SMITH. I admitted that the Genl Govt. and State Govts. would have Concurrent Jurisdict. I meant that they would have concurrent Jurisdiction but under the Controul of the Legislature of the Genl Govt.
1We find very great difference of Opinion between men of the first Legal Abilities whether this Concurrent Jurisdict can be contrould by the Genl. Govt. or not Should this be left Doubtful - No See the Introduction [i.e., the Preamble] They are to seek the Ends there mentioned This they will do by Laws of their own or by controuling the Laws of Others— The Induction fair That they will be supreme and have Power of Controul— The Power of Taxation given without restraint (except in one Case) They are to Make all Laws Their Laws are to be They are to appoint Courts and Judges to carry their Laws into Effect All Judges &c to take an Oath The Power given by all these Clauses are not only to lay Taxes but also to controul and remove out of their way all Impediments to the Collection And all Courts will be bound by the Constitution and by Oath to declare the Law Valid Gent from N York [Alexander Hamilton] observes That all Powers not given expressly are to the State Govts. The Rule does not apply if Just because here the Genl Power of Taxation The Powers of the Genl. Govt. give them all Power of Taxation It is physically impossible that there should be two Supreme Powers for the same Purposes at the Same time & place That what is not given must remain in the State Sover[e]ignties Negative Because both Govts. are derived from the People The Genl. Govermt. not derived from the State Govts. As to the Security of the State Govts. It is said the Genl Govt. can have no Inducemt. to destroy the State Govts or reduce them to dependency And that they will be neces— sary If true as he admits. That there will be a jealo [u] sy or rivalship of Power It is said that a Numerous representation this will be an Argumt. for their reduction It is said the No. [of] offices will be a Support to the State Govts. Answer The Genl Govts. will have vastly more numerous and more Important Offices Ex gr. [i.e., e.g.] Judges of Sup. Court Judges of inferior Courts withall their Inferior Officers Revenue Officers &c Nothing but Militia Officers left for State Appoint[ment] s Gent. [Alexander Hamilton] says the State Govts. will retain the Af— fection of the People This a good Argumt. for retaining Taxation in the State Govts. and every other Thing that can be retained Consist [en] t with Safety to the Genl. Govt. I was opposed to the Impost as required by CongressIt was giving too much revenue and Power to one Body
2DUANE. On Thursday last [26 June] This Amendmt. was proposed—These Arguments have been extended to great Length— The Gentleman [Melancton Smith] might have spared his observations as to his opinion of the Impost and this Constitution— The Gent should have spared the Observation that a Gent [Alexander Hamilton] had Talents to pervert any Sentiment— I shall Stick to the Point—and to the Expression of their Observations The Gent from Dutchess [Melancton Smith] said the Constitution was complex—and that provision Should be made for the Members— 2d The Members vizt. State Govts. should have the Means of Support —The Gent. compared this Govt. with Great Britain— That as in G B. the Power of Defence in the King —The Purse in the Legislature No Similar[i]ty—The Presidt. Will have the Sword To Leave the Purse in the state Govts. would be in 14 Hands— His next Observat important— He is certain the different States will comply to the Extent of their Power I will assign my Reasons to believe the States will not comply— From past Experience we cannot expect it— I shall offer papers as Evidence That the Affairs of this Country were embarrassed and nearly ruined by the dilatory Proceedings not to the Inability of the Several States and to their making unequal Exertions— In this view was read The Answer of the Senate to his Excy the Govr. [9 September 1780] This proves there was great Embarrassmts. owing to the want of Exertions in Some States— And a want of union in Council— It will be said these Resolutions originated in fear or a want of fortitude—I cannot say or think so of the Fathers of this Country— A second Resolution 8th. [i.e., 10th] Octr. 1780 That Congress direct the Commander in Chief to march the Army to compel the paymt. of Deficiencies— In the year 1781—21 Novr. A Resolution requesting Congress to suspend any future Requisition—That They had granted the Impost— A passage in a Circular Letter from Genl Washington to the respective Governors on resigning his Command— "That the War would have been brot much sooner to the same happy Conclusion if the Resources of the Continent could [have] been called forth" I produce these as conclusive Proofs agt. depending on requisitions— This is conclusive on my Mind— I have had long Experience— been often concerned in making Requisitions—And they failed —No Case can happen which the Passions & wishes of Men were more concerned In Answer to The Gent. from NY. Hamilton said that the Civil List was only one fifteenth— The Gent. from Dutchess [Melancton Smith] says we have no foreign Posts &ca Our Expences for Defence &c trifling— That we have given more than half the Revenue to pay much less than half the Expence— This Govt. is made for future Ages—I hope to see a Navy—That we must have I do not wish to see a Standing Army —but we must have Troops—Our Posts are detained by the British— It has been said [if] this Govt. takes place the Posts would Still be retained Is the Spirit of America fled— Can it be of Moment what our present Circumstances are— I doubt whether our State Debts are greater than those of the Union— They will however be somehow done away This Justify a retention of have [i.e., half?] the Revenue of the Nation— The Gent. [Melancton Smith] is become a generous Advocate for such States as were deficient— Assigns their Inability—and their Exertions in some States for their own Defence— I recollect great difficiencies— Money Requisitions for two years unproductive— Requisitions for Supplies were also unproductive— Georgia was Invaded—She recd. from Congress Supplies in Money— So did New York—Georgia has repaid Nothing—New York has— That they were defective thro Inability is not supported by proof Genl. Washington tells you they could have done— And their Exertions were not made in Proportion— Examine Genl Washingtons Letter— His Testimony never can be doubted— The Gent. had given another Opinion which is a Melancholy Observation That a Direct Tax laid by Congress cannot be collected What then will be the Effect of the union if under no Circumstance the States would not Submit to a Tax— All the Amendt. says and the other Gent say that there should [not] be a direct Tax in the first Instance— But if the Gent from Dutchess is right in his opinion why wast[e] Time on such a Visionary Matter— The Gent. alledges that the Genl. Govt will destroy the State Govts. That they will only meet to chuse Senators— How are they employed at present— The only difference will be at present the State raises the Impost— That will be consigned [to] others—They will have all the other Cares and Business they now have— Then why the fear that the Legislatures themselves will get out of Disuse— The Legislature have now nothing to do with the Common Defence— 2d. As to the dissolution of the State Govts. If there should be a dissolution of the State Govts. it will dissolve the National Govt. When the preservat of the Genl. Govt depends on the Existence of the State Govts. will they suffer any measures that will destroy their own members— If this Constitution is to be scanned with an Eye of Jealo[u]sy it is impossible it should take place— Now Consider the Argumt. on the Clause that no Excise be laid on manufacture— Can the Gent say this Tax will operate unequally— The States who are the Subjects of this Tax have adopted the Constitution We are not & for many years cannot be a manufacturing State— This Tax will operate equally —What the Consequence if no such Provision made— If Connecticut Manufactures so as not to import She will be rich, we will pay Imposts—It is said Impost will find its Level— That is I suppose it will always be at a medium—or be entirely defrauded These States see the Justice of this Tax and are willing to give it— Then why should we agt. our own Interest object to it— The Gent [Melancton Smith] Said this Excise on Manufactures a partial Tax— I say it is an equal Tax and given in Lieu of Impost It is said Congress will [not] adopt it—Then why oppose if not to [be] adopted it concerns no man— It is said In the present State of the Country Excise on Manufactures would be Improper— An Excise on Ardent Spirits would raise a considerable Revenue and be productive of Morality— While such would be improper it will not be done—A Time may come when it will be the most proper source of Taxation— Then why exclude the Power—This Constitution is made for Ages Now as to the Argumt. of the Gent from Queens (Mr. Jones) He observes the Constitution gives Congress Power over every possible Mode of Taxation That the Head subsist without the Members—That there must therefore be some Means of Support for the State Govts. All agreed to— I shall shew there is ample Provision As to concurrent Jurisdiction— It is out of all Doubt there is such Concurrent Jurisdiction and each have equal Power— Each State before this Constitution has a right of Taxation— 8th. Section gives Congress certain Powers without any Negative By § 10 the States are prohibited in a certain Case— then it follows by necessary Consequence that the States may Tax in all other Cases If they have a right to tax as well as the Genl Congress they have the Means of subsistance as well as the Genl Govt. The Proposal of Excise on Manufactures to support the State Govts. is therefore unnecessary—It was unnecessary to say in the Constitution there should be a concurrent Jurisdiction— or that a Clause Should have been added to reserve Rights which were not ceded. The Gent [John Lansing, Jr.] says in Case of a Dispute between the States about the right to tax a person taxed by both is unable to pay both it is said the Genl Govt must be preferred— I think differently—The thing seized must belong to that Govt. to whom The Tax book first made did belong—or who first Seized— The Sovereignty of the States only cease as to particular Rights ceded to the Genl Govt. for public purposes— Suppose it Tryed by the Judges of the united States— Must they not find that the State had the power to tax and the Article seized must belong to the Govt. who first made the Seizure— It is said it will be impracticable to apportion a Tax throughout the united States— Answer—This Legislature will be composed of Representatives from every State will they not be adequate— There will [be] the Tax Laws of the Several States— they will give Informat— Any of the Servants of Congress may obtain the names of the Collecting officers— The Supervisors may be called on— Observat—That the requisition by this amendmt. not like those made under the Confederation— Where is the great Difference— Suppose a State not to comply their reasons will be heard & Canvased— The People will take part with their Representatives— The Genl Govt. will lay the Tax —and order it to be collected In that Case it could not be collected An officer would not dare to attempt it—Shall this Committee consent to an Amendmt which will produce Mischief— We tryed Requisitions 12 years what was the Event— The Virtuous State of New York did what She could— Genl Washington called and Congress called but called in Vain— have we forgotten this— The Legislature called out for an efficient Govt. remember this It is said If Congress can compel paymt. in the first and last Instance It will operate as a fine Answer This is to be a fund Those who Lend will require a fund to be certain— A foreigner would tell you the fund is uncertain— Loans should only be recurred to in Cases of Necessity—To a certain Extent Taxation is preferable to Loans— Loans increase the National Debt and weigh us down— It is said Some will pay all and Some None— Answer—The Revolting Defaulting State may be retaxed—The States haveing paid may be credited in Proportion— The Gent from Queens [Samuel Jones] admits that in Time of War this Power of Taxation may become necessary— True—And why should not Congress have every power necessary to draw out every Resource— Can they provide for the Genl Defence if you tie their Hands— I shall take another Opportunity to consider the Capitation Tax— Consider that the States differ in Interest Business and employmt. and are all to be gratified— In that View This Constitution is the highest Effort of Human Wisdom I came here with conciliating Principles—I hope God has given Me a conciliating Talent—
3JAY. So much said & so well said Shall add a few Hints The Business is to consider the Mode which will best secure their General Happiness & particular Happiness— These Govts. should be so constructed as not to in[ter]fere with each other— National Objects require National Resources Would it be proper the National Govt should depend on the partic— ular States for National Resources— I see no Objection to the Powers except the abuse that may be made of it—I see no great Danger of that—The Power is well divided The Representatives will have State attachmts & State Interest— It is said direct Taxes should depend on requisition Suppose a State should neglect or refuse Suppose several of them should combine to refuse Suppose ambitious Men should at such Circumstance to their own Emolument— What would be the Effect— There is a difficulty of apportiong direct Taxes direct Taxes may be Specific—Ex gr. [i.e., e.g.] 20/ on a Coach— 20/ on a Slave—a Tax on plate—These require no great Informa— tion— The difficulty is a direct Tax on all property—The States may in that Case have constantly a plan and instruct their Members—The State must have a plan if they raise themselves—Let the State point out the Manner—It will be said Congress adopt the Mode— Answer Tis the Money Congress wants—If the State pays the money Congress will probably agree to the Manner— It has been said Congress may leave no resources for their Support— I am of Opinion that they have concurrent Jurisdiction But there are Doubts—I[t] may be cured by an explanatory Amendmt. As to Excise—It intended to exempt your own productions from Excises How distinguish your own manufactures from foreign— Will not all Rum be considered as American—Can you distinguish London Porter from American or a London Nail from an American— Will not this open a Door to frauds that cannot be prevented—
4SMITH. I troubled the Committee very little to try my Character— I meant to Answer the Gent from N York [James Duane] who used it as an Argumt. that some Gent opposed the Impost and yet opposed this Constitution— The Gent. said he would State Matters fairly—I suppose he did in his own oppinion— He mistated my Ideas as to the British Govt.— That the Purse and Sword being wholly in the Hands of the Genl Govt. they might destroy or take away the Liberties of the State Govts. If I said I was certain I do retract it—I am not certain and not the means of Prescience. I reasoned and he heard My Argumt. I did not shew any means of prescience— I did not State the State Debts and public Debts with certainty and said so at the Time—I do not now believe was much wrong— I did not say it would [be] improper for this Country to have a Navy— I said we should never want such a Navy as Great Britain— It is said the Govt. is not made for the present Time— but for future Time— It is wiser to make a Govt. for future Time or the present Time— We ought to look forward a reasonable Time— But yet not be inattentive to the present Time— As to his remarks on Requisition— What was done was principally done by Requisition— I did not Argue for Requisition alone— But contended that when they argued agt. Requisitions altogether they carried their argumts. too far— I do not recollect that I said or Stated that the States Genl Govt. would not [have] Efficacy enough to Collect a direct Tax—That the State Govts. would better lay and Collect Such Taxes—I had not an Idea of States combining agt. it— I did not rise to explain my own Inconsistency—I considered the Genl Govt as having a Controuling Power—Tho' I used the word Concurrent perhaps not being a Lawyer—I used it improperly— As to Excise I stated that the Excise should be left to the different States because it would operate unequally with the Genl Govt. and because
SAMUEL JONES. The Gent from New York [John Jay] contends that the Genl Govt and State Govts. where not restrained will have a Concurrent Jurisdiction — I did not propose any such Amendmt. as the Gent proposed
5R. R. LIVINGSTON. My Colleauge [Alexander Hamilton] who followed me on fryday carried Conviction to the Minds of most Gent present— The Gent opposed to the Clause have taken up different principles— The Gent from Dutchess [Melancton Smith] —Stated the Happiness of the State Govts. The Gent from Washington [John Williams] Stated the Govt. of New York as the most perfect Govt. yet was a very Imperfect The Motion and the Argumts are at War with each other—
The Motion says Congress shall lay direct Taxes— The Argumts. say Congress shall not lay direct Taxes— The Gent. says The Gent [Melancton Smith] says Congress cannot collect it—it is impracticable If so from nothing nothin Comes— It is like Children on a Ballance board— when one End up the other down— This govt. it is said will destroy the state Govts. What Power will this Govt. take from the State which it before enjoyed— 1: The Power of Regulating the militia— 2d The Power of Raising Money—This remains for State purposes where it was— for General Purposes only the Mode of rais[in]g it was left to the State— 3d The Power of Interfering in private Contracts— Happy for the State if this Power had long been taken away That the Powers will reduce the State Govts. This they demonstrate cannot be done— If the money cannot be raised but by the Intervention of the States Congress must keep the State Governmts. alive— As to the Purse and Sword— They must be kept in different Hands— they are so— The Gent say that the State Govts. form a part of this Govt. and should therefore have a Controul—This will form thirteen Govts. We are then seeking Union in the seeds of Disunion— The fact is To General Purposes the Genl Govt. is to be supreme To State purposes the State Govt. is Supreme To other purposes there is a Concurrent Jurisdiction— and this Jurisdiction Concurrent— To what use retain this Power— what will be the use— what lock it up How is the Sword to be used— what must the States use— Thirteen States use it—I had rather let Congress use it— The Gent. from Queens [Samuel Jones] says they wish to leave this Power— to leave a Check— If it is necessary to trust our Defence to the Union We must leave that Sword and that purse and that Power to the Union which is necessary It was urged that Congress should have funds to pledge A Gent from Queens says a Law may pass that they will repay— I appeal to the Instance of our own State where we pledged for the Redemption of the new Money we paid— It is the only Instance— All the other promises remain to be paid. As to Excises—the Gent Says there should not be an Excise— because Manufactures are new—That they are more populous in proportion to their Wealth and be taxed for their Numbers It is the only Tax except direct Taxes which never can be carried far in this Country—