Elliot’s Debates: Volume 2

Convention of New York

Tuesday, July 1, 1788.

—Mr. SMITH observed, that he supposed the states would have a right to lay taxes, if there was no power in the general government to control them. He acknowledged that the counties in this state had a right to collect taxes; but it was only a legislative, not a constitutional right. It was dependent and controllable. This example, he said, was a true one; and the comparison the gentleman had made was just; but it certainly operated against him. Whether, then, the general government would have a right to control the states in taxation, was a question which depended upon the construction of the Constitution. Men eminent in law had given different opinions on this point. The difference of opinion furnished, to his mind, a reason why the matter should be constitutionally explained, No such important point should be left to doubt and construction. The clause should be so formed as to render the business of legislation as simple and plain as possible. It was not to be expected that the members of the federal legislature would generally be versed in those subtilties which distinguish the profession of the law. They would not be disposed to make nice distinctions with respect to jurisdiction. He said that, from general reasoning, it must be inferred that, if the objects of the general government were without limitation, there could be no bounds set to their powers; that they had a right to seek those objects by all necessary laws, and by controlling every subordinate power. The means should be adequate to the end: the less should give way to the greater. General principles, therefore, clearly led to the conclusion, that the general government must have the most complete control over every power which could create the least obstacle to its operations.

Mr. Smith then went into an examination of the particular provisions of the Constitution, and compared them together to prove that his remarks were not conclusions from general principles alone, but warranted by the language of the Constitution. He conceived, therefore, that the national government would have powers, on this plan, not only to lay all species of taxes, but to control and set aside every thing which should impede the collection of them. They would have power to abrogate the laws of the states, and to prevent the operation of their taxes; and all courts, before whom any disputes on these points should come, whether federal or not, would be bound by oath to give judgment according to the laws of the Union. An honorable gentleman from New York, he said, had dwelt with great attention on the idea that the state governments were necessary and useful to the general system, and that this would secure their existence. Granting that they would be very convenient in the system, yet, if the gentleman’s position were true, that the two governments would be rivals, we had no need to go any further than the common feelings and passions of human nature, to prove that they must be hostile, and that one or the other must be finally subverted. If they were mutually necessary to each other, how could they be rivals? For, in this case, lessening the power of the states would be only diminishing the advantages of the general government. Another source, from which the gentleman would derive security to the states, was the superior number of the state representatives. Mr. Smith apprehended, however, that this very circumstance would be an argument for abolishing them. The people would be very apt to compare their small importance and powers with the great expense of their support. He then went into an examination of another source of security which the gentleman had pointed out,—that is, the great number of officers dependent on the states,—and compared them with those of the United States, and concluded with observing, that he (Mr. Smith) was one who had opposed the impost: he was also opposed to the Constitution in its present form. He said, he had opposed the impost, because it gave too much power to a single body, organized as the old Congress was; and he objected to this Constitution, because it gave too much power to the general government, however it might be organized. In both, he said, he stood on the same ground, and his conduct had been uniform and consistent.

The Hon. Mr. DUANE addressed the committee in along and elaborate speech. He commenced with an explanation of the motives which induced him to bring forward the public papers, which have been lately read; declared that he had, in that matter, been actuated by no personal designs, no possible disposition to censure the conduct or wound the feelings of any man; that his sole object was, to furnish the committee with the most convincing evidence as to the merits of the Constitution. He then went into a particular examination of the exhibits, painted the situation of the country at the period in which they were written, and illustrated and enforced their testimony. In the course of this investigation, he introduced and commented upon General Washington’s circular letter, and concluded, that all this evidence afforded complete proof that requisitions had ever had an unhappy and fatal operation, that they would never answer the purposes of government, and that the principle ought to be forever discarded from our system. He then proceeded to enforce, by a variety of considerations, the argument respecting the propriety of the general government’s being unrestricted in the exercise of those powers which were requisite for the common defence; spoke of the necessity, that might in future exist, of maintaining large armies and navies; said that he, even in his old age, hoped yet to see the United States able, as well by sea as by land, to resent any injuries that might be offered them. It might very soon appear how necessary a powerful military might be. Occasions the most pressing were not even now wanting. The British, to this day, in defiance of the treaty of peace, held possession of our northern posts. This was the highest insult to our sovereignty. He hoped that these daring invasions would rouse the indignation of the United States. He had heard it surmised that the general government would probably never oblige the British to quit these posts; but whenever, said he, I find the Union guilty of such pusillanimity, I shall regret that I ever drew my breath in this country.

Mr. Duane then animadverted upon the reasoning of his opponents respecting the causes of the delinquencies of the states, and compared the exertions of the states with their different situations and circumstances, in order to prove that the deficiencies could not have arisen from poverty or, distress. He declared that all which had been advanced by opposition on this head was totally unsupported by facts. The gentleman next proceeded to discuss the question of concurrent jurisdiction, and the particular advantages New York would derive from excises on our manufactures; spoke of the difficulties and embarrassments which would result from the proposed amendment, and concluded with a comparison of the new to the old system, and some general encomiums on the excellences of the former.

The Hon. Mr. JAY rose, and said he would confine himself to a few remarks, as the question had been pretty fully debated. He began with a description of the general characteristics of a government proper for the United States. It had, he said, been justly laid down, that a government which was to accomplish national purposes should command the national resources. Here a question had been raised. Would it be proper that the state governments should limit the powers of the general government, relative to its supplies? Would it be right or politic that the sovereign power of a nation should depend for support on the mere will of the several members of that nation? that the interest of a part should take place of that of the whole, or that the partial views of one of the members should interfere with and defeat the views of all? He said that, after the most mature reflection, he could see no possible impropriety in the general government having access to all the resources of the country. With respect to direct taxes, it appeared to him that the proposed amendment would involve great difficulties. Suppose a state should refuse to comply; would not the same motives, the same reasons, which produced the non-compliance, induce such state to resist the imposing and collecting of the tax? Would not a number of states, in similar circumstances, be apt to unite to give their resistance weight? They could not all be forced. These ideas of the impracticability and the danger of the measure, he said, had been already fully illustrated, and they had made a deep impression on his mind. He apprehended that ambitious men might be found, in such emergencies, ready to take advantage of turbulent times, and put themselves at the head of such an association. After dwelling some time on this point, he proceeded to take notice of the objection relative to the want of that particular information in members of Congress, which, it had been said, would alone render them capable of imposing taxes with prudence and justice. The objection had some weight; but it ought to be considered that direct taxes were of two kinds, general and specific. With respect to the latter, the objection could not apply. The national government would, without doubt, usually embrace those objects which were uniform throughout the states; such as all specific articles of luxury. No particular minute knowledge could be necessary for this. For example, what difficulty or partiality would there be in the operation of a tax of twenty shillings on all coaches? The objection, then, could only apply to the laying of general taxes upon all property. But the difficulty on this score, he said, might be easily remedied. The legislatures of the several states would furnish their delegates with the systems of revenue, and give them the most particular information with regard to the modes of taxation most agreeable to the people. From the comparison of these, Congress would be able to form a general system, as perfect as the nature of things would admit. He appealed to the good sense and candor of the gentlemen, if this would not, in all probability, take place. After some considerations on the subject of concurrent jurisdiction, he said, he was convinced that it was sufficiently secured and established in the Constitution. But as gentlemen were of a different opinion on this point, it would be very easy, he said, to insert in the adoption of the system an explanation of this clause. Mr. Jay concluded by suggesting a difficulty on the subject of excise, which has not been attended to. He asked by what rule we should know an article of American from one of foreign manufacture: how could American nails, American porter, and hundreds of other articles, be distinguished from those of foreign production? He thought the proposed measure would create embarrassments, and the various abuses that would follow might be easily conceived.

The Hon. Mr. SMITH, after some introductory, cursory remarks, took notice of an honorable gentleman’s wishes respecting a navy. He thought it would be wild and ridiculous to attempt a project of that kind for a considerable length of time, even if the treasury were full of money. He thought it was our duty to calculate for the present period, and not attempt to provide for the contingencies of two or three centuries to come. In time, events might take place which no human wisdom could foresee, and which might totally defeat and render useless these provisions. He insisted that the present state of the country alone ought to be considered. In three or four hundred years, its population might amount to a hundred millions: at this period, two or three great empires might be established, totally different from our own.

Mr. Smith then made some remarks upon the circular letter of the late commander-in-chief, which Mr. Duane had produced. He asked whence the American army came: how were they raised and maintained, if the complaints in this letter were well founded? how had the country been defended, and our cause supported, through so long a war, if requisitions had been so totally fruitless? He observed that one of the gentlemen had contemplated associations among the states for the purpose of resisting Congress. This was an imaginary evil. The opposers of the Constitution, he said, had been frequently charged with being governed by chimerical apprehensions, and of being too much in extremes. He asked if these suggestions were not perfectly in the same style. We had had no evidence of a disposition to combine for such purposes: we had no ground to fear they ever would. But if they were, at any time, inclined to form a league against the Union, in order to resist an oppressive tax, would they not do it, when the tax was imposed without a requisition? Would not the same danger exist, though requisitions were unknown? He thought no power ought to be given which could not be exercised. The gentleman had himself spoken of the difficulties attending general, direct taxes, and had presumed that the general government would take the state systems, and form from them the best general plan they could. But this would but partially remedy the evil. How much better would it be to give the systems of the different states their full force, by leaving to them the execution of the tax, and the power of levying it on the people!

The Hon. Chancellor LIVINGSTON. When this subject came under discussion on Friday, Mr. Chairman, I did myself the honor to express my sentiments to the committee. I considered the amendment as it would affect the general government, and was favored with the support of my honorable colleague, who went more largely and ably into the argument, and added weight to the ideas I had suggested. I shall now confine myself to a few cursory and genial observations on the reasoning’s of our opponents. I do not think it my duty to attempt to reconcile the gentlemen with each other. They advance opposite principles, and they argue differently. As they do not appear to have any fixed maxims in their politics, it is not to be wondered at that they talk at random, and run into inconsistencies. The gentleman from Duchess went into a defense of the state governments: he painted their good qualities in very warm colors; described their stability, their wisdom, their justice, their affection for the people. This was undoubtedly proper; for it was necessary to his argument. On the contrary, another gentleman took up the matter in a different point of view. He said the government of New York, which had been acknowledged one of the best, was quite imperfect. But this was all right, for it answered his purpose. A gentleman from New York had remarked a great resemblance between the government of this state and the new Constitution. To condemn the former, therefore, was giving a death-blow at the proposed system. But, sir, though we may pardon the gentlemen for differing from each other, yet it is difficult to excuse their differing from themselves. As these inconsistencies are too delicate to dwell on, I shall mention but a few. Their amendment declares that Congress shall lay direct taxes, and the whole drift of their argument is against it. In their reasoning, direct taxes are odious and useless things; in their amendment, they are necessary and proper. Thus their arguments and their motion are at variance. But this is not the only contradiction. The gentlemen say that Congress will be avaricious, and will want every farthing of the people’s property. One from Washington tells you that taxation will shut out the light of heaven, and will pick your pockets. With these melancholy ideas no wonder he mourns for the fair damsel of American liberty, harassed with oppressive laws, shut up in a dismal dungeon, robbed of the light of heaven, and, by a beautiful anti-climax, robbed of the money in her pocket. Yet, says the gentleman, though Congress will do all this, they cannot do it. You are told that the collection of the tax is impracticable. Is, then, this great mischief to arise from an impracticable thing? It is the reasoning among all reasoners, that from nothing nothing comes; and yet this nothing is to destroy the state governments, and swallow up the state revenue: the tax which cannot realize a farthing is to rob the citizens of all their property. This is fine reasoning. To what shall I compare it? Shall I liken it to children in the market-place, or shall I liken it to children making bubbles with a pipe? Shall I not rather compare it to two boys upon a balanced board? One goes up, the other down; and so they go up and down, down and up, till the sport is over, and the board is left exactly on the balance in which they found it. But let us see if we cannot, from all this rubbish, pick out something which may look like reasoning. I confess I am embarrassed by their mode of arguing. They tell us that the state governments will be destroyed, because they will have no powers left them. This is new. Is the power over property nothing? Is the power over life and death no power? Let me ask what powers this Constitution would take from the states. Have the state governments the power of war and peace, of raising troops, and making treaties? The power of regulating commerce we possess; but the gentlemen admit that we improperly possess it. What, then, is taken away? Have not the states the right of raising money, and regulating the militia? And yet these objects could never have employed your legislatures four or five months in the year. What then, have they been about?—making laws to regulate the height of fences and the repairing of roads? If this be true, take the power out of their hands. They have been unworthy servants; they have not deserved your confidence. Admit that the power of raising money should be taken from them; does it follow that the people will lose all confidence in their representatives? There are but two objects for which money must be raised—the support of the general government and those of the states; and they have an equal right to levy and collect their taxes. But if, as the amendment proposes, they should be obliged to grant all that Congress should call for,—if they are to be compelled to comply with the requisitions without limitation,—they would be, on the gentleman’s principles, in a pitiable situation indeed! The mode alone would be in their discretion. Is this the mighty matter about which we differs? Contend about modes! I am sorry to say, sir, that a rigid adherence to modes, in this state, has been the cause of great injustice to individuals, and has hurt the confidence of the people. It has led this state, on one occasion, to raise the expectations of public creditors, and to sink them again, by an unwarrantable breach of faith. Sir, if the power of regulating the militia, of raising money, of making and executing all the civil and criminal laws,—laws which affect the life, liberty, and property of individuals,—can insure or deserve the confidence and respect of the people, I think the gentleman’s argument falls to the ground.

Much has been said, sir, about the sword and the purse. These words convey very confused ideas on the gentleman’s application of them. The honorable member from New York has fully explained their meaning, as applied to the British government. His reasoning was so conclusive that it seems to have carried conviction to every mind. The gentleman from Duchess, to elude it, has made use of a singular shift. Says he, the general government and state governments form one government. Let us see how this matter stands. The states of Pennsylvania and New York form two distinct governments; but New York, Pennsylvania, and the general government, together form one government. The United States and New York make another government; the United States and Connecticut another, and so on. To the gentleman’s optics these things may be clear; but to me they are utter darkness. We have thirteen distinct governments, and yet the are not thirteen government, but one government. It requires the ingenuity of st. Athanasius to understand this political mystery. Were the gentleman a minister of the gospel, I might have faith; but I confess my reason is much too weak for it. Sir, we are attempting to build one government out of thirteen; preserving, however, the states, as parts of the system, for local purposes, and to give it support and beauty. The truth is, the states, and the United States, have distinct objects. They are both supreme. As to national objects, the latter is supreme; as to internal and domestic objects, the former. I can easily conceive of two joint tenures, and of joint jurisdictions without control. If I wanted an example, I might instance the mine, Mr. Chairman, in which you and others have a joint property and concurrent jurisdiction. But why should the states hold the purse? How are they to use it? They have not to pay the civil list, to maintain the army or navy. What will they do with it? What is the sword, which the gentlemen talk of? How is Congress to defend us without a sword? You will also keep that. How shall it be handled? Shall we all take hold of it? I never knew, till now, the design of a curious image I have seen at the head of one of our newspapers. I am now convinced that the idea was prophetic in the printer. It was a figure of thirteen hands, in an awkward position, grasping a perpendicular sword. As the arms which supported it were on every side, I could see no way of moving it, but by drawing it through, with the hazard of dangerously cutting the fingers. For my own part, I should be for crying, “hands off!” But this sword of the gentlemen’s is a visionary sword—a mere empty pageant; and yet they would never trust it out of the state scabbard, lest it should wound somebody. They wish for checks against what can do no harm. They contend for a phantom. Gentlemen should consider their arguments before they come here. Sir, our reasoning on this ground is conclusive. If it be necessary to trust our defence to the Union, it is necessary that we should trust it with the sword to defend us, and the purse to give the sword effect. I have heard not a shadow of an argument to shake the truth of this. But the gentlemen will talk—it is expected. It is necessary that they should support, in this house, the opinions they have propagated out of doors, but which perhaps they had themselves too hastily formed.

Sir, one word with respect to excise. When I addressed the committee on Friday last, I observed, that the amendment would operate with great inconvenience; that, at a future period, this would be a manufacturing country; and then there would be many proper objects of excise. but the gentleman, in answer to this, says we ought not to look forward to a future period. What, then, must be this government of a day? It is the third time we have been making a government, and God grant it may be the last.

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In 1787 and 1788, following the Constitutional Convention, a great debate took place throughout America over the Constitution that had been proposed.

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