OPINIONS,

SELECTED FROM DEBATES IN CONGRESS.

FROM

1789 TO 1836,

INVOLVING

CONSTITUTIONAL PRINCIPLES.

Oath. On a Bill prescribing the Oath to support the Consti

tution.

May 6, 1789.

Mr. GERRY said, he did not discover what part of the Constitution gave to Congress the power of making this provision, (for regulating the time and manner of administering certain oaths,) except so much of it as respects the form of the oath; it is not expressly given by any clause of the Constitution, and, if it does not exist, must arise from the sweeping clause, as it is frequently termed, in the 8th section of the 1st article of the Constitution, which authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." To this clause there seems to be no limitation, so far as it applies to the extension of the powers vested by the Constitution; but even this clause gives no legislative authority to Congress to carry into effect any power not expressly vested by the Constitution. In the Constitution, which is the supreme law of the land, provision is made that the members of the legislatures of the several states, and all executive and judicial officers thereof, shall be bound by oath to support the Constitution. But there is

no provision for empowering the government of the United States, or any officer or department thereof, to pass a law obligatory on the members of the legislatures of the several states, and other officers thereof, to take this oath. This is made their duty already by the Constitution, and no such law of Congress can add force to the obligation; but, on the other hand, if it is admitted that such a law is necessary, it tends to weaken the Constitution, which requires such aid: neither is any law, other than to prescribe the form of the oath, necessary or proper to carry this part of the Constitution into effect; for the oath required by the Constitution, being a necessary qualification for the state officers mentioned, cannot be dispensed with by any authority whatever, other than the people, and the judicial power of the United States, extending to all cases arising in law

or equity under this Constitution. The judges of the United States, who are bound to support the Constitution, may, in all cases within their jurisdiction, annul the official acts of state officers, and even the acts of the members of the state legislatures, if such members and officers were disqualified to do or pass such acts, by neglecting or refusing to take this oath.

Mr. BLAND had no doubt respecting the powers of Congress on this subject. The evident meaning of the words of the Constitution implied that Congress should have the power to pass a law directing the time and manner of taking the oath prescribed for supporting the Constitution. There can be no hesitation respecting the power to direct their own officers, and the constituent parts of Congress: besides, if the state legisla tures were to be left to direct and arrange this business, they would pass different laws, and the officers might be bound in different degrees to support the Constitution. He not only thought Congress had the power to do what was proposed by the Senate, but he judged it expedient also.

Mr. JACKSON. The states had better be left to regulate this matter among themselves; for an oath that is not voluntary is seldom held sacred. Compelling people to swear to support the Constitution will be like the attempts of Britain, during the late revolution, to secure the fidelity of those who fell within the influence of her arms; and like those attempts they will be frustrated. The moment the party could get from under her wings, the oath of allegiance was disregarded. If the state officers will not willingly pay this testimony of their attachment to the Constitution, what is extorted from them against their inclination is not much to be relied on.

Mr. LAWRENCE. Only a few words will be necessary to convince us that Congress have this power. It is declared by the Constitution, that its ordinances shall be the supreme law of the land. If the Constitution is the supreme law of the land, every part of it must partake of this supremacy; consequently, every general declaration it contains is the supreme law. But then these general declarations cannot be carried into effect without particular regulations adapted to the circumstances: these particular regulations are to be made by Congress, who, by the Constitution, have power to make all laws necessary or proper to carry the declarations of the Constitution into effect. The Constitution likewise declares that the members of the state legislatures, and all officers, executive and judicial, shall take an oath to support the Constitution. This declaration is general, and it lies with the supreme legislature to detail and regulate it.

Mr. SHERMAN. It appears necessary to point out the oath itself, as well as the time and manner of taking it. No other legislature is competent to all these purposes; but if they were, there is a propriety in the supreme legislature's doing it. At the same time, if the state legislatures take it up, it cannot operate disagreeably upon them, to find all their neighboring states obliged to join them in supporting a measure they approve. What a state legislature may do, will be good as far as it goes. On the same principle, the Constitution will apply to each individual of the state officers: they may go, without the direction of the state legislature, to a justice, and take the oath voluntarily.

This, I suppose, would be binding upon them; but this is not satisfactory; the government ought to know that the oath has been properly taken; and this can only be done by a general regulation. If it is in the

discretion of the state legislatures to make laws to carry the declaration of the Constitution into execution, they have the power of refusing, and may avoid the positive injunctions of the Constitution. As the power of Congress, in this particular, extends over the whole Union, it is most proper for us to take the subject up, and make the proper provision for carrying it into execution, to the intention of the Constitution.

Duties.

Bill laying Duties on Goods, &c.

HOUSE OF REPRESENTATIVES, May 15.

Mr. WHITE. The Constitution, having authorized the House of Representatives alone to originate money bills, places an important trust in our hands, which, as their protectors, we ought not to part with. I do not mean to imply that the Senate are less to be trusted than this house; but the Constitution, no doubt for wise purposes, has given the immediate representatives of the people a control over the whole government in this particular, which, for their interest, they ought not to let out of their hands.

Mr. MADISON. The Constitution places the power in the House of originating money bills. The principal reason why the Constitution had made this distinction was, because they were chosen by the people, and supposed to be the best acquainted with their interest and ability. In order to make them more particularly acquainted with these objects, the democratic branch of the legislature consisted of a greater number, and were chosen for a shorter period; that so they might revert more frequently to the mass of the people.

Mr. MADISON "moved to lay an impost of eight cents on all beer imported. He did not think this would be a monopoly, but he hoped it would be such an encouragement as to induce the manufacture to take deep root in every state in the Union." - Lloyd's Debates of Congress, vol. i. p. 65.

The same.

"The states that are most advanced in population, and ripe for manufactures, ought to have their particular interests attended to in some degree. While these states retained the power of making regulations of trade, they had the power to protect and cherish such institutions. By adopting the present Constitution, they have thrown the exercise of this power into other hands. They must have done this with an expectation that those interests would not be neglected here." — Idem,· P. 24. The same. "There may be some manufactures which, being once formed, can advance towards perfection without any adventitious aid; while others, for want of the fostering hand of government, will be unable to go on at all. Legislative attention will therefore be necessary to collect the proper objects for this purpose." - Idem, p. 26.

Mr. CLYMER "did not object to this mode of encouraging manufactures, and obtaining revenues, by combining the two objects in one bill. He was satisfied that a political necessity existed for both the one and the other."- Idem, p. 31.

Mr. CLYMER "hoped gentlemen would be disposed to extend a degree of patronage to a manufacture [steel] which a moment's reflection would cor vince them was highly deserving protection." - Idem, p. 69.

Mr. CARROLL " moved to insert window and other glass. A manufacture of this article was begun in Maryland, and attended with consid VOL. IV. 44

erable success. If the legislature was to grant a small encouragement, it would be permanently established." Mr. WADSWORTH.

Idem, p.

94.

By moderating the duties, we shall obtain revenue, and give that encouragement to manufactures which is intended."

Idem, p. 128.

Mr. AMES" thought this a useful and accommodating manufacture, [nails, which yielded a clear gain of all it sold for; but the cost of the material, the labor employed in it, would be thrown away probably in many instances. *** He hoped the article would remain in the bill." Idem, p. 81.

The same. "The committee were already informed of the flourishing situation of the manufacture, [nails,] but they ought not to join the gentleman from South Carolina, Mr. Tucker, in concluding that it did not, therefore, deserve legislative protection. He had no doubt but the committee would concur in laying a small protecting duty in favor of this manufacture." Idem,

p.

82.

Mr. FITZSIMONS" was willing to allow a small duty, because it conformed to the policy of the states who thought it proper in this manner to protect their manufactures." Idem, p. 83.

The same. "It being my opinion that an enumeration of articles will tend to clear away difficulties, I wish as many to be selected as possible. For this reason I have prepared myself with an additional number : among these are some calculated to encourage the productions of our country, and protect our infant manufactures."- Idem, p. 17.

Mr. HARTLEY. "If we consult the history of the ancient world, Europe, we shall see that they have thought proper, for a long time past, to give great encouragement to establish manufactures, by laying such partial duties on the importation of foreign goods, as to give the home. manufactures a considerable advantage in the price when brought to market. * * * I think it both politic and just that the fostering hand of the general government should extend to all those manufactures which will tend to national utility. Our stock of materials is, in many instances, equal to the greatest demand, and our artisans sufficient to work them up, even for exportation. In those cases, I take it to be the policy of every enlightened nation to give their manufacturers that degree of encouragement necessary to perfect them, without oppressing the other parts of the community; and, under this encouragement, the industry of the manufacturer will be employed to add to the wealth of the nation." - Idem, p. 22.

Mr. WHITE. "In order to charge specified articles of manufacture so as to encourage our domestic ones, it will be necessary to examine the present state of each throughout the Union." - Idem, p. 19.

Mr. BLAND (of Virginia) " thought that very little revenue was likely to be collected from the importation of this article, [beef;] and, as it was to be had in sufficient quantities within the United States, perhaps a tax amounting to a prohibition would be proper." - Idem, p. 66.

Mr. BLAND" informed the committee that there were mines opened in Virginia capable of supplying the whole of the United States; and, if some restraint was laid on importation of foreign coals, those mines might be worked to advantage." Idem, p. 97.

Mr. BOUDINOT. "I shall certainly move for it, [the article of glass,] as I suppose we are capable of manufacturing this as well as many of the others. In fact, it is well known that we have and can do it as well as

most nations, the materials being almost all producea in our country."Idem, p. 28. The same. "Let us take, then, the resolution of Congress in 1783, and make it the basis of our system, adding only such protecting duties as are necessary to support the manufactures established by the legislatures of the manufacturing states.". Idem, p. 34.

Mr. SINNICKSON "declared himself a friend to this manufacture, [beer,] and thought that, if the duty was laid high enough to effect a prohibition, the manufacture would increase, and of consequence the price would be lessened." - Idem, p. 65.

Mr. LAWRENCE "thought that if candles were an object of considerable importation, they ought to be taxed for the sake of obtaining revenue, and if they were not imported in considerable quantities, the burden upon the consumer would be small, while it tended to cherish a valuable manufacture." Idem, p. 68.

Mr. FITZSIMONS" moved to lay a duty of two cents per pound on tallow candles. The manufacture of candles is an important manufac ture, and far advanced towards perfection. I have no doubt but in a few years we shall be able to supply the consumption of every part of the continent." - Idem, p. 67.

The same. "Suppose 5s. cwt. were imposed, [on unwrought steel:] it might be, as stated, a partial duty; but would not the evil be soon overbalanced by the establishment of such an important manufacture?" Idem, p. 69.

The same.

"The necessity of continuing those encouragements which the state legislatures have deemed proper, exists in a considerable degree. Therefore it will be politic in the government of the United States to continue such duties until their object is accomplished." — Idem, p. 67. Mr. SMITH (of South Carolina.) "The people of South Carolina are willing to make sacrifices to encourage the manufacturing and maritime interests of their sister states Idem, p. 212.

Gen. Washington's Speech to Congress, of January 11, 1790, declares, "That the safety and interest of a free people require that Congress should promote such manufactures as tend to render them independent of others for essential, particularly military supplies.

"The advancement of agriculture, commerce, and manufactures, by all proper means, will not, I trust, need recommendation."

Extract from the reply of the Senate, to the speech of Gen. Washington, January, 1790. "Agriculture, commerce, and manufactures, forming the basis of the wealth and strength of our confederated republic, must be the frequent subject of our deliberations, and shall be advanced by all the proper means in our power."

6

Extract from the reply of the House of Representatives. — “We concur with you in the sentiment that agriculture, commerce, and manufactures, are entitled to legislative protection.'

His speech of December, 1796, holds out the same doctrine. - "Congress have repeatedly, and not without success, directed their attention to the encouragement of manufactures. The object is of too much im. portance not to insure a continuance of these efforts in every way whicn shall appear eligible."

Extract from the reply of the Senate to the speech of Gen. Washington, December, 1796. "The necessity of accelerating the establishment of certain useful branches of manufactures, by the intervention of legis