9 CONGRESS. PHILADELPHIA IiOUSE OF REPRESENTATIVES, MONDAY, February 6. In committee of the, whole, on the F-ijhery Bill. [CONTI N U ED.*] MR. MADISON. In the conflict I feel be . tween my disposition on one hand to afford every constitutional encouragement to the fiifhe ries, and niy diflrke on the other, of the conse quences apprehended from some clauses in the bill, I should have forborne to enter into this if 1 had not found that over and above, such arguments as appear to be natural and per tinent to the fubje<ft, others have been introduc ed, which are in my judgment, contrary to the true meaning, and even ltrike at the 'chara<fter iftic principles the exiftihg constitution. Let me premise however to the remarks which I shall briefly offer, on the do<ftrine maintained by these gentlemen,,that I make a material diiiindtion in theprefent cafe, between anallowanceas a mere, commutation and modification of a drawback, and an allowance in the nature of a real and po sitive bounty. I make a diftincftion also, as a 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 N the term " bounty" is in every point of view improper as it is here appli ed, not only beeaufe it may be offenfive to some, and in the opinion of others, carries a dangerous implication ; -but also because it does not express ! the true intention of th«r bill as avowed and ad vocated 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 themerit of granting a bounty. It is supposed by some gentlemen, that Con greft have authority not only to grant bounties in the ferife 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 " gene ral 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 fort of caption or general de scription of the fpecified powers, and as having no further meaning, and giving no further pow er, than what is found in that fpecification, or as an abftradt an-1 indefinite.delegation of pow er extending to all cases whatever ; to all at least as will admit the application of money, which is giving as much latitude as any govern ment could well desire. J, Sir, ha«e always conceived, —I believe those who proposed t ihe constitution conceived, and it is still niore stilly known, and more material toob ferve, t{iat those who ratified the constitution conceived, that this is not an indefinite govern ment, deriving its powers from thegeneral terms prefixed to the fpecified powers, but a limitted government, tied down- to the fpecified powers, which explain and define the general terms. The gentlemen who contend for a contrary doctrine are surely not aware of the consequenc es which flow from it, and which they mull ei ther admit or give up their do<ftrine. It will follow in the firft place that if theterms be taken in the broad sense they maintain, the particular powers afterwards so carefully and cliftin«ftly enumerated would be without mean ing, and tn nit go for nothing. It would be ab find to fay firft, that Congress may dowhatthev please, and then that they may'do this or that particular thing ; after giving Congress power to ra'rfe money and apply it to all put pofcs which they may pronounce neceflary to the general wel fare, it would be absurd, to fay the least, fuper add a power to raise armies, to provide fleets, &c. In fact t' t meaning of the general terms in question niuft either be fought in the subsequent enumeration which limits and details them ; or they convert the government from one limitted as hitherto supposed, to the enumerated powers, into a government without any limits at all. lt is to be recollected that tht terms " common defence and general welfare" as here used, are not novel terms fir ft introduced into this confti tution. They are terms familiar in their con ftrti&ion and well known to the people of Ame rica. They are repeatedly found in the old articles of confederation, where altho they are fufcepti ble of as great latitude as can be given theip by the context here, it was never supposed or pre- ended tliat they conveyed any such power as is now assigned to them. On the contrary, it was always cotifidered as clear and certain, that the old Congress was limitted to the enumerated powers ; and that the enumeration limitted and explained the general terms. I alk the gentle men themselves whether it ever was supposed or ufpetfted that the old Congress could give away lie monies of che dates in bounties, to encou- rage agriculture, or for any other purpose they plea fed. If such a power had been pofTelTed by that body, it would have been much less impo tent, or have borne a very different character from that universally ascribed to it. The novel idea now annexed to these terms, Sand 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 conftrudtion would not only give Congress the compleat legis lative power 1 have dated : it would do more ; it would fupercede all the reftricftions understood at present to lie on their power with reipedt to the judiciary. It would put it in the power of Congress to establish courts throughout the Unit ed States, with cognizance of suits between citi zen and citizen, and in all cases whatsoever. This, Sir, seems to be demonstrable : for if the clause in question really authorises 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 mull have power to create and support a judiciary establish ment, with a jurifdidliori extending to all cases favorable in their opinion tothe general welfare, in the fame manner as they have power to pais laws and apply money, providing in any other way for the general welfare—l lhall be remind ed perhaps, that according to the terms of the constitution the judicial power is to extend to cer tain cases only, not to a'l cases. But this circurn {tance can have no effect in the argument, it be ing presupposed by the gentlemen that the fpe cification of certain obje>fts does not limit the im port of general terms. Taking these terms as an abrtratfl and indefinite grant of power, they comprize 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 objecfts in the legislative article does not, as these gentlemen contend, limit the general power, neither will it be limitted by the partial enumeration of objeifts in the judiciary article. There are consequences, Sir, still more five, which, as they follow clearly from the doc trine combated, mull either be admitted, or the dotflrine must be given up. If Congress cin ap ply money indefinitely to the general welfare, and are the sole and (upreme judges of thegene ral welfare, they may take the care of religion into their own hands ; they may eftabli/li teach ers in every state, county, and parifli, 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 pod roads : in short, eve ry thing, from the higbeft objedl of state legisla tion. down to the molt minute objecft of police, would be throwri under the power of Congress ; for every objecft I have mentioned would admit the application of money, arid might be called, if Congress pleased, provisions for the general welfare. The language held in various difcuflions of this house, is a proof that the dodtrine in questi on was never entertained by this body. Argu ments, wherever the fubjedt would permit, have constantly been drawn from the peculiar nature of this government as limitted to certain enume rated powers, instead of extending, like other governments, to all cases not particularly except ed. In a very late instance, 1 mean the debate on the representation bill, it must be remember ed, that an argument much urged, particularly by a gentleman from Mafl'achufetts, againii the atio of one for 30,000, was t hat this government was unlike the state governments, which had an ndefinite variety of objects vmhin their power, that it had a fina.ll number of objects only to at tend to, and therefore that a smaller number of reprefencatives would be fufficient to administer it. Several arguments have been advanced rofhew that becaiife, in tlie regulation of trade, indirect and eventual encouragement is given to manu factures, therefore Congress have power to give money in direct bounties, or to grant it in any other way that would answer the fame purpose : But finely, Sir, there is a grea: and obvious dif ference 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 prod.uce ; but will any one fay, that by virtue of a mere power to lay duties on imports, Congress might go dire<Ttlv to the pro duce or implements of agriculture, or to the ar ticles exported. It is true, duties on exports are expressly prohibited ; but if there were no arti 358 ele forbidding them a power directly to tax e>t. port's could nev-r be deduced from a power t 0 tax imports, although such a power might direct ly and iricidently affect exports In fhorc, Sir, without'going farther into the,! fubje*Tt, which I should not have here touched | at all but for the reasons already mentioned..^*® I venture to declare it as my opinio.n, that were power of Congress tobe established in the contended for, it would subvert the very on, and tranfinute the very natiure of the limit-■*! ted government eftablilheil by the people of rica : — and what inferences might be diavrn or<Jl what consequences ensue from such a step, incumbent on us all well to consider. * '/*i With refpetft to rhe question before the Houiy -t for linking out the clause, it is immaterial whe ther it be ltruck out, or so amended as to reft"" on the avowed principle of a commutation sos '> the drawback ; but as a clause has been drawn up by my colleague, in order to be i'ubltituted- v 1 ftiall concur in a vote for ilriking out, referv. ' ing to iriyfelf a freedom to be governed in my ' final vote by the modification which may prey ay/ Mr. Bourne (MaflT.) —Mr. Chairman, I think little can be added after so full a difcuffionof the - fubje<fc before you. The'objecft of the firft fedioa in this bill, is intended for the relief of the 6ft- ■ ermen and their owners; they complain that the law now in force was meant for their benefit, by granting a drawback on the filh exported; thii ' they find by experience is not the cafe—forthey fay that neither the fifhermen who catch thefift, ' or the importer of the fait, receives the back ; and I rather fuppbfe, Sir, it is the cafe The owners of ths greater part of the fifhing ves sels are npt merchants, neither do they import the fait they confunie ; but when the filh they take are cured for market, they are fold at the market price ; and it frequently happens, that those persons who purchase the fifli, are not the exporters of them, or the importers of the fait — but a third person, whopurchafes with aprofpect of felling them at a profit, is the exporter; and when it so happens, neither the fifherman who catches the filh, or the importer of the fait, re ceives any benefit from the drawback, unless the purchaser (the third person) gives 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 fifhery lhould be preferved?—lt appears to me that it is. When we consider the labour and afliduity bellowed 011 this object by our rci nifters, at the fettle'ment of peace between us and Great-Britain, and the care then taken to secure this privilege, as appears by the treaty [He r c Mr. Bourne read that part of the treaty which secures to us the fifhery, he then proceeded] and consider the struggle made to deprive us of this inestimable branch of commerce, I cannot sup pose that any one would at this day voluntarily relinquish it, and fuffer Great-Britain to mono polize thissbranch, and fnpply the Mediterranean, .French, and other markets. Great-Britain, at present, enjoys a fufficient portion of this com merce, while France is confined to the narrow li mits of St. Peters and Miquelon. If we relin quish this branch of" the cod filhery, what is left us > —Our whale fiiliery is nearly at an end, and unless government fpeedilv inrerpofes by grant ing relief, we shall totally lose i . — Does not the Briiifh government wifti to deprive us of this branch also ? have not letters or agents been sent to, the iflind of tyantucket, as well as New-Bee ford, where this branch of bufinef* is principally prosecuted, inviting the whale fifhermen 10 re move,.and offering them permanent fettlemenu at Milford-Haven, at the expcnce of their go vernment ?—This mtift be viewed as a great en couragement, in addition to their bounties on 01. to a class of poor men employed in thatbufine s. If the cod fifhery is relinquished, the filhermen have only to remove to theoppofitefhoreof J™ Scotia, where they will find encouragement " * adequate to their services—os all which the) at not unapprised. By encouraging this <• a ' men, your revenue will be encrealed ; for in turn for the fifh exported, you will receive "g • coffee, cocoa, indigo, molafles, pimento, cotto . dying woods, rum, wine, fait, fruit and _ 0 - articles fubjedl to duty, and con fumed in country.—And again, your treahiry will re an excess by the provision in tins bill rot y fume the greater proportion of vefTels e *P ' in this business, are from 20 to 40 tons—tne of Marblehead, perhaps, have principal:l e ones. Suppose thsn a veflel of ;o torl in a season 600 quintals of fifh (a very voyage indeed) her tonnage is 75 0 ' ' f 0 drawback 011 exportation would be 7» that your treasury re.ains three dollar • this bill, which would be a .ofsonth Mr. Chairman, I think, upon tne wi ' nen bv granting this encouragement to th« wQul a aiid their owners, held out I ". th s„ ' u 10 pc prove very beneficial to the United Stat'* be I therefore the section before you , i Itruck out. TO BE QON TJ X Vtß.) t M
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