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economical, and ready means of supply, either to meet expenses, or to avert calamities, or to save the country from an undue depression of its staple productions. The government of the United States has, on several occasions in times of profound peace, obtained large loans, among which a striking illustration of the economy and convenience of such arrangements will be found in the creation of stock on the purchase of Louisiana. The power to borrow money by the United States cannot (as has been already seen) in any way be controlled, or interfered with by the States. The granting of the power is incompatible with any restraining or controlling power; and the declaration of supremacy in the Constitution is a declaration that no such restraining or controlling power shall be exercised.1
$ 1056. The next power of Congress is, “ to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."
§ 1057. The want of this power (as has been already seen) was one of the leading defects of the confederation, and probably, as much as any one cause, conduced to the establishment of the Constitution. It is a power vital to the prosperity of the Union ; and without it the government would scarcely deserve the name of a national government, and would soon sink into discredit and imbecility. It would stand as a mere shadow of sovereignty, to mock our hopes, and involve us in a common ruin.
1 Weston v. City Council of Charleston, 2 Peters’s R. 449, 468. [See also Bank of Commerce v. *New York City, 2 Black, 620; Bank Tar Case, 2 Wall. 200 ; Van Allen v. Assessors, 3 Wall. 573 ; People v. Commissioners, 4 Wall. 244; Bradley v. People, Id. 459; The Banks v. The Mayor, 7 Wall. 16; Bank v. Supervisors, Id. 26.]
2 Gibbons v. Ogden, 9 Wheat. R. 1, 225, Johnson J.'s Opinion ; Brown v. Juryland, 12 Wheat. R. 445, 446. [“ This government,” said Mr. John Randolph, “grew out of the necessity, indispensable and unavoidable, in the circumstances of this country, of some general power, capable of regulating foreign commerce.” * The proximate as well as the remote cause of the existence of the federal government was the regulation of foreign commerce." “If the old Congress had possessed the power of laying a duty of ten per cent. ad valorem on imports, this Constitution would never have been called into existence.” Speech on Internal Improvements, Garland's Life of Randolph, II. 205. “ Maritime defence, commercial regulation, and national revenue were laid at the foundation of the national compact. They are its leading principles, and the cause of its existence. They were primary considerations, not only with the convention which framed the Constitution, but also with the people when they adopted it. They were the objects, and the only important objects, to which the States were confessedly incompetent. To effect these by the means of a national government was the constant, the prevalent, the exhaustless topic of those who favored the adoption of the Constitution.” Webster, Life of, by Curtis, I. 103. See also Id. II. 601, 602; Webster's Works, II. 174; IV. 492, 494 ; Life, &c., of Sam. Adams, by Welles, III. 249.]
$ 1058. The oppressed and degraded state of commerce, previous to the adoption of the Constitution, can scarcely be forgotten. It was regulated by foreign nations with a single view to their own interests; and our disunited efforts to counteract their restrictions were rendered impotent by a want of combination. Congress, indeed, possessed the power of making treaties; but the inability of the federal government to enforce them had become so apparent, as to render that power in a great degree useless. Those who felt the injury arising from this state of things, and those who were capable of estimating the influence of commerce on the prosperity of nations, perceived the necessity of giving the control over this important subject to a single government.
It is not, therefore, matter of surprise, that the grant should be as extensive as the mischief, and should comprehend all foreign commerce, and all commerce among the States.
$ 1059. But this subject has been already so much discussed, and the reasons for conferring the power so fully developed, that it seems unnecessary to dwell further upon its importance and necessity. In the convention there does not appear to have been any considerable (if, indeed, there was any) opposition to the grant of the power. It was reported in the first draft of the Constitution exactly as it now stands, except that the words, “and with the Indian tribes,” were afterwards added; and it passed without a division.
§ 1060. In considering this clause of the Constitution several important inquiries are presented. In the first place, what is the natural import of the terms; in the next place, how far the power is exclusive of that of the States ; in the third place, to what purposes and for what objects the power may be constitutionally applied ; and, in the fourth place, what are the true nature and extent of the power to regulate commerce with the Indian tribes.
1 The Federalist, No. 4, 7, 11, 22, 37.
2 Brown v. State of Maryland, 12 Wheat. R. 419, 445, 446; 1 Tuck. Black. Comm. App. 248 to 252; 1 Amer. Museum, 8, 272, 273, 281, 282, 288; 2 Amer. Museum, 263 to 276 ; Id. 371, 372; The Federalist, No. 7, 11, 22; Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828; 5 Marshall's Life of Washington, ch. 2, p. 74 to 80; 2 Pitkin's Hist. 189, 192.
3 The Federalist, No. 7, 11, 12, 22, 41, 42.
§ 1061. In the first place, then, what is the constitutional meaning of the words, “ to regulate commerce ;” for the Constitution being (as has been aptly said) one of enumeration, and not of definition, it becomes necessary, in order to ascertain the extent of the power, to ascertain the meaning of the words.1 The power is to regulate ; that is, to prescribe the rule by which commerce is to be governed. The subject to be regulated is commerce. Is that limited to traffic, to buying and selling, or the interchange of commodities? Or does it comprehend navigation and intercourse? If the former construction is adopted, then a general term applicable to many objects is restricted to one of its significations. If the latter, then a general term is retained in its general sense. To adopt the former, without some guiding
. grounds furnished by the context, or the nature of the power, would be improper. The words being general, the sense must be general also, and embrace all subjects comprehended under them, unless there be some obvious mischief or repugnance to other clauses to limit them. In the present case there is nothing to justify such a limitation. Commerce undoubtedly is traffic; but it is something more. It is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches; and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation ; which shall be silent on the admission of the vessels of one nation into the ports of another; and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling, or barter.3
$ 1062. If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government; it has been exercised with the consent of all America ; and it has been always understood to be a commercial regulation. The power over navigation, and over commercial intercourse, was one of the primary objects for which the people of America adopted their government; and it is impossible that the
1 Gibbons v. Ogden, 9 Wheat. R. 189.
2 9 Wheat. R. 196. 3 Gibbons v. Ogden, 9 Wheat. 189, 190; Id. 229, 230.
convention should not so have understood the word "commerce, as embracing it. Indeed, to construe the power, so as to impair its efficacy, would defeat the very object for which it was introduced into the Constitution ;? for there cannot be a doubt, that to
2 exclude navigation and intercourse from its scope would be to entail upon us all the prominent defects of the confederation, and subject the Union to the ill-adjusted systems of rival States, and the oppressive preferences of foreign nations in favor of their own navigation 3
§ 1063. The very exceptions found in the Constitution demonstrate this ; for it would be absurd, as well as useless, to except from a granted power that which was not granted, or that which the words did not comprehend. There are plain exceptions in the Constitution from the power over navigation, and plain inhibitions to the exercise of that power in a particular way. Why should these be made, if the power itself was not understood to be granted ? The clause already cited, that no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another, is of this nature. This clause cannot be understood as applicable to those laws only which are passed for purposes of revenue, because it is expressly applied to commercial regulations; and the most obvious preference, which can be given to one port over another, relates to navigation. But the remaining part of the sentence directly points to navigation. “ Nor shall vessels, bound to or from one State, be obliged to enter, clear, or pay duties in another." + In short, our whole system for the encouragement of navigation in the coasting trade and fisheries is exclusively founded upon this supposition. Yet no one has ever been bold enough to question the constitutionality of the laws creating this system.
*$ 1064. Foreign and domestic intercourse has been universally understood to be within the reach of the power. How, other
19 Wheat. R. 190, 191; Id. 215, 216, 217; Id. 229, 230; 1 Tuck. Black. Comm. App. 249 to 252. 2 12 Wheat. R. 446.
3 1 Tuck. Black. Comm. App. 247, 248, 249. 4 9 Wheat. R. 191.
59 Wheat. R. 191, 215, 216; North River Steamboat Company v. Livingston, 3 Cowen's R. 713. (The views expressed in the text are fully supported by the recent cases of Pennsylvania v. Wheeling and Belmont Bridge Co., 13 How. 515; Gilman v. Philadelphia, 3 Wall. 713; and other cases referred to in the note to § 1072, post.]
wise, could our systems of prohibition and non-intercourse be defended ? From what other source has been derived the power of laying embargoes in a time of peace, and without any reference to war or its operations ? Yet this power has been universally admitted to be constitutional, even in times of the highest political excitement. And although the laying of an embargo in the form of a perpetual law was contested as unconstitutional, at one period of our political history, it was so not because an embargo was not a regulation of commerce, but because a perpetual embargo was an annihilation, and not a regulation of commerce. It may, therefore, be safely affirmed that the terms
1 9 Wheat. 191, 192, 193 ; 1 Kent's Comm. Lect. 19, p. 404, 405; The Brigantine William, 2 Hall's Law Journal, 265; Sergeant on Const. ch. 28, p. 290, &c.; post, § 1285 to § 1287. [See also 3 Bradford's History of Massachusetts, 108. Mr. Randolph was also disposed to question the constitutionality of the embargo except as an incipient war measure. See Garland's Life of Randolph, I. 269. Mr. Webster says: “No doubt a great majority of the people of New England conscientiously believed the embargo law of 1807 unconstitutional. They reasoned thus : Congress has power to regulate commerce ; but here is a law, they said, stopping all commerce, and stopping it indefinitely. The law is perpetual ; that is, it is not lim'ited in point of time, and must of course continue until it shall be repealed by some other law. It is as perpetual, therefore, as the law against treason or murder. Now, is this regulating commerce, or destroying it? Is it guiding, controlling, giving the rule to commerce as a subsisting thing, or is it putting an end to it altogether?” Webster's Works, III. 327. Connected with this subject is an exceedingly interesting episode in the life of Mr. Samuel Dexter. He was employed in the embargo cases before Judge Davis. “On those occasions the constitutionality of the embargo law came up, as a matter of course, and Mr. Dexter's arguments upon that question were very elaborate. Judge Davis decided in favor of the constitutionality of the embargo law; and that decision was afterwards confirmed by the highest authority. Mr. Dexter, probably, never argued more entirely in conformity with his solemn convictions, than when he contended that this extremely unpopular law was a violation of the Constitution. The decision of this question was of the highest importance. Bonds had been given, under the provisions of this law, to an enormous amount; and the penalties were now claimed by the government.
“ After Judge Davis had decided that the law was constitutional, and before that decision had been confirmed by a higher tribunal, Mr. Dexter persisted in arguing the question of constitutionality to the jury, notwithstanding the remonstrances of the bench. At length Judge Davis, under some excitement, and after repeated admonitions, said to Mr. Dexter, that if he again attempted to raise that question to the jury, he should feel it to be his duty to commit him for contempt of court. A solemn pause ensued ; all eyes were turned towards Mr. Dexter. With great calmness of voice and manner, he requested a postponement of the cause until the following morning. The judge assented; some other matter was taken up, and Mr. Dexter left the court-room.
“On the following morning there was a full attendance of persons anxious to witness the result of this extraordinary collision between the advocate and the judge. Being asked if he was ready to proceed with the cause on trial the preceding day,