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
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