from the first, which we deem vital to this of Congress," and you have the naked undiscussion, and which we cannot pass over qualified prohibition thus: "No State shall without notice. Thus, in the first place, enter into any agreement or compact with another." Take from the text that phrase, the Report says, "In order to prevent so important a provision from being eluded, and Mr. Calhoun would hardly be sup(that is, the provision that "no State should posed capable of the absurdity of construenter into any treaty, alliance or confeder- ing the remainder anything but an absolute ation,") the provision immediately under prohibition, much less a limited power. consideration was inserted, prohibiting the And yet, strange as it may seem, he has, States from entering into agreements or in effect, committed this absurdity, by sepcompacts in any case whatever, except one arating, in his paraphrase, that part of the State with another State, or with a foreign sentence which speaks of the prohibitionpower; and to prevent the abuse even of with one exception, creating a limited that limited power, the consent of Congress power-from that part which refers to the is required." Now, here is a jumble and consent of Congress as a restraint, to preconfusion of words and ideas, utterly ama- vent that limited power from being abused. zing in a mind so remarkable for precision He has, in effect, declared, that the words, as Mr. Calhoun's. The text of the Con- No State shall enter into any agreement stitution is, "No State shall, without the or compact with another State," convey a consent of Congress, enter into any agree-grant of power(!), "to prevent the abuse of which, the consent of Congress is rement or compact with another State or with a foreign power." Mr. Calhoun's in- quired." terpretation or paraphrase of this text is, that the States are prohibited from entering into any agreements or compacts in any case whatever, "except one State with another State, or with a foreign power." This exception in favor of "one State with another State," &c., he calls a "limited power," to prevent the abuse of which the "consent of Congress " is required. The text declares a prohibition with a qualification, viz., the consent of Congress. The interpretation declares a limited power with a restraint, viz., the consent of Congress; and what is very curious is, that this very element in the text, viz., the consent of Congress, which imposes this restraint, is the very source from which the power restrained is derived. For, take away from the text the phrase," without the consent which, expressly or by implication, that distinction can be sustained; and, if he cannot show it, as he most assuredly cannot, then we are at liberty to place the two cases on precisely the same ground, as regards the power of Congress to regulate commerce; and as the Report denies, in the case supposed, that that power would extend to the case of a river borbered by only two States, we, on our part, deny that it extends to the case of one bordered by three. The result is, that in the absence of the exempting and prohibitory clauses in question, the naked power to regulate commerce alone remaining, that power would not extend at all to the improvement of rivers running in one, two, or a dozen States. All the argument of the Report then, in favor of the general proposition of the power of Congress to facilitate commerce by removing impediments to navigation, drawn from the power to regulate commerce, must fall to the ground. This conclusion, the author of the Report could But the whole idea of a grant of limited power, or power in any sense, is quite absurd. It must be observed, that the terms of the clause are prohibitory and not permissive. A State shall not do a certain thing, without consent of Congress-not a State may do a certain thing, with such consent. The purpose of the clause is to deny a power, not to grant one; to prevent something from being done, not to promote it; and the consent of Congress, if given, must be considered as given against a rule and Hence the power not as fulfilling one. which a State might exercise with the consent of Congress, is, to all practical intents, dead, until such consent be asked and given; and therefore the clause, until such consent be asked, in a given case, must be regarded as though it were not in the not, of course, have thought of; and yet, it is believed, cannot be escaped. For if the proposition of the Report be correct, that the power of Congress over rivers bordered by three States is derived from the power to regulate commerce, and if the power over rivers confined to two States, in the absence of the exempting and prohibitory clauses, is, in fact, referable to the same source, it follows that the latter power, if it exist anywhere, belongs as well to Congress as the former; which latter proposition the Report, in effect, denies. Now, to escape the dilemma, the Report must either abandon what it claims in reference to three States, or yield what it denies in reference to two; and if the prohibitory clause, relied upon to prove the power wanting in the one case, shall be conclusive to that end, then the power in the other must share the same fate, and river and harbor improvements, under the auspices of the nation, be dispensed with altogether. Constitution. Now the whole assumption | utterly gratuitous; without a word in the of the Report assumes the reverse of this; for, in making the qualified prohibition of two States to enter into an agreement, in relation to a river confined within them, to work the effect of taking from Congress all power over such river, is in effect to assume that such qualified prohibition was in fact no prohibition, but an affirmative power; that the prohibition at most was merely nominal; as though the consent would certainly be asked if it were wanted, and granted if it were asked. The case would be different if the power, instead of being prohibited without the consent of Congress, had been given unless prohibited by Congress. In the last case, a State might act unless stopped; in the first, it could not act unless permitted. The first case might of itself furnish no absolute refutation of the proposition of the Report; the last, in our judgment, if there be any such thing as inconsistency of ideas, makes it impossible that the proposition should be true. To conclude, in a word, this point in the discussion, our proposition would be this: that the power to "enter into treaties, alliances and confederations," and the power" to make agreements and compacts," both existed in the States anterior to the Constitution; but that instrument prohibited the former absolutely, and the latter, except when all the States, through Cengress, should assent. But something worthy of attention still remains in the paragraph in hand. The Committee having found an exception to the prohibition, in favor of "one State with another State," feel bound to give a reason for it. That reason is, that, without the exception, "the prohibition would substitute the federal authority for that of the States for the adjustment and regulation of all the various subjects in which the several States may have an interest in adjusting and regulating, including such as the one under consideration, and thereby would give greater extension and minuteness to the authority of the Federal Government, than was desirable or consistent with the objects for which it was instituted." This language is cool and oracular-uttered, evidently, as though felt to be undeniable, and intended clearly to be impressed as by authority. Now, we affirm every syllable of it to be Constitution to sustain it, or a thought in the necessity of the case to suggest it. It defines what is "desirable or consistent with the objects for which the Federal Government was instituted," in reference to its "authority," by a purely arbitrary rule, and one, (in its application to two States as distinguished from three or more, as the objects of the exception,) without even the semblance of a reason. If the argument from " greater extension and minuteness,' had any force, it must apply to subjects matter of authority, and not to the parties, whether two States or three, that might be interersted in them. For nothing can be clearer, than that the authority of the Federal Government, in the adjusting and regulating of various objects "in which the several States may have a mutual interest," may be quite as important, in given instances, in its exercise upon two States as three; and any discrimination between them, such as the Report proposes, might, and probably would, often work the rankest injustice, if not the greatest danger. But as the proposition is offered without support, I may leave it, without further comment, to fall by its own weight. A single other matter in the paragraph under consideration, is entitled to notice. Under the exception," the paragraph goes on to say, "it is left to the States, when only two are interested in the navigation of a river, or on any other subject, to take it under their own exclusive jurisdiction and control by an agreement or compact between them, with the consent of Congress." With the consent of Congress! But suppose this consent in a given case should be refused? A work of vital moment to the two States-perhaps to the Uniongoes unaccomplished. The States cannot do it, because Congress will not permit them to make a compact; and Congress cannot do it, because their power to permit the States to do it operates a prohibition to themselves. There can be no escape from this dilemma, except by assuming that the consent of Congress would be always, in all cases, certain; which would be, virtually, to annihilate the clause in the Constitution that requires it. This effect must, of course, make such an assumption inadmissible in practice, as it certainly is in theory. Now, can a result such as this, in the action of this government, be regarded in any other light than as destroying all claim to confidence in any proposition that shall lead to it? We trust our system is not quite so weak, puerile and, we may add, unworthy, as the truth of such a proposition would presuppose it. In our judgment, the point is worthy of serious discussion, only in consideration of the source from which it comes. We here close what we designed to offer upon the two paragraphs of the Report, whether singly or together; but before leaving the second general proposition which we undertook to discuss, and upon which the two paragraphs referred to have so material a bearing, we shall offer a few general reasons why, in our judgment, that proposition cannot be sustained. First. It is, to our mind, a most serious objection to the doctrine of the Report, that it is of indefinite application as to the subjects of it. It will be observed that the Report specifically applies the operation of the clause, "No State shall, without the consent of Congress, enter into any agreement or compact with another," only to the power of Congress "to regulate commerce." Now are there not other provisions of the Constitution to which that operation may be applied with just as much propriety as to this? We maintain that there are; and in this, we are borne out by the Report itself, when it declares that there are "various subjects in which the several States are mutually interested in adjusting and regulating," which come within its doctrine. Now there are, at least, a dozen of these "various subjects" which might be mentioned, in entire consistency with the reasoning and admission of the Report, and coming within the doctrine; but we shall name only one. How, then, for instance, stands the clause, that "vessels bound to or from one State, shall not be obliged to enter, clear or pay duties in another?" To our mind, the application of the principle in question to this clause, forming an exception to it, would be just as legitimate, as it is to the clause giving to Congress the general power to regulate commerce: nay, even more so; for there is a reason of high justice for its application in the former case, if it be applicable in the latter, in the fact, that as, by its latter application, the two States interested are deprived of the aid of the General Government in necessary improvements of a river for navigation, they would clearly be entitled to levy duties upon vessels coming from other States, in order to supply the means of making such improvements themselves. This power of levying duties, in the case supposed, is manifestly sustained by the just principle of compensation; for, as other States have the advantage of a navigation, made practicable and useful by the sole means of the two States, they are, in equity, bound to contribute in the only way they can, to reimburse those two States the expenditures to which they have been subjected for the general accommodation. Now is Mr. Calhoun prepared for a consequence like this, of the doctrine of his Report? We apprehend not. Nevertheless, we see not how he can escape it, unless by assuming the Constitution to be a mere convenience, to suit particular occasions, such as caprice may select, or a miserable jumble of contradictions, denying the uniform and equal justice which it professes to secure. Second. In connection with the objection just offered, and without the advantage of the exception suggested in it, in favor of the power of two States, in the case supposed, to levy duties, &c., it may be urged as a conclusive and overwhelming argument against the proposition of the Report, that its operation would work the most monstrous injustice upon the States to which its principle would attach. Two States, for instance, as New-York and New-Jersey, border upon the same river. This river is open to the commercial enterprise of all the other States; thousands of the inhabitants of the latter States trace their fortunes to the navigation of it; the nation at large, by universal consent, derive annually millions of profit from it; and yet the two States, at an enormous annual expense, and by a standing compact, (Congress kindly consenting to it,) must keep such river in order! the common national purse giving back nothing of the enormous gains thus constitutionally realized by the whole confederacy, from the constitutional plunder of a part! And more and worse than all this: when the two States implore of the nation relief from such a load of injustice, they are insultingly told that, to relieve them, would be to interfere with their State rights! They have exclusive | the reasoning of the Report, founded on control of the river; and any interference of Congress to remove obstructions from it, for the general good, would be an outrage upon their proper State dignity and honor. We have heard much of State rights, and of nullification to vindicate them. The Report introduces us to a new category-State wrongs; but says nothing of nullification to redress them! A third objection is, that the proposition of the Report, ascribing the control of Congress over rivers bordered by three States to the power to regulate commerce, cannot stand consistently with the proposition under consideration. It will be observed that the whole force of the argument of the Report, for the discrimination which it sets up between three States and two, in regard to the power of Congress over rivers, turns upon the assumption that two States may make a compact, but that three or more cannot. It follows, hence, that if three or more States could make a compact, their case in regard to the power in question would stand upon the same ground that the case of two does; and, as the Report excludes the latter from the power, it must necessarily exclude the former also. Now if the "treaty, alliance and confederation" clause were not in the Constitution, it is admitted that three or more States might make a compact, as well as two; and that, hence, in such case, the power in question would be no more applicable to the case of rivers in three or more States, than to that of rivers confined to two. Now, the necessary effect of this view is, to make the power ascribed to Congress over rivers bordered by three or more States, to come, in point of fact, from the "treaty, alliance and confederation" clause. But the Report, in terms, ascribes the power the clause giving to Congress the power "to regulate commerce among the States." Now, it is quite clear that the power cannot come from both of these clauses; much less, sometimes from the one, and sometimes from the other, as may suit the convenience of some present purpose. It must come certainly, definitely, and under all relations, from only one of them, if it comes from either. Now this power comes from the clause "to regulate commerce," or it does not. If it does, then to the "treaty, alliance and confederation" clause, must fall to the ground. But the reasoning of the Report, upon the matter under consideration, consciously or unconsciously to its author, presupposes that clause, as is shown above; and therefore, for all the purposes of this argument, the clause "to regulate commerce" must be considered as inapplicable. And hence, as without the "treaty, alliance and confederation" clause, three or more States might make a compact; and as it is, according to the Report, because two States may make a compact under the "agreement and compact" clause, that Congress is denied the power over rivers confined to such two States; it follows, that, in the absence of the "treaty, alliance and confederation" clause, (three States being, in such case, enabled to make a compact,) the power of Congress over rivers bordered by such other States, must be denied also the clause "to regulate commerce notwithstanding. "to Now, this reasoning, to make the Report consistent, requires that it shall abandon either its proposition that the power of Congress over rivers running in three States or more, comes from the clause " regulate commerce," or the proposition under discussion-which claims that that power does not extend to cases of rivers running in only two States. Which of the two propositions the Report shall abandon, remains for itself to say. Our purpose alone is to prove, that its adherence to the first proposition is a conclusive objection to the tenableness of the last. A fourth objection to the proposition under consideration is, that it assumes a reading of the " agreement and compact clause, which is not borne out by the good sense of the case, or by acknowledged rules of legal interpretation. This reading limits the application of the clause to two States only, where there is every reason for applying it to all of them. When it is said that " No State shall, without the consent of Congress, enter into agreements or compacts with another," we understand the meaning to be, that the States, generally, are prohibited from making agreements with each other, in any number, whether two or ten, without the consent of Congress. This view, we say, is clearly sustained by the obvious reasons for the insertion of the clause, as already explained; these reasons being just as applicable to any other number of States as to two. It is as clearly borne out by acknowledged rules of legal interpretation; for should a law declare that "no man shall do this or that thing," without a certain penalty, every lawyer must say, that it is not one man merely that is embraced in the provision, but every combination of men, no matter what the number who might, by violating such provision, come within its bearing. The clause in question, we maintain, stands on the same ground. We proceed now to the third proposition of the Report which we proposed to consider, viz.: That the power "to regulate commerce cannot be exercised in the construction of harbors for commerce, but only those for shelter. Three arguments are urged by the Report in support of this proposition: First, that the States, in the exercise of the power of regulating commerce, never extended it to the improvement or constrnction of harbors for commerce-neither subsequent to, nor before the Revolution, while colonies. This, if true, is an extraordinary fact; but the inference drawn from it is more extraordinary still. No one will be so absurd as to say, that harbors are not indispensable to commerce. The question then is, who shall build them? Undoubtedly the public, through its proper government. You cannot expect individuals to do it, it being "beyond their means." Each of the States, then, certainly after the commencement of the Revolution, and before the adoption of the Constitution, must have had the power to build them; and if they did not exercise the power, it was not because they did not possess it, but because they had no occasion to use it. They probably had harbors enough already, and which had grown at different points on the Atlantic coast so gradually, as that their growth was not particularly observed, and made no mark in the history of the times. There certainly were harbors then as there are now; and they were built by somebody; and to say that the particular State governments did not build them, is to say what all rational probabilities pronounce to be untrue. But, at any rate, it is no necessary, or at least, conclusive argument against the existence of a power, that it is not exercised; especially in a case like this, where the necessity of its exercise, in the infant growth of a continent of States, must be so infrequent compared with the whole extent of country, as to make no distinct impression when it occurred. The States, then, we hold, must have possessed the power to build commercial harbors at the period of the adoption of the Constitution; and being so possessed by them, it must, according to the admission of the Report, have passed over to the present national government, under the power "to regulate commerce. The second argument of the Report against the power of Congress to build harbors for commerce, viz., that they must necessarily be located within the limits of individual States, and therefore be controlled by them, has already been answered in what we have said in relation to the regulation of commerce within the limits of a single State. A harbor must have a locality within a single State, or nowhere. And to say that because it is so, therefore it is not a proper subject of congressional legislation, is simply to beg the question; and there we leave it. The third argument, viz., that the Constitution discriminates between the powers of a State to levy duties on imports and exports on the one hand, and on tonnage on the other, giving the net proceeds of the first to the national treasury, and reserving those of the last to the treasury of the State, appears to me to be founded in perfectly arbitrary conjecture, sustained neither by the history of the government, nor the reason of the thing. There are a hundred purposes to which a tonnage duty might be applied with equal propriety as to that of building harbors; and it is worthy of a moment's thought, that harbors must be built before the duty can be levied; so that the question stands open for discussion before the fact can exist upon which the argument is predicated. Why it should be assumed and asserted as a fact that the tonnage duty which might be levied by a State, was intended for the single purpose of building harbors, and for no other, we cannot comprehend; and before we will believe the fact, we demand the proof; and until this comes, we shall regard the assertion of it as |