Convention of New York
Thursday, June 26, 1788.
Mr. SMITH again moved the additional amendment proposed the preceding day; when the Hon. Mr. DUANE called on him to explain the motives which induced his proposal.
Mr. SMITH expressed his surprise that the gentleman should want such an explanation. He conceived that the amendment was founded on the fundamental principles of representative government. As the Constitution stood, the whole state might he a single district for election. This would be improper. The state should be divided into as many districts as it sends representatives. The whole number of representatives might otherwise be taken from a small part of the state, and the bulk of the people, therefore, might not be fully represented. He would say no more at present on the propriety of the amendment. The principle appeared to him so evident, that he hardly knew how to reason upon it, until he heard the arguments of the gentlemen in opposition.
Mr. DUANE. I will not examine the merits of the measure the gentleman recommends. If the proposed mode of election be the best, the legislature of this state will undoubtedly adopt it. But I wish the gentleman to prove that his plan will be practicable, and will succeed. By the Constitution of this state, the representatives are apportioned among the counties, and it is wisely left to the people to choose whom they will, in their several counties, without any further division into districts. Sir, how do we know the proposal will be agreeable to the other states? Is every state to be compelled to adopt our ideas on all subjects? If the gentleman will reflect, I believe he will be doubtful of the propriety of these things. Will it not seem extraordinary that any one state should presume to dictate to the Union? As the Constitution stands, it will be in the power of each state to regulate this important point. While the legislatures do their duty, the exercise of their discretion is sufficiently secured. Sir, this measure would carry with it a presumption which I should be sorry to see in the acts of this state. It is laying down, as a principle, that whatever may suit our interest or fancy should be imposed upon our sister states. This does not seem to correspond with that moderation which I hope to see in all the proceedings of this Convention.
Mr. SMITH. The gentleman misunderstands me. I did not mean the amendment to operate on the other states: they may use their discretion. The amendment is in the negative. The very design of it is to enable the states to act their discretion, without the control of Congress. So the gentleman’s reasoning is directly against himself.
If the argument had any force, it would go against proposing any amendment at all; because, says the gentleman, it would be dictating to the Union. What is the object of our consultations? For my part, I do not know, unless we are to express our sentiments of the Constitution before we adopt it. It is only exercising the privilege of freemen; and shall we be debarred from this? It is said, it is left to the discretion of the states. If this were true, it would be all we contend for. But, sir, Congress can alter as they please any mode adopted by the states. What discretion is there here? The gentleman instances the Constitution of New York, as opposed to my argument. I believe that there are now gentlemen in this house, who were members of the Convention of this state, and who wore inclined for an amendment like this. It is to be regretted that it was not adopted. The fact is, as your Constitution stands, a man may have a seat in your legislature, who is not elected by a majority of his constituents. For my part, I know of no principle that ought to be more fully established than the right of election by a majority.
Mr. DUANE. I neglected to make one observation which I think weighty. The mode of election recommended by the gentleman must be attended with great embarrassments. His idea is, that a majority of all the votes should be necessary to return a member.
I will suppose a state divided into districts. How seldom will it happen that a majority of a district will unite their votes in favor of one man! In a neighboring state, where they have this mode of election, I have been told that it rarely happens that more than one half unite in a choice. The consequence is, they are obliged to make provision, by a previous election, for nomination, and another election for appointment; thus suffering the inconvenience of a double election. If the proposition was adopted, I believe we should be seldom representedthe election must be lost. The gentleman will, therefore, I presume, either abandon his project, or propose some remedy for the evil I have described.
Mr. SMITH. I think the example the gentleman adduces is in my favor. The states of Massachusetts and Connecticut have regulated elections in the mode I propose; but it has never been considered inconvenient, nor have the people ever been unrepresented. I mention this to show that the thing has not proved impracticable in those states. If not, why should it in New York?
After some further conversation, Mr. LANSING proposed the following modification of Mr. Smith’s motion
“And that nothing in this Constitution shall be construed to prevent the legislature of any state to pass laws, from time to time, to divide such state into as many convenient districts as the state shall be entitled to elect representatives for Congress, nor to prevent such legislature from making provision, that the electors in each district shall choose a citizen of the United States, who shall have been an inhabitant of the district, for the term of one year immediately preceding the time of his election, for one of the representatives of such state.”
Which being added to the motion of Mr. Jones, the committee passed the succeeding paragraphs without debate, till they came to the 2d clause of section 6. Mr. LANSING then proposed the following amendment:
“No senator or representative shall, during the time for which he was elected, be appointed to any office under the authority of the United States, and no person holding any office under the United States shall be a member of either house during his continuance in office.”
On which no debate took place. The 7th section was also passed over, and the first paragraph of section 8 was read; when
The Hon. Mr. WILLIAMS spoke as follows: In the preamble, the intent of the Constitution, among other things, is declared to be, “to provide for the common defence, and promote the general welfare;” and in the clause under consideration, the power is in express words given to Congress “to provide for the common defence and general welfare.” And in the last paragraph of the same section, there is an express authority to make all laws which shall be necessary and proper for the carrying into execution this power. It is therefore evident that the legislature, under this Constitution, may pass any law which they may think proper. It is true, the 9th section restrains their power with respect to certain objects. But these restrictions are very limited, some of them improper, some unimportant, and others not easily understood. Sir, Congress have authority to lay and collect taxes, duties, imposts, and excises, and to pass all laws which shall be necessary and proper for carrying this power into execution; and what limitation, if any, is set to the exercise of this power by the Constitution?
Sir, to detail the particulars comprehended in the general terms, taxes, duties, imposts, and excises, would take up more time than would be proper at present; indeed, it would be a task far beyond my ability, and to which no one can be competent, unless possessed of a mind capable of comprehending every possible source of revenue; for they extend to every possible means of raising money, whether by direct or indirect taxation. Under this clause may be imposed a poll-tax, a tax on houses and buildings, on windows and fireplaces, on cattle, and on all kinds of personal property. It extends to duties on all kinds of goods, to tonnage and poundage of vessels, to duties on written instruments, newspapers, almanacs, &c. It comprehends an excise on all kinds of liquors, spirits, wine, cider, beer, &c.; indeed, on every necessary or convenience of life, whether of foreign or home growth or manufacture. In short, we can have no conception of any way in which a government can raise money from the people, but what is included in one or the other of these general terms. Every source of revenue is therefore committed to the hands of the general legislature. Not only these terms are very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude: it will lead to the passing of a vast number of laws, which may affect the personal rights of the citizens of the states, and put their lives in jeopardy. It will open a door to the appointment of a swarm of revenue and excise officers, to prey upon the honest and industrious part of the community.
Let us inquire also what is implied in the authority to pass all laws which shall be necessary and proper to carry this power into execution. It is perhaps utterly, impossible fully to define this power. The authority granted in the first clause can only be understood, in its full extent, by descending to all the particular cases in which a revenue can be raised. The number and variety of these cases are so endless, that no man hath yet been able to reckon them up. The greatest geniuses of the world have been for ages employed in the research, and when mankind had supposed the subject was exhausted, they have been astonished with the refined improvements that have been made in modern times, and especially in the English nation, on the subject. If, then, the objects of this power cannot be comprehended, how is it possible to understand the extent of that power which can pass all laws that may be necessary and proper for carrying it into execution? A case cannot be conceived which is not included in this power. It is well known that the subject of revenue is the most difficult and extensive in the science of government: it requires the greatest talents of a statesman, and the most numerous and exact provisions of a legislature. The command of the revenues of a state gives the command of every thing in it. He that hath the purse will have the sword; and they that have both have every thing; so that Congress will have every source from which money can be drawn.
I should enlarge on this subject, but as the usual time draws near for an adjournment, I conclude with this remark,that I conceive the paragraph gives too great a power to Congress; and in order that the state governments should have some resource of revenue, and the means of support, I beg leave to offer the following resolution:
“Resolved, That no excise shall be imposed on any article of the growth or manufacture of the United States, or any part of them; and that Congress do not lay direct taxes, but when moneys arising from the impost and excise, are insufficient, for the public exigencies; nor then, until Congress shall first have made a requisition upon the states, to assess, levy, and pay their respective proportion of such requisition, agreeably to the census fixed in the said Constitution, in such way and manner as the legislatures of the respective states shall judge best; and in such case, if any state shall neglect or refuse to pay its proportion, pursuant to such requisition, then Congress may assess and levy such state’s proportion, together with interest thereon, at the rate of six per cent. per annum, from the time of payment prescribed in such requisition.”