[Congressional Record Volume 140, Number 18 (Friday, February 25, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: February 25, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
BALANCED BUDGET AMENDMENT
Mr. PACKWOOD. I will go ahead now and speak on the balanced budget
amendment with a certain sense of deja vu. I am paraphrasing, but I
think it was Oliver Wendell Holmes who said the history of the law is
experience, not logic.
Many times when you think things through logically, you know exactly
how they should work, only they do not work out that way. And you end
up basing many of your judgments on experience, not logic.
Until about 10 or 12 years ago, I was an opponent of the balanced
budget amendment because logic told me we should be able to have a
rational fiscal policy without the compulsion of a constitutional
amendment; that we were mature men and women, we understood the
consequences of our actions, we knew that what we were doing was wrong,
and we would right it.
My first experience into this was not a constitutional amendment so
much as a bill that we had before Congress in 1972, a bill that
actually passed the House.
Picture the situation. It is 1972. We are working on the fiscal year
1973 budget. There is a possibility that spending in the following year
may exceed $250 billion--may. I did not say deficit. I said spending.
The deficit might be someplace between $15 and $35 billion, and we
thought that was outrageous. And so a bill was passed in the House of
Representatives to delegate to President Nixon the power to cut the
Federal budget almost where he wanted if it exceeded $250 billion. It
passed the House of Representatives, Wilbur Mills then chairman of the
Ways and Means Committee being the principal person who was pushing it.
It came to the Senate, and we had an extraordinary debate on the
Senate floor as to whether or not Congress wanted to delegate its power
over the purse to the President. It was not so much an argument about
the constitutional amendment to balance the budget. We had not yet
reached the Draconian necessity for that. We thought we could take care
of it ourselves. But should we delegate it to the President.
I was opposed to delegating it to the President. We had a long debate
on this issue, and I ask unanimous consent to place in the Record at
this stage both the speech I gave in the Chamber and the notes from
which I worked to give the speech.
I ask only for those who read it to realize there is a typographical
error in the Congressional Record as it was printed. It makes reference
to a Charles I of England and his calling the Parliament together in
1622. He actually did not ascend the throne until 1625 and he called it
in 1629. So whenever you read that, just remember it is an error in
printing.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Congressional Record, Oct. 13, 1972]
Temporary Increase in the Debt Limit
The Senate continued with the consideration of the bill
(H.R. 16810) to provide for a temporary increase in the
public debt limit and to place a limitation on expenditures
and net lending for the fiscal year ending June 30, 1973.
Mr. Packwood. Mr. President, I had intended earlier in the
day to speak at length on this issue, but the hour is late,
and I will not take up the time of the Senate with the rather
lengthy speech I had prepared to deliver.
I ask unanimous consent at this time that the speech I
would have read in its entirety be placed in the Record at
the conclusion of my remarks, along with a historical
analysis prepared by my legislative assistant, Stan Heisler,
backgrounding the subject.
The Presiding Officer. Without objection, it is so ordered.
(See exhibit 1.)
Mr. Packwood. Mr. President, this issue of a debt ceiling
that we are considering and probably are going to vote on in
the next hour or two has not been a significant issue before
this Congress before perhaps 6 weeks ago. When it was in the
House of Representatives, it was not seriously regarded,
apparently, until the chairman of the Ways and Means
Committee took it seriously and apparently met with the
President, and then that bill was passed by the House.
Earlier tonight, the Senator from Minnesota (Mr. Humphrey)
spoke upon some of the constitutional issues that we face.
When most of the other speakers tonight have spoken, it has
not been on the substance or merits of the issue that the
Senator from Minnesota raised. We have talked about
pragmatics. We have talked about whether the President or
Congress is at fault for the $25 billion or $30 billion or
$35 billion or $40 billion deficit, but we have not really
examined this issue in as much depth as I think the junior
Senator from Minnesota and some of the others of us would
like to see it examined.
We spend a year in a presidential campaign. We talk about
the environment and population stability. We talk about
spending in the campaign. We spent 6 or 7 weeks on the floor
talking about the direct election of the President. Last week
we spent a week talking about consumer protection. We talked
about busing. In both cases we could not get any action
because we could not break a filibuster.
Some of those issues have been talked about for years.
Yet the issue we are on tonight is of greater significance
to the Senate and the country. This entire issue has been
discussed in the news media for over 20 years. Yet we are
going to rush it through without sufficient consideration of
what we are doing or perhaps the background as to why we ever
got to where we are and why this power we are so anxious to
give away to the President adheres in the Congress at all.
I am not altogether impressed necessarily with the
consistence of some Members of this body who say we are
guilty of giving our power away to the President. I think it
would be a lot better if we did not give away our power to
the President in all kinds of actions that we take here.
I do not think we really became concerned about giving away
our power to the President until the Vietnam war. Regardless
of what our feelings may have been about Vietnam 10 years
ago, regardless of whether we would have opposed or supported
it, most of us now, I think, regret that we ever got into it
at all.
If one can point to any single thing that caused Congress
to start thinking about giving away its powers, it was the
Tonkin Gulf resolution, passed with only two dissenting votes
in this body, cast by former Senator Morse and former Senator
Gruening. As this war began to go badly and as the light did
not appear at the end of the tunnel, as we were told it
would, we began to have second thoughts about why the Senate
had given away such power. We began flagellating the
President, to whom we had given the power, and saying he
should not have done the things he did.
Whether or not he had the power under the Tonkin Gulf
resolution, I am not sure, but with this feeling of self-
guilt setting in, we began to take back some of the power. We
repealed the Gulf of Tonkin resolution a couple of years ago,
which was a good step. We passed the Church-Cooper amendment,
prohibiting the introduction of American troops into
Cambodia, Laos, and Thailand. That was a good step.
Then, in April of this year, we passed the war powers bill,
which would have very severely limited the power of the
President to send troops overseas. That bill is still in
conference. It appears to be a casualty because of failure of
the conferees to agree. It appears that it will not come out
in this Congress.
But after we had done those things, we sat back. Have we
really started to take back the power we have given to the
President?
My fellow Senators, we have not really scratched the
surface. Let me read the Formosa resolution, which is still
on the books. It reads as follows:
``That the President of the United States be and he hereby
is authorized to employ the Armed Forces of the United States
as he deems necessary for the specific purpose of securing
and protecting Formosa and the Pescadores against armed
attack, this authority to include the securing and protection
of such related positions and territories of that area now in
friendly hands and the taking of such other measures as he
judges to be required or appropriate in assuring the defense
of Formosa and the Pescadores.''
We voted on that. We voted to repeal that resolution. It
failed by a 43 to 40 vote. We have left on the books a loop
hole big enough to allow any President to drive 10 Mack
trucks through if he wants to take us into a war in Asia.
Then the Senator from Minnesota mentioned the Middle East
resolution, which is still on the books. We have not had the
courage to vote on whether that resolution should be left on
the books. It has been on the books since 1957. It states:
``the United States regards as vital to the national
interest and world peace the preservation of the independence
and integrity of the nations of the Middle East. To this end,
if the President determines the necessity thereof, the United
States is prepared to use armed forces to assist any nation
or group of such nations requesting assistance against armed
aggression from any country controlled by international
communism:''
Whatever that means. I think what it means is that the
President wants to say that if Syria is controlled by
international communism, we can probably bomb Damascus. We
have left it on the books. So when we start talking here
tonight about how holy we are, and ``Don't give the President
this power to cut expenditures to $250 billion'' and ``Isn't
it time we took this back to ourselves,'' let us just begin
to wonder, what about the others?
What about the Spanish bases, and the extension of a five-
year executive agreement whereby we are going to pay the
Spaniards $400 million, as far as I can figure it out,
without so much as concurrence by Congress? Or the bases in
the Azores, or the naval base we are going to take over from
the British in Bahrain, where we have never had a military
base before of any kind, and I do not know what kind of
agreements we have entered into? Congress has not been asked
whether we think it is wise, and apparently we are not going
to be asked.
But I know what will be said. This is foreign relations.
Apparently throughout history the President has had some sort
of paramount position in foreign relations, and it is
therefore argued that Congress should not impinge too much
upon the Executive's power in foreign affairs and should not
bother itself too greatly with how the Executive chooses to
run foreign policy.
But let us take a look at the last 3 years, domestically,
at what we have done. We would think at least in the area of
domestic affairs Congress would want to keep its power. But
what have we done with the Post Office? We used to run the
Post Office--badly and politically. Now we have given it away
to the President, and he runs it through the U.S. Postal
Service, and it is run just as badly.
Mr. Pastore. Even worse.
Mr. Packwood. Even worse. I thank the Senator from Rhode
Island. But we have given all that away. It is no longer our
responsibility.
What about the wages for all the white-collar workers in
the executive branch? We used to have a comparability board
that reported to us, and we decided whether or not to raise
their wages.
We changed that a year and a half ago, and now the board is
the President's agent, and reports to the President what the
salaries should be. And the President has two alternatives.
He can send along the recommendations of his agents to
Congress just as he got them, and they go into effect
automatically--we cannot even veto them. Or, if the President
does not like the salaries, he can send his alternative
schedules to Congress, and either house of Congress can veto
those. But do you know what happens then? If either house
vetoes the alternative suggestions, the recommendations of
the President's agent go into effect. In neither event does
Congress have anything it can do about it.
But neither of those concessions holds a candle to what we
have done with wage and price controls. I was privileged to
be a member of the Banking, Housing and Urban Affairs
Committee when the suggestions came along that we should
undertake the responsibility of delegating to the President
the power to set wage and price controls. One of the
witnesses who came to testify was Arthur Burns, Chairman of
the Federal Reserve Board.
As I listened to Dr. Burns and others who testified before
him, I thought to myself, ``why should this power of whether
or not to administer wage and price controls, the decision
whether to have them, if we have them, when to have them, and
what to control, have to be delegated to the President? Why
cannot Congress make that decision? Why can we not at least
say that until Congress passes a concurrent resolution there
will be no wage and price controls?''
Dr. Burns said it would be very simple. Then Charlie
Walker, the Under Secretary of the Treasury, testified. I
asked him some questions in the same vein as Dr. Burns: Why
could we not add an amendment so that before the President
could institute wage and price controls, Congress would have
to at least pass a resolution directing him to do so?
Charlie Walker said that would be very simple. Then
Representative Reuss of Wisconsin testified, and I posed much
the same question to him.
Perhaps he was more realistic--and I am afraid that is
where the problem, unfortunately, lies.
He said that Congress could do it and Congress should do
it, but Congress probably will not do it, and so we must give
the authority to the President.
That did not satisfy me. I drew up an amendment which would
have prohibited the President from instituting wage and price
controls without a prior concurrent resolution from Congress.
It was a simple amendment, which said:
``Whenever the Congress shall by concurrent resolution
determine that the public interest requires the imposition of
general controls affecting all industries and segments of the
economy, the President may issue such orders and regulations
as he deems appropriate to stabilize prices, rents, wages,
and salaries at levels not less than those prevailing on May
25, 1970.''
I send the amendment off to Charlie Walker, and asked,
``Could I have your opinion about it?''
Two or 3 days later, I got a letter back from the then
Secretary of the Treasury, John Connally. Connally's letter
said:
``This letter is in response to your request for
Administration views on your proposed amendment to H.R. 4246,
``To extend until March 31, 1973, certain provisions of law
relating to interest rates, mortgage credit controls, and
cost-of-living stabilization.
``As we understand your amendment . . . institution of a
general wage-price control program would have to be preceded
by adoption of a concurrent resolution by the Congress.
``We support your amendment. It provides a workable
mechanism with the safeguards we have consistently advocated
with respect to such powers, namely, that general wage-price
controls should not be instituted by the Chief Executive--
short of an all-out national emergency--without a further
mandate from the Congress.''
I offered the amendment on the floor. It failed 41 to 30 in
this body, and we gave away to the President the most
significant domestic economic power we can give away; for
until we have come to the situation we are considering
tonight, we did not even want the power. When the
administration was not even asking for it, we gave it away.
But as I look at everything that has gone before, it pales
into insignificance in comparison with what we are
considering tonight. Because, for all of the powers this
Congress has, we have only two great ones. One is the power
to tax; the other is the power to spend. It is through those
two powers that we are able to transmute the rhetoric of
politics into the actuality of policy. If we give either one
of those powers away, we are giving away our ability to
affect the priorities and the policies of this Nation.
The thing that bothers me, as I see us approaching this
issue, is that I feel we have no appreciation for why we have
this power.
All one has to do is look at English history, where we got
most of our laws and the bulk of our interpretations, to see
that for almost five centuries the predominant battle between
the king and parliament was over only two things: Who had the
right to tax and who had the right to control
expenditures.
It started with the Magna Carta, and that is a significant
document, because up until that time the king was entitled
only to feudal dues. All nobles were entitled to a certain
type of feudal dues, and it did not require any type of
authorization. But prior to the Magna Carta, the king tried
to tax the barons with taxes that were not customary and the
barons did not like it, and forced him to sign the Magna
Carta, which said that he could not levy any taxes on them,
other than the customary, normal feudal dues without their
consent.
That was the start. And you know why the king, from time to
time, would have to come to the national council which
finally came to be the Parliament? It is no different now
than it was 800 years ago. He would have to call them
together because the normal feudal dues that he was entitled
to as a matter of right did not give him enough money to
fight wars.
So every time he wanted to fight a war, he would call
parliament together, and he would plead for money; and if he
was a popular king or the war was popular, they would give
him the money he requested. If it was an unpopular war or an
unpopular king, they probably would not vote him the money.
Or even if he was popular and they liked the war, but
Parliament felt they had any of a variety of grievances
against the king to which the king had not paid enough heed,
they would come together, dally and delay, or give the king
less than what he wanted, until he would meet with the
parliamentary leaders and they would come to some kind of
conclusion about their grievances.
It was a gradual development through this evolutionary
process, with the kings wanting to go to war and Parliament
saying, ``Okay, but not until we get this grievance met, or
not until you stop trying to assess illegal taxes or forced
loans or benevolences will we try to get you the money.''
If they had strong kings and weak parliaments, the king
would dominate, or if, as finally under the Lancastrians,
they had a strong Parliament and weak kings, the parliaments
dominated.
Finally the showdown came in the 16th century, when the
Stuarts came to the throne, who believed in the ``divine
right of kings'' and were not going to have any truck with
Parliament. James I was first, but he died. Then Charles I
came on the throne, and he could not stand parliament, and
finally decided in 1622, that he was going to abolish it. He
did not call Parliament together for 11 years, until 1640.
And do you know why he called it then? Because he had gone to
war with the Scots, they had beaten him in the Battle of
Newburn, and were knocking on the doors of London. Nothing
could be more humiliating to an Englishman than to be
defeated by the Scots.
So he called Parliament together to ask for money to fight
the Scots; only at this stage Parliament had had it, not only
with the Scots but also with the King. So, instead of giving
money, it passed a bill of attainder, impeaching one of the
King's ministers and sentencing him to death. The civil
war started afterward, and Parliament won, and the King
was captured and executed, which was unheard of in that
day and age.
England went for 11 years as a republic, but finally, in
1660, it restored the monarchy. But by this time an uneasy
but understood truce existed. There were no written
documents, but it was understood that the King could not
spend nor tax without parliamentary acquiescence.
So, for 25 years, under Charles II, things went along
reasonably smoothly.
When James II came to the throne in 1685, he did not have
his father's tact or diplomacy. He was a Scotch Catholic and
was determined to try to return his country to Catholicism.
But his country was principally Protestant. So in 3 short
years Parliament threw him out and invited William of Orange
to come from Holland and become King.
They passed the Declaration of Right, which, with one or
two very minor changes, became the Bill of Rights in 1689.
Under that document, henceforth, every king of England, every
queen of England served at the sufferance and the will of
Parliament. They had no power to tax, no power to spend.
By 1689, a hundred years before our Constitutional
Convention, England had settled upon itself who was going to
have the power to tax and the power to spend, and it was
Parliament.
So when we get to our Constitutional Convention--you can
search the Federalist Papers or the debates and you will find
that there was very little discussion about who shall have
the power to spend and tax. Nobody seriously thought anyone
other than Congress should have it. No one seriously thought
the President should have any power at all in terms of
setting fiscal policy. They very clearly set it forth in
Article I, section 8, of the Constitution: ``The Congress
shall have Power to lay and collect Taxes, Duties, Imposts
and Excises, to pay the Debts and provide for the common
defense and general welfare of the United States.'' And
article I, section 9: ``No money shall be drawn from the
Treasury, but in Consequence of Appropriations made by law.''
Here it is, in simple and straight language. What happened?
We went from the time of our Constitutional Convention all
through the 1800's with Congress perfectly able to draw
budgets, determine priorities, and raise money.
In the First Congress, Alexander Hamilton, who was the
first Secretary of the Treasury, tried to come forth with an
Executive budget, and Congress rejected it. We did not have
an Executive budget in this country until 1921, when we
passed the Budget and Accounting Act. Of course, the
President obviously had a hand in talking with his Cabinet
heads; but every department submitted its budget and it was
sent to Congress, and Congress made the decision.
We can do it again, if we want to. When people say, ``It is
beyond us. That was 1921. We were talking about a budget of
$3 or $4 billion. We cannot do it now with a budget of
$250 billion. Nobody in Congress can fathom that''--I say
that is baloney.
Every parliamentary democracy in the world today manages to
come up with legislative budgets. A few of them have
executives, but they are weak executives. In England, France,
Germany, and in the Scandinavian countries there are
legislative budgets, and the majority party is able to
determine how much they can raise and spend. They come to the
parliament with it and debate it, but it is a legislative
budget. If it can be done in any other country in the world,
why can it not be done in this country?
The fact that we have not done it in the last 10 or 20
years is no reason why we cannot do it again.
The reason why I worry about this bill tonight is that it
is not the first time we have toyed with the idea of
delegating fiscal matters to the President. Senators will
recall that in the late 1950's and early 1960's there was
support for a bill to give the President power to raise or
lower taxes by 10 percent. It was even endorsed by two of the
major newspapers on the east coast that most of us read.
Congress kindly did not adopt it.
In 1968, we got the first of our debt ceilings, another in
1969, and another in 1970; but they were really porous. We
put enough exceptions in them so that they really were not
debt ceilings, especially one which said there shall be a
debt ceiling except for those things Congress appropriates
over the debt ceiling. That was not much we had to worry
about. We had given away no power.
But now we Senators are sitting here like a child on the
beach with his sand castle, watching the waves come in; and
as the tide comes in, the waves come closer, and now, for the
first time, tonight, we are seriously toying with giving away
half of the significant power that Congress can have.
I look at us and I say, ``Why the dickens do we do it? Why
are we willing to give away this power?'' I can only come up
with two reasons. One is that we really do not want it. We
really do not want it.
I see nothing in the legislation about the Post Office,
wage and price controls, the Formosa resolution, and the
Middle East resolution to convince me that we want the power
to make the decisions in this country. It is easy to give the
power to the President. Let him make the tough decisions; we
will not have to do it. Let him decide where to spend $2 or
$3 billion. We will sit back, and if it is unpopular, we will
criticize him. We will say, ``What a foolish mistake. Any man
in the White House who would do that should be defeated. We
would not have done it. But, of course, we do not have the
power. We have given it to the President.'' If he happens to
make a popular decision and cuts something nobody likes, we
applaud him, and we all get reelected together. In neither
event have we had to make the prospective decisions and the
tough ones as to what to cut ahead of time.
In addition to not wanting it, I think we have gotten in
the habit in Congress of saying ``Can't--can't be done.'' We
cannot run the Post Office. We cannot determine wage and
price policies. We cannot determine where military bases
ought to be placed overseas. We cannot set executive
salaries. We cannot fathom the Federal budget. So we delegate
it to the President.
Well, ``can't, can't, can't,'' to my mind, is just an
excuse for ``don't want to.'' ``Can't'' is an excuse to avoid
the onerous and unpleasant task of leadership, because
leadership is no fun. It is a lonely job, and you make
decisions in isolation. You make decisions that you later
wish you had not had to make. So we delegate the leadership
because we say it cannot be done.
Let me make clear that I am not a defender of Congress. I
spoke earlier about the argument we had back and forth about
who was responsible for the deficits, and we say we have
trimmed appropriations, and we do. We trim appropriations
every year after we pass authorizations the year before,
requiring the President to double his budget, and then we
trim it.
I think this Congress is fiscally corrupt. I do not think
we have the discipline or courage to raise the taxes or lower
the expenditures; or, at least, nothing I have seen since I
came to the Senate in 1969 would convince me that we have the
ability, capacity, wisdom, or discipline to do it.
So we are faced with a Hobson's choice: Either we delegate
these powers to the President in order to save the country
from Congress, or we keep the powers in Congress and perhaps
run the country into bankruptcy. What it amounts to is a
choice between a fiscally irresponsible Congress and a
totally irresponsible Congress. If I have to make a choice
between the two, I will choose the fiscally irresponsible
Congress, because anything we do that is wrong, if we keep
the power, we can right. Once we give it away we have no
capacity to right it; and, frankly we have no course of
complaint if we once give it away.
When President Kennedy was a Member of this body, he was
appointed chairman of a committee called the Committee on the
Senate Reception Room. For the life of me, I do not know the
history of why the committee was created. But one of the
things the committee undertook was to determine the five
greatest Senators of all time. There pictures are now in the
Reception Room.
The committee picked two people out of this century, Bob
Taft and Bob LaFollette, and three out of the last century,
Daniel Webster, John C. Calhoun, the great southerner, and
Henry Clay, who is perhaps by historical acclaim the greatest
Senator of all time. It is interesting that Clay, Calhoun,
and Webster all served in the Senate at about the same time.
They served in that little Senate Chamber down there across
the hall from the Senate Disbursing Office, which I am
delighted to see we are going to restore under the
Legislative Appropriations Act of 1973 which we passed. The
room is kind of dusty. It is not used any more, but if we go
down there and sit quietly in the room, we can, with any
degree of imagination, almost hear the Clays, the
Calhouns, and the Websters arguing the great issues of
those days: The Missouri Compromise, the Kansas-Nebraska
Act, the Tariff of Abominations where they argued about
the opening of the West, the Bank of the United States,
and the theory of nullification so eloquently argued in
the Webster-Hayne debates. The theory of nullification, if
it had prevailed, would have meant the dissolution of this
country. It was a theory that finally led to the War
Between the States.
Mr. President, as I think about those men, I cannot help
recalling the banquet at the Indian Queen Hotel in Washington
in 1830. It was a Jefferson Day Banquet and the Democrats
were celebrating Thomas Jefferson. Andrew Jackson was
President then and he was, of course, trying to put down the
theory of nullification if he could. Calhoun was there. He
was actually Vice President but that was through a quirk of
the electoral college process, which allowed a man who ran
second to be the Vice President, although Calhoun said he
would much rather be a Senator than a Vice President.
When the banquet reached the time appropriate for the
toast, Jackson rose and looking squarely at Calhoun proposed:
``Our Federal Union--it must be preserved.''
Calhoun rose to the occasion. He raised his glass and said
with feeling:
``The Union--next to our liberty--the most dear.''
Those were great men and great times. They did not agree
among themselves. The enmity among Clay, Webster, and Calhoun
is legendary. But they almost spanned 50 years, the length of
time those three men served here. They had many bitter
battles but they all agreed on one thing; they agreed on the
fact that the policies of this country were going to be made
on the floor of Congress and not in the White House. It was
not that they were unaware of the dangers of usurpation of
Executive power, because Clay said in 1840:
``In my deliberative opinion, the present distressed and
distracted state of the country may be traced to the single
cause of the action, the encroachment, and the usurpations of
the Executive Branch of the Government.''
So, they were aware of the problems. They are not new. Only
we face graver problems now. The President has not tried to
steal our power. We want to give it away.
Congressional power is like chastity, it is seldom lost by
force because it is usually given up voluntarily. We will
give up our power here tonight, if we vote for this bill.
Short of physical or mental limitations that God places on
any man, there is nothing that cannot be done by man if he
believes it. God did not bless or circumscribe the President
with any greater physical or mental limitations than he did
us. Anything he can do as a President, we can do as a
Congress--if we want to. But we must have the will and the
capacity to do so.
There is no reason today why we cannot appropriate money
sufficient for ourselves and for the committees to come forth
with a legislative budget.
There is no reason why the distinguished majority leader
cannot come forth with a Democratic budget, an there is no
reason why our distinguished minority leader cannot come
forth with a Republican budget.
Even Senator McGovern has a budget and he is only a
candidate. So, it can be done.
I am simply saying: Why are we not willing to do it? Why,
after we have spent--as I look around this Chamber, some of
us are only 2 or 4 years in national politics, but there are
others here who have spent 30 years of their adult lives in
the service of their country, who ask the voters to delegate
to them the power to make the policies of this National--why
are we so wild to hand over our power to someone else?
Mr. President, I tell you what will happen if we adopt the
Jordan amendment. It will not be a cure-all. Twenty years
ago, in politics, the cry was of the 5 percenters. What we
will have if we pass the Jordan amendment will be the cry of
the 10 percenters. Everyone will have a favorite project and
will come on the floor of the Senate and want to get his
appropriation increased 10 percent to take care of the 10
percent cut that will be made in the budget by the Executive.
Everyone will do the best he can, whatever committee it may
come from that has jurisdiction over it, to get his
particular little bailiwick, whether it be veterans, or
social security, put into the ``uncontrollable items'' list,
so that it cannot be cut at all.
We will find some way to weasel around the Jordan
amendment, some way to increase the appropriations enough so
that when they are cut 10 percent it will still be too much.
So, I fear, instead of an 8-month experiment, we will find it
too easy so that we will say education needs $10 million
more, so make it $20 million. Housing needs $20 million so
make it $40 million, and we can go out and tell the people
that the President is the one that has got to cut the budget
and he does not have any humaneness or understanding of the
problem so that we blame it on him. We can go out and say to
the poor, ``We want to try to help you. It is that man in the
White House that does not have any sympathy for you.''
Mr. President, let me make it clear that by that time,
Congress will be reduced to passing on minor matters of
trivia. The Senate will be called upon from the time to time
to confirm judges and ambassadors and that will be the sum
total of the function of this body, if we adopt the Jordan
amendment, or if we adopt the committee position.
When Benjamin Franklin was leaving the Constitutional
Convention, walking down the steps of Independence Hall, a
woman, Mrs. Powell, came up to him and said: ``Dr. Franklin,
what have we got--a republic or a monarchy?''
Benjamin Franklin replied: ``A republic, if you can keep
it.''
We are all going to be celebrating the 200th anniversary of
this Nation in 1976. I am curious whether we will be
celebrating 200 years as a Republic, or as year three of an
Executive monarchy.
Can we keep it?
That choice is ours.
I hope that the Senate will opt on the side of the
republic.
Mr. President, I yield the floor.
____
Exhibit 1
A Republic or a Monarchy?
(By Senator Bob Packwood)
Mr. President, we are approaching the closing days of the
1972 presidential election. Many issues have been raised and
discussed. Among those are Vietnam, the economy,
environmental problems, race relations, equal rights for
women, and numerous others. Some of these were issues in
1968. Some were not. Some might still be issues in 1976 but
the greater likelihood is that most of the issues of 1972
will be but dim memories in 1976. For if there is any one
constant in history, it is that the only constant is change.
We are at this moment in the United States Senate, however,
facing an issues that transcends all others. That issue, and
how we decide it, will be more important to the future of
this country than how we decide all other specific issues
combined. That issue is who will decide the main policies of
this country--the Congress or the President.
For the past decade, we've heard a great deal in Congress
about the delegation of powers to the President. Much of this
has stemmed from the tragic conflict in Vietnam. Regardless
of our feelings a decade ago, most of us today realize that
we'd be better off if we had never become involved in
Vietnam.
If any specific vote can be pointed to as the vote which
focused attention on delegation of power to the President, it
would be the vote in 1964 on the Gulf of Tonkin Resolution.
Whether or not under that Resolution Congress gave to the
President authority he did not have is now moot, as the
Tonkin Resolution has now been repealed. But, from the date
of the passage of the Gulf of Tonkin Resolution onward, many
in Congress have become troubled by the erosion of
congressional powers and the increased authority and power of
the President. As the war dragged on, self-guilt in the
Congress, caused by the passage of the Tonkin Resolution,
increased. Congress started to flagellate the President and
to question the wisdom of the Tonkin Resolution specifically
and executive power in general.
With much hoopla and breast beating, Congress, in June
1970, passed the Cooper-Church Resolution which prohibited
funds from being used to introduce American ground combat
troops in Laos, Thailand or Cambodia.
In July of 1970, we repealed the Gulf of Tonkin Resolution.
In April of 1972, the Senate passed the war powers bill
substantially curtailing the power of the President to
involve the United States in armed hostilities overseas, but
that bill has yet to be enacted by the Congress.
Having accomplished all of the above, Congress sat back
with a certain degree of smugness and prattled about its
reassertion of congressional authority.
But what about the Formosa Resolution initially passed in
1955. That Resolution reads, ``. . . The President of the
United States be and he hereby is authorized to employ the
armed forces of the United States as he deems necessary for
the specific purpose of securing and protecting Formosa and
the Pescadores against armed attack, this authority to
include the securing and the protection of such related
position and territories of that area now in friendly
hands and the taking of such other measures as he judges
to be required or appropriate in assuring the defense of
Formosa and the Pescadores.'' The Senate specifically
refused to repeal that resolution by a vote of 43-40 on
October 28, 1971.
Or consider the Middle East resolution passed in 1957. That
resolution reads, ``. . . the United States regards as vital
to the national interest and world peace the preservation of
the independence and integrity of the nations of the Middle
East. To this end if the President determines the necessity
thereof, the United States is prepared to use armed forces to
assist any nation or group of such nations requesting
assistance against aggression from any country controlled by
international communism . . .'' Congress has never even voted
as to whether or not we should repeal this resolution.
Under either the Formosa resolution or the Middle East
resolution, the President, if he didn't already have the
power, was certainly delegated the power by Congress to take
whatever military action he wishes in those areas under the
flimsiest of pretexts. If Congress wants to make sure that
some future President doesn't get us into a war over Formosa,
or the Middle East, they have done nothing to prohibit it by
leaving these two resolutions on the books.
There are other examples. We've extended our lease on our
bases in Spain for 5 years through an executive agreement
which doesn't even require Senate ratification or
congressional concurrence. In this executive agreement, we
have agreed to pay Spain $400 million dollars. All of this
without so much as a by-your-leave of Congress even though it
is Congress that must find the money to fulfill the
agreement.
We've extended our agreement with Portugal for the use of
bases in the Azores--again without so much as a request for
congressional acquiescence.
In addition we apparently, by executive agreement, intend
to establish a naval base in Bahrain where we have never had
a naval base before, nor for that matter, any military base
of any kind in that country. Congress has never been asked
whether or not we thought the establishment of this base was
in our national interest. It may be. It may not be. But,
apparently it is going to be established without asking for
the benefit of Congress' thought on the matter.
Now it might be said that all of these matters involve
foreign policy, and that constitutionally the President is
given paramountcy in foreign affairs and within reason ought
to be able to conduct the foreign policy of the nation as he
chooses. It is therefor argued that Congress should not
impinge too much upon the executive's power in foreign
affairs and should not bother itself too greatly in how the
executive chooses to run foreign policy.
I don't agree with that premise. But, putting it aside for
the moment, without arguing for or against it, one might at
least suppose that Congress in the area of domestic matters
would be concerned with maintaining its preeminence in
deciding what policies shall be followed in running this
country.
But what have we seen in the last few years. Well, to begin
with--take the Post Office. Congress used to run the Post
Office--politically and badly, now, Congress has delegated
its authority to run the Post Office to the United States
Postal Service, governed by a board of directors, appointed
by the President. And now, instead of the Post Office being
run politically and badly--it's just run badly. But don't
complain to Congress anymore about bad mail service, because,
you see, it's no longer our responsibility.
Congress used to set the salaries of the workers in the
Executive Branch of the Federal Government. Now, we've given
that away also. Today the President receives reports from
various boards, appointed, I might add, by the President.
These boards recommend what the salaries of the employees
in the Executive Branch ought to be. The President passes
along these recommendations to Congress. They go into
effect automatically. No longer does Congress have to
worry about setting the policy as to what the wages in the
Executive Branch should be.
Example upon example of such delegation can be compiled.
Some of it minor, some of it major. But the most sweeping and
dramatic power that Congress has recently delegated to the
President is in the field of wage and price controls--the
most critical power over the private lives of all of us. We
have delegated this power so broadly to the President that he
has virtually a carte blanche to set the wage and price
policies of this Nation--at his sole discretion.
When Congress was first considering the matter of whether
to establish wage and price controls, the matter was referred
to the Banking, Housing and Urban Affairs Committee which I'm
privileged to be a member. Numerous witnesses testified. As I
listened to the witnesses, I began to think to myself, why
can't the specific decision as to when and whether there
should be wage and price controls be decided by Congress. Why
did we have to delegate to the President the decision when to
institute them or if to institute them. I posed this question
to Dr. Arthur Burns, the Chairman of the Federal Reserve
Board who was then testifying:
Packwood.``I have some misgivings about yielding this power
to the President. Is there any reason why the legislation we
chose to enact cannot leave with Congress the discretion as
to whether or not to trigger the policy decision to institute
wage and price controls?''
Dr. Burns. ``It could be done through a triggering
device.''
Packwood. ``It would not be that difficult a piece of
legislation to enact, would it?''
Dr. Burns. ``I would think that a triggering device could
be written into legislation, a device that would work
reasonably well.''
Another witness was Charles Walker, the Under Secretary of
the Treasury, and I posed essentially the same question to
him as follows:
Packwood. ``Let me ask you the same question I asked Dr.
Burns. While I have misgivings about giving the power to the
executive to make the decision to impose general controls, I
don't argue with giving the executive the authority to
administer such controls.
``Would it be relatively easy to draw a piece of
legislation which would enable Congress to quickly trigger
the policy decision as to whether or not we should institute
either general or specific wage and price controls and also
providing for the administration to administer them?''
Dr. Walker. ``I think it would be.''
Finally, Congressman Henry Reuss from Wisconsin was
testifying. He agreed that Congress ought to exercise this
power rather than the President, but he didn't have much hope
or faith that Congress would. I questioned him as follows:
Packwood. ``What you are saying is that Congress could do
it; Congress probably should do it, but in all likelihood
Congress probably will not do it?''
Mr. Reuss. ``A fair statement.''
I had an amendment drafted that would reserve to Congress
the power to specifically decide when and whether we should
have wage and price controls. That amendment read:
``Whenever the Congress shall by concurrent resolution
determine that the public interest requires the imposition of
general controls affecting all industries and segments of the
economy, the President may issue such orders and regulations
as he deems appropriate to stabilize prices, rents, wages,
and salaries at levels not less than those prevailing on May
25, 1970.''
I mailed the amendment to Under Secretary Charls Walker,
and asked for his comments and suggestions. In a few days, I
received a letter from Secretary of the Treasury, John
Connally. He indicated that the administration supported my
amendment. They did not want the power to institute general
wage and price controls without a further mandate from the
Congress. He indicated that I was free to use that letter in
support of my amendment on the floor of the Senate. That
letter, dated April 30, 1971, reads as follows:
``This letter is in response to your request for
administration views on your proposed amendment to H.R. 4246,
`To extend until March 31, 1973, certain provisions of law
relating to interest rates, mortgage credit controls, and
cost-of-living stabilization.'
``As we understand your amendment . . . institution of a
general wage-price control program would have to be preceded
by adoption of a concurrent resolution by the Congress.
``We support your amendment. It provides a workable
mechanism with the safeguards we have consistently advocated
with respect to such powers, namely, that general wage-price
controls should not be instituted by the Chief Executive--
short of an all-out national emergency--without a further
mandate from the Congress.
* * * * *
``We have been advised by the Office of Management and
Budget that there is no objection to the submission of these
views.
John Connally.''
I offered the amendment on the floor of the Senate and it
was defeated by a vote of 41-30 on May 3, 1971. When the
Senate, on a silver platter, was handed the opportunity to
limit the President's power in the field of wage and price
controls and to reserve unto Congress the final decision as
to when and if wage and price controls should be instituted,
the Senate refused to accept the opportunity. They preferred
to give away the power.
Well, all the powers that Congress has delegated to the
President, be they in foreign affairs or domestic affairs,
pale into insignificance when we consider the matter now
under discussion.
Congress has only two great powers--the power to tax and
the power to spend. It is through the exercise of these two
great powers that much of the rhetoric of politics is
transmitted into the fulfillment of policy. Now Congress is
seriously considering delegating to the President the power
to cut all Federal expenditures over $250 billion--wherever
he wants to cut them. The President is a good and able man. I
support his re-election and I'm certain that he will be
overwhelmingly re-elected. But no President should have this
power.
Justice Oliver Wendell Holmes once said: ``A page of
history is worth a volume of logic.'' This statement should
be considered carefully by those in this body who contemplate
delegating the power of over-spending to the President.
America received most of her concepts of government from
England. One of the most controversial of all subjects in the
history of England was the issue of who would have the power
to levy taxes and to appropriate money--the Parliament or the
King.
The battle started in 1215 with Magna Carta. Under this
document, King John was forced to sign an agreement with the
nobles that he would levy no extraordinary taxes (as distinct
from the customary feudal dues to which the king was entitled
as a matter of right) without the consent of the nobles. From
that date onward for almost five centuries the battle waged
back and forth between king and the parliament. Parliament
was at its strongest when the king wanted to wage war. The
king's normal feudal dues simply would not produce enough
revenue to wage war.
The king was, therefore, forced to go to parliament from
time to time and ask them to assess taxes for the starting or
continuance of a war. If the king or the war happened to be
popular with parliament, they would normally acquiesce. If
the king or the war was unpopular, it was quite common for
parliament to be quite miserly in providing funds. And even
if the war or the king was popular, if parliament felt that
it had other grievances to which the king had given little
heed, parliament might delay or appropriate less than the
king requested until the king would meet with parliamentary
leaders to discuss the grievances about which parliament had
complained.
In spite of the efforts of parliament, it was not uncommon
for the king to attempt to levy what parliament regarded as
illegal or unconstitutional taxes. Under the Lancastrian
monarchs, parliament was greatly strengthened because the
kings respected the growing power of parliament and didn't
seriously attempt to undermine or circumvent it. But, under
the Yorkist and Tudor monarchies, arbitrary taxes, ``forced
loans'', and ``benevolences'' and other illegal methods of
extracting revenue without parliamentary consent were
attempted.
The showdown arrived with the era of the Stuarts (James I,
1603 to 1625; Charles I, 1625 to 1649; Charles II, 1660 to
1685, and James II, 1685 to 1688). In the era of James I and
Charles I, not only did the normal contest between the king
and the parliament over the power to tax continue, but fused
into the dispute was the rise to power in England of the
Puritans and Oliver Cromwell.
Parliament became more and more truculent. Not only would
the members of parliament refuse on most occasions to
authorize the taxes requested by the king, but in addition,
members would make speeches on the floor of the parliament
assailing the king and his ministers. Parliament attempted to
impeach ministers. The king, in turn, imprisoned members of
parliament.
In the 1640's, the century's long battle erupted into a
bitter and bloody civil war. Cities divided against cities.
Nobles chose sides between the King and parliamentary forces.
Members of Parliament were imprisoned, their estates
forfeited and on occasion their lives lost. Finally in 1649,
the parliamentary forces led by Cromwell and his new model
army, were completely victorious; the King was captured and
executed. England ceased to become a kingdom and became a
republic with Cromwell at its head.
But Cromwell proved in the long run to be the leader in not
of the entire country nor even of all the parliamentary
factions. Instead Cromwell's power rested narrowly on a
zealous band of religious fanatics known as Puritans. What
they tried to impose upon England was an anathema to
everything that that great country ever wished or ever
willed. Cromwell died in 1658. In 1660, the monarchy was
restored and Charles II became King.
The House of Stuart was restored, however, with not
constitutional guarantees. The supremacy of Parliament was
not declared in any formal document nor was the King required
to acknowledge that his powers were limited or derived from
the people. And while in form and law, the King was supreme--
in fact, he was no subservient to Parliament.
During the reign of Charles II (1660 to 1685) there was a
de facto truce between the King and Parliament. The King
refrained from imposing taxes or levies without parliamentary
consent and the Parliament, in turn, granted the King greater
privileges and liberties than they had been willing to grant
to either James I or Charles I.
On Charles II's death, however, James II ascended to the
English throne. But where Charles II had adjusted to the
parliamentary system, James II did not. James II lacked
Charles II's tact and diplomacy. He assumed the crown with
the full intention of exercising arbitrary authority. He
attempted to discard the law. He attempted to bring Roman
Catholicism back to an England that was now thoroughly
Protestant. Immediately, an intense and bitter battle
started between the King and Parliament. The King
imprisoned some members of Parliament. In a short span of
3 years, the situation became so tense that James was
driven from the throne.
William of Orange was invited by Parliament to come to
England to assume the throne. William came and jointly
assumed the throne with Mary, the daughter of James II. But
at least, Parliament had proved itself supreme, William and
Mary were crowned subject to the conditions expressed in
``the declaration of right.''
These set forth innumerable parliamentary grievances and
asserted parliamentary powers. With slight changes ``the
declaration of right'' was enacted by Parliament as the Bill
of Rights. William and Mary, therefore, ruled England at the
sufferance and at the will of Parliament. They had limited
powers and, most importantly, were subservient to a
Parliament which had complete domination over the power to
tax and the power to spend. The bill of rights said
specifically.
``That levying money for or to the use of the crown by
pretense or prerogative, without grant of Parliament for
longer time or in other manner than the same is or shall be
granted, is illegal.''
The Bill of Rights is--without question--one of the most
crucial documents in Anglo-American constitutional history.
For it marked the end of a struggle which had taken almost
five centuries. As the great historian, Maitland observed,
with the passage of The Bill of Rights ``one great chapter of
England history has been closed.'' Or as Shepard Morgan in
his history of parliamentary taxation in England said:
``With the passage of the Bill of Rights the principle was
vindicated that Parliament rather than the Crown has the
power to tax. . . . The corollary principle that Parliament
has the power to appropriate supplies for specific purposes
and that it can demand an accounting for the money so
appropriated were accorded general acquiescence then and
thereafter.'' (The History of Parliamentary Taxation in
England by Shepard Morgan, New York: 1911; pp, 307, 308).
The passage of the English Bill of Rights in 1689 occurred
almost a 100 years before our constitutional convention. By
the time we held our constitutional convention and started
discussing the theories of separation of powers, there was
relatively little debate on the power of the purse--that is
the power to tax and the power to spend. There was relatively
little debate because to everyone involved the question had
been irrevocably settled. Congress was to have the power of
the purse and no one seriously disputed it, challenged it, or
thought that any other conclusion should be reached. To
insure that Congress would be the ultimate repository of the
power of the purse, the constitutional convention enacted
article 1, section 8, of the Constitution which says:
``The Congress shall have power to lay and collect taxes,
duties, imposts and excises, to pay the debts and provide for
the common defense and general welfare of the United
States.''
and article 1, section 9:
``No money shall be drawn from the Treasury, but in
consequence of appropriations may be law.''
The issue of legislative fiscal supremacy could not have
been made more clear than it was in the first Congress.
Alexander Hamilton, the first Secretary of the Treasury,
tried to persuade the Congress to allow the President to
establish an executive budget. The effort was rejected out of
hand by the Congress. As one author has observed:
``. . . jealousy between the legislative and executive
branches of the Government became so intensified that
Congress sought executive decentralization in budgetary
matters . . . thus budget making became an exclusively
legislative function in the National Government and as such
it continued for more than a century.'' (Public Budgeting, by
A. E. Buck, p. 17)
No--American blood has never been spilled, brother has not
been turned against brother nor the President against
Congress over the issue of taxing and spending, because
nobody, and I re-emphasize, nobody including Presidents,
thought the President should have that power.
During the entire nineteenth century. Congress alone
determined the budgetary priorities of the United States. As
is required by the constitution, fiscal matters originated in
the House of Representatives. As a matter of fact, until
1865, the ways and means committee of the House was
responsible both for taxation and appropriations. In 1865,
the House appropriations committee was created to consider
appropriations and in 1867, the Senate followed suit. But,
regardless of the method of handling fiscal matters in the
Congress, it is fair to say that it was exclusively handled
in Congress.
Even into the twentieth century, Congressional Supremacy of
budgetary matters continued. As a matter of fact, there was
no executive budget until 1921. Up to that time, although the
executive obviously had a hand in determining what the budget
recommendations of each of its cabinet departments would be,
the various recommendations from all departments were simply
given to the Secretary of the Treasury and he in turn
presented them to Congress. It was Congress that estimated
revenues, set priorities and determined appropriations.
Then in 1921, Congress enacted the budget and accounting
act of 1921. This act was not designed to give the President
the power to determine the policies of this country, but
rather to give the President the power to administer the
Government--the fiscal power of planning and oversight--the
power that any executive officer of a corporation has to run
the corporation.
And, what do we see today? We stand here in the Senate of
the United States, considering the possibility of giving the
President the power to limit all Federal expenditures over
$250 billion. We are considering saying: ``Cut where you
want, Mr. President. It doesn't matter what Congress thinks
our national priorities should be. You do whatever you want
to limit Federal expenditures to $250 billion. It's beyond
us.''
The suggested $250 billion expenditure ceiling is not the
first time Congress has toyed with the idea of delegating
fiscal powers to the President. In the late `50's and early
1960's, the idea was in vogue of delegating to the President
the power to raise or lower the tax rates in the United
States by as much as 10% a year. Fortunately, this suggestion
received short shrift from Congress. Then in 1968, the
Congress passed the first of its so-called expenditure
ceilings. This ceiling, however, was not a firm ceiling.
First, ``uncontrollable'' programs were exempt. Secondly, a
two billion dollar cushion was allowed. So a ceiling that was
originally enacted to be $180 billion dollars in 1960,
totalled $185 billion.
A ceiling was again tried in 1969, but the exemptions
enacted with the ceiling were sufficiently porous that the
effect was no ceiling at all. A similar attempt in 1970 was
equally unsuccessful Thus the efforts in 1968, 1989, and 1970
were illusory. There were too many holes to call these
genuine expenditure ceilings. But the efforts may have,
unfortunately, foretold the future. Like an incoming tide,
the waves of an expenditure. ceiling crept ever closer to
surrounding the fiscal powers of Congress.
Now, Mr. President, we stand on the threshold of the
decision which may make the difference as to how this country
is governed in the future. We soon will vote on whether or
not to give the power to control spending to the President.
Why does Congress give away this power? Why does Congress
not hold this power unto itself? I can find only two reasons.
First, its easier to give it away. That way we don't have to
make the tough decisions prospectively. We can wait until the
President makes them and then we can applaud or criticize him
as we choose, depending upon public opinion. If he makes an
unpopular decision, Congress can stand back and say--that was
a foolish thing for the President to do.
Congress would not have made such a terrible decision. And
if the President happens to make a decision that is popular,
Congress can come forward and applaud the President, exclaim
how wise we all are, bask in the collective glory of the
popular decision, and hope that we'll all be re-elected
together. But in either event, Congress has no
responsibility, because we will have given that power to the
President.
The second reason we give away these powers is that we say
to ourselves ``it can't be done.'' We ``can't'' really run
the post office well, if at all. We ``can't'' make decisions
about military bases overseas. We ``can't'' set the wages for
government employees. We ``can't'' determine when or whether
to institute wage and price controls. We ``can't'' fathom the
Federal budget and how to control Federal expenditures, so we
must delegate that power to the President. ``Can't''--can't--
can't.'' Well, Mr. President, ``can't'' is just an excuse to
avoid the onerous and rather unpleasant task of leadership.
It's not that Congress can't answer these questions--it's
just that Congress has no desire to.
Mr. President, the intricacies and mysteries of the Federal
budget are not beyond us. It is self-evident that every
parliamentary democracy in this world manages to estimate
government income, set priorities, determine appropriations
and put it all into a document called a budget.
Most of these democracies don't even have the independent
executive and those that do usually have a weak executive
totally dependent upon the legislative branch of government.
The making and fashioning of taxation and expenditures in
most free countries of the world are done by the legislative
body, not by an executive, and if it can be done in those
countries, it can be done here.
Mr. President, I am the first to fault Congress. We are
fiscally corrupt. Left to Congress, we will probably succeed
in bankrupting this Nation. We haven't the discipline and
courage to either expand revenues or trim expenditures. We
don't like to raise taxes and we're reluctant to cut
appropriations. The answer is said to be, ``delegate the
power to the President.'' Mr. President, this is a Hobson
choice--leave the power with a Congress with no discipline or
delegate it to the President to save the country from
Congress and the devil with what may be the ultimate
consequences of the delegation. It's the unfortunate choice
between a fiscally irresponsible Congress and a totally
irresponsible Congress.
When Jack Kennedy was a member of this body, he headed a
commission to determine the five greatest Senators of all
time. The committee heard experts from all over the United
States. It weighed and sifted recommendations from the best
scholars in the field of American Government this country
could produce. And finally the Commission named the five
greatest Senators of all time. Two were from this century--
Bob Taft of Ohio and Bob La Follette of Wisconsin--and three
out of the last century--Daniel Webster, perhaps the
greatest orator in the history of the Senate, John C.
Calhoun, the great southerner and Henry Clay, who is
perhaps by historical acclaim, the greatest Senator of all
time.
It is interesting that the latter three, Clay, Calhoun and
Webster, all served in the Senate at about the same time.
They served at a time when that small room across from the
Senate disbursing office was the Senate Chamber. I'm happy to
see that the Legislative Appropriations Act of 1973 provides
for the restoration of this beautiful old Senate Chamber. But
even in its present rather disheveled condition, a person can
go into that room and sit quietly and with any degree of
imagination can hear the Clays, the Calhouns, and the
Websters debating the great issues of those days. The
Missouri Compromise, the Kansas-Nebraska Act, the tariff of
abominations, the opening of the West, the Bank of the United
States, and perhaps most importantly, the theory of
nullification so strongly championed by Calhoun and so
eloquently argued in the Webster-Hayne debates. This theory
of nullification was, of course, the precursor of the
eventual War Between the States.
The theory of nullification produced an extraordinary
struggle between the congressional forces led by Calhoun who
supported nullification and President Andrew Jackson who
opposed it with all his might and main.
There perhaps could have been no more illustrative and
dramatic moment in the history of our country than at that
small banquet at the Indian Queen Hotel in Washington in
1830. President Jackson and Calhoun were at the banquet.
Calhoun and his supporters were determined to use the banquet
as a vehicle for furthering nullification. Jackson was
equally determined that no such effort succeed.
When the banquet reached the time appropriate for toasts
Jackson rose and looking squarely at Calhoun, proposed the
following toast:
``Our Federal Union--it must be preserved!''
Calm and reposed, Calhoun rose, gazed with determination at
the President and raised his glass and said:
``The Union--next to our liberty--the most dear.''
These were great men facing momentous decisions. These were
men aware of the dangers of executive power and the
possibilities of the loss of Congressional prerogative. Henry
Clay was quite disturbed about it when he said in 1840:
``In my deliberate opinion, the present distressed and
distracted state of the country may be traced to the single
cause of the action, the encroachment, and the usurpations of
the executive branch of the government.
Yes indeed these were great men--striding these corridors--
sitting at some of the very desks we now use--debating the
critical issues of their day. But while these men may have
been divided in their opinions they were united on one thing.
And that was that the policies of this country should be made
on the floor of Congress--not in the White House.
Today, the problem is not that the executive is trying to
steal our powers. The graver problem is that we are prepared
to give them away. Congressional power is like chastity. It
is seldom lost by force. It is usually yielded voluntarily.
We sit here a timid and tremorous little band, too
undisciplined to exercise our prerogatives and too unwilling
to exercise our authority.
It's time to return to the courage and conviction of the
Clays and the Calhouns and the Websters--to determine for
ourselves as a Congress what the policies of this country
should be.
It does require courage and determination, and most of all
it requires leadership. We can make the policies of this
country. Short of the physical and mental limitations that
God imposes upon man, there is nothing that man cannot do
if he believes in it. And Congress is nothing but man
combined into a legislative body for the purpose of
governing a country.
The only thing that distinguishes us as members of the
House and Senate from the rest of our citizens is that we
have been elected to a position of political leadership, and
the minimum that the voters of this country have a right to
expect is leadership. It's incredible that the members of
Congress, who have spent the better part of their adult lives
asking the voters of their respective constituencies to
delegate to them the power to determine the policies of this
country, should now run from the chance to make those
decisions. Decisions, I might re-emphasize, that Englishmen
died for, so that policy might be made in parliament rather
than by a king. Decisions that a Clay, Calhoun or a Webster
would never delegate to a president. They would be aghast at
what we are contemplating and they would be ashamed to be
associated with such an act.
We can delegate this power to the President, and having
done it once this year, we'll surely do it again the year
after that, and the year after that, and the year after that.
Once having told the President that he spend only $250
billion, the last restraints are off Congress. We can then
appropriate $260, or 70 or 80 or 90 billion dollars without
care. The responsibility will no longer be ours. We can then,
with total abandon, go back to our constituents and tell them
that we tried to appropriate $10 billion dollars for housing,
but the President cut it. We can tell educators that we tried
to appropriate $30 billion dollars for education, but the
President cut it. He's the one that has no heart or
humaneness, no understanding of the problems of this country.
We can say it in perfect safety because we know we can never
be called to account for our actions. And after four or five
years of making these reckless statements, Congress will then
gradually wither into a moribund instrument, called forth
from time to time to confirm ambassadors and judges and to
pass routinely upon matters of trivia.
I'm reminded of that fateful day long ago in Philadelphia
as Benjamin Franklin emerged from the constitutional
convention in Independence Hall. A woman, Mrs. Powell,
anxiously approached Dr. Franklin and said: ``Well doctor,
what have we got--a republic or a monarchy?'' ``A republic,''
replied Benjamin Franklin, ``If you can keep it.''
We will soon be celebrating the 200th anniversary of that
republic. During those years, we have undergone much change.
But, throughout, we have jealously guarded the principles
upon which this republic was built and has flourished.
Can we keep it? Will 1976 mark the celebration of 200 years
of a glorious republic or year 3 of an executive monarchy?
The decision is ours. What do we want: A republic or a
monarchy?
____
Historical Analysis of English History
(Prepared by Stanley D. Heisler, Legislative Assistant to Senator
Packwood)
Congressional control of taxation and the purse strings of
government is not new--it is largely derived from England.
Prior to the rise of Parliament, the medieval English king
was expected to pay for his government and his personal
household from revenues received from his own estates, from
feudal dues, etc. Taxation--as we now know it--was only
resorted to on extraordinary occasions. Indeed, Maitland
notes that ``it is not until the very end of the Anglo-Saxon
time that we hear of anything that can be called a tax.''
After the Norman conquest, Maitland enumerates seven
different sources of royal revenue:
In the first place there were the demesne lands of the
crown. The remnant of the old folk land had become terra
Regis, and this constituted the ancient demesne, Then
escheats and forfeitures were constantly bringing to the
King's hand new demesne lands. Apart from his being the
ultimate lord of many manors--he was by far the largest
landowner of the kingdom. Secondly, there were his feudal
rights--rights which had steadily grown in some directions,
if they had been diminished in others . . . Thirdly, the
profits of justice in the King's court must have been very
considerable. Under John the sale of justice had become
scandalous. By the charter, he promised to sell justice to
none--but without exactly selling justice, there was much
profit to be made by judicial agencies; fees could be
demanded from litigants, and in the course of proceedings,
civil as well as criminal, numerous fines and emercements
were inflicted. Fourthly, the King had many important rights
to sell, in particular the right of jurisdiction, and though
the more far sighted of the Kings dreaded and checked the
growth of proprietary jurisdiction, there was always a
temptation to barter the future for the present. The right to
have a market was freely sold, and many similar rights.
Pardons again were sold. The towns had to buy their
privileges bit by bit. What is more, the grantee of any
privilege had in practice to get the grant renewed by every
successive King. That the King was bound by his ancestors'
grants might be the law, but it was law that no prudent man
would rely on. Offices too, even the highest offices of the
realm, were at times freely bought and sold--this does not
seem to have been thought disgraceful. Fifthly, a good deal
could be made out of the church--when a bishop died, the King
took the temporalities, the lands, of the see into his own
hand, and was in no hurry to allow the see to be filled; this
however was an abuse. Sixthly, the King had a right to
tallage the tenants on his demesne lands were found many of
the most considerable towns . . . Lastly, somehow or another,
the process is obscure, the King had become entitled to
certain customs duties: Magna Carta recognizes that there are
certain ancient and right customs (antiquae et recate
consuetudines) which merchants can be called upon to pay, and
with these it contrasts unjust exactions, or maletolts. To
all this we may add that the obligations of tenure supplied
the King with an army which could be called up in case of
war.
(The Constitutional History of England by F.W. Maitland,
pp. 92-94)
However, in the reign of King John, taxes were so
oppressive that the barons were driven to revolt. The result
was Magna Carta.
Magna Carta was, in essence, a treaty between the King and
the barons. And, though it antedated Parliament, in a very
real sense, it was a Parliamentary document. For it
established, if not the right, at least the unremitting claim
of the community of the realm to be consulted in matters of
high policy and in the demand that no extraordinary taxation
(as distinct from customary feudal dues) should be levied
without consent.
Though Magna Carta spelled the beginning of the end of
absolutism--arbitary rule lingered on, in one form or
another, for anther four and a half centuries.
During the reign of Henry III, it became customary for the
National Council to grant money to the King. On January 24,
1218 ``suctage'' or ``shield-money'' was exacted by the
National Council. Also, one writer has found a note of a land
tax levied by the National Council on January 9, 1218.
(The History of Parliamentary Taxation in England by
Shepard Morgan P. 77).
The above appear to be the very earliest instances of
general taxation in England through the National Council.
In 1224, England was at war with Phillip II for the
possession of Poictou. But, as the taxes were insufficient to
fund Henry III's war effort, the King demanded that a tax be
placed on moveables. The Barons on the National Council
refused to consent to the tax unless the King should ``of his
own natural and good will'' renew Magna Carta. The King
yielded and re-issued Magna Carta. And, this re-issue took
the form of a contract between the barons and the King--as it
stated that:
``The archbishops, bishops, abbots, priors, earls, barons,
knights, freeholders, and all persons of the realm, give the
fifteenth part of all moveables to the King for this
concession and granting of liberties.''
(Quoted in The History of Parliamentary Taxation in
England, P. 80.)
This is likely the first--but certainly not the last--
conditional grant of taxation of the King of England. Indeed,
there were instances in the thirteenth century when the
Council refused to make any grant of taxation on the King's
request. In 1232, for instance, the Earl of Chester--speaking
for the barons--objected to a request for money with which to
carry on the war with France because the barons had served in
France themselves.
In 1242, as England was on the brink of war with France,
Henry III summoned the National Council. But realizing that
the King sought more revenue, and
``That the King had so often harassed them in this way on
false pretenses . . . they made oath together that at this
council no one should on any account consent to any extortion
of money to be attempted by the King.''
(Quoted in The History of Parliamentary Taxation in England
by Shepard Morgan, Pp. 84-5.)
When the Council met, it refused to raise money as the King
requested on the grounds that he had engaged in the war
without asking their advice and that he had so often extorted
large sums of money from them.
But though the Council refused Henry III's demand for
revenue, he induced the barons individually to give him what
he had been unable to induce the Council to give him.
In 1224, Henry asked the Council to raise funds to fight a
war in Scotland. Being unwilling to make an unconditional
grant of revenue, the Council appointed a committee of twelve
to respond to the King's demand. The Committee complained of
the King's nonobservance of Magna Carta, of the King's
reckless expenditure of money, and demanded the appointment
of a justiciar and a chancellor. However, as the King would
not submit to this compulsion, he refused the petition and
ordered the Council to reassemble in 1245. The nobles then
expressed their willingness to grant him revenue, provided
that in the meantime the King would choose proper counselors
and institute reforms. The nobles insisted that whatever
money was granted to the King should be expended not by the
King, but by a committee of twelve nobles for the King's
benefit. But Henry III refused to agree to these terms and
the Council adjourned
In 1245, during Henry III's absence in Gascony, the
Regents--Queen Eleanor and Earl Richard Cornwall--broadened
the base of the Council by summoning two knights from each
county to meet with the Council. The Knights were to be
chosen by the counties themselves, probably in the county
court, since there the machinery of election already existed.
In 1246, at the assembly of the National Council in London,
the name ``Parliament'' was first applied to it.
At the Parliament of 1255, the magnates of the realm were
summoned to Westminister. This was necessary because in 1254,
in an effort to secure the crown of Sicily for his son, Henry
III had agreed to pay the Pope 90,000 Pounds. But the
Parliament refused to grant this money to the King because
all the members of the Parliament had not been summoned,
according to the terms of Magna Carta.
At the first Parliament of 1258, the barons refused to help
Henry III pay an installment on the 90,000 Pounds he owned
the Pope. The barons, led by Simon de Montfort, attacked the
King for reducing the realm to destitution by mortgaging it
to the Pope, and for granting such enormous favors to his
followers that it was now impossible to shake off even such
insignificant enemies as the Welsh. The barons insisted that
they intended to put an end to the King's excesses. They
demanded that the King sanction the appointment of a
committee of twenty-four ``by the whole of Parliament on
behalf of the community'' which would have complete control
over the Exchequer and full power to reform the government.
The King relented and chose twelve persons and the barons
chose twelve more to compose the committee. The committees
began by drawing up a set of articles known as the Provisions
of Oxford, by which all the powers of government were placed
in their hands. In effect, this put the kinship into a
commission. All important administrative officials--i.e. the
chancellor, justiciar and treasurer--were appointed by and
responsible to the barons. The sheriffs were likewise under
control of the Council
However, in actual operation, the Provisions of Oxford were
unsuccessful. The provisional government lasted for a year
and a half from its creation in June, 1258, without
interruption. Thereafter, it continued for four years with a
number of breaks until 1263, when the civil war began between
Simon de Monfort and the King.
In 1261, Pope Alexander VI absolved Henry III from his oath
to obey the Provisions of Oxford and excommunicated all those
who opposed the King's absolution.
This all but brought about the impending civil war. In
1263, Louis IX of France agreed to arbitrate the dispute
between Henry III and the barons. In the famous Mise of
Amiens, Louis decided in favor of Henry III. The result was
civil war.
At the Battle of Leives, in May, 1264, Simon de Montfort
defeated and captured Henry III and his son, Prince Edward.
In January, 1265, de Montfort summoned a Parliament to
London, including the barons and ecclesiastics and two
knights from the shires and two burgesses or citizens from
each larger town. This led to de Montfort's fame as: ``The
founder of representative government in England.''
In calling to the Parliament elected representatives of the
boroughs, de Montfort completed the formation of the English
Parliament on substantially the same basis on which it
operates today.
De Montfort's action outraged many of the barons and he
quarreled with his principal supporter, the Earl of
Gloucester. In May, 1265, Prince Edward escaped from his
captors and was joined by Gloucester. In August, 1265, Simon
de Montfort was defeated and killed in the Battle of Evesham.
De Montfort's death was followed by Henry III's restoration
to the throne. On Henry's death in 1272, his son Edward I
became King.
Edward I was a wise and prudent monarch. And, as one
historian has written:
``It was in the reign of the valiant and sagacious Edward I
that our Parliamentary institution and the civil law began to
advance by rapid strides.''
Edward I's first Parliament met in April, 1275. This
Parliament consisted, not only of the prelates and barons but
of four knights from each county and four burgesses from each
borough. This Parliament enacted the first statute of
Westminster which was composed of 51 articles including a
provision for regulating the feudal aids which were
required upon the knighting of the lord's son or the event
of the marriage of his daughter. Twenty shillings on the
knight's fee and 20 shillings from each parcel of land
held in socage yielding 20 pounds a year would be the
maximum rates.
This same Parliament also made a grant of customs duties on
wool, wool-felts, and leather. The grant of a duty on wool by
Parliament has great significance to the constitutional
history of England because, in granting this customs duty,
Parliament assumed the power of assenting to a tax which
previously had been considered within the prerogative of the
King himself.
The knights of the shire were summoned to Edward's second
Parliament which met in October, 1275. This Parliament
granted the King a tax on movables.
In 1282, Edward I was involved in a war to conquer Wales.
Finding himself in financial difficulty, Edward initially
sought to avoid calling a Parliament by negotiating with
individuals for the money he needed to carry on the war. But
as these private offerings were insufficient, the King
decided to call his second Parliament.
On November 24, 1282, the King issued writs to the
sheriffs, ordering them to send to Northampton or York--as
the case may be--on January 20, 1283:
All freeholders, not already with the army capable of
bearing arms and holding lands of more than 20 pounds annual
value; Four knights from each county having full power over
the community of the same county; and two men from each city,
borough and market town having like power for the community
of the same.
The knights and burgesses--meeting at Northampton granted a
tax to the King. At York, the knights and burgesses also made
a grant to the King. In this manner the King discovered that
it was easier to raise his revenue through a Parliament than
through private solicitations.
Four years later, on October 8, 1294, King Edward I being
in need of money--both to suppress a rebellion in Wales and
for his projected expedition against Phillip the Fair for the
recovery of Gascony--again summoned Parliament to meet at
Westminster on November 12. This Parliament granted Edward I
a tax.
The following year, 1295, is a landmark in Parliamentary
history. For, in this year, Edward I summoned the first full
and model parliament in English history. This Parliament was
so constituted as to represent, and have the power to tax,
the entire nation.
Edward I summoned the Model Parliament on the theory that
``what touches all, by all should be approved.'' It met on
November 27, 1295. Each of the estates met by itself and each
made its grant to the King independently of the others. The
barons and the knights of the shire gave Edward an eleventh
of their moveables, the clergy a tenth, and the burgesses and
citizens a seventh. One author has remarked that this is
probably the first instance where three estates taxed
themselves in different proportions.
But Edward I's financial problems grew with the passage of
time. To raise money to carry on his extensive wars, Edward I
needed massive infusions of revenue--which he raised by
arbitrary exactions from all classes of his subjects--both
lay and clerical. The clergy resisted these taxes, under the
bull of Pope Boniface VIII, Clericis Laicos, which forbade--
under pain of excommunication--the payment of any tax,
whatever, on the revenues of the church to a layman.
However, Edward I's outlawry of the clergy in January, 1294
and the temporary confiscation of the estates of the see of
Canterbury which followed, compelled the clergy to abandon
their untenable position and to yield to the King's
demands.
The merchants were also upset with the King at this time,
because the King had taxed them heavily and seized their wool
(as wool was most readily convertible into currency). The
barons were irritated by the King's flagrant disregard of the
many provisions of Magna Carta and the Charter of the Forest.
Edward I next summoned a ``Parliament'' to meet at
Salisbury on February 24, 1297-but invited only the baronage
without any bishops or representatives of the Commons. The
King proposed that the barons should go to fight in Gascony.
But the barons refused and--on their refusal, the King
threatened to confiscate their lands and give them to those
who would go. The assembly broke up.
On May 15, Edward I issued writs for a general military
levy on all the landowners of the kingdom, the value of whose
lands exceeded 20 Pounds. The barons were to assemble in
London on July 7, prepared to go to France. However, the
barons violently opposed this unconstitutional tax.
As he was still in need of money to finance this war,
Edward I induced an irregular assembly of some of the barons
and others who had attended the military summons to make a
grant of an eighth from the barons and knights and a fifth
from the towns. Edward ordered the collection of the eighth
and fifth and directed the seizure of all the wool in the
kingdom-promising to pay for it as soon as he was able.
As the King was prepared to embark for the continent, a
bill of grievances prepared by the barons was presented to
him. The barons complained of the heavy taxes which reduced
them to poverty; that they were not treated according to law
and custom; that the provisions of Magna Carta and the
Charter of the Forest had been breached; and that the tax on
wool was too heavy.
Rather than answer the remonstrance, the King sailed to
Flanders leaving his son--the Prince of Wales--as regent. But
as soon as the King had sailed, the barons entered the
Exchequer and forbade the barons there to seize the wool or
collect the taxes until the charters had been confirmed. The
barons were supported by a large military following and by
the citizens of London.
Assessing the gravity of the situation, the Prince of Wales
called a full Parliament--at which knights of the shire
attended as representatives of the commons as well as the lay
and clerical baronage. The Confirmatio Cartarum was published
on October 10, 1297 and immediately sent to the King at
Ghent, and there confirmed by him on November 5. The former
tax of an eighth and a fifth were annulled and a new grant of
a ninth was substituted.
The Confirmatio Cartarum was not merely a re-issue of Magna
Carta and the Charter of the Forest. It also enacted a series
of new provisions intended to deprive the Crown, in the
future, of its assumed right of arbitrary taxation. The most
critical parts of this covenant are clauses 6 and 7. After
enumerating, in the fifth clause, the illegal taxes and
exactions of Edward I, the 6th clause declares:
``Moreover we have granted to us and our heirs, as well to
archbishops, bishops, abots, priors and other folk of holy
church, as also to earls, barons and to all the community of
the land, that no business from henceforth will we take such
manner of aids, mises, nor prises from our realm, and for the
common profit thereof, saving the ancient aids and prises due
and accustomed.''
Clause 7 relates to the new duty on wool--``the
Maletote''--and provides that:
``The King shall never take this nor any other without
common consent and good will; saving to us and our heirs the
custom of wool, skins and leather granted before by the
commonalty.''
This ``Confirmation of the Charters'' of 1297 is of crucial
significance to English constitutional history. One author
has observed that as a part of the foundation on which the
English constitution was built, the Confirmation is hardly
less important than Magna Carta itself.
(Constitutional History of England, by George Buxton Adams,
p. 190).
The significance of this Charter rests on the fact that it
established the exclusive right of Parliament to tax the
people of England--except for the collection of the customary
feudal dues.
It has been written that:
``The articles generally represented the gain of a struggle
extending over a period of eighty-two years; and while
verbally they seemed to indicate but little advance over
John's Great Charter, in reality they were infinitely more
important as there was a power now behind them with due
machinery for their enforcement.
(History of the English Parliament, Vol. I by G. Barnett
Smith, p. 162).
In 1307, Edward I died. Six months later, on February 25,
1308, the new King was crowned. But, where Edward I was
strong and prudent, his son--Edward II--was weak and inept.
The oath which Edward II took in French (as he was not
familiar with Latin) was of great constitutional importance,
for it not only recognized the limitation of the Royal power
by existing laws, but that the power to alter these laws and
enact others could only be exercised with the consent of the
people. In fact, Edward II's oath was unusually stringent.
The last of the four promises required of the King was this:
``Sire, do you grant to hold and to keep the laws and
righteous customs which the community and the realm shall
have chosen, and will you defend and strengthen them to the
honor of God, to the utmost of your power.
Edward answered:
``I grant and promise.''
Edward II didn't call on Parliament until April, 1309. It
was fully attended by the clergy, lords, burgesses and
knights. The Commons granted the King a twenty-fifth of their
movables, on condition of a redress of grievances which were
detailed in eleven articles.
Two of the eleven articles dealt with taxation. The first
complained of the abuses of purveyance, and the seizure of
articles of food, the imposts on wine, cloth, and
merchandise. The second dealt with the New Customs which
Edward I had provided for in the Carta Mercatoria in 1303.
The king agreed to these conditions.
In 1327, Edward II was deposed by a revolution. He was
succeeded by his son, Edward III, then only 14-years old. The
new King took the same stringent oath that his father had
taken earlier.
The regularity with which Edward III summoned Parliament
had a decisive impact on English constitutional history--for
it strengthened the power of the House of Commons by
affording them an opportunity for its frequent exercise. As
Edward III was perpetually involved in wars, he was
repeatedly compelled to ask Parliament to raise money to pay
for them. Thus during the fifty years of his reign, forty-
eight sessions of Parliament were held.
In spite of the Confirmation Cartarum, Edward I,
occasionally Edward II, and Edward III continued to levy
arbitrary taxes of every kind. The Commons, however, by their
continual remonstrances, their conditional grants and their
liberal subsidies, succeeded in establishing its control over
direct taxation.
In 1332, because rebellion had broken out in Ireland, the
King assigned commissioners to tallage--a tax levied at a
feudal lord's arbitrary discretion upon more or less
servile dependents, who had neither the power nor the
right to refuse--the cities, towns and royal demesnes
throughout England. But Parliament met three months later,
on September 9, 1332, and persuaded the King to revoke
these commissions to collect tallage. Parliament then
offered, as a substitute, the grant of a fifteenth from
the shires and a tenth from the towns. In accepting this
grant, Edward III promised for the future that he would
not lay such a tallage.
``Except as was customary in the time of our ancestors, and
as he might rightly do.''
Paralleling the struggle against tallaging the royal
demesne, was the contest with the King in matters of custom
on wool. In 1303, Edward I established the Nava Custuma
(``New Customs'') on wools and other articles.
This was annulled by the Ordinances of 1311 but renewed by
Edward II in 1322 and confirmed on the accession of Edward
III, who later--with his Council--imposed other similar
taxes. Repeatedly, the Commons petitioned against these
exactions or attempted to set up a precedent in its favor by
granting a similar tax. It was not until 1340 that Parliament
succeeded in controlling this illegal tax.
On January 20, 1340, Parliament met. The Lords offered to
grant the King ``the tenth sheaf, the tenth lamb, and the
tenth fleece, payable in two years'' and the Commons granted
the King 30,000 sacks of wool--on condition that the King
accept certain articles drawn up by them. (In the event that
the King rejected the articles, they offered a free gift of
2500 sacks of wool).
Edward did reject them and called a new Parliament which
met on March 29, 1340. Instead of a tenth, the prelates,
barons and knights of the shire granted the king the ninth
sheaf, fleece and lamb for two years. The towns granted a
ninth of goods and the rest of the nation a fifteenth. In
addition, a custom of forth shillings was granted on each
sack of wool, on each three hundred wool-fells, and every
last of leather. But the grants were conditional: the King
had to accept the articles prepared by the Commons. The king
finally accepted them and the articles were re-drafted into
statutory form.
The statute pertaining to the duty on wool provided that:
``And for this grant, the King by the assent of the
prelates, earls, barons, and all others assembled in
Parliament, hath granted, that from the feast of Pentecost
that commeth in a year, he nor his heirs shall not demand,
assess, or take, nor suffer to be take more custom of a sack
of wool of any Englishmen but half a mark of custom only; and
upon woolfells and leather the old custom . . . And this
establishment lawfully to be holden and kept, the King hath
promised in the presence of the prelates, earls, barons, and
others in his Parliament, no more to charge, set, or assess,
upon the custom, but in the manner as afore is said.''
The second statute is much more sweeping. It stated that:
``We . . . will and grant for us, and our heirs, to the
same prelates, earls, barons, and commons, citizens,
burgesses, and merchants . . . that they be (not) from
henceforth charged, nor grieved to make common aid, or to
sustain charge, if it be not by the common assent of the
prelates, earls, barons, and other great men, and commons of
our said realm of England, and that in the Parliament; and
that all the profits raising from the said aid, and of the
words and marriages, customs, and escheats, and other profits
rising of the said realm of England, shall be put and spent
upon the maintenance of the safeguard of our said realm of
England and of our wars. . . .''
These statues are crucially important to the constitutional
history of England for they clearly enunciated the principle
that Parliament was the sole authority for levying taxes on
the nation at large.
As one writer has observed:
``The promise of Edward to abide by the recommendation of
Parliament in the matter of the subsidy on wool, was an
admission by the King that not he but they had final control
over the laying of customs duties. Thus was established the
principle to be defended and likewise to be questioned in the
future. That Parliament alone had the power to lay a tax on
wool. . . . (Also), by the statute which provided that no
charge or aid should be levied but by consent of Parliament,
tallage died a legislative death. And not only was this
statute aimed at tallages but as well at every species of
unauthorized taxation.''
(The History of Parliamentary Taxation in England by
Shepard Morgan; NY-1911; Pp. 178-9).
After the enactment of the vital statutes of 1340.
Parliament was willing to bargain with the King for the
control of his customs duties. But problems developed
because, at this time, Parliament could not yet enforce this
right, but rather could only petition the King for redress.
And, the King frequently assented to Parliamentary petitions
and then broke his word. For instance, in 1340, Edward III
received a grant from Parliament of forty shillings on a sack
of wool, for a year and a half, on condition that he would
abolish the maletolt--Maletolt was ``evil tolls''--i.e.
unconstitutional duties or taxes.
In 1342, the King procured a duty of forty shillings per
sack of wool from the merchants without the consent of
Parliament and issued orders for its collection. Parliament
balked at this because it realized that the tax fell not on
foreign merchants but upon English wool growers. Edward III
then declared that the price of wool would remain fixed,
pursuant to an act of Parliament, and that consequently the
foreign merchants would have to pay the tax. Commons agreed
to this and granted the King a duty of forty shillings on a
sack of wool for three years.
After the passage of three years and the revocation of the
act fixing the price of wool, as the King had no authority to
continue the duty, Parliament petitioned against its
continuance. When the King replied that he had secured the
approval of the barons and of the merchants for the duty, and
that he had already pledged the revenues to be raised by the
duty to his creditors, the House of Commons--finding that it
couldn't win their point--contented themselves with the
belief that having established the principle, they could at
anytime demand the implementation of it, and extended the
duty for another two years.
In 1348, the Commons presented a remonstrance to the King,
asserting that the wool subsidy was, in actuality, a land
tax. Parliament then granted a fifteenth for three years on
condition that the subsidy of wool should cease in three
years, and that for the future ``no such grant should be made
by the merchants.'' The language was all encompassing: no
``imposition, tallage or charge by way of loan or in any
other manner,'' was to be laid ``without the grant and assent
of the commons in Parliament.'' Edward III accepted the grant
and the conditions.
However, in 1362, arbitrary exactions on wool received the
attention of the Commons and the statute passed in that year
provided that thereafter no subsidy should be set on wool
without the assent of Parliament. But notwithstanding these
explicit and repeated assertions that Parliament had the sole
right to levy the subsidy on wool, Edward at times continued
to exact the maletolt. The matter arose again in 1371 and was
met with a similar statute.
As Parliament's power grew, so too did its faculty to
supervise the expenditure of money so raised--which would
later evolve into the ``power of the purse''. In 1237, during
the reign of Henry III, William of Raleigh had suggested to
the National Council that it appoint a committee with whom
the proceeds of a grant of taxation be deposited and by whom
the money be expended. One writer has suggested that the
reason this proposal was not taken was perhaps, ``due to the
ignorance of the baronage'' of its ramifications.
(The History of Parliamentary Taxation in England by
Shepard Morgan, pp. 184-5)
Parliament never asserted the power to supervise the
expenditure of money during the reign of Edward I, because he
was too strong; or during the reign of his son, Edward II,
because the power of the Crown was for a time delegated to
others. But during the reign of Edward III--primarily because
of his endless and extravagant military expenditures--
Parliament demanded a voice in the disposition of public
funds. In 1340, a Parliamentary Committee was appointed to
examine the accounts of the collectors of the last grant of
taxation to the King. In the words of the statute, the
committee was assigned to see that the ``profits of the said
realm of England shall be put and spent upon the maintenance
of the safeguard of our said realm of England, and of our
wars.''
(Quoted in The History of Parliamentary Taxation in
England, by Shepard Morgan, p. 185).
The following year, Parliament appointed commissioners for
the same purpose. The 1341 act said:
``The great men and commons of the land pray, for the
common profit of the King and themselves, that certain
persons be deputed by commission to audit the accounts of all
those who have received the wool of our said lord, or other
aid granted to him; and also of those who have received and
paid out his money, as well beyond the seas as in the realm
from the commencement of his war until now; and that the
rolls and other remembrances, obligations and other things
made abroad be delivered into the chancery, to be enrolled
and recorded, just as was wont to be done heretofore.''
(Quoted in The History of Parliamentary Taxation in
England, by Shepard Morgan, p. 185).
In time, this power of Parliamentary oversight evolved into
the ``power of the purse''. In 1344, for instance, Parliament
demanded that the money granted should be spent solely for
the purpose for which it had been asked. In 1348, it granted
money specifically to defend England against Scotland. And,
in 1353, a subsidy on wool was granted which could only be
applied to fighting the war.
In fact, all of these acts were the starting point of
Parliamentary (and Congressional) appropriations. And, though
the Parliamentary appropriations we now perceive did not
exist at this time, the foundations for the appropriations
process were firmly laid by the end of the fourteenth
century.
On Edward III's death in 1377, his eleven-year-old
grandson--Richard II--assumed the English throne. Parliament
took full advantage of Richard II's youth. It not only
solidified its power that no money could be levied or laws
enacted without Parliament's consent and that the
administration of government was subject to their inspection
and control but it also secured two vital rights which were
first established in the reign of Edward III--viz. the right
to examine public accounts and appropriate supplies and the
right to impeach the King's ministers for misconduct.
At Richard II's first Parliament in 1377, grants of two
fifteenths and tenths were made for the prosecution of the
French war on the express condition that two persons be
appointed as Treasurers, to receive the money granted to the
King and to spend it ``for the said wars and for no other
work.''
(Quoted in The History of Parliamentary Taxation in England
by Shepard Morgan; p. 185).
Richard II's next Parliament met in 1378. The House of
Commons demanded that it be allowed to examine the public
accounts. The King ordered the governmental accounts produced
with the understanding:
That this shall not in future be considered a precedent or
an inference that this should have been done otherwise than
by the personal volition and command alone of our said lord
the king . . .''
(Quoted in The History of Parliamentary Taxation in England
by Shepard Morgan, p. 192).
In 1379, as England was in imminent danger of invasion,
Richard II called on Parliament to raise the needed money. It
is significant that this year, the King voluntarily, without
reservation and without waiting for a petition from
Parliament, informed the Commons that the Treasurers were
prepared to show them ``in writing their receipts and
expenditures made since the last Parliament.''
(Quoted in The History of Parliamentary Taxation in England
by Shepard Morgan, p. 193).
In 1380, a similar committee, with more extensive powers,
was appointed. Thus, it became apparent that by 1380, the
right of the Commons to investigate the accounts and
appropriate the supplies was clearly established.
However, during this period, the expenses of the wars in
France and Scotland and the ordinary expenses of government
were so great that the Royal treasury was bare. Indeed, the
King had even pawned the Crown Jewels. To remedy this
problem, the House of Commons set up a poll tax and continued
the duty on wool. But as the new tax was the equivalent of a
laborer's weekly earnings, it ignited a political explosion.
Indeed, the poll tax of 1380 has been termed the last
precipitating cause of the great Peasant Revolt of 1381.
The bloody rebellion was quelled within a short time, but
it had taught the members of Parliament what can happen when
the weight of taxation burdens the people.
From 1389 to 1397, Richard was a model monarch--ruling
within the constitution and allowing Parliament to control
both taxation and the expenditure of public money. But in
1398, Parliament granted Richard II a custom on wool for five
years, tunnage and poundage for life and a duty on wool,
woolfells and leather for life. Further, Parliament gave the
King a tenth and a half and a fifteenth and a half for a year
and a half. And, if this wasn't enough, Parliament recklessly
delegated its authority to eighteen members chosen from the
whole body--ten lords temporal (six to be a quorum), two
earls as proctors for the clergy, and six members of the
House of Commons. As one commentator has observed:
``The committee consisted of persons devoted to the King's
interests, and its powers were so indefinitely expressed that
it completely usurped the rights of the legislature, and
exercised all the powers and functions of a full
parliament.''
(History of English Parliament, Volume I, p. 237 by G.
Barnett Smith).
Whatever Parliament's intention, these actions had the
effect of installing Richard II as an absolute monarch. The
cumulative effect of this delegated authority was to destroy
the limitations which Parliament had so painstakingly placed
on the King's prerogative.
But Richard's despotism sealed his fate. He banished the
Dukes of Hereford and Norfolk. And then seized the estates of
John of Gaunt--in spite of his promise to secure them to
Hereford in the event of his father's death. Richard II's
tyranny incited Henry of Lancaster to action. While
Richard II was in Ireland, Henry led a revolt against the
King. With no difficulty, he raised an army of 60,000 men.
On Richard's return to England, he resigned his throne--
and Parliament accepted his resignation.
Richard's fate--much like that which awaited Charles I and
James II--resulted from his failure to understand the
developing constitutional history of England. As one writer
has observed:
``The trouble with Richard was that he did not go to school
to (learn) history. Parliament was putting into practice what
it could learn from the experience of its predecessors.
Richard, swept with a desire, intense and perhaps insane, to
wield the septre of absolutism, was blinded to what he might
have read, and underwent the consequences.''
(The History of Parliamentary Taxation in England by
Shepard Morgan, p. 202.)
Henry of Lancaster was crowned Henry IV on October 13,
1399. The new King chose not to buck the tide of increasing
Parliamentary authority. Indeed, during the reigns of the
three Lancastrian Kings, the power of the Parliament was more
complete than ever before--fuller than it would be until the
Bill of Rights was enacted in 1689. Parliament voted the
taxes, appropriated money to the King and examined public
accounts. Indeed, instances of direct taxation without
Parliament's assent were very rare under the Lancastrian
kings.
An example of the freedom Parliament enjoyed under the
Lancastrians was the Common's attempt to make the granting of
appropriations dependent upon the redress of grievances a
regular Parliamentary procedure. In 1401 the House of Commons
asked that the King respond to their petitions before they
granted supplies. The King resisted firmly and the Commons
relented for the time being, but the practice gradually
became established.
In 1410, Henry IV asked Parliament for permission to
collect a tenth and a fifteenth annually, whenever Parliament
was not in session. But Parliament had learned the effect of
such a grant from Richard II and was resolved never again to
foster the rise of a tyrant. Accordingly, it refused the
King's request.
When Henry IV died in 1413, his son--Henry V--acceded to
the throne. Though his reign lasted less than a decade, he
proved to be a wise King and a brilliant soldier. And though
the taxation during his reign was heavy, Parliament willingly
granted taxes to the King to fight France.
When Henry V died at the age of thirty-five, his son and
heir--Henry VI--was barely a year old. Henry VI won the
dubious distinction of being one of the only Lancastrians to
attack Parliament's supremacy in taxation. In 1425, while the
King was still a child, his uncles--the Duke of Bedford and
the Duke of Gloucester--as regents, united with other lords
and announced in Parliament that, with the advice of the
justices, a tax granted upon certain conditions by the House
of Commons in the previous Parliament should be collected and
levied by the King--notwithstanding any conditions in the
grant. The Commons, though, firmly established their
undoubted right by making a fresh grant and restating the
former conditions with the following explicit addition:
``No part thereof be beset ne dispendid to no othir use,
but oonly in and for the defense of the seid roialme.''
(Quoted in English Constitutional History by Thomas Pitt
Taswell-Langmead, p. 207.)
The War of the Roses--the intermittent civil and dynastic
war between the Houses of York and Lancaster--was responsible
for the fall of the Lancastrians and the accession of the
Duke of York to the throne in 1461. As one writer summed up
the reign of the three Lancastrian kings:
``The right of Parliament as against that of the King to
control taxation was enunciated again and again, not only in
the instance of direct taxation, including the levies of
tallage, but in the case of the customs, as indicated in the
legislation prohibiting the maletolt.
``But the enunciation of powers of Parliament was not
followed by complete and undisputed exercise of the rights so
enunciated. The Kings clung to what they deemed their ancient
prerogatives and more than once over-stepped the law. The
Yorkists and Tudors showed a disposition somewhat less
amendable.''
(The History of Parliamentary Taxation in England by
Shepard Morgan p. 212.)
While the Lancastrians respected the taxing powers of
Parliament, the Yorkist and Tudor monarchs continually
assailed them. Parliament granted Edward IV tonnage and
poundage and a duty on wool for life in 1465. Besides this,
Parliament granted the new Yorkist King frequent fifteenths
and tenths.
But, not content with Parliament's generous grant, Edward
initiated a new method of extracting money from his subjects,
without the consent of Parliament--called ``benevolences''.
The benevolence was a ``gift'' made to the King by
individuals or groups, ostensibly out of charity, but really
under coercion. This means of extortion differed from the
``forced loans'' of Richard II only in that the King incurred
no obligation for repayment.
Apparently no objection was made in Parliament to this
unconstitutional tax. Edward IV also raised additional
revenue by reviving obsolete statutes and laying fines for
breaches of them. He also collected ancient debts due the
Crown. This enabled Edward IV to rule England as an absolute
monarch. He raised revenue in violation of the English
Constitution and the clear weight of precedent. During his
rule not a single statute was enacted in redress of
grievances. And, amazingly, Parliament seemed to acquiesce to
the King's assertion of his prerogative. Edward IV surely set
back the development of English constitutional history.
Upon Edward IV's death in 1483, the crown passed to his
son--Edward V. But the twelve year old King lost his crown in
two months to his scheming uncle, Richard III. Richard III
received a grant from Parliament in 1484 of tunnage and
poundage and a duty on wool for life. But as his reign ended
with his death on Bosworth Field the next year, he didn't
have an opportunity to emulate the despotism of either
Richard II or Edward IV.
However, Parliament spoke out against benevolences during
Richard III's reign. The address which was presented to
Richard in 1483, when he was invited to assume the throne
said:
``For certainly wee be determined, rather to aventure and
committe us to the perill of oure lyfs and jepardye of deth,
than to lyve in suche thraldome and bondage as we have lyved
long tyme heretofore, oppressed and injured by Extorcions and
newe Imposicions, ayenst the Lawes of God and Man, and the
Libertee, old Police and Lawes of this Realme, wheryn every
Englishman is enchanted.''
(Quoted in English Constitutional History by Thomas Pitt
Taswell-Langmead, Pp. 232-3.)
Further, Richard III's first and only Parliament in 1484--
declared benevolences illegal and said that they were to be
``dampened and annulled forever.''
(Quoted in The History of Parliamentary Taxation in England
by Shepard Morgan p. 217.)
Henry VII--the first of the Tudor kings--won his crown at
the Battle of Bosworth. During his reign--and that of the
other Tudor monarchs--Parliament didn't increase its powers;
but, rather, it lost ground.
Though Henry VII ruled for nearly a quarter century, he
only called seven Parliaments--and six of the seven met
within the first eleven years of his reign. Henry's first
Parliament gave him a grant of tonnage and poundage and a
duty on wool for life. In 1491, Henry VII resorted to
benevolences to raise needed revenues. And, in 1495,
Parliament turned its back on the precedents and made this
benevolence lawful ex post facto. It further impowered the
King to enforce the promises of those who had promised
money but not yet paid it. The act points up the validity
of Maitland's observation that:
``Under the Tudors the danger is of a different kind--it is
not so much that the King will tax without Parliamentary
consent, but that Parliament will consent to just whatever
the King wants and will condone his illegal acts.''
(The Constitutional History of England By F.W. Maitland, p.
181).
Like Edward IV before him, Henry VII revived ancient
statutes and rigorously exacted fines for every violation of
them.
Henry VII was succeeded by his son, Henry VIII, in 1509.
His first Parliament granted him tunnage and poundage for
life, but with the distinct proviso:
``That these grants be not taken in example to the Kings of
England in time to come.''
(Quoted in English Constitutional History by Thomas Pitt
Taswell-Langmead p. 256)
The four following parliaments granted Henry VIII liberal
subsides to wage the war with France. But in 1523, Cardinal
Wolsey committed a severe breach of Parliamentary privilege.
Since the time of Henry IV it was the custom that the King
should not know of the progress of a grant of taxation until
the House of Lords and Commons had agreed on the grant.
Wolsey reversed this process.
He went to the House of Commons with all his following:
``With his maces, his pillars, his pole-axes, his cross,
his hatte, and the great seal too * * *''
(Quoted in the History of Parliamentary Taxation in England
by Shepard Morgan, p. 223)
Wolsey asked the Commons for 800,000 Pounds, collected over
four years and to be raised by a 20% property tax on
everyman's lands and goods. He addressed the House of Commons
and it debated the question for fifteen days. At the end,
Parliament granted the King a graduated property tax, much
smaller in amount and to be paid over four years.
As a consequence of this action, Henry VIII did not summon
the next Parliament for seven years. In the meantime, the
King raised needed revenues through ``forced loans'' and
``benevolences''. The forced loan of 1522 required every man
to swear to the value of his possessions and to contribute a
ratable portion according to such declaration, on the King's
promise of repayment out of the next subsidy granted by
Parliament.
In 1526, commissions were issued for the collection of a
sixth from the goods of the laity and a fourth from the
clergy. This demand was unanimously resisted. The people knew
enough law to know that these exactions were illegal. The
clergy led the movement against the tax, asserting that:
``The king could take no man's goods without the authority
of Parliament.''
(History of Parliamentary Taxation in England by Shepard
Morgan, p. 255)
The royal commissions were forcibly resisted in several
counties and open rebellion erupted in Suffolk. The effect of
this was to force Henry VIII to withdraw the commission.
As his ``forced loan'' scheme had failed, Henry VIII now
demanded a voluntary benevolence. However, the people of
London objected so strenuously to this, as it was illegal
under the statute of Richard III, that it also had to be
withdrawn.
In 1544, Henry VIII again sought a ``forced loan'' from all
persons who earned 50 Pounds or more a year. Parliament was
so subservient to Henry VIII in this that a statute was
enacted granting the King all sums borrowed from his subjects
since 1542, with a further provision that any money which his
Majesty should have already paid in discharge of these debts,
should be refunded by the creditor or his heirs.
Henry VIII died in 1547. He was succeeded by his son,
Edward VI, who died a child. Edward was followed by Mary.
After Mary's five year reign, Queen Elizabeth I ascended to
the throne.
Though Queen Elizabeth's rule was despotic, she was loved
by the people of England. And, Parliament granted her taxes
with great liberality. She exacted ``forced loans'' from the
wealthy--but endeavored to repay them as soon as possible.
Elizabeth circumvented Parliament by raising revenue through
the grant of monopolies--based upon the right of the Crown to
assure an inventor the exclusive benefits of his invention or
innovation.
The importance of the Yorkish and Tudor monarchs is that
though they did little to advance Parliamentary supremacy in
taxation and spending--they did not destroy whatever progress
had been made. And, the later effort of the Stuart Kings to
end Parliamentary supremacy was responsible for the
establishment of permanent parliamentary control over
taxation and appropriation.
James I--the first of Stuart Kings was a staunch advocate
of the ``Divine Right of Kings.'' He earnestly believed that
a King was appointed by God and responsible only to him. His
subjects could not resist the King's commands, as that was a
sin. James I felt that, as God's deputy on Earth, he was
above Parliament, above the laws of England and above the
people. He believed that it was his duty to see to the
welfare of his subjects, for God would hold him accountable
for his stewardship. But beyond that point he had no
responsibility. Whatever privileges Parliament possessed, the
courts possessed, or any individual possessed, were theirs by
grace of the King, and were not held by any right. Clearly a
conflict between such a monarch, on the one hand, and
Parliament and the courts on the other was brewing.
The Common Law courts were strongly opposed to James I's
concept of absolutism. Led by Sir Edward Coke--a noted
author, Chief Justice of the Court of Common Pleas and later
Chief Justice of the Court of King's Bench--many influential
judges and lawyers insisted that the Common Law controlled
the King's royal prerogative. They asserted that the rights
of both Kings and Parliament were derived and limited by
precedent.
The Common Law courts did not, however, early accept Coke's
view of the King's limited powers. This fact is pointed up by
Bate's Case (2 St. Tr. 371; 1606). As King James I needed
more revenue to pay for the necessary expenses of the state,
instead of applying to Parliament, he acted on his own
prerogative and imposed a duty of five shillings per
hundredweight on imported currants--over and above the duty
which was set on them by the Statute of Tunnage and Poundage.
John Bate, an English merchant trading with the East,
refused to pay the duty. Bate was brought to trial before the
Court of Exchequer. The judges were unanimous in approving of
the King's right to impose the extra duty on his own
prerogative. However, as it was to later develop, this was in
incorrect statement of the Common Law.
The right of earlier sovereigns to raise and lower tariff
duties by proclamations had been established. But the right
had been limited to trade regulation, to secure protection or
retaliation and fair trade. As one distinguished English
constitutional historian has written:
``In using it not for such purposes but to raise revenue,
James was assuming an important constitutional power which
the precedents did not warrant. It was perhaps natural,
however, that a court of law, bound normally by the letter of
precedents rather than by the remote consequences which might
be involved, should decide as it did.'' (Constitutional
History of England by George Buxton Adams (Holt, 1938).)
Bates's Case is representative of the conflicts between the
Crown and Parliament that dominated England for the next
eight decades. The King would stretch a precedent to cover a
substantial increase in royal power, and the courts held that
the precedent justified the new application. On the basis of
the decision in Bate's Case, for instance, James I shortly
afterwards issued a new ``Book of Rates'' in which heavy
additional duties were placed on a great number of imports.
However, Parliament did not sit idly by as the King imposed
new and unlawful taxes. In 1610, the Commons objected to the
schemes James I had used to raise more royal revenue. It
enacted a bill providing that no new duty could be imposed
without the consent of Parliament; but the House of Lords
rejected it.
King James then forbade the Commons to continue. The
Commons thereupon refused and announced that they would
proceed to ``a full examination of the King's alleged
prerogative powers regarding taxation.'' As James had tired
of Parliament's haggling and at its delay in granting money
to him, he dissolved Parliament in February 1611 and didn't
call a second Parliament until April 1614.
But, James I's second Parliament was inflamed over the
King's imposition of new taxes without Parliament's consent
and unanimously enacted a bill denying the King's right to
impose taxes on his own initiative. As Parliament refused to
grant the King the taxes he desired, James dissolved it in
June before it had voted him any taxes--and sent four members
of the House of Commons to the Tower in punishment for their
conduct.
James I's third Parliament did not meet until January,
1621--and during the decade from 1611 to 1621, when no
Parliament except that of 1614 which did nothing, had met,
James resorted to a host of extra-legal means of raising
revenue. ``Forced loans'' were used, old debts and fines were
ruthlessly collected, titles were sold and a new title of
baronet was created.
The outbreak of the Thirty Years' War between the Catholic
and Protestant states of Germany (whose leader, Frederick,
the Elector of the Palatinate, was James' son-in-law) incited
England to go the aid of the Protestants and the people
bitterly opposed the King's policy of securing peace in
Europe through an alliance with Spain. As Spain's invasion of
the Palatinate in 1620 signaled that England's involvement in
the conflict was imminent, James summoned Parliament to meet
at the end of January, 1621 to provide for a war if it should
prove necessary.
When Parliament met, James asked that it appropriate
500,000 Pounds for an army. Parliament appropriated 160,000
Pounds for the King and then began to debate their
grievances. Led by Sir Edward Coke, Commons attacked the
granting of industrial patents to courtiers; it impeached the
Lord Chancellor--Francis Bacon--for accepting bribes; and it
placed ``The Great Protestation'' in their Journal which
declared that the Commons' privilege were ``the ancient and
undoubted birthright and inheritance of the subjects of
England.''
This infuriated the King. He ripped the ``Great
Protestation'' from the Journal and then dissolved
Parliament. Two leaders of the House--one of them Sir
Edward Coke--whom the King had earlier dismissed from the
post of Lord Chief Justice for refusing to accept his
commands--were imprisoned. Another member--John Pym--a
wealthy land-owner who sat for a small Wiltshire borough,
was placed under house arrest.
As James I couldn't wage war with Spain without
Parliament's granting him taxes to raise an army and buy
supplies, he sent his son and The Duke of Buckingham to
Madrid in 1623 to arrange a marriage with the Infanta. But
when the negotiations broke down they returned to England hot
for war. James now called the Parliament again.
James' fourth Parliament was summoned in 1624 and unlike
the earlier Parliaments of his reign, it felt more friendly
toward the King. This Parliament was determined to fight a
war against Spain in the Elizabethan manner and it was eager
to assist the Protestant cause in Germany. The House of
Commons voted 300,000 Pounds for the war against Spain but,
as it concluded that the King was often spending money for
purposes against its wishes, Commons devised a scheme for
parlimentary control, not only of its levying but of its
spending. Therefore, to ensure the proper expenditure of
money, the Subsidy Bill contained a clause whereby money was
paid into the hands of commissioners appointed by the House
of Commons, to be expended by them upon direction of the
council of war.
James I's death in 1625 brought his son Charles I to the
throne. As he was eager to wage war with Spain, he asked his
first Parliament for a large grant of money for that purpose.
However, as the Commons were resolved to abolish the abuses
of Royal prerogative it refused to vote adequate funds to
fight Spain.
The House of Commons immediately made it clear that they
intended to debate foreign affairs and religious reforms as
they didn't want to take any chance on Charles dissolving
Parliament as soon as it had granted him the needed taxes.
Instead of granting tonnage and poundage duties to the new
King for life--as had been the custom of two centuries--the
Commons gave them for one year only. In fact, Charles didn't
get this income at all as he later dissolved Parliament
before the House of Lords had passed the bill.
The second Parliament of Charles I met from February to
June, 1626. The House of Commons proceeded to prepare for the
impeachment of the Duke of Buckingham--the King's favorite
minister--whom it believed responsible for the worst abuses.
The King told the Commons that he would not permit Buckingham
to be impeacheed and informed them that their first business
was the granting of supplies and that he would not permit his
servants in high posts to be impeached for they merely acted
at this command. The Commons refused to grant supplies until
their grievances were redressed.
On May 8, the impeachment of Buckingham was brought up to
the House of Lords by the managers for the Commons. Two of
them were immediately thrown into the Tower for things they
said in their speeches--and the Commons resolved to do no
further business until the release of their members. The King
yielded with reluctance, but when the Commons resolved that
tonnage and poundage could not legally be collected unless
granted and that no supply would be voted until Buckingham
was removed, the King dissolved his second Parliament on June
15.
Clearly since Charles' accession to the throne, Parliament
had assumed a new place of power in the state. Not even the
relatively powerful parliaments of the Lancastrian era, or of
James I showed the same spirit. But Charles' Parliament felt
themselves on a par with the King. They were resolved to
do battle with the sovereign on equal terms--for the
passage of time had given Parliament formidible weapons:
the levying of taxes, the power of impeachment and the
various other privileges of Parliament.
As the Commons had once again refused to vote the King
supplies for the war, he had to find a way to meet the
necessary expenses of government. Charles I now pawned the
Crown jewels and mortgaged Crown lands. He began to levy
tonnage and poundage without Parliamentary consent and tried
to exact the revenue denied to him by levying a ``forced
loan'' which, again, was taxation without Parliamentary
sanction. The ``forced loan'' was widely resisted, whereupon
a number of knights and rich men were arrested under royal
warrants for their refusal to pay, while soldiers were
quartered with the King's poorer subjects.
Chief Justice Carew, who refused to find these ``forced
loans'' legal, was dismissed from office. After this, the
Court of King's Bench granted Writs of Habeas Corpus to five
knights who had been imprisoned by the Crown for refusing to
contribute to the ``loan.'' but, though the Writ was granted,
the Warden of the Fleet refused to release the prisoners
because he declared that he was acting on a warrant from two
members of the Privy Council ordering that the knights be
held ``by special order of his Majesty.''
This precipitated a grave constitutional crisis. The
prisoners, upon being informed that they were not entitled to
bail asserted that the ancient rights of the subject set
forth in Chapter 39 of the Magna Carta were at stake. They
contended that freedom from arbitrary arrest was basic to
English liberty. But the knights were not released, and Chief
Justice Hyde held in the Case of the Five Knights (or
Darnel's Case) that:
``If no cause of the commitment be expressed, it is to be
presumed to be a matter of state which we cannot take notice
of.''
Thus, the constitutional question of whether Charles I
could imprison his subjects without cause was, for the time,
left unsettled.
After flagrantly violating the liberties of his subjects in
unexampled fashion, Charles was compelled--by the necessities
of the war with France--to call another Parliament which met
on March 17, 1628. Among the members of the new House of
Commons were no fewer than twenty-seven of the men who had
been imprisoned by orders of the King for refusal to pay the
``forced loan.''
When Charles I addressed Parliament, he concentrated upon
the grave dangers that England faced in the war with France
and Spain. He declared that it was their duty to find a
speedy way of supplying the government's needs and that if
they failed to do so, he would have to use those other means
which God hath put into my hands, to save that which the
follies of particular men may hazard to lose.
But Parliament paid no attention to the King's urgings.
Instead of making even a small grant, the House of Commons
immediately set to work to reform the abuses before granting
a tax. However, unlike earlier Parliaments, this concentrated
not on the King's ministers--but on the King's
misinterpretation'' of the constitution which Commons felt
threatened to establish absolute government. The Commons--and
the nation--were greatly inflamed about four specific
grievances: illegal taxation, arbitrary imprisonment, the
billeting of soldiers on individuals and punishment by
martial law. The Commons put their grievances to the King in
the Petition of Right.
In the Petition of Right, the Commons did:
Humbly pray your most excellent Majesty that no man
hereafter be compelled to make or yield any gift, loan,
benevolence, tax or such like charge without common assent by
act of Parliament.
The King reluctantly agreed to consent to the Petition of
Right. And, though it was of little or no immediate practical
value, ``* * * the historical and constitutional meaning of
the Petition of Right stands in line with the more important
Magna Carta of 1215 and the Bill of Rights of 1689 * * * It
stated principles and precedents and it became a precedent
itself in the long assertions of the powers of Parliament and
the supremacy of law in England.'' (A Constitutional and
Legal History of England by Goldwin Smith (New York; 1955) P.
320.
As another noted scholar has written of the Petition of
Right, it was: * * * the first attempt made since the
beginning of the struggle between King and Parliament to draw
a definite line between prerogative and law, to fix with some
exactness the point where the power which is above the law
shall end and where the reign of law shall begin. This it
attempts to do, not as to a general matter but in specific
particulars. That in doing this it reduces the King's
prerogative powers and sets new limitations to them is quite
in harmony with the spirit of past constitutional growth.''
(Constitutional History of England by George Burton Adams
(NY; 1938) P. 295).
After Charles I accepted the Petition of Right, the Commons
voted him money. But relations between the King and
Parliament had by no means healed. They soon clashed on the
question of tunnage and poundage--which the King had exacted
without the consent of Parliament and the Commons was
determined to place the grant upon its true constitutional
basis. A bill was then prepared granting tunnage and
poundage, but it was delayed to remonstrate against the
King's illegal collection of tunnage and poundage duties. To
prevent this Charles brought the session to an end.
When the second session of Charles' third Parliament opened
six months later, Commons was still incensed with the King
and proceeded in its battle against unlawful taxation. Fuel
had been added to the fire by the proceedings against certain
merchants who had refused to pay the duty. Their goods had
been distrained, and when the owners sued on writs of
replevin, the courts found for the Crown holding that the
King's right had been established beyond question in the Case
of Bate--which had arisen two decades earlier.
In order to prevent the Parliament from further
remonstrating against the King's claim to tunnage and
poundage, Charles at first ordered a short adjournment and
then a longer one. But this time, Commons was in no mood to
go home until it had placed its opinions on record. The House
of Commons accordingly voted against adjournment.
When the Speaker declared that he had the King's orders to
leave his chair, he was forcibly held down by two members,
while the door was locked to prevent members who wished to go
from leaving. The House then passed resolutions providing
that:
(1) Whoever advised the collection of tunnage or poundage
without Parliamentary consent should be considered ``a
capital enemy of the kingdom and commonwealth.''
(2) Whoever voluntarily paid tunnage and poundage thus
levied should be considered a traitor to the liberties of the
land.
After these resolutions were passed, the Commons voted to
adjourn.
The King was outraged at the Commons' action. He accused
the Commons of attempting to exert a universal, overswaying
power which belongs only to me and not to them.
The King dissolved Parliament on March 10, 1629--and it
would not meet again for eleven years. The King was
determined to govern England ``by those means God put into my
hands.''
Charles moved swiftly to punish the leaders of the
opposition. Nine members of the House of Commons were
arrested, sent to the Tower and their papers seized. When
they sought a Writ of Habeas Corpus, the prisoners learned
that they were detained under the King's order. At their
trial, the prisoners pleaded the privileges of Parliament
and declined to make any other pleas. The court found that
they should each be imprisoned at the King's pleasure.
As no adequate grant of taxes had been made by any of his
three Parliaments and he no longer dreaded the checks which
might be imposed by Parliament, the King proceeded to govern
England without Parliament. He continued his illegal levies
of tunnage and poundage. He revived such obsolete customs as
the compulsory distraint of knighthood and forest fines based
upon Henry II's Assize of the Forest of 1184. He expanded his
extensive sale of monopolies--soap, fisheries, the vintner's
company, etc. He collected feudal dues whenever he could.
But the most important discovery of new revenue was the
revival and extension of ``ship money.'' In medieval times
this had been a levy imposed in times of national emergency
on the port towns of England by which these ports were asked
to provide ships for the navy. Charles' first writ for ship
money was issued in October, 1634 and it was near enough to
the tradition practice not to lead to serious opposition. It
called upon port towns to furnish ships of war, but of a size
which were only found in London, or in lieu of these to levy
a sum of money sufficient to cover the cost of one. As one
author has observed: ``The demand was a transition from
ancient precedent to a practically undisguised tax.''
(Constitutional History of England by George Burton Adams
(New York, 1938) P. 301).
The Lord Mayor of London at first resisted the writ. But it
was soon acceded to with little opposition.
When the second writ appeared in August, 1635, it was
extended to all the Kingdom on the ground that as the support
of the navy concerned the safety and defense of all, so all
should contribute to that end. It then became clear that ship
money had become a general tax on the people of England. For,
whereas the earlier writs only demanded the actual equipment
of ships, the latter writs directed the sheriffs to assess
every landowner and other inhabitatnts--according to his
particular means--and to enforce the payment by distress.
Considerable resistance developed to the second writ. It
was felt that ship money had become, in fact, a tax levied
without Parliamentary grant--violating the Petition of Right.
The third writ was issued in October, 1636, and like the
second extending the levy to the whole kingdom made it plain
to everyone that the King had discovered a method of annual
taxation which could be used to finance the government.
And, it soon became evident that if the King could lay such
a tax upon alleged grounds of national necessity--determined
by himself alone--that there was no limit to this arbitrary
taxation. And, believing that the writs of ship money were
clearly an unconstitutional tax, many persons resisted them.
But by far the most celebrated case was that of John Hampden.
In 1637, the sum of 4500 Pounds was demanded from
Buckinghamshire. John Hampden--a cousin of Oliver Cromwell--
refused to pay twenty shillings assessed upon his land in the
parish of Stoke Mandeville. Hampden was tried before the
Court of Exchequer in November, 1637.
Hampden was eloquently defended by Oliver St. John who
argued against the tax alleging that it violated the Magna
Carta, the statutes of Edward III, the Petition of Right and
there was no national emergency as England was not actually
engaged in a war at that time. But the judges found for the
King. Two judges decided in favor of Hampden on technical
grounds and three judges found for him on all counts. But the
remaining seven held against him. One judge wrote that:
``The King pro bono publico may charge his subjects, for
the safety and defense of the kingdom, notwithstanding any
act of Parliament, and a statute derogating from the
prerogative doth not bind the King; and the King may dispense
with any law in cases of necessity.''
Further, another judge wrote that:
``No act of Parliament can bar a King of his regality--
therefore acts of Parliament to take away his royal power in
the defense of his kingdom are void.''
But, though Hampden had lost the case, he had won a place
in the hearts of the people of England for resisting the
hated tax. The trial galvanized the resistance of the people
to the tax. But, in spite of popular resistance to it, the
King succeeded in financing the government without Parliament
for eleven years. As one writer has observed:
``The financial dependence of the King on Parliament, which
was at that date the only thing making a meeting of
Parliament necessary, seemed for the moment at least to be
successfully overcome.''--Constitutional history of England
by George Buxton Adams (New York, 1938, P. 304-5).
For a period, Charles I's arbitrary measures were
successful and it appeared that Parliament would never again
be summoned to Westminster. During this period Charles and
Archbishop Laud endeavored to reconstruct the Church of
England according to the aristocratic ideas of the high
church party--which had the effect of ending religious and
political liberty in England. And, the ensuing persecution of
the Puritans drove many to America.
The oppressive policies of Charles I are of more than
passing interest to Americans because they generated the
basic constitutional ideas which the English Puritans brought
to America and which--in a century and a quarter--became the
bedrock on which the American Constitution was fashioned.
As Charles was apparently successful in reconstructing the
Church of England, he endeavored to do the same thing to
Scotland by crushing Presbyterianism in Scotland. In the
summer of 1637, Charles and Archbishop Laud sought to impose
a version of the English Book of Common Prayer on the Church
of Scotland. But the Scots were too thoroughly devoted to
Presbyterianism to accept this. When an attempt was made to
read services from the Book of Common Prayer in Edinburgh,
riots broke out. The Scots set up a resistance group known as
``The Tables'' and the Scottish Covenant was drafted inviting
the Scottish Protestants to swear the resist to the death
these religious innovations. To meet the Scottish resistance,
Charles was compelled to raise an army--which placed too
great a strain on his make-shift finances.
When the Chancellor of the Exchequer informed him that the
Royal Treasury was empty, Charles sought a contribution from
London and then from the entire nation and loans were
requested. Another obsolete levy upon the counties for the
support of a military force--``coat and conduct money''--was
revived. But every levy was resisted and failed to raise the
needed revenue.
Therefore, the King bowed to necessity and called what
became known as the ``Short Parliament''--which met on April
13, 1640. But it soon became evident that the members of the
House of Commons sympathized with the Scots and would do
nothing until their many grievances were redressed. The King
pressured Commons to vote an immediate grant of money to
allow him to prosecute the war--and to settle their
grievances later. The House of Lords voted that
appropriations should come before grievances which the
Commons rejected as a ``high breach of privilege.'' The King
then offered to give up ship money in return for a grant
of twelve subsidies. But the Commons balked at this too--
holding the collection of ship money to be a crime and the
judgment against Hampden an infamy; which they would never
assent to.
When Charles was convinced that they could not be moved, he
dissolved the Parliament, after a three week session in which
nothing had been done. But, though Parliament accomplished
little of a tangible nature, it learned how strong it was
against the king and it learned that the bulk of the English
people were united behind them.
After the dissolution of the ``Short Parliament'', the King
imprisoned some members of the House of Commons and the
sheriffs ruthlessly proceeded to collect ship money and coat
and conduct levies. The King seized pepper from the
warehouses of the East India Company and bullion from the
London goldsmiths. The Lord Mayor and aldermen of London were
coerced into making a ``loan.'' A convocation--which
supported the King's Scottish policy--tried to support a
general benevolence; two attempts were made to get a loan
from Spain in return for help against the Dutch; it was
proposed that the coinage be debased and it was planned to
seize Spanish bullion deposited in the Tower for coinage. But
all these efforts were of no avail. They generated very small
sums while the expenses of government skyrocketed.
Meanwhile, the army which had been raised posed a critical
problem. It was undisciplined, poorly supplied, and scarcely
paid at all. It had to be quartered on the country and
martial law had to be rigorously enforced--both in violation
of the Petition of Right.
Finally, in August of 1640, the Scots crossed the border.
When the two armies confronted each other at Newburn--near
Newcastle--a mere cannonade dispersed the English ranks.
Newcastle surrendered to the Scots and once more the King was
forced to come to terms with them.
As the historian Thomas Pitt Taswell-Langmead has observed:
``After the defeat at the ford of Newburn-on-Tyne, the
English army, disheartened, undisciplined, and disaffected,
had retreated to York, leaving the counties of
Northumberland, and Durham to be possessed by the victors.
`The game of Tyranny' observes Macaulay, `was now up. Charles
had risked and lost his stake. . . . His army was mutinous,
his treasury was empty; his people clamoured for a
parliament; addresses and petitions against the government
were presented. Strafford was for shooting the petitioners by
martial law; but the king could not trust the soldiers.'''--
(English Constitutional History by Thomas Pitt Taswell-
Langmead; P. 440.)
At the end of August, 1640, twelve peers petitioned the
King ``to summon a Parliament within some short and
convenient time.'' But in a last-ditch effort to avoid
summoning Parliament, Charles seized on an old precedent. As
the National Council had once performed some of the functions
of Parliament--and as it had continued to meet long after
Parliament had been established--the King issued writs for a
meeting of Peers at York on September 24, 1640. The Great
Council met and concluded a treaty with the Scots, by which
they were to hold the two northern counties until a definite
peace was made and to receive 25,000 Pounds per month for
their expenses. The Council also pledges the security of the
Peers to a loan to fill the King's sagging coffers.
But, as this expedient proved inadequate to solve the
King's staggering problems, King Charles reluctantly called
his fifth Parliament--the so-called ``Long Parliament.'' It
met at Westminster on November 3, 1640.
The entire House of Commons stood united in their
opposition to the King. Roughly sixty percent of the members
of the previous ``Short Parliament'' were reelected. As one
historian has observed:
``The King addressed the Commons in an unusually
conciliatory speech, but the Stuart tyranny had gone too far,
and the Lower House was absolutely bent upon redress. Neither
can the men who came to this Parliament with such a resolve
be blamed, for it depended upon them whether people and
Parliament should recover their ancient liberties, or become
the mere vassals of the Sovereign.''--(History of the English
Parliament By G. Barnett Smith; Volume I, Page 399)
And, in a large sense, it was the Long Parliament which
framed the basic constitutional ideals upon which the
American Republic was fashioned.
Under the leadership of John Pym and John Hampden, the
House of Commons struck first at the King's advisors--by
impeaching the Earl of Strafford. Strafford was accused of
subverting ``the fundamental laws'', of ``exercising
tyrannical and exorbitant power.'' When it became clear that
Strafford would never be found guilty of high treason by the
judicial process of impeachment before the House of Lords,
the Commons turned to condemn him to death by a Bill of
Attainder. The bill passed both Commons and Lords. Realizing
that he, too, was in peril, the King signed the Bill and on
May 12, 1641, over 200,000 people saw Strafford executed.
Meanwhile, Parliament acted to make arbitrary rule
impossible in the future. First, to protect itself against a
possible ``untimely adjourning, proroguing, or dissolving''
by the King, it provided that a Parliament could not be
dissolved without its consent. Second, in the Triennial Act,
it established that Parliament was to meet once every three
years, whether or not it had been summoned by the King.
Ship money was next attacked and declared illegal--and the
judgment against John Hampden was annulled. The collection of
tunnage and poundage duties without the consent of Parliament
was made unlawful). Compulsory knighthood and the abuse of
forest fines were prohibited.
However, in November, 1641, Parliament prepared the Grand
Remonstrance which recited the wrongdoings of Charles I, and
set forth what had to be done to remedy national grievances
and set forth further demands. For example, it proposed that
the King's ministers should be ``such as Parliament may have
cause to confide in.'' This Grand Remonstrance passed Commons
by a majority of only eleven out of over 300. This angered
Charles I and he directed the Attorney General to lay
articles of impeachment for treason before the Lords against
five members of the House of Commons. And, though the men
escaped before they could be arrested, this greatly inflamed
the passions of the people and hastened the drift toward
civil war.
But, before the civil war actually broke out, Parliament
presented its final demands to the King in the so-called
Nineteen Propositions. By the terms of the Nineteen
Propositions, the privy councillors, the principal officers
and judges of the state, the tutor's of the King's children,
all were to be appointed only with the approval of
Parliament. It asked the King to put royal forts and castles
under Parliamentary control, to dismiss his military forces;
to take away the votes of all Roman Catholic peers, and to
promise that his children would not conclude any marriage not
approved by Parliament.
Charles refused and the civil war began--to be terminated
in a little over two years. After the Presbyterians had been
expelled from Parliament, the remainder (known as the
``Rump'') tried the King for treason and sentenced him to
death.
What followed were eleven years of military despotism.
After Cromwell's death, the dead King's son, Charles II,
was placed on the throne. The House of Stuart was restored
to the throne, but with no constitutional guarantees. The
supremacy of Parliament was not declared in any formal
contract, nor was the King required to acknowledge that
his powers were limited by, or derived from, the people.
Indeed, there was nothing of a constitutional character to
even indicate that Charles I had been deposed. And,
though, in form and law, the King was supreme--he was now,
in fact, subservient to Parliament.
Charles II's first Parliament granted him the proceeds of
the Customs for life. Parliament abolished the feudal
incidents, e.g., wardship, marriage and knight's service, and
the three feudal aids: knighting the King's son, ransoming
the King, and furnishing a dowry for his eldest daughter.
Parliament made up for the revenues lost by abolishing these
by granting the Crown an hereditary tax on beer and some
other liquors.
The year 1665 marked the reassertion of legislative control
over the spending of the public money, viz., the practice of
Parliamentary appropriations. Prior to this time, the King
went to Parliament with requests for money. But, generally,
once the money was raised, the King could spend it as he
wished.
Sir George Downing amended the Subsidy Bill of 1665 to
provide that the money raised in accordance with the Bill be
applicable solely to the prosecution of the Dutch War--and
that money could not be paid out by the Exchequer save by
special warrant stating that as the purpose of the payment.
In 1667, Parliament solidified its control of the purse
strings of England by appointing a Parliamentary commission
to examine the public accounts in order to determine that the
funds raised in the Supply Bill of 1665 were, in fact, spent
solely for the Parliamentary designated purpose. This
Parliamentary commission later expelled the Treasurer of the
Navy from the House of Commons for spending public money
without a warrant.
As one author has observed:
``The bill was the natural consequence of the liberty of
appropriation enjoyed under the Commonwealth. The exercise of
the principle of appropriating supplies in detail was not
carried to its full extent until after 1689. Its importance
is difficult to overestimate. It placed the executive power
in a position of perfect dependence upon the bill of
Parliament, for the money requisite for any administrative
act was to be forthcoming only in accordance with the
previously expressed intent of Parliament.''--(The History of
Parliamentary Taxation in England by Shepard Morgan; New
York: 1911; Pp 304-5).
Another writer has written:
``The foundation was securely laid for the changes that
followed after his expulsion. Modern Anglo-Saxon legislatures
have considered the practice of appropriations, now extended
to even minute items of expense, to be one of the most
essential sources of their power and have guarded it with the
utmost care. It is a check upon government policy not by
calling a minister to account for what he has done, but by
rendering action which is not approved of impossible in
advance. The full establishment of the right of appropriation
should probably be regarded as the last step in the creation
of so great a power in Parliament over the executive that
resistance was hardly possible . . . ''--(Constitutional
History of England by George Buton Adams, New York: 1938, P.
349).
On Charles II's death in 1685, James II acceded to the
English throne. But where Charles II had been willing to
adjust to the Parliamentary system, James II was not. James
II lacked Charles II's tact and diplomacy. He assumed the
Crown with the full intention of exercising arbitrary
authority--as had the earlier Stuart Kings. He attempted to
bring Roman Catholicism back to England.
Prior to calling his first Parliament James II had
collected customs duties by proclamation--i.e. without
Parliamentary sanction. But, in spite of this poor beginning,
the Parliament--which was overwhelmingly royalist--granted
him a large revenue for life and seemed ready to do anything
else within reason which the King wished. But this spirit of
harmony didn't last long.
Primarily because of his zealous desire to restore England
to Catholicism, James clashed with Parliament. In 1685,
Parliament balked when the King asked that a large standing
army be raised in which Roman Catholics were to hold key
positions. Instead of complying with the King's request, the
Commons gave the King less than he sought and attempted to
impose conditions. This infuriated the King to the extent
that he committed a member of the Parliament to the Tower for
saying: ``We are all Englishmen and not to be frightened out
of our duty by a few high words.''
Refusing to tolerate such criticism, the king dismissed his
first, and only, Parliament.
These and other outrages so inflamed the nation that in
November, 1688, William of Orange was invited to come to
England. An advisory ``assembly'' was called to assume the
provisional government of England pending the calling of a
Parliament--composed of the Lords and of the members of the
House of Commons which last met in the Parliament of Charles
II. The assembly advised the calling of a convention
Parliament, and letters were issued for the holding of
Parliamentary elections. The convention Parliament met on
January 22, 1789, and remained in session until August 20,
and later continued its work in a second session.
On February 13, 1689, William and Mary were crowned subject
to the conditions expressed in the Declaration of Right. That
same day, the Convention Parliament declared itself to be the
Parliament and its acts valid law.
The Declaration of Right with some slight changes was--in
the second session of Parliament--incorporated into the Bill
of Rights. Specifically, the Declaration of Right enumerated
the arbitrary acts of James II and declared each of them
specifically to be illegal.
On October 25, 1689, the Declaration of Right was enacted
by Parliament, in statutory form, as the Bill of Rights. It
stated that King James ``did endeavor to subvert and
extirpate . . . the laws and liberties of this kingdom . . .
by levying money for and to the use of the crown, by pretense
of prerogative, for other time and in other manner than the
same was granted by Parliament.'' Then followed the absolute
assertion ``that levying money for or to the use of the crown
by pretense or prerogative, without grant of Parliament for
longer time or in other manner than the same is or shall be
granted, is illegal.''
The Bill of Rights is--without question--one of the most
crucial documents in Anglo-American constitutional history.
For, it marked the end and summed up the results of a
struggle which had lasted for over four centuries. As
Maitland observed, with the Bill of Rights ``one great
chapter of English history had been closed.''
Clearly the impact of the Bill of Rights was not limited to
England. It had as great an impact on the British colonists
who came to America--who had suffered as much in their
charters and in their free governments from the absolutism of
Charles I and James II as had the people of England. And,
reacting from British experience--and from their own
experience under British rule--the Framers wrote into our
Constitution the exclusive function of Congress to impose
taxes and to control public expenditures by appropriations.
As one author has observed:
``With the passing of the Bill of Rights the principle was
vindicated that Parliament rather than the crown has the
power to tax. . . . The corollary principle that Parliament
has the power to appropriate supplies for specific purposes
and that it can demand an accounting for the money so
appropriated were accorded general acquiescence then and
thereafter.''--(The History of Parliamentary Taxation in
England by Shepard Morgan; New York: 1911; pp. 307-8).
____
[Resumption of Senate Proceedings]
The Presiding Officer (Mr. Bentsen). The question is on
agreeing to the amendment of the Senator from Idaho (Mr.
Jordan).
Mr. McClellan. Mr. President, I just want to make a brief
statement about this.
The Presiding Officer. The Senator from Arkansas is
recognized.
Mr. McClellan. Mr. President, I have prepared a comparable
amendment, not identical, to be introduced and would have
possibly offered it had I the opportunity to do so. However,
during the afternoon, I was engaged in a conference with the
House members of the Appropriations Committee on the
Supplemental Appropriation bill. I would prefer to have had
the amendment I prepared to the one of the Senator from Idaho
(Mr. Jordan), but it will have to go to conference if it is
adopted and some moderate change would be made in conference
if it is found advisable to do so. Since it does have the
basic approach that I have in the amendment that I intended
to offer, I intend to support this amendment.
Now I want to say at this time that I will have serious
difficulty voting for the House bill just voted for the $250
billion limitation.
I am reluctant, most reluctant, to vote for a measure and
confer upon the Chief Executive the power to completely
reject and to strike from the bill what Congress, on any
project or program that Congress, in its judgment and wisdom,
has established and authorized under the law.
For that reason, Mr. President, I hope that the senator's
amendment will be agreed to.
While I have this moment, Mr. President, I would like to
say to the Senate that immediately after action on this
amendment, if I can get the floor, I intend to offer an
amendment, adding a new title to the bill.
It will be noticed in this bill that provision has been
made for a joint committee to deal with the study from now
until some time next year. That would be a temporary
committee. And that committee's functions and duties would
expire.
Mr. Proxmire. Mr. President, will the Senator yield at that
point?
Mr. McClellan. I yield.
Mr. Proxmire. Mr. President, I am very interested in the
Senator's proposed committee.
However, I would like to tell the Senator that at about
2:30 this afternoon I was to be recognized. And I understood
that I was the next one to follow the Jordan amendment. I
will not take very long.
Mr. McClellan. Mr. President, I am very sorry. The Senator
understands that I have not been on the floor. If that is the
order, of course, I yield to the Senator from Wisconsin.
Mr. Proxmire. Mr. President, I would be happy to yield to
the chairman of the Appropriations Committee if he desires.
However, I would prefer it if I could proceed.
Mr. McClellan. No. I will confer with the Senator about
this in the course of our voting. However, in the meantime I
intend to advise the Senate that I shall offer an amendment
to add a new title, and the new title will be practically
identical to a bill that the Senate passed on eight different
occasions to create a Joint Committee on the Budget, not
temporary, but permanent. I have added one thing to its
duties, and that is that after performing the duties already
provided in that bill, that it submit its recommendations
with respect to a ceiling each year in the budget on the
amount of appropriations we should make.
I hope that amendment will be adopted. I have just taken
this moment to make mention of my purpose to support the
distinguished Senator's amendment. And I think that it may
need some small modifications, at least in conference. But I
shall support it. And I would hope that the Senate would
agree to it. At least, we passed this bill eight times, and
the House only rejected it one time, and only rejected it by
15 votes. That is the first time they considered it. They
never could get to a vote before that because it was opposed
by the chairman of the Appropriations Committee of the House
primarily. Now that the House has awakened to the necessity
for some kind of committee, for some kind of study, and for
some kind of additional service that is necessary for the
Congress to ably and properly and effectively perform its
duties, I think it is time to consider the bill that the
Senate has already passed eight times. I think it is
perfectly appropriate that that measure be adopted as an
amendment and add a new title to the bill.
Mr. Pastore. It was my privilege for the past several years
each time the distinguished Senator, the chairman of the
Appropriations Committee, introduced his bill for a joint
committee, to cosponsor that particular legislation. As I
understood, it was not exactly a study. It was not a study at
all. But here we are dealing with $250 billion every year,
which is a tremendous amount of money. It comes to the
committee under 12 different titles, and there is no
coordination.
We do not know once we have appropriated the money just how
the money is being spent. We have no facilities, no
faculties, to follow that money to make sure. The only
opportunity we have is when they come up again, to ask them
how they spent the money last year. We have to take their
word for it.
After all, the Office of Budget and Management has a
continuance of operation. They can follow these things
through with the administration. But we have no facilities,
no faculties at our disposal.
What the Senator did suggest was that we would have a joint
operation with the House, that we would have
proportional steps in there, that once we appropriate
money, we make sure that the money has been used for the
purpose for which it was appropriated. That was the
purpose of his bill.
Mr. McClellan. That was one of the purposes. We hear only
the appropriations on most every bill, with one or two
exceptions, like Public Works. But we hear primarily from
agencies that want the money to spend, but there is no way
for us to check against the immediate intentions they say
they have and the information they submit to us.
While I have the floor, I would like to suggest to my
colleagues that this bill to which I have referred and that
has passed a number of times had many cosponsors. In the 87th
Congress it had 67 cosponsors. In the 88th Congress, it had
77 cosponsors. In the 90th Congress it had 66 cosponsors. So
at least nearly two-thirds of the Senate have cosponsored the
bill each time in the past.
Now, I do hope tonight, or when this amendment is offered,
that I will have the support of my colleagues who have
heretofore been very well advised as to what this proposal
will do and the need for it.
Mr. Bennett. Will the Senator yield to me?
Mr. McClellan. I am glad to yield.
Mr. Bennett. As the manager of the bill, I think I am
prepared to accept the amendment of the Senator. I would like
to see it. I would appreciate the opportunity to look at a
copy of it. By the time the Senator is ready to offer it, I
think we would probably be willing to accept it without
question.
Mr. McClellan. I will be glad to do that. I would like to
suggest one thing to be added to the bill, other than
technical amendments not necessary to meet existing law. This
clause has been added to the bill. This is under subsection
(2) of some section of the bill--the duty of the committee:
``Recommended to the appropriate standing committees of the
House of Representatives and the Senate such changes in
existing laws as may effect greater efficiency and economy in
government.''
And we added at that point:
``(b) a ceiling for expenditures and net lending under the
budget of the United States Government for the fiscal year.''
Mr. Bennett. May I see that?
Mr. McClellan. Yes. This is the only one I have before me
now. It is one I shall want to introduce.
Mr. Bennett. After the Senator from Wisconsin is
recognized. I will be glad to discuss it with the Senator.
Mr. McClellan. That is the only substantive change made in
the bill as it passed the Senate.
Mr. Cranston. Mr. President, will the Senator yield?
Mr. McClellan. I yield.
Mr. Cranston. Mr. President, I am delighted that the
chairman of the Committee on Appropriations lends his support
to the Jordan amendment. The Jordan amendment is the way we
can have a ceiling without delegating the authority of this
body to the executive branch.
The distinguished Senator from Oregon (Mr. Packwood) made
an eloquent, articulate address on this topic, and it is a
very important topic.
I believe, contrary to his conclusions, that the Jordan
amendment gives us the opportunity to behave in a fiscally
responsible way while retaining our power.
The Senator went through a long history respecting the
abdication of power.
Mr. President, behind the Jordan amendment is the Percy
amendment, which I have been privileged to cosponsor. It does
set a procedure where we can have a solid, constructive,
prudent approach to this matter, to set a ceiling that takes
into account what we can expect to come in and take out, and
put that together in an overall budget, which is what the
Senator from Oregon discussed.
TEMPORARY INCREASE IN THE DEBT LIMIT
The Senate continued with the consideration of the bill
(H.R. 16810) to provide for a temporary increase in the
public debt limit and to place a limitation on expenditures
and net lending for the fiscal year ending June 30, 1973.
Mr. Javits. Mr. President, I shall be brief. I wish to put
the Senate in mind of another point which has been made, in
addition to the very, very moving address of the Senator from
Oregon. I think we all liked it so much because he does not
speak too often and it was really a great speech. Many of us
feel he is entitled to our sincere congratulations.
He put me in mind of talk in the corridor that whatever we
pass will go right down the hatch in conference and we will
be right back here with a $250 billion ceiling, which is just
like the administration asked for and which passed the other
body.
So I express the hope, as one Senator, that when I vote
``yea'' on the Jordan amendment, because I agree with the
Senator from Georgia, the Senator from California (Mr.
Cranston) and many other Senators that this is the way to do
it under present circumstances and because the people have
a say, in this, too, and I think they have a right to feel
as they do about expenditures and taxes, that we are going
to stay with this and we should. By the size of the vote
we serve notice that conference reports coming back here
with these provisions dropped down the nearest hole are
not going to find favor in the Senate.
Mr. President, that is one of the things that the speech of
the Senator from Oregon should inspire in us all. This is not
just a vote that we are not for giving up our powers on this
amendment, but these things have a way to come back in a
final way with lots of feeling.
I hope Senators will vote with the understanding that when
they vote this way on the Jordan amendment they will vote so
that there votes will not be meaningless. I hope very much
the size of the vote and the conviction of the Senate will
carry that message.
Mr. Schweiker. Mr. President, I rise to strongly associate
myself with the remarks of the Senator from New York (Mr.
Javits). As a cosponsor of the amendment of the Senator from
Idaho (Mr. Jordan) I believe this is a very important basic
principle. I certainly concur with the thoughts of the
Senator from Oregon.
I though the Senator made some very fine statements,
explicit points, and pertinent principles. I differ with him
slightly. I feel that the way to do the things that he wants
to do is to vote for the Jordan amendment, to stand up and
vote on that measure. Nevertheless, I commend him and I join
with the Senator from New York (Mr. Javits) in saying that if
this body expresses its favor with the Jordan amendment, and
I hope for that, I could not vote for a conference report
which would come back and incorporate the House approach,
which is the reason the Senator from Oregon so well outlined
it. I associate myself with the Senator from New York because
that could be the issue.
I believe the Senator from Idaho (Mr. Jordan) has the votes
to win that basic issue. I hope it does not stop there. The
conferees should take this into account in conference because
it is a gut issue and as a gut issue I am going to vote down
any conference report that goes back to the House approach of
giving away economic responsibilities.
Mr. Gravel. Mr. President, I share the same views as my
colleague. I, too, went over to my colleague from Oregon and
congratulation him on a fine speech. In fact, I can say that
during my service here it is the finest speech I have heard
in this Chamber. I have heard better rhetoric but I have
heard no better grasp of history or better logic of an
important problem affecting this Nation. So I am going to pay
him what to my mind is the ultimate compliment, when I hear
something very good. I say to him that he persuaded me. I was
going to vote for the Jordan amendment; I am now going to
vote against it.
It is not to often in the legislative process that minds
are really changed in this Chamber, because of the
operation of the system. But I was persuaded, I went up to
my colleagues from Oregon and I asked what solution he
had. I understand the Jordan amendment. It is a tinkering
process to get to another goal. Of course, it is true, and
I understand the statement of the Senator from New York
and the statement of the Senator from Pennsylvania, that
we are going to continue that quid pro quo; we will go for
that if something does not occur; but that is the way
erosion usually takes place, with one simple act.
I asked the Senator from Oregon what his solution was. He
said he was going to vote against the Jordan amendment. Then,
he was going to vote against the whole piece of legislation.
That strikes me as logic because there is no way we will get
into trouble if we do not hold things down.
I do wish to address a question to a member of the
committee. What would happen if we voted this down? I address
that question to the Senator from Utah (Mr. Bennett), who has
just returned to the floor.
Mr. Bennett. One week after October 31 the Federal
Government would be unable to pay its bills. It could not
meet its obligations. The dollar would die in the world
market because nobody could trade it. We would have about 1
week's flow; 1 week's money in the bank. After that week the
Federal Government would be bankrupt, unable to pay its
bills, and I cannot conceive that any Senator would want to
take the responsibility for voting for that.
I have been in the Senate a long time and I know there are
always votes against the debt limit. Remember that the debt
limit is the basic objective of this bill--the spending
ceiling is the secondary objective. I know many Senators are
going to vote against the debt limit in this bill--I suppose
praying in their hearts that enough of us will vote for it so
that this event will not take place, but there is not any
question about it. This is what would happen.
Mr. Gravel. If my colleague will excuse my ignorance, I
would like a little information as to how this would be
precipitated. What would really happen?
Mr. Bennett. The debt limit would fall from $450 billion to
$400 billion on that day. We already have more than $400
billion of debt outstanding--something like $435 billion.
That debt outstanding is represented by bonds that constantly
need to be renewed. Some of them are notes that have to be
renewed every week. We could not renew another note. Then all
we could do would be to float around on the amount of money
in the bank. That would last until about election day, and
then the Federal Government would grind to a halt.
It could not pay its bills, it could not pay its salaries.
The dollar would drop in the world market so precipitously
that no one can imagine the debacle it would create.
Mr. Gravel. How much are we shy between now and the end of
the fiscal year if we leave the debt where it is right now?
Mr. Bennett. I will answer that question. The Treasury says
they need a limit of $465 billion to get us through the
fiscal year, but if we let the bill die, the Federal debt
limit drops back to $400 billion. That would be
disastrous. We do not have a continuing debt ceiling of
$450 billion. We only have a ceiling of $450 billion to
the end of October. Then it drops to $400 billion.
Mr. Gravel. So if we do not get it, what is it we are
talking about? A difference of $15 billion?
Mr. Bennett. I cannot tell the Senator to the day. We
probably would have to be back here in February or March to
pass it again.
Mr. Gravel. Suppose on Monday we pass a ceiling we have
now? What is the ceiling now? $450 billion? Is that not what
the ceiling is now?
Mr. Bennett. Yes.
Mr. Gravel. What catastrophe would be visited upon this
occasion if that were to occur?
Mr. Bennett. That would take us to about March, and then we
would face the same situation.
Mr. Gravel. Which would mean it would put the
responsibility on the rest of us. Is that right?
Mr. Bennett. I have been through this many, many times in
my 22 years in the Senate. We come up to this point, we argue
about it, and we rail about the fact that the Government
should not go into debt, but we eventually face up to the
fact that none of us wants the responsibility of letting the
Government go bankrupt.
Mr. Gravel. I want to assure my colleague that I do not
want to let the Government go bankrupt, but I like the
concept that my colleague from Oregon has enunciated, and I
am not reluctant to take the responsibility of lowering taxes
or raising taxes to raise money. I want to make my vote
meaningful in that direction. If that means voting against
this amendment and voting against them all, that may be the
way to do it.
What happens if we continue the debt ceiling at $450
billion?
Mr. Packwood. Mr. President, if the Senator will yield, I
would like to propound a question to my friend from Utah.
Could not we do better simply by deleting title II of this
bill, which is the debt limitation, and send that out from
Congress?
Mr. Bennett. No. It would have to eliminate the $465
billion.
I am reminded that it automatically drops to $400 billion.
If we want to keep going as we are now, we have to replace
the $465 billion figure with the figure of $450 billion.
Mr. Gravel. This is title I.
Mr. Packwood. That is title I of the bill.
Mr. Bennett. Yes.
Mr. Gravel. I address myself to my colleague from Oregon.
If we wanted it to stay the same, we would substitute for
title I a provision saying we raise the debt ceiling to $450
billion. That would be a check on the administration and
protect us. Is that correct?
Mr. Packwood. These sections are severable. Title II has
the debt limitation. That could go. We could amend title I to
make it whatever we wanted.
Mr. Gravel. That would give us some control, because that
would give us a $15 billion hammerlock on the administration,
which we are giving away now.
Mr. Bennett. It would not have that effect. It would merely
bring us back that much sooner to face the same problem. We
have already faced it twice this year. This is the third
time. If we put it off until March, we will have to come back
in March.
Mr. Gravel. What is the problem we are facing? Is it the
fact that we are spending money?
Mr. Bennett. No, that is not the problem. The problem is
that full faith and credit of the United States dies because
we can no longer sell any bonds.
Mr. Gravel. But my colleague overlooks one thing. I say
this humbly. The full faith and credit is attached to
borrowing money to spend money on projects. That is what the
$15 billion is for.
Mr. Bennett. No.
Mr. Gravel. What are they borrowing for if it is not to
spend money?
Mr. Bennett. Because we already have a debt of $450
billion. We turn it over. It is not like a continuing debt
such as one might have in a bank for 20 years. It is
represented by hundreds of issues. It is represented in large
part by notes which are floated for 90 days or 6 months.
Mr. Gravel. I confess I do not have the brain power or
understanding, but if we are borrowing money just to tread
water, then we can tread water with $450 billion. If through
some device the interest is creeping it up and making it $465
billion, then obviously that increase is all due to an
increase in the interest. I do not think that is the case,
because we are supposed to be servicing the debt by
appropriating money for it. Where is that $15 billion?
Mr. Bennett. That comes from increased appropriations which
the Congress has already made, and they have got to be met.
Congress has appropriated the money. We have to have it. That
is a part of the problem. The other part is that we have
accumulated a debt over many years. I cannot think of the
year when we had no Federal debt.
Mr. Gravel. Was not this debt contributed to by a deficit
this year?
Mr. Bennett. Yes.
Mr. Gravel. Will not this debt be contributed to by a
deficit next year?
Mr. Bennett. Yes.
Mr. Gravel. What is the best way to get our hands on that
deficit? It is to stop the spending. Is that right?
Mr. Bennett. Yes.
Mr. Gravel. A good conservative, however, in my mind, if a
person is fiscally responsible, is not going to let them run
wild by raising the ceiling. That is the first grip we could
get on this problem.
Mr. Bennett. Unfortunately, that does not work.
Mr. Gravel. Why?
Mr. Bennett. Because it is not an effective brake. It does
not say to the American people, ``We are going to stop
spending when we reach this point.'' It says to all the
people who own bonds, including people who own savings
bonds, ``Your bonds are no longer worth anything, because
we cannot redeem them.''
Mr. Gravel. I do not understand that, and I do not think I
can accept it at face value. Does the Senator mean to tell me
that $15 billion is all the money that is going to redeem
bonds?
Mr. Bennett. Look----
Mr. Gravel. I am prepared to vote for $450 billion, which
is what we have now. All I am suggesting is the possibility
of continuing that. The Senate is telling me they need
another $15 billion to redeem bonds that people are going to
put up.
Mr. Bennett. No. I have to go back and start all over
again. We now have a debt ceiling of $450 billion, which
permits the Treasury to borrow what it needs.
Mr. Gravel. Up to that amount.
Mr. Bennett. Up to $450 billion. All the money that
Treasury is borrowing is represented by bonds that are
outstanding. Does the Senator follow that?
Mr. Gravel. I follow that, but let me ask one point. In
that $450 billion we already have covered the deficit of this
year, which was over $20 billion. Was it not?
Mr. Bennett. No; we do not have it covered, because this is
the fiscal year of 1973, and to cover that deficit we have
got to have the additional $15 or $16 billion, in the opinion
of the Treasury. They are the people we have to trust in
these matters.
Mr. Gravel. That is money we have appropriated. That is the
point I am trying to make. It accounts for that increase?
Mr. Bennett. But in the management of the debt, which is
another part of the function of the Treasury, these
outstanding bonds keep coming due every day or two.
Mr. Gravel. I realize that, and I realize that we must meet
our obligations, but I am not sure by the Senator's argument,
that we have to increase the debt to meet the bonded
indebtedness. Our indebtedness today is $450 billion. If we
raise the ceiling, that is raising spending.
Mr. Bennett. Let me go back further. I have said that if we
keep it at $450 billion--and we can--that simply means we
will be back in February or March to raise it again. What we
have already appropriated will carry us to another crisis,
and we will have to raise the debt ceiling to take care of
the deficit that will accumulate during the fiscal year 1973.
Mr. Humphrey. Will the Senator yield?
Mr. Gravel. I am happy to yield.
Mr. Humphrey. I am beginning to get the sense of this
debate. For a period of time it was somewhat difficult, but
what I believe I am hearing is that Congress cannot adjourn
and there will be no problem in the next 3 months.
Mr. Bennett. No, no.
Mr. Humphrey. Wait a minute. This Congress could adjourn--
--
Mr. Bennett. This Congress could not adjourn without having
to come back on October 31, because on October 31 we will be
$50 billion over the authorized debt ceiling.
Mr. Gravel. Perhaps I can help the Senator from Minnesota.
If we took title 1 and just made it the status quo--that is,
left it at $50 billion, which would give us a ceiling of $450
billion, which is what it has been and then throw the rest of
this away--we would still have some power left.
Mr. Humphrey. That is exactly what the Senator from
Minnesota was getting at: that we could leave the debt
ceiling at what it is. Instead of inserting the figure $65
billion, it would be $50 billion, and it would carry us
through until March.
Mr. Bennett. The Senator is correct. It will be $450
billion on January 1. On January 15 we will be over the $450
billion.
Mr. Humphrey. So before the new Congress would come into
operation or session----
Mr. Bennett. That is right.
Mr. Humphrey. We would have, as a matter of Government, to
default on the payments.
Mr. Bennett. That is right. We would have to be called
back.
Mr. Gravel. Would not that depend on the revenues received
between now and then? If the economy were in good shape,
obviously the revenues would increase.
Mr. Bennett. That is based on past estimates by the
Treasury Department of the revenues that will be available
between now and then. But I do not think we can take that
chance and say that revenues will be better.
Mr. Cranston. Will the Senator yield?
Mr. Gravel. I yield.
Mr. Cranston. We are talking about two ceilings. One is the
ceiling on the debt, and we will have to keep upping that
until we get a ceiling on spending. Once we get a ceiling on
spending and get a budget that takes into account what is
incoming and what is outgoing, then we will not have to get
together on the ceiling or deficit. We will finally get the
deficit in hand. But we will not get it in hand without a
ceiling. That is why I am supporting the Jordan amendment.
Mr. Bennett. But we cannot go home until this bill expires.
We would destroy the credit of the United States, and we
cannot leave the debt limit at $450 billion, unless we come
back before January 15 and go through the same exercise.
Several Senators. Vote, vote.
Mr. Packwood. Mr. President, regardless of the outcome,
whether the Jordan amendment is voted up or down, I will
offer an amendment to strike title II of the bill, which is
the expenditure ceiling.
The Presiding Officer. The question is on agreeing to the
amendment.
Several Senators. Vote, vote.
Mr. Aiken. If the Jordan amendment is approved by a sizable
majority, then I suggest that when we go into conference,
after the conferees have been appointed, they be instructed
to stock with the amendment. That will save them a lot of
time on rejecting an undesirable conference report, which I
feel will not be passed.
I hope the Jordan amendment will be adopted and that the
Senate sticks with it. Such action will save us hours before
the end of the session--possibly several days.
Mr. Buckley. Mr. President, I am deeply troubled by the
proposal that the Executive should be delegated the authority
to cut expenditures at will in order to maintain a $250
billion ceiling on Federal spending during the current fiscal
year.
I am troubled, in large part, because it represents a
delegation of congressional authority which could establish a
most dangerous precedent. But I am even more troubled by the
abdication of fiscal responsibility, on the part of the
Congress which has made the proposed delegation probable and
even necessary.
We are caught on the horns of the proverbial dilemma. On
the one hand, we are faced with the fact that the Congress
has shown no disposition to exercise that self-restraint
which is essential to avoid adding new fuel to our
inflationary pressures. The political and social consequences
of a significant rise in the rate of inflation are simply too
serious to ignore. They will not be alleviated by asserting
prerogatives which on the record the current Congress will
not exercise. On the other hand, we run the danger of
establishing a practice which is subject to the gravest abuse
by a future President and which will merely encourage a
further abdication of fiscal responsibility by future
Congresses.
This lack of self-discipline on Capitol Hill forces us to
consider alternatives each of which poses substantial
dangers. And in this there is a lesson. The Constitution will
safeguard our liberties only so long as each branch of our
Government will face up to its responsibilities.
On balance I would approve a delegation of budget-cutting
authority to the President within reasonably narrow limits.
This is why I have voted for the Taft amendment. I must
oppose the Jordan amendment, however, because of its
mechanical rigidity. I simply do not feel that it is prudent
to require one reciprocal percentage cut in each of the
nonexcluded categories of expenditures.
The Presiding Officer. The question is on agreeing to the
amendment of the Senator from Idaho. On this question the
yeas and nays have been ordered, and the clerk will call the
roll.
The legislative clerk called the roll.
So the amendment of Mr. Jordan of Idaho was agreed to.
Mr. Jordan of Idaho. Mr. President, I move to reconsider
the vote by which the amendment was agreed to.
Mr. Pastore. I move to lay that motion on the table.
Mr. PACKWOOD. The reason for that debate was a long history in the
speech as to the battle in England of Parliament to gain control of
spending. And a thumbnail history of it is roughly as follows.
The King normally had enough revenues, crown revenues without consent
of Parliament to run the royal household, to run the kingly duties, but
the King never had enough money to make war. So whenever he wanted to
make war, he would have to go to Parliament and ask it to pass taxes or
revenues of some kind to make enough money to make war. And if the King
was popular, the Parliament would often do it. Or if war was popular,
it would do it. But in doing it, they would gradually put riders in the
bill to correct some grievance that Parliament had in terms of the
kingly exercise of prerogatives, and they often related to his efforts
to raise money by what Parliament thought were extracurricular methods.
Over the centuries and finally culminating in 1689 in the English
Bill of Rights, the Parliament finally gave itself the full power of
the purse, which is why, 100 years later when we adopted our
Constitution, there was almost no debate about the issue of who had
control of the purse. Congress did. It was not a significant factor in
the debates when we adopted our Constitution.
There is no question but what Congress still has that power. We can
argue all we want--how long have we heard this argument the President
says, well, Congress cannot spend any money, or this country cannot
spend any money Congress does not appropriate. And then somebody else
will say appropriations have been cut every year above the level that
the President wanted. And then somebody else will say, yes, that is
because Congress 2 years ago passed some kind of an authorization
compelling the President to ask for more money that he did not want to
ask for, and then we cut it 5 percent and say we cut what he asked.
That argument can go back and forth as long as we are here. Both the
President and Congress are at fault. Both Republicans and Democrats are
at fault. And there is no point in finger pointing at the President or
finger pointing at the Congress, one or the other, and saying it is
your fault; no, it is your fault; it is your fault; it is your fault.
This is what we are up against and why I finally changed my mind on
the constitutional amendment, and it was experience, not logic. In a
democratic society--and we are that--it is difficult, well-nigh
impossible, for elected officials to say no unless they are compelled
to say no.
Take the health reform bill we are considering, for example. Every
single group that has any tangential connection to the delivery of
health wants to be included in the basic benefit package. They may have
the most tangential connection, but they are convinced they are the
linchpin to the delivery of health services so they come to us and they
lobby us. And all of us, being decent and nice people, not wanting to
say no, say, ``I will consider your position.''
Finally, 10 or 15 groups, all of which want to be included, have come
to us and, not wanting to say no and not having enough money for all of
them, we probably include them all but say we will only pay these
particular groups 50 percent of their bills, when everyone else gets
100 percent and that way it fits within the money alloted. In a year or
two they come to us and say why are we only getting 50 percent when
they are getting 100 percent? We say that is not fair; you should get
100 percent, so the spending compounds and goes on.
I am not saying we are any worse sinners than anybody else. It is I
think human nature when somebody comes up to you and asks for your
help, you like to help them. You do not want to say no, get out of
here; I do not agree with you. At worse, if that is what you are
thinking, you probably finesse it. You finesse it with your neighbor;
you finesse it with your constituents. You say thanks very much; I
appreciate it. That is a very well-reasoned argument. I will give it
consideration. They go away thinking you have agreed with them.
That is why we are in the situation that we find ourselves. We have
said yes to everybody. We have said yes to Social Security recipients,
yes to Medicare, yes to Medicaid, yes to defense for a long period of
time, although defense is now not the factor that is driving the
deficit. It may have been at one time, but it certainly is not now.
I will cite the statistics you have heard in one form or another, or
take four programs: Social Security, other Government civilian
retirement, military retirement, and Medicare-Medicaid. Those four plus
interest: Those four, plus interest, in 1963 were 24 percent of our
budget. In 1973, they were 37 percent; those four, plus interest. In
1983, 47 percent; 1993, 56 percent. Absent any change in the law, in
the year 2003, they will be 69 percent of all the money we spend. That
means one of two things. Either all other programs get squeezed--
Amtrak, education, the Environmental Protection Agency, the Forest
Service, airport safety, and everything else gets squeezed--or we raise
taxes to pay for it, or we borrow.
The latter is what we have been doing most of the time because we did
not want to say no to Amtrak, we did not want to say no to the Forest
Service, and we did not want to say no to the EPA. So we borrowed. The
only restraint we have had at all in the last 6 years was the budget
agreement made between the Congress and President Bush in 1990 and then
extended again last year that put caps on what could be spent. That is
the only restraint we have had. And those do not apply to the
entitlements. They are exempt.
So I have come, out of experience, to the conclusion that we need a
balanced budget amendment to compel us to do what we know we should do.
I do not think even those who are going to vote against this amendment
will disagree with the conclusion of what is trying to be reached.
We know what we should do. But by experience we have proven ourselves
and Presidents incapable of doing it. Or do we have temporary moments
of euphoria when the deficit goes down a bit? Yes. But over the years,
is that euphoria justified year after year? No. Not a bit.
So I congratulate the Senator from Illinois [Mr. Simon], and the
Senator from Idaho [Mr. Craig].
Are there defects in this amendment? I have listened to the
arguments. I suppose there are defects in everything we do. If I were
king of a government, I am not sure I could draft it better. Will it
work exactly as we hope it will work? Will the courts do exactly what
we think it will do? There is no guarantee. But ask yourselves: What is
the alternative? Because it is not perfect in somebody's eyes, does
that mean we do nothing and go on with what we are doing, or do we say
we cannot do that? So let us try this. The risk of doing nothing and
continuing on our present path is worse than the risk that the
amendment might not be perfectly drawn.
So I am happy to support it; have been happy to support it for the
last 10 years. I have been here long enough that I came to that
conclusion, not out of logic but out of experience, that decent as most
Members of Congress are--I find them decent in the House and Senate--
and decent as most constituents are, everybody sees the world in their
eyes. Their eyes is that we should balance the budget but not at their
expense.
How many times have you gone to the civic club lunch and somebody
gets up, and says, ``You cannot run this place like you ought to.'' He
says, ``You borrow money,'' to which I first used to say, ``Yes. You
can run your business like we run the Government, if the bank will loan
you money forever and only ask you to pay the interest. You can run
your business at a loss forever.'' Most businesses cannot do that.
Then I will say to the person, ``All right, how many people in the
room favor a balanced budget amendment?'' Ninety-five percent put up
their hands. ``How do you think we should balance the budget? Raise
taxes?'' ``No. Oh, no. Do not raise taxes.'' ``Cut spending? How many
want to cut spending?'' Ninety-five percent. ``Where should we cut?
Social Security?'' ``Oh, no, no, no, not Social Security.''
``Medicare?'' ``Heavens no. That does not even pay for prescription
drugs now.'' We cannot cut Medicaid. ``Highways? Highways are
terrible.'' ``No, not highways.''
You start going down the list of where you are going to cut. You know
where we are going to cut? Waste, fraud, and corruption. That is where.
That is going to balance the budget by getting rid of all the waste,
fraud, and corruption. Except when you look at Social Security and you
realize that their administrative costs are less than 2 percent--Social
Security, not the Medicaid part. The pension part is a relatively
automatic program. How long did you work? How much did you make? How
old are you? Here is your check. It goes up automatically with the
Consumer Price Index, and there is not much discretion. We can
administer that program very effectively.
Is there any waste, fraud, and corruption in that program? I do not
think so. Is there any waste, fraud, and corruption in Medicare? There
we have cuts in fraud in Medicare more on the part of the providers
than the consumers, and it is a more difficult program to administer
because there is more discretion in it. But if you ask the average
citizen if there is waste, fraud, and corruption in Medicaid, they
would say, ``No, I do not think so.'' Medicare? Not many people say so.
Interest on the debt? We have to pay that. We would be sued if we did
not pay that.
So do I understand the ramifications of this amendment, if it works?
Again, I am not going to try to second-guess what the courts may do 5
years now. Do I understand the ramifications? Yes. Do I understand
that, if it passes, we will have to raise taxes or cut programs or a
combination of both? Yes, I understand that. Am I prepared to cut
programs? Yes. Where? I have said it for the last several years. I will
say it again. I think our retirement programs--military retirement,
civilian retirement, Social Security--need to be restrained. And we
should not be raising them by a cost of living every year.
I think our health programs have to be dramatically restrained. And
perhaps the most discouraging comment I have heard about the
President's program was given not by a supporter, but by somebody who
certainly thought it was not bad, Dr. Reischauer, head of the
Congressional Budget Office, when he was testifying. He indicated what
the effect of the President's program would be. This is where he said
the premiums are taxes, and it made some of the President's supporters
mad that they were being called taxes. But they are in essence.
He testified more or less favorably about the President's program.
Then he made this statement: If this program goes into effect, the
President's health reform program, and everything works right, why,
then the percentage of our gross national product that we spend on
health in 10 years will be 19 percent instead of 20 percent. We are
currently spending 14 percent. And if everything the President proposes
works right, we go from 14 to 19 percent of our gross national product
spent on health.
Our health outlays will have to be trimmed. That means there may be
some services we now pay for that we cannot pay for, and we may have to
ask consumers to pick up more of the costs. Yes. That is where I would
like to start before I consider tax increases although I do not write
off tax increases as a possibility. We have done it in conjunction with
cuts.
So Madam President, let me say again that I have reached my decision
on experience, not logic. My experience is that Republicans and
Democrats, Presidents and Congress, will continue to spend and increase
the deficit so long as we are governed by the present Constitution, or
until the country goes bankrupt, which has happened in most other
civilized countries in their history. I assume it could happen to us.
It has happened to most countries in the world. Then you repudiate your
debt and start over. And for a long time you are on a balanced budget
because nobody will loan you money. I hope it does not come to that.
I hope this amendment is adopted. There is ample period of phasing in
of this amendment to meet its requirements--assuming it works, as we
hope it will. There is ample time to meet the requirements. It is not
like we are passing it and saying tomorrow, find out how you are going
to narrow a $200 billion deficit.
If we are forced to it, can we do it? Yes. If we are not forced to
it, will we do it? No.
So, Madam President, I hope this Congress will pass this. I have no
doubt that the States will ratify it in a very short period of time,
even though they may know that some of the things we may cut are gifts
and grants and matching funds that we now give to the States.
I congratulate the Senator from Illinois and the Senator from Idaho
again. They have done a yeoman's job on this. I wish them good luck,
and I hope they have 67 votes.
Mr. SIMON. Madam President, I simply want to commend the Senator from
Oregon. The reality is that we have to simply face up to this thing.
The Senator has learned, as he says, from experience, that we have to
do this. We just cannot let these things go up endlessly. In fact--if
the page can take this over to Senator Packwood--this is from OMB's
four volumes that we get with the budget. If you look at that graph
there, it says ``Lifetime Net Tax Rates Under Alternative Policies.'' I
was born in 1928, and I end up with about 30 percent. I assume the
Senator was born around 1940.
Mr. PACKWOOD. 1930.
Mr. SIMON. You are in the same category.
This was put together by OMB to show what a great thing they have
done. Down here it says ``future generations.'' Before we passed
reconciliation last year, column 1 says that 93 percent of lifetime
earnings would go for taxes. Then after we pass reconciliation, it is
82 percent; and then in the next two columns, if you assume health care
reform and you assume the optimistic economic scenario of the
administration, in 10 years, without a down blip at all, future
generations will pay 66 to 75 percent of their net lifetime earnings in
taxation.
Mr. PACKWOOD. If the health bill works.
Mr. SIMON. If it works.
Madam President, as my colleague from Oregon knows, that just is not
going to happen. What we will do before we get there is we will do what
countries have done historically, from ancient Florence down to Germany
after World War I, and others: We will start printing money. We will
devastate savings and retirement funds and everything. I think the
Senator from Oregon has hit the nail on the head in his comments. I
simply commend him for what he has said.
Mr. PACKWOOD. I thank my good friend.
Mr. SIMON. Madam President, I suggest the absence of a quorum, and I
ask unanimous consent that the time of the quorum call be divided among
Senator Craig, Senator Reid and myself, but not Senator Byrd.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. GRASSLEY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Who yields time?
Mr. GRASSLEY. Madam President, I ask unanimous consent to speak as in
morning business for 8 minutes.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator is recognized.
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