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sonable, when we are called upon to pass an act confined exclusively to this District, that we should conduct towards the people here as if in this inatter they were our constituents!
Mr. GRUNDY. He would not go into an examination of the constitutional power of Congress. For his own part, he should consider himself as culpable, were he to vote for such a measure, if the constitutional power existed, as were he to vote for it in the absence of such power. He considered the faith of the government pledged not to interfere with this subject in this District, and the faith of the government should be preserved as sacredly as the Constitution.
It would be recollected that, by the Constitution of the United States, Congress is expressly prohibited from interfering with the slave trade, which might be carried on by the citizens of the different states for the space of twenty-one years; yet in 1790, the society of Quakers, or Friends, forwarded their petition to Congress praying their interference upon that subject. This petition, although in direct opposition to the Constitution, was received, and a motion was made to send it to a committee. This was opposed, and a proposition was made to lay it upon the table. Those most opposed to the object of the petition sustained the latter proposition. Mr. Madison, of Virginia, a slaveholding state, advocated the reference to a committee.
Mr. KING, (of Alabama.) The cession (of the District of Columbia) was made with a clear understanding, implied or otherwise, that no such power (abolition) would ever be claimed. This was apparent from the fact that, at the time of the cession, the states of Virginia and Maryland had, as they still have, a large slave population; and they never would have been so blind to their own safety as to make this cession, could they have believed that Congress thereby acquired the power to produce a state of things in this District that would operate on their slaves in so dangerous a manner. If such, then, was the understanding with which this cession was made, would it not be a violation of the faith pledged to these two states, if government was now to attempt any interference with the prohibited subject ?
Mr. BUCHANAN. Although the Constitution, as it came from the hands of its framers, gave to Congress no power to touch the right of petition, yet some of the states to whom it was submitted for ratification, apprehending that the time might arrive when Congress would be disposed to act like the British Parliament, (in Charles II.'s time,) expressly withdrew the subject from our control. Not satisfied with the fact, that no power over it had been granted by the Constitution, they determined to prohibit us, in express terms, from ever exercising such a power.
The proposition (the right of petition) is almost too plain for argument, that, if the people have a constitutional right to petition, a corresponding duty is imposed upon us to receive their petitions. From the very nature of things, rights and duties are reciprocal. The human mind cannot conceive of the one without the other. They are relative terms. If the people have a right to command, it is the duty of their servants to obey. If I have a right to a sum of money, it is the duty of my debtor to pay it
If the people have a right to petition their representatives, it is our duty to receive their petition.
This question was solemnly determined by the Senate more than thirty years ago. Neither before nor since that time, so far as I can learn, has the general right of petition ever been called in question ; until the motion now under consideration was made by the senator from South Carolina.
Mr. KING, (of Georgia.) Congress, under this article, the first amendment] can pass no law to "abridge” the right of the people to petition the government. A modern commentator on the Constitution, of some note and much ability, in noticing this part of the article, dismissed it with the remark, that it was totally unnecessary. This is obvious to every one who will consider for a moment the relation between a free people and the government of their own choice. The privilege belonged (Mr. K. said) to the form of government – was united with it, and inseparable from it. It as clearly belonged to the people, on the formation of the government, as did the right to use the English language without any constitutional provision for that purpose; and, said Mr. K., if gentlemen will only look at the Constitution, and not evade it, they will see that the right was not acquired by the Constitution, but only SECURED by it. The right, as a preëxisting one, was expressly recognized by the language of the Constitution itself. What was the language applicable to the question before the Senate? It prevented Congress from passing any law "abridging the right of the people to petition," &c.
The right belonged to the people as inseparably incident to their form of government; was acknowledged to exist by the language of the Constitution; and was guardedly secured by the provisions of that instrument.
Mr. CALHOUN. The first amended article of the Constitution, which provides that Congress shall pass no law to prevent the people from peaceably assembling and petitioning for a redress of grievances, was clearly intended to prescribe the limits within which the right might be exercised. It is not pretended that to refuse to receive petitions, touches, in the slightest degree, on these limits. To suppose that the framers of the Constitution - no, not the framers, but those jealous patriots who were not satisfied with that instrument as it came from the hands of the framers, and who proposed this very provision to guard what they considered a sacred right — performed their task so bunglingly as to omit any essential guard, would be to do great injustice to the memory of those stern and sagacious men.
If the Constitution makes it our duty to receive, we should have no discretion left to reject, as the motion presupposes. Our rules of proceeding must accord with the Constitution. Thus, in the case of revenue bills, which, by the Constitution, must originate in the other house, it would be out of order to introduce them here; and it has accordingly been so decided. For like reasons, if we are bound to receive petitions, the present motion would be out of order; and, if such should be your opinion, it is your duty, as the presiding officer, to call me to order, and to arrest all further discussion on the question of reception.
SENATE, 1836. Mr. LEIGH. The original manuscript journal is the journal — that journal which the Constitution commands us to keep. But gentlemen insist that the constitutional provision, that "each house shall keep a journal," imports only that they shall make one, without requiring that they shall preserve it.
This Anglo-Saxon word to keep is generally used in a strict literal sense, and then always imports to preserve, and nothing else or more. It is used
in divers metaphorical senses, which, from frequency, have the appearance, at first view, of being literal ; but it always imports the idea of preservation or indefinite continuation, requested or commanded. It is never used as synonymous with making any thing.
I think myself well warranted in saying that the expunging of the resolution of the Senate of the 28th of March, 1834, from the journal, literally or figuratively, is wholly irreconcilable with the Constitution, upon any fair construction of its words; and that no authority for such expunction can be found in any precedent whatever at all applicable to the purpose, or entitled to the least weight. I think myself warranted in saying, too, that, if the Senate shall adopt this proposition, and carry it into execution, it will set a precedent franght with the most dangerous and pernicious consequences.
Mr. RIVES. In the jealous apprehensions which were entertained, at the time of the adoption of the Constitution, of the encroachments and abuses of the new government, this objection was strongly urged against the clause in question; but it was replied, and with success, that every legislative body must have the power of concealing important transactions, the publication of which might compromise the public interests; and as it was impossible to foresee and enumerate all the cases in which such concealment might be necessary, they should be left to the sound discretion of the body itself, subject to the constitutional responsibility of its members, and the other securities provided by the Constitution against the abuse of power. These securities have hitherto been found sufficient; and, in point of fact, the journals of both houses have been published from day to day, with such special and limited exceptions as have been universally approved by the public judgment.
This publication, when made, is the practical fulfilment and consummation of the design of the Constitution in requiring a journal to be kept, by either house, of its proceedings. It is agreed, on all hands, that the great object for which a journal is required to be kept is, to give authentic information to our constituents of our proceedings; and that information is to be given, as the Constitution provides, by means of a publication, from time to time, of the journal itself. The requisition to keep a journal, on which gentlemen have laid so much stress, is therefore merely introductory, or what the lawyers call matter of inducement only, to that which forms the life and substance of the provision, to wit, the publication, from time to time, of the journal. The whole structure and sequence of the sentence sustains this interpretation : "each house shall keep a journal of its proceedings, and, from time to time, publish the same." It is evident that the whole practical virtue and effect of the provision is in the latter member of the sentence, and that the former would have been implied and comprehended in it, though not expressed.
The requisition in the present Constitution, to keep a journal, is but an expression, for the sake of greater fulness, of what would otherwise have been implied, and serves only as a more formal introduction to the practical end and substance of the constitutional provision on the subject, and that with which it emphatically concludes, to wit, the publication, from time to time, of the journal. That publication once made, and the people put in possession of the authentic evidence of the proceedings of their agents, the purposes of the Constitution are fulfilled, and the preservation of the original manuscript journal becomes thenceforward an official formality.
MADISON ON THE TARIFF.
MONTPELIER, September 18, 1828. DEAR SIR: Your late letter reminds me of our conversation on the constitutionality of the power in Congress to impose a tariff for the encouragement of manufactures, and of my promise to sketch the grounds of the confident opinion I had expressed that it was among the powers vested in that body.
The Constitution vests in Congress, expressly, “the power to lay and collect taxes, duties, imposts, and excises," and the power to regulate trade."
That the former power, if not particularly expressed, would have been included in the latter as one of the objects of a general power to regulate trade, is not necessarily impugned by its being so expressed. Examples of this sort cannot sometimes be easily avoided, and are to be seen elsewhere in the Constitution. Thus the powers to define and punish offences against the law of nations” includes the power, afterwards particularly expressed, " to make rules concerning captures, &c., from offending neutrals.” So also a power “to coin money” would doubtless include that of "regulating its value," had not the latter power been expressly inserted. The term taxes, if standing alone, would certainly have included duties, imposts, and excises. In another clause, it is said, “no tax or duties shall be laid on exports,” &c. Here the two terms are used as synonymous. And in another clause, where it is said, “ No state shall lay any impost, or duties,” &c., the terms imposts and duties are synonymous. Pleonasms, tautologies, and the promiscuous use of terms and phrases, differing in their shades of meaning, (always to be expounded with reference to the context, and under the control of the general character and manifest scope of the instrument in which they are found,) are to be ascribed, sometimes to the purpose of greater caution, sometimes to the imperfections of language, and sometimes to the imperfection of man himself. In this view of the subject, it was quite natural, however certainly the general power to regulate trade might include a power to impose duties on it, not to omit it in a clause enumerating the several modes of " revenue authorized by the Constitution. In few cases could the "ex majori cautela” occur with more claim to respect.
Nor can it be inferred that a power to regulate trade does not involve a power to tax it, from the distinction made in the original controversy with Great Britain, between a power to regulate trade with the colonies, and a power to tax them. A power to regulate trade between different parts of the empire was confessedly necessary, and was admitted to lie, as far as that was the case, in the British Parliament; the taxing part being at the same time denied to the Parliament, and asserted to be necessarily inherent in the colonial legislatures, as sufficient, and the only safe depositories of the taxing power. So difficult was it, nevertheless, to maintain the distinction in practice, that the ingredient of revenue was occasionally overlooked or disregarded in the British regulations, as in the duty on sugar and molasses imported into the colonies. And it was fortunate that the attempt at an interval and direct tax, in the case of the stamp act, produced a radical examination of the subject before a regulation of trade, with a view to revenue, had grown into an established authority. One thing at least is certain - that the main and admitted object of the parliamentary regulations of trade with the colonies was the encouragement of manufactures in Great Britain.
But the present question is unconnected with the former relations between
Great Britain and her colonies, which were of a peculiar, a complicated, and, in several respects, of an undefined character. It is a simple question, under the Constitution of the United States, whether the power to regulate trade with foreign nations," as a distinct and substantive item in the enumerated powers, embraces the object of encouraging by duties, restrictions, and prohibitions, the manufactures and products of the country. And the affirmative must be inferred from the following considerations:
1. The meaning of the phrase "to regulate trade” must be sought in the general use of it; in other words, in the objects to which the power was generally understood to be applicable when the phrase was inserted in the Constitution.
2. The power has been understood and used, by all commercial and manufacturing nations, as embracing the object of encouraging manufactures. It is believed that not a single exception can be named.
3. This has been particularly the case with Great Britain, whose commercial vocabulary is the parent of ours. A primary object of her commercial regulations is well known to have been, the protection and encouragement of her manufactures.
4. Such was understood to be a proper use of the power by the states most prepared for manufacturing industry, whilst retaining the power over their foreign trade.
5. Such a use of the power by Congress accords with the intention and expectation of the states, in transferring the power over trade from themselves to the government of the United States. This was emphatically the case in the Eastern, the more manufacturing members of the conlederacy. Hear the lauguage held in the Convention of Massachusetts.
By Mr. Dawes, an advocate for the Constitution, it was observed — “Our manufactures are another great subject which has received no encouragement by national duties on foreign manufactures, and they never can by any authority in the old Confederation." Again - "If we wish to encourage our own manufactures, to preserve our own commerce, to raise the value of our owu lands, we must give Congress the powers in question."
By Mr. Widgery, an opponent — “ All we hear is, that the merchant and farmer will flourish, and that the mechanic and tradesman are to make their fortunes directly, if the Constitution goes down.”
The Convention of Massachusetts was the only one in New England whose debates have been preserved.* But it cannot be doubted that the sentiment there expressed was common to the other states in that quarter, more especially to Connecticut and Rhode Island, the most thickly-peopled of all the states, and having, of course, their thoughts most turned to the subject of manufactures. A like inference may be confidently applied to New Jersey, whose debates in Convention have not been preserved. In the populous and manufacturing state of Pennsylvania, a partial account only of the debates having been published, nothing certain is known of what passed in her Convention on this point. But ample evidence may be found elsewhere, that regulations of trade, for the encouragement of manufactures, were considered as within the powers to be granted to the new Congress, as well as within the scope of the national policy. Of the states south of Pennsylvania, the only two in whose Conventions the debates have been preserved are Virginia and North Carolina; and from these no adverse inferences can be drawn; nor is there the slightest indication that either of the two states farthest south, whose debates in Convention, if preserved, have not been made public, viewed the encouragement of manufactures as not within the general power over trade to be transferred to the government of the United States.
6. If Congress have not the power, it is annihilated for the nation -- a policy without example in any other nation, and not within the reason of the solitary one in our own. The example alluded to is the prohibition of a tax on exports, which resulted from the apparent impossibility of raising, in that mode, a revenue from the states, proportioned to the ability to pay it - the ability of some
* Except a portion of the Convention of Connecticut. See vol. ii. VOL. IV.