Cod Fishery Debates

U.S. House of Representatives

History of Congress, February 1792, p. 383-390

The following is an exerpt from debate on a bill before the House of Representatives that would regulate and subsidise the Cod Fish industry in the United States. Mr. Livermore was in favor of the bill and James Madison was opposed.


The bill now under consideration has two important objects in view. The one is, to give encouragement to our fishermen, and, by that encouragement, to increase their numbers; the other is to govern those fishermen by certain laws, by which they will be kept under due restraint. Both these objects are of great importance to such persons as choose to employ their capitals in the fishery business. And I believe it will not be disputed that the business itself is of considerable importance to the United States, insomuch as it affords a certain proportion of remittance or exportation to foreign countries, and does not impoverish the country, but enriches it by the addition of so much wealth drawn from the sea.

It is the object of those gentlemen who favor the bill that the fishermen should have some encouragement, not given to them at the expense of the United States, but directed to them out of what was in the former law, called a drawback of the duty on salt. The calculation, as I understand it, has been made as nearly as possible to give that drawback, not to the merchants who export the fish, but to the fishermen who take it, in order to increase that description of men, without whose assistance it is vain to expect any benefit from the fisheries; for if the merchants at present engaged in that branch possessed the whole capital of the United States, yet, if they cannot get fishermen, they cannot carry on the fishery. This is done by a particular class of men, who must be not only expert seamen, but also accustomed to taking the fish and curing it. If these men cannot be had, the capital cannot be employed, and those who undertake the business cannot carry it on, or reap any profit from it.

Whilst the drawback is payable only to the merchant who exports the fish, it is impossible to convince the fishermen that they reap from it any advantage whatever; or, if the more discerning amongst them do perceive any advantage in it, the others who are not so clear-sighted cannot discern it, and are therefore not disposed to undertake the business. It is, however, of considerable importance to the merchants that the fisherman should receive a proper encouragement, even if they were obliged to allow him a bounty out of their own pocket.

The government of the fishermen, after their engagement in this business is also necessary to be provided for; otherwise, frequent instances may occur among that class of men of quitting one vessel to embark on board another, or of shipping themselves for a foreign voyage, before the expiration of the fishing season. In the latter case, the vessel lies useless on the owners hands, and he, together with the whole expense of the outfit, loses all his prospects of future gain.

The two objects here mentioned are fully provided for in the bill. Still, however, it is objected to. But what is the objection? It is, that the word "bounty" is twice used in this clause. Let us now see what advantage will result from striking out this obnoxious "bounty." None at all. The bill says it shall cease; and have gentlemen any objection to the bounty's ceasing? Since the bounty is to cease by this bill, what advantage in striking it out? The sense would still remain the same; and I do not know why we should make a law expressly to strike out the word "bounty," but to strike out the bounty itself.

It is strange to me that any gentleman, whether he is for giving a great bounty or no bounty at all, should quarrel with this unfortunate word. There is, indeed, one part of the section which I will readily consent to strike out and I believe every other gentleman who is in favor of the bill will consent to likewise; and that is the clause which provides that the bounty to be allowed and paid on every vessel, for one season, shall not exceed one hundred and seventy dollars. If, when the vote is taken on the section, there does not appear a majority of the House in favor of striking out the whole, we may then move for striking out the proviso, if it be offensive to any gentleman. If it be not offensive, it may remain.

If gentlemen are disputing only because the word "bounty" is in the bill, they may be perfectly relieved from their uneasiness on that score; for the bill expressly says, "that the bounty now allowed upon the exportation of dried fish of the fisheries of the United States shall cease, and, in lieu thereof," a different kind of encouragement is to be given. Here is no reason to dispute about a word. If gentlemen are disposed to consent to the principle of the bill, that the drawback of the duties on salt shall be commuted for a certain sum, to encourage the fishermen, they will vote in favor of the bill; if not, they will vote against it. But it is impossible for me to conceive why any gentleman under Heaven should be against it. It is only fixing, for the merchants engaged in this branch, a clear and equitable ratio for distributing among the fishermen that encouragement which they think necessary in order to attach those people to the business, and to prevent them from going to other occupations on land. The bill is an important one, and will increase that branch of business, which is very useful to the community. It does not lay a farthing of bounty or duty on any other persons than those who are immediately concerned in it. It will serve them, and will not injure anybody.

Mr. LAWRENCE said, from examining the section, he conceived it contemplated no more than what the merchant is entitled to by existing laws. The merchant is now entitled to the drawback; but it is found by experience that the effect has not been to produce that encouragement to the fisher men which was expected; and he presumed the way was perfectly clear to give a new direction to the drawback, and this is all that is aimed at in the bill. He supposed that the clause had no necessary connection with the question which had been started respecting the right of the Government to grant bounties; but since the question has been brought forward, it may be proper to consider it. In discussing the question, he inquired, What has Congress already done? Have we not laid extra duties on various articles, expressly for the purpose of encouraging various branches of our own manufactures? These duties are bounties to all intent and purposes and are founded on the idea only of their conducing to the general interest. Similar objections to those now advanced were not made to these duties. They were advocated some of them, by gentlemen from the Southward. He traced the effects of these duties, and showed that they operated fully as indirect bounties.

Mr. L. then adverted particularly to the Constitution, and observed that it contains general principles and powers only. These powers depend on particular laws for their operation; and on this idea he contended that the powers of the Government must, in various circumstances extend to the granting bounties. He instanced, in case of a war with a foreign Power, will any gentleman say that the General Government has not a power to grant a bounty on arms, ammunition, &c., should the general welfare require it? The general welfare is inseparably connected with any object or pursuit which in its effects adds to the riches of the country. He conceived that the argument was given up by gentlemen in opposition to the bill when they admit of encouragement to the fisher men in any possible modification of it. He then adverted particularly to the fisheries, stated the number of men employed the tons of shipping necessary to export the fish taken and inferred the sound policy of encouraging so important a branch of business.

Gentlemen say that we do not want a navy. Grant it; but can they say that we shall never have a war with any European Power? May not the time arrive when the protection to the commerce of this country, derived from this may be of the utmost necessity to its existence? Adverting to Mr. WILLIAMSON'S objection from the unequal operation of bounties, and wh had referred to the article of the Constitution which says that taxes shall be equal in all the States,

Mr. L. observed, that this article in the Constitution could only respect the rates of the duties and that the same duties should be paid in Virginia that are paid in New York--at the Northward as at the Southward. It surely could not mean that every individual should pay exactly the same sum in every part of the Union. This was a provision that no law could possibly contemplate.

He concluded by a summary recapitulation of his arguments, and saying he hoped the section would be retained.


In the conflict I feel between my disposition on one hand to afford every constitution and encouragement to the fisheries, and my dislike on the other, of the consequences apprehended from some clauses of the bill I should have forborne to enter into this discussion, if I had not found, that over and above such arguments as appear to be natural and pertinent to the subject, others have been introduced which are, in my judgment, contrary to the true meaning, and even strike at the characteristic principles of the existing Constitution. Let me premise, however, to the remarks which I shall briefly offer, on the doctrine maintained by these gentlemen that I make a material distinction in the present case, between an allowance as a mere commutation and modification of a drawback, and an allowance in the nature of a real and positive bounty. I make a distinction also, as a subject of fair consideration at least, between a bounty granted under the particular terms in the Constitution, "a power to regulate trade," and one granted under the indefinite terms which have been cited as authority on this occasion. I think however, that the term "bounty,"is in every point of view improper as it is here applied, not only because it may be offensive to some and in the opinion of others carries a dangerous implication, but also because it does not express the true intention of the bill, as avowed and advocated by its patrons themselves. For if, in the allowance, nothing more is proposed than a mere reimbursement or the sum advanced, it is only paying a debt; and when we pay a debt, we ought not to claim the merit of granting a bounty.

It is supposed by some gentlemen, that Congress have authority not only to grant bounties in the sense here used, merely as a commutation for drawbacks, but even to grant them under a power by virtue of which they may do anything which they may think conducive to the "general welfare." This, sir, in my mind, raises the important and fundamental question, whether the general terms which had been cited, are to be considered as a sort of caption or general description of the specified Towers, and as having no further meaning, and giving no further power than what is found in that specification; or as an abstract and indefinite delegation of power extending to all cases whatever; to all such at least, as will admit the application of money, which is giving as much latitude as any Government could well desire.

I, sir, have always conceived--I believe those who proposed the Constitution conceived, and it is still more fully known, and more material to observe that those who ratified the Constitution conceived--that this is not an indefinite Government, deriving its power from the general terms prefixed to the specified powers, but a limited Government tied down to the specified powers which explain and define the general terms. The gentlemen who contend for a contrary doctrine are surely not aware of the consequences which flow from it, and which they must either admit or give up their doctrine.

It will follow, in the first place, that if the terms be taken in the broad sense they maintain the particular powers afterwards so carefully and distinctly enumerated would be without any meaning, and must go for nothing. It would be absurd to say, first, that Congress may do what they please, and then that they may do this or that particular thing; after giving Congress power to raise money, and apply it to all purposes which they may pronounce necessary to the general welfare, it would be absurd, to say the least, to super add a power to raise armies, to provide fleets, &c. In fact, the meaning of the general terms in question must either be sought in the subsequent enumeration which limits and details them, or they convert the Government from one limited, as hitherto supposed, to the enumerated powers, into a Government without any limits at all.

It is to be recollected that the terms "common defence and general welfare," as here used, are not novel terms, fist introduced into this Constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the old Articles of Confederation, where, although they are susceptible of as great latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such power as is now assigned to them. On the contrary it was always considered as clear and certain that the old Congress was limited to the enumerated powers,and that the enumeration limited and explained the general terms. I ask the gentlemen themselves, whether it ever was supposed or suspected that the old Congress could give away the moneys of the States in bounties, to encourage agriculture, or for any other purpose they pleased? If such a power had been possessed by that body, it would have been much less impotent, or have borne a very different character from that universally ascribed to it.

The novel idea now annexed to these terms, and never before entertained by the friends or enemies of the Government, will have a further consequence, which cannot have been taken into the view of the gentlemen. Their construction would not only give Congress the complete Legislative power I have stated--it would do more--it would supersede all the restrictions understood at present to lie on their power with respect to the Judiciary. It would put it in the power of Congress to establish courts throughout the United States, with cognizance of suits between citizen and citizen, and in all cases whatsoever. This, sir, seems to be demonstrable; for if the clause in question really authorizes Congress to do whatever they think fit, provided it be for the general welfare, of which they are to judge, and money can be applied to it, Congress must have power to create and support a Judiciary Establishment, with a jurisdiction extending to all cases favorable, in their opinion, to the general welfare, in the same manner as they have power to pass laws and apply money, providing in any other way for the general welfare.

I shall be reminded, perhaps, that according to the terms of the Constitution, the Judicial Power is to extend to certain cases only not to all cases. But this circumstance can have no effect in the argument, it being presupposed by the gentlemen that the specification of certain objects does not limit the import of general terms. Taking these terms as an abstract and indefinite grant of power, they comprise all the objects of Legislative regulation as well such as fall under the Judiciary article in the Constitution, as these falling immediately under the Legislative article; and if the partial enumeration of objects in the Legislative article does not, as these gentlemen contend limit the general power, neither will it be limited by the partial enumeration of objects in the Judiciary article.

There are consequences, sir, still more extensive, which, as they follow clearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every State, county, and parish, and pay them out of the public Treasury; they may take into their own hands the education of children establishing in like manner schools throughout the Union; they may undertake the regulation of all roads, other than post roads. In short, everything, from the highest object of State legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called if Congress pleased provisions for the general welfare.

The language held in various discussions of this House, is a proof that the doctrine in question was never entertained by this body. Arguments, wherever the subject would permit, have constantly been drawn from the peculiar nature of this Government, as limited to certain enumerated powers, instead of extending, like other Governments, to all cases not particularly excepted. In a very late instance--I mean the debate on the Representation bill--it must be remembered, that an argument much urged, particularly by a gentleman from Massachusetts, against the ratio of one for thirty thousand, was, that this Government was unlike the State Governments, which had an indefinite variety of object; within their power; that it had a small number of objects only to attend to, and therefore that a smaller number of Representatives would be sufficient to administer it.'

Several arguments have been advanced to show, that because in the regulation of trade indirect and eventual encouragement is given to manufactures, therefore Congress have power to give money in direct bounties, or to grant it in any other way that would answer the same purpose But surely, sir, there is a great and obvious difference,which it cannot be necessary to enlarge upon. A duty laid on imported implements of husbandry, would in its operation be an indirect tax on exported produce; but fill any one say, that by virtue or a mere power to lay duties on imports, Congress might go directly to the produce or implements of agriculture, or to the articles exported? It is true, duties on exports are expressly prohibited; but if there were no article forbidding them, a power directly to tax exports could never be deduced from a power to tax imports, although such a power might directly and incidentally affect exports.

In short sir without going further into the subject which I should not gave here touched on at all but for the reasons already mentioned, I venture to declare it as my opinion, that were the power of Congress to be established in the latitude contended for, it would subvert the very foundation, and transmute the very nature of the limited Government established by the people of America; and what inferences might be drawn, or what consequences ensue from such a step, it is incumbent on us all well to consider.

With respect to the question before the House, for striking our the clause, it is immaterial whether it be struck out, or so amended as to rest on the avowed principle of a commutation for the drawback; but as a clause has been drawn up by my colleague, in order to be substituted, I shall concur in a vote for striking out, reserving to myself a freedom to be governed in my final vote by the modification which way prevail.

Bourne (of Massachusetts)

Mr. Chairman: I think little can be added after so full a discussion of the subject before you. The object of the first section in this bill is intended for the relief of the fishermen and their owners. They complain that the law now in force was meant for their benefit, by granting a drawback on the fish exported; thus they find by experience is not the case, for they say, that neither the fishermen who catch the fish, nor the importer of the salt receive the drawback; and I rather suppose, sir, it is the case. The owners of the greater part of the fishing vessels are not merchants, neither do they import the salt they consume; but when the fish they take are cured for market, they are sold at the market price; and it frequently happens that those persons who purchase the fish are not the exporters of them, or the importers of the salt, but a third person, who purchases with a prospect of selling them at a profit, is the exporter; and when it so happens, neither the fisherman who catches the fish nor the importer of the salt receive any benefit from the drawback, unless the purchaser (the third person) give a greater price in contemplation of the drawback, which I think is not to be supposed.

Is it worthy the attention of Government that the cod fishery should be preserved? It appears to me that it is. When we consider the labor and assiduity bestowed on this object by our Ministers, at the settlement of peace between us and Great Britain, and the care then taken to secure this privilege, as appears by the treaty--[here Mr. B. read that part of the treaty which secures to us the fishery, he then proceeded]--and consider the struggle made to deprive us of thus inestimable branch of commerce I cannot suppose that any one would, at this day voluntarily relinquish it, and suffer Great Britain to monopolize this branch, and supply the Mediterranean, French and other markets. Great Britain, at present, enjoys a sufficient portion of this commerce, while France is confined to the narrow limits of St. Peters and Miquelon. If we relinquish this branch of the cod fishery, what is left us? Our whale fished is nearly at an end, and unless Government speedily interpose, by granting relief, we shall totally lose it. Does not the British Government wish to deprive us of this branch also? Have not letters or agents been sent to the island of Nantucket, as well as New Bedford, where this branch of business is principally prosecuted, inviting the whale fishermen to remove, and offering them permanent settlements at Milford-Haven, at the expense of their Government? This must be viewed as a great encouragement, in addition to their bounties on oil, to a class of poor men employed in that business. If the cod fishery is relinquished, the fishermen have only to remove to the opposite shore of Nova Scotia where they will find encouragement fully adequate to their services--of all which they are not unapprised. By encouraging this class of men, your revenue will be increased; for in return for the fish exported; you will receive sugar, coffee, cocoa, indigo, molasses, pimento, cotton, dye-woods, rum, wine, salt, fruit, and other articles subject to duty and consumed in the country. And again, your Treasury will receive an excess by the provision in this bill; for I presume the greater proportion of vessels employed in this business are from twenty to forty tons; the town of Marblehead, perhaps, has principally large ones, Suppose, then, a vessel of thirty tons obtains, in a season, six hundred quintals of fish? (a very moderate voyage indeed,) her tonnage is seventy-five dollars; the drawbacks on exportation would be seventy-eight dollars; so that your Treasury retains three dollars gain by this bill, which would be a loss on the drawback.

Mr. Chairman, I think, upon the whole,that by granting the encouragement to the fishermen and their owners held out in the bill would prove very beneficial to the United States, I hope therefore, the section before you will not be struck out

At this point, the Committee rose, and had leave to sit again.

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