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The proceedings of the Convention at which that could be obtained is expressly Chicago in July last, and the hope found- prohibited by the 10th section of the 1st ed upon them of an early and favorable ac- article of the Constitution, which provides tion of Congress on the subject of river and that ‘No State shall enter into any treaty, harbor improvements, give a new interest alliance, or confederation. But if neither to what has heretofore been said and writ- | individuals nor States, acting separately or ten, touching the extent of the power of jointly, have the power to improve its Congress in making the desired appropri- navigation, it must belong to the Federal ations. In this connection, several of the Government, if the power exists at all, as doctrines advanced by Mr. Calhoun, in his there is no other agency or authority, in our Report to the Senate on the Memorial of system of government, by which it could the Memphis Convention, hold a conspicu- be exercised. But if it does, it must be ous place; and, from the character of their comprised among the expressly granted or author, as well as the novelty and impor- enumerated powers, or among those netance of the principles presented, are cessary and proper to carry them into efworthy of a special examination. Such fect; as under the one or the other all the an examination we propose to give, prefa- powers belonging to it are to be found ; cing what we may offer with a brief abstract and thus the question is presented for conof so much of the Report as comes within sideration—is it to be found in either ?” my purpose.
Whether the needful power be found in Convinced of the importance of the nav- either the express or implied powers, the igation of the Mississippi and its great tribu- Report proceeds to consider; and after detaries, and of the indispensable necessity of nying that it is to be found in the clause removing the obstructions to them, Mr. giving to Congress the power “to levy and Calhoun raises the inquiry, by whom
these collect taxes, duties, imposts and excises, to obstructions shall be removed. “Who,' pay the debts and provide for the common he asks, “ has the power, and whose duty defence and general welfare of the United is it, to improve the navigation of the Mis- States,” or that it is to be found in the sissippi and its great tributaries ?" He an- category of necessarily implied powers, it swers: “It is certainly not that of indi- expresses the opinion, « after full and maviduals. Its improvement is beyond their ture consideration of the subject," that it means and power. Nor is it that of the is to be found in the power “ to regulate several States bordering on its navigable commerce with foreign nations and among waters : it is also beyond their means and the several States," and more specifically, power, acting separately. Nor can it be in that to regulate it among the States. done by their joint action. There are six- After expressing this opinion of the exislteen States, and two Territories that soon ence and origin of the power, the Report will be States, lying either wholly or partly goes on to explain what the Committee within the valley of the Mississippi, and “ believe to be the nature and extent of the there is still ample space for several more. power;" and, on this point, the ComThese all have a common interest in its mittee are of opinion that the words commerce. Their united and joint action among the States” restrict the power to would be requisite for the improvement of the regulation of the commerce of the its navigation. But the only means by States with each other, as separate or dis
VOL. I, NO, I, NEW SERIES.
“ to regu
tinct communities, to the exclusion of its to the safety and facility of its navigation.” regulation within their respective limits, They are also of opinion that it “extends except as far as may be indispensable to its to the removal of like obstructions in its due exercise. Their effect, in other words, navigable tributaries, including such as is, to restrict the power delegated to Con- have three or more States bordering on their gress to regulate commerce among the navigable waters, but not to those whose States, to their external commerce with navigable waters are embraced within one, each other as States; and to leave their or, farthest, Iwo States.” internal commerce, with the exception In further prosecution of their inquiries, above stated, under the exclusive control as to the objects of the power of the several States respectively.
late commerce," the Committee proceed to In reference to the extent of the power consider whether harbors, or canals around conferred on Congress by a fair interpreta- falls or other obstructions of the Missistion of the terms "regulate commerce," sippi, including its great tributaries (thereby within the restriction above indicated, as meaning those bordered by three or more imposed by the terms “among the States,” States,) are embraced in the power ;” and the Committee are of opinion, “ that they | they come to the conclusion,“ that harbors, confer upon it all the powers which be- except for shelter, are not” within the powlonged to them (the terms) as fully as the er; and that the cutting of canals or the States themselves possessed it, except such, construction of roads around falls, &c., are if there be any, as may be prohibited by also excluded from it. the Constitution from being exercised, From the abstract of the Report thus either expressly or impliedly.” On this given, it appears, that the Committee conassumption, and on further inquiry, “what cede the power to Congress, of river and powers the States were accustomed to ex- harbor improvements in its general princiercise in regulating their commerce, before ple, but encumber it with such modificaand at the time of the adoption of the tions in the application of it, as to deprive Constitution, as far as they relate to its it largely of its value. It
well be resafety and facility," the Committee find gretted, that a mind so ingenious, and, in that “the powers they exercised for that general, so sound, in vindicating a principurpose were restricted to the establish- ple of such transcendent moment as the ment of light-houses, buoys, beacons, and author of the Report admits the one in public piers ;” and that these powers were question to be, should not have been able exercised by the several States, up to the so to present it in its applications, as to period referred to, along the Atlantic coast. make it as broad in its operation to do The Committee hence conclude, that the good, as it is obviously capable, in itself, of same powers legitimately belong to Con- doing it. gress, as conferred by the terms “regulate We propose to discuss and to controvert commerce;" and that “ Congress, from the the three following propositions presented beginning of the government until the in the abstract:present time,” have exercised them accord 1. That the constitutional power of Coningly.
gress “to regulate commerce among the Having fixed the subjects upon which States,” by the removal of obstructions Congress might legitimately exercise the from navigable waters, does not extend to power "to regulate commerce,” along the those waters which run within only one Atlantic coast, the Committee proceed to State. inquire whether the Mississippi might be 2. That it does not extend to those conbrought within the power, so that “snags fined to two States, whether dividing or and other obstructions which endanger and flowing through them. impede its navigation,” might be constitu 3. That it does not extend to the contionally removed ; and after elaborate ar struction of harbors for commerce, but only gument, they express themselves of the those for shelter. opinion that that river is within the princi A fourth proposition, viz., that the pow. ple of the power, and that it "extends to er does not extend to the cutting of canals, the removal of all obstructions within its or the construction of roads around falls, channel, the removal of which would add shoals
, or other obstructions or impedi
ments to navigation, &c., has, in its princi- not to admit of reasonable doubt. If there ple, for years, been so much, and in such be such doubt, the clearest public good various forms, before the public, that I would seem to require, that the benefit of it should deem its discussion superfluous here, should be given in favor of the power and and shall therefore omit it.
against the exception. Do the Committee As to the first proposition, that the pow- make out such a case beyond such doubt ? er does not extend to rivers running in only Do they, indeed, give colorable support to one State: It will be remembered that their proposition ? Let us examine. the Committee has said, in reply to their Two reasons are offered in support of own question, “Who has the power, and the proposition : whose duty is it, to improve the navigation first. That the power “is restricted to of the Mississippi and its great tributaries ?" the external commerce of the States, with that “it is certainly not that of individu- each other, to the exclusion of their interals, because beyond the reach of their nal;” and, means and power;" nor yet that of the Second. That the commerce of such rivseveral States bordering on its navigable ers is under the exclusive control of the waters, acting separately, for the same rea States within whose limits their navigable son; “nor can it be done by their joint waters are confined, with two exceptions, action,” because they are prohibited by the viz. : first, “ that no vessel from another Constitution from forming any alliance, &c. State, coming or going, can be compelled The Committee then go on to say, that, as to enter, clear or pay duties ;” and, second, the power and duty belong to neither of “that vessels from other States shall not these, if they belong anywhere, it must be be subject to any regulation or law in navito the Federal Government; and, after gating them, to which the vessels of the much discussion, they find them there, State to which they belong are not.” with certain modifications, under the pow
As to the first of these two reasons, I er “to regulate commerce.” Now, it is shall consider it as equivalent to another difficult to perceive why this reasoning proposition in a previous part of the Report, of the Committee is not, or may not be, viz. that the words “among the States, just as applicable to the cases of rivers restrict the power “ to regulate commerce” running in one State or two States, as to those to “its regulation with each other, as sepaof rivers bordered by three States. Rivers rate and distinct communities, to the excluunder the former class of cases, it is conce sion of its regulation within their respective ded, are just as much open to the commerce limits, except as far as may be indispensable of all the States, as those of the latter are, to its due exercise;" and that, “ with this and all the States may be equally interested exception, the internal commerce of the in the improvement of their navigation ; States is under the exclusive control of the and it is evident that the point of inability several States, respectively.” Now, upon to improve the navigation for the want of this proposition I have two remarks to means, is or may be quite as true (if not make : more so) of the one class of cases as of First. That it would be difficult to find a the other. It is equally evident, that the subject for the exercise of the power “ to failure to improve for want of such means regulate commerce among the several on the part of a single State, in a given States,” which should not, of necessity, case, might not be more inconvenient to exist within the limits of a single State. It such State itself, than to the States gen- must have a locality somewhere—at least, erally, whose commerce with such single in its inception—and this cannot be in more State, through a river running only within States than one. If this be so, the negaits own limits, requiring improvements to tion, in the proposition, of the power, as to make its navigation practicable, might be its exercise within the limits of a single of the greatest moment to the general State, would seem to be meaningless; and good. Hence, it should seem that, to the exception may be regarded as, in fact, make such a case an exception to the gen an affirmation of the power,—without the eral power of Congress to make appropri- limit which the idea of its being an excepations for river improvements, the argu- tion would imply. ment establishing it should be so certain as My second, and, perhaps, more impor
tant remark upon this proposition, would tion, foreign or domestic, must have its be, that as it stands in the Report, it in- origin, as has already been intimated, in volves a confusion of ideas; which appears some single spot or State ; and, if it is inthus: The power given to Congress is, tended by the operator to go beyond the " to regulate commerce among the States." State, it is equally clear that he is entitled Of course, these terms exclude the power to the benefit of national legislation, " to to regulate the commerce of a single State regulate” his case, as making a part of the within its own limits; and yet we are told commerce with foreign nations or among that this latter power exists, as far as it the several States, for which the Constitumay be indispensable to the due exercise of tion has provided. There will, of course, the former !" This must be the meaning be instances innumerable, of commercial of the Report ; for, in the point in hand, operations intended to terminate within no distinction is made between internal the State in which they have originated. and external commerce, as respects opera- These are admitted, nay, claimed, to be tions within a single State. Now, we deny exclusively subjects of State legislation. that the power exists in Congress, at all, But a rule is necessary to discriminate beor for any purpose, to regulate the com tween the two classes of cases, that we merce of a single State, within its own lim- may know when to apply the power and its, as such; and the confusion of ideas in when not; and, for this purpose, we can volved in the proposition of the Report, perceive or imagine no other rule, than consists in this: that it makes an act of that afforded by the intentions of the parCongress, executed, within the limits of a ties as carried out and proved, either by a single State, with a view to the external transmission of operations beyond the limcommerce of such State with other States, its of the State, on the one hand, or a reto be an act so far regulating the internal tention and consummation of them within commerce of such State itself. Now, such these limits, on the other. In the one case, an act can, in no conceivable bearing, be it is commerce with foreign nations or so construed or regarded; for, the com among the several States; in the other, it mercial operation to which it applies must is not. In the one case, the congressional take its character as an operation of internal power applies; in the other, not. And or external commerce, from its purpose ; when a river, improved by act of Conand this, by the supposition, looks exclu- gress, though running within only a single sively to a commerce beyond the State in State, (as the James in Virginia, or the which it is performed.
Penobscot, or Kennebec, in Maine,) is used Our proposition, on this subject, would for the transportation of articles of combe this: that whatever legislation, to be merce beyond the limits of the State, then carried out, for the regulation of commerce the appropriation for such improvement is within the limits of a single State, is con- brought within the power to regulate comnected with, or bears upon, the promotion merce with foreign nations and among the of commerce outside those limits, must be several States. considered as embraced within the power If these views be sound, then, although the "to regulate commerce with foreign na proposition, that the power to regulate tions and among the several States.” | commerce “is restricted to the external Hence, any appropriation made by Con commerce of the States with each other, gress for the improvement of a river run to the exclusion of their internal," be in ning in only one State, the object of which itself true, yet it is not true as a reason would be, to promote the commerce of that why that power does not apply as well to State with other States, or with foreign an improvement of a river running in only nations, would manifestly be within the one State, as to that of a river running Constitution. This the Report denies, in through half a dozen. Whether such its general proposition, that the power of improvement shall come within the power Congress to improve rivers, does not ex or not in a given case, must depend upon tend to rivers running in only one State. whether the river requiring it shall, or shall But this denial, in our judgment, cannot not, be navigable for the general commerce be sustained. For one thing is quite clear, of the States. And this would be as true that every instance of commercial opera- of a river running through a dozen States,
as we hold it to be of a river running through Constitution ; second, it is essentially emonly one. Its national navigability, so to braced within the proper business of reguspeak, and not its locality, in either case, lating commerce, which, being exclusively whether bordered on by one State or a in Congress, is prohibited to the States. dozen, must determine its claim to national As to the second exception, it is clearly means for its improvement under the entitled to no force, because the power
depower to regulate commerce.
nied by it to a State, would be as fully We come now to the second reason for the prohibited in the exclusive power in Confirst proposition. It is stated in the form gress to regulate commerce, as it possibly of a rule, with two exceptions to it. The could be by the provision of immunity to rule, as stated, is, that the commerce of the citizens of each State in every other such rivers (as run within one State only) State, on which the Report professes to is under the exclusive control of the States found it. For, any discrimination in the within whose limits their navigable waters rights of navigation in a particular State, are confined. The exceptions are, first, between the citizens of such State and the " that no vessel from another State, com citizens of other States, would be obviously ing or going, can be compelled to enter, an exercise of the power to regulate comclear or pay duties ;” and second, that merce; and hence, the exception, from “ vessels from other States shall not be whatever provision of the Constitution it subject to any regulation or law in navigat- may be drawn, may properly, if not only, ing them, to which the vessels of the State be regarded, as a limitation upon the power to which they belong are not.”
of Congress to regulate commerce. The Now, this second reason (thus stated in effect, then, of the exceptions is, not to prethe form of a rule) is, without the excep vent a Ståte from doing a thing which, tions, merely a corollary from the first; without them, it might have done, (for for, if the power of Congress be denied the subject matter of the exceptions being over rivers running only in one State, the exclusively in Congress, a State could not, exclusive power of the State over such as has been seen, have done such a thing rivers must, of consequence, be admitted ; at any rate ;) but simply and only to imand hence, all the argument just presented pose particular limitations upon the legisagainst the first reason, must be of equal lation of Congress, which, without these force against the second, unless the sec- limitations, the general power to regulate ond, as a rule, be placed upon different commerce would have authorized. The ground from the first by the exceptions States therefore stand, with the prohibiconnected with it. These exceptions could tions, precisely where they would have give that different ground, only by their stood without them. Hence, the second effect to establish the rule, of which they reason in support of the general proposi
proof, and which they profess tion being entirely unaffected by the exto qualify. Have the exceptions that ceptions connected with it, leaves it liable, effect? We think not, for two reasons : as we have said, to all the objections urged first, because the rule and the exceptions against the first,-being a mere corollary do not belong to the same category; and from it. But, second, because, if they did, the exceptions Second. Admitting the reason and the are co-extensive with the rule, and by neu- prohibitions to belong to the same category; tralizing, destroy it.
admitting that they sustain to each other Firsi. The rule and the exceptions do not the relation of such exceptions; that the belong to the same category. The ex- prohibitions refer to the power of the ceptions are stated, as though they were States over their internal commerce, and limitations to the power of a State in the not to the power of Congress “ to regulate control of its rivers, &c.; whereas, as to commerce among the States ;” still, the the first of them, it is clearly only a limit- fact that everything is comprehended ation of the general power of Congress within the exceptions which could be ne"to regulate commerce.” This appears cessary to a free and unlimited commerce from two considerations : first, that it is among the States, makes the exceptions as found under the limitations of the powers broad as the rule, and, of course, nullifies it. of Congress in the arrangement of the What more, indeed, is necessary to a per