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MR. CALHOUN'S REPORT

ON THE MEMPHIS

MEMORIAL.

SENATE OF THE UNITED STATES, JUNE 26, 1846.

THE proceedings of the Convention at Chicago in July last, and the hope founded upon them of an early and favorable action of Congress on the subject of river and harbor improvements, give a new interest to what has heretofore been said and written, touching the extent of the power of Congress in making the desired appropriations. In this connection, several of the doctrines advanced by Mr. Calhoun, in his Report to the Senate on the Memorial of the Memphis Convention, hold a conspicuous place; and, from the character of their author, as well as the novelty and importance of the principles presented, are worthy of a special examination. Such an examination we propose to give, prefacing what we may offer with a brief abstract of so much of the Report as comes within my purpose.

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Convinced of the importance of the navigation of the Mississippi and its great tributaries, and of the indispensable necessity of removing the obstructions to them, Mr. Calhoun raises the inquiry, by whom these obstructions shall be removed. 'Who," he asks, "has the power, and whose duty is it, to improve the navigation of the Mississippi and its great tributaries?" He answers: "It is certainly not that of individuals. Its improvement is beyond their means and power. Nor is it that of the several States bordering on its navigable waters it is also beyond their means and power, acting separately. Nor can it be done by their joint action. There are sixteen States, and two Territories that soon will be States, lying either wholly or partly within the valley of the Mississippi, and there is still ample space for several more. These all have a common interest in its commerce. Their united and joint action would be requisite for the improvement of its navigation. But the only means by

VOL. I. NO, I, NEW SERIES.

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which that could be obtained is expressly prohibited by the 10th section of the 1st article of the Constitution, which provides that No State shall enter into any treaty, alliance, or confederation.' But if neither individuals nor States, acting separately or jointly, have the power to improve its navigation, it must belong to the Federal Government, if the power exists at all, as there is no other agency or authority, in our system of government, by which it could be exercised. But if it does, it must be comprised among the expressly granted or enumerated powers, or among those necessary and proper to carry them into effect; as under the one or the other all the powers belonging to it are to be found; and thus the question is presented for consideration-is it to be found in either?"

Whether the needful power be found in either the express or implied powers, the Report proceeds to consider; and after denying that it is to be found in the clause giving to Congress the power "to levy and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States," or that it is to be found in the category of necessarily implied powers, it expresses the opinion, "after full and mature consideration of the subject," that it is to be found in the power "to regulate commerce with foreign nations and among the several States," and more specifically, in that to regulate it among the States. After expressing this opinion of the existence and origin of the power, the Report goes on to explain what the Committee "believe to be the nature and extent of the power;" and, on this point, the Committee are of opinion that the words "among the States" restrict the power to the regulation of the commerce of the States with each other, as separate or dis

all, all, upon this naked Issue of Dismemberment! Mexico would not consent to dismemberment, for a consideration in money, and so the war was begun de novo, and prosecuted at the cost of such a horrible amount of human sacrifice.

and submit--as a lamb submits to the slaughter-to the enforced and enlarged dismemberment of her empire, which we are resolved to complete and execute. All that is asked of her is, that she shall allow us, without gainsaying or resistance, to appropriate to ourselves, including Texas, only a little more than half of her territorial empire; we generously consenting that, for the present, she shall keep what is left. She has offered us enough for ample indemnity; but she must give us the rest, according to our demands, or suffer the horrors of an eternal war in the vital parts of her country!

What will Congress do on this great theme and subject? Near the close of the last session the Whigs in both Houses-in the Senate, on the motion of Mr. BERRIEN, from the South; in the House, on the motion of Mr. WINTHROP, from the North

We are already beyond the limits of the proper space allotted for this article, and we must hasten to a conclusion, before we have half finished what we would have said about the President's Message and the War. The Message shows us plainly enough what perplexity the President has suffered, since he has found, what all considerate and wise men understood before, that Mexico is no nearer submitting to his demand for her dismemberment, now that her capital has fallen, than she was before. Let the country ponder well what he has finally brought his courage up to propose as the future policy to be pursued. Instead of moderating his demands, he ac-voted in solid column, with only one tually proposes to enlarge them. He now demands Lower California with the rest. He now calls upon Congress to aid him, by legislative acts and ample military supplies, in appropriating permanently to ourselves, and without any reference to Mexican consent, both the Californias, the whole of New Mexico, and the tract between the Nueces and Bravo. Of course, they can only be appropriated as countries conquered in war. And we are not to content ourselves with taking, and governing, and defending these countries, but we must still prosecute the war, "with increased energy and power in the vital parts of the enemy's country." We must hold her other towns and provinces, so far as already overpowered, and as many more as we can yet conquer, by military occupation, and we must try to feed our armies on the substance of the Mexican people. And all this we must do, in order to compel Mexico to cease her resistance to us, and consent

nominal exception in each House, for re-
stricting the Executive in the conduct of
the war, so that it should not be prosecuted
for the dismemberment of Mexico. The
Whigs in the present Congress will not for-
get this example. Can there be a sane
man in Congress, or in the country, who
has the true honor and the safety of the
country at heart, and is governed by any
notions of common justice, who will not
say, with Texas yielded and the vexed
question of Annexation at rest; with the
broad desert between the Nueces and the
Bravo for a boundary and frontier separa-
ting Texas from Mexico; and with five de-
grees, or 190,000 square miles, of the ter-
ritory of Upper California for our indem-
nity, including the finest harbor and bay
in that part of the Pacific; that we ought
to have peace with Mexico? God help
this infatuated country, if peace may not be
embraced and secured on the offer of such
terms as these!
D. D. B.

MR. CALHOUN'S REPORT

ON THE MEMPHIS

MEMORIAL.

SENATE OF THE UNITED STATES, JUNE 26, 1846.

THE proceedings of the Convention at Chicago in July last, and the hope founded upon them of an early and favorable action of Congress on the subject of river and harbor improvements, give a new interest to what has heretofore been said and written, touching the extent of the power of Congress in making the desired appropriations. In this connection, several of the doctrines advanced by Mr. Calhoun, in his Report to the Senate on the Memorial of the Memphis Convention, hold a conspicuous place; and, from the character of their author, as well as the novelty and importance of the principles presented, are worthy of a special examination. Such an examination we propose to give, prefacing what we may offer with a brief abstract of so much of the Report as comes within my purpose.

Convinced of the importance of the navigation of the Mississippi and its great tributaries, and of the indispensable necessity of removing the obstructions to them, Mr. Calhoun raises the inquiry, by whom these obstructions shall be removed. “Who,' he asks, “has the power, and whose duty is it, to improve the navigation of the Mississippi and its great tributaries?" He answers: "It is certainly not that of individuals. Its improvement is beyond their means and power. Nor is it that of the several States bordering on its navigable waters: it is also beyond their means and power, acting separately. Nor can it be done by their joint action. There are sixteen States, and two Territories that soon will be States, lying either wholly or partly within the valley of the Mississippi, and there is still ample space for several more. These all have a common interest in its commerce. Their united and joint action would be requisite for the improvement of its navigation. But the only means by

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which that could be obtained is expressly prohibited by the 10th section of the 1st article of the Constitution, which provides that No State shall enter into any treaty, alliance, or confederation.' But if neither individuals nor States, acting separately or jointly, have the power to improve its navigation, it must belong to the Federal Government, if the power exists at all, as there is no other agency or authority, in our system of government, by which it could be exercised. But if it does, it must be comprised among the expressly granted or enumerated powers, or among those necessary and proper to carry them into effect; as under the one or the other all the powers belonging to it are to be found; and thus the question is presented for consideration-is it to be found in either?”

Whether the needful power be found in either the express or implied powers, the Report proceeds to consider; and after denying that it is to be found in the clause giving to Congress the power “to levy and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States," or that it is to be found in the category of necessarily implied powers, it expresses the opinion, "after full and mature consideration of the subject," that it is to be found in the power "to regulate commerce with foreign nations and among the several States," and more specifically, in that to regulate it among the States. After expressing this opinion of the existence and origin of the power, the Report goes on to explain what the Committee "believe to be the nature and extent of the power;" and, on this point, the Committee are of opinion that the words "among the States " restrict the power to the regulation of the commerce of the States with each other, as separate or dis

tinct communities, to the exclusion of its regulation within their respective limits, except as far as may be indispensable to its due exercise. Their effect, in other words, is, to restrict the power delegated to Congress to regulate commerce among the States, to their external commerce with each other as States; and to leave their internal commerce, with the exception above stated, under the exclusive control of the several States respectively.

In reference to the extent of the power conferred on Congress by a fair interpretation of the terms "regulate commerce," within the restriction above indicated, as imposed by the terms "among the States," the Committee are of opinion, "that they confer upon it all the powers which belonged to them (the terms) as fully as the States themselves possessed it, except such, if there be any, as may be prohibited by the Constitution from being exercised, either expressly or impliedly." On this assumption, and on further inquiry, "what powers the States were accustomed to exercise in regulating their commerce, before and at the time of the adoption of the Constitution, as far as they relate to its safety and facility," the Committee find that "the powers they exercised for that purpose were restricted to the establishment of light-houses, buoys, beacons, and public piers ;" and that these powers were exercised by the several States, up to the period referred to, along the Atlantic coast. The Committee hence conclude, that the same powers legitimately belong to Congress, as conferred by the terms "regulate commerce;" and that "Congress, from the beginning of the government until the present time," have exercised them accordingly.

Having fixed the subjects upon which Congress might legitimately exercise the power "to regulate commerce," along the Atlantic coast, the Committee proceed to inquire whether the Mississippi might be brought within the power, so that " snags and other obstructions which endanger and impede its navigation," might be constitutionally removed; and after elaborate argument, they express themselves of the opinion that that river is within the principle of the power, and that it "extends to the removal of all obstructions within its channel, the removal of which would add

to the safety and facility of its navigation." They are also of opinion that it "extends to the removal of like obstructions in its navigable tributaries, including such as have three or more States bordering on their navigable waters, but not to those whose navigable waters are embraced within one, or, farthest, two States."

In further prosecution of their inquiries, as to the objects of the power "to regulate commerce," the Committee proceed "to consider whether harbors, or canals around falls or other obstructions of the Mississippi, including its great tributaries (thereby meaning those bordered by three or more States,) are embraced in the power;" and they come to the conclusion, “that harbors, except for shelter, are not" within the power; and that the cutting of canals or the construction of roads around falls, &c., are also excluded from it.

From the abstract of the Report thus given, it appears, that the Committee concede the power to Congress, of river and harbor improvements in its general principle, but encumber it with such modifications in the application of it, as to deprive it largely of its value. It may well be regretted, that a mind so ingenious, and, in general, so sound, in vindicating a principle of such transcendent moment as the author of the Report admits the one in question to be, should not have been able so to present it in its applications, as to make it as broad in its operation to do good, as it is obviously capable, in itself, of doing it.

We propose to discuss and to controvert the three following propositions presented in the abstract :

:

1. That the constitutional power of Congress "to regulate commerce among the States," by the removal of obstructions from navigable waters, does not extend to those waters which run within only one State.

2. That it does not extend to those confined to two States, whether dividing or flowing through them.

3. That it does not extend to the construction of harbors for commerce, but only those for shelter.

A fourth proposition, viz., that the pow er does not extend to the cutting of canals, or the construction of roads around falls, shoals, or other obstructions or impedi

ments to navigation, &c., has, in its principle, for years, been so much, and in such various forms, before the public, that I should deem its discussion superfluous here, and shall therefore omit it.

As to the first proposition, that the power does not extend to rivers running in only one State: It will be remembered that the Committee has said, in reply to their own question, "Who has the power, and whose duty is it, to improve the navigation. of the Mississippi and its great tributaries?" that "it is certainly not that of individuals, because beyond the reach of their means and power;" nor yet that of the several States bordering on its navigable waters, acting separately, for the same reason; "nor can it be done by their joint action," because they are prohibited by the Constitution from forming any alliance, &c. The Committee then go on to say, that, as the power and duty belong to neither of these, if they belong anywhere, it must be to the Federal Government; and, after much discussion, they find them there, with certain modifications, under the power "to regulate commerce." Now, it is difficult to perceive why this reasoning of the Committee is not, or may not be, just as applicable to the cases of rivers running in one State or two States, as to those of rivers bordered by three States. Rivers under the former class of cases, it is conceded, are just as much open to the commerce of all the States, as those of the latter are, and all the States may be equally interested in the improvement of their navigation; and it is evident that the point of inability to improve the navigation for the want of means, is or may be quite as true (if not more so) of the one class of cases as of the other. It is equally evident, that the failure to improve for want of such means on the part of a single State, in a given case, might not be more inconvenient to such State itself, than to the States generally, whose commerce with such single State, through a river running only within its own limits, requiring improvements to make its navigation practicable, might be of the greatest moment to the general good. Hence, it should seem that, to make such a case an exception to the general power of Congress to make appropriations for river improvements, the argument establishing it should be so certain as

not to admit of reasonable doubt. If there be such doubt, the clearest public good would seem to require, that the benefit of it should be given in favor of the power and against the exception. Do the Committee make out such a case beyond such doubt ? Do they, indeed, give colorable support to their proposition? Let us examine.

Two reasons are offered in support of the proposition:

First. That the power "is restricted to the external commerce of the States, with each other, to the exclusion of their internal;" and,

Second. That the commerce of such rivers is under the exclusive control of the States within whose limits their navigable waters are confined, with two exceptions, viz.: first, "that no vessel from another State, coming or going, can be compelled to enter, clear or pay duties;" and, second, that vessels from other States shall not be subject to any regulation or law in navigating them, to which the vessels of the State to which they belong are not."

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As to the first of these two reasons, I shall consider it as equivalent to another proposition in a previous part of the Report, viz.: that the words "among the States,' restrict the power "to regulate commerce" to "its regulation with each other, as separate and distinct communities, to the exclusion of its regulation within their respective limits, except as far as may be indispensable to its due exercise;" and that, "with this exception, the internal commerce of the States is under the exclusive control of the several States, respectively." Now, upon this proposition I have two remarks to

make :

First. That it would be difficult to find a subject for the exercise of the power "to regulate commerce among the several States," which should not, of necessity, exist within the limits of a single State. It must have a locality somewhere—at least, in its inception-and this cannot be in more States than one. If this be so, the negation, in the proposition, of the power, as to its exercise within the limits of a single State, would seem to be meaningless; and the exception may be regarded as, in fact, an affirmation of the power,-without the limit which the idea of its being an exception would imply.

My second, and, perhaps, more impor

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