grant bounties on occupations: the power is neither
directly granted, nor (by any reasonable construction that he could give) annexed to any other specified in the Constitution.
February 7, 1792. Mr. WILLIAMSON. In the Constitution of this government, there are two or three remarkable provisions which seem to be in point. It is provided that direct taxes shall be apportioned among the several states according to their respective numbers. It is also provided that “all duties, imposts, and excises, shall be uniform throughout the United States; and it is provided that no preference shall be given, by any regulation of commercial revenue, to the ports of one state over those of another. The clear and obvious intention of the articles mentioned was, that Congress might not have the power of imposing unequal burdens — that it might not be in their power to gratify one part of the Union by oppressing another. It appeared possible, and not very improbable, that the time might come, when, by greater cohesion, by more unanimity, by more address, the representatives of one part of the Union might attempt to impose unequal taxes, or to relieve their constituents at the expense of the people. To prevent the possibility of such a combination, the articles that I have mentioned were inserted in the Constitution.
I do not hazard much in saying that the present Constitution had never been adopted without those preliminary guards on the Constitution. Establish the general doctrine of bounties, and all the provisions I have mentioned become useless. They vanish into air, and, like the baseless fabric of a vision, leave not a trace behind. The common defence and general welfare, in the hands of a good politician, may supersede every part of our Constitution, and leave us in the hands of time and chance. Manufactures in general are useful to the nation; they prescribe the public good and general welfare. How many of them are springing up in the Northern States! Let them be properly supported by bounties, and you will find no occasion for unequal taxes. The tax may be equal in the beginning; it will be sufficiently unequal in the end.
The object of the bounty, and the amount of it, are equally to be disregarded in the present case. We are simply to consider whether bounties may safely be given under the present Constitution. For myself, I would rather begin with a bounty of one million per annum, than one thousand. I wish that my constituents may know whether they are to put any confidence in that paper called the Constitution.
Unless the Southern States are protected by the Constitution, their valuable staple, and their visionary wealth, must occasion their destruction. Three short years has this government existed; it is not three years; but we have already given serious alarins to many of our fellow-citizens. Establish the doctrine of bounties; set aside that part of the Constitution which requires equal taxes, and demands similar distributions; destroy this barrier; — and it is not a few fishermen that will enter, claiming ten or twelve thousand dollars, but all manner of persons; people of every trade and occupation may enter in at the breach, until they have eaten up the bread of our children.
Mr. MADISON. 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 drawback, 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 have 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 powers, 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 — 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.
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 a 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 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 was ever supposed or suspected that the old Congress could give away the money of the states to 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 those 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 gentle. men. 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, in their power with respect to a 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 the general terms. Taking these terms as an abstract and indefinite grant of power, they comprise all the objects of legislative regulations — 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.