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MR. CALHOUN'S REPORT
ON THE MEMPHIS MEMORIAL.
SENATE OF THE UNITED STATES, JUSE 26, 1846.
The proceedings of the Convention at hicago in July last, and the hope foundd upon them of an early and favorable acK>n of Congress on the subject of river and arbor improvements, give a new interest :> what has heretofore been said and writ'.■a, touching the extent of the power of :<>ngress in making the desired appropritions. In this connection, several of the octrines advanced by Mr. Calhoun, in his leport to the Senate on the Memorial of it- Memphis Convention, hold a conspicuos place; and, from the character of their lilhor, as well as the novelty and imporince of the principles presented, are orthy of a special examination. Such n examination we propose to give, prefaing what we may offer with a brief abstract t so much of the Report as comes within xy purpose.
Convinced of the importance of the navratioo of the Mississippi and its great tribuixies, and of the indispensable necessity of amoving the obstructions to them, Mr. aihoon raises the inquiry, by whom these (otructions shall be removed. "Who," •• attks, "has the power, and whose duty it, to improve the navigation of the Mis^edppi and its great tributaries?" He angers: "It is certainly not that of indi.duals. Its improvement is beyond their i-uins and power. Nor is it that of the ?veral States bordering on its navigable aters: it is also beyond their means and )wer, acting separately. Nor can it be tne by their joint action. There are six-»;n Stales, and two Territories that soon ill be States, lying either wholly or partly ithin the valley of the Mississippi, and v.-re is still ample space for several more. hese all have a common interest in its >mmerce. Their united and joint action ''*ald he requisite for the improvement of -* navigation. But the only means by
VOL. I. HO. I. NEW SERIES. 2
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, thcReport 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 distinct 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 Con
fress to regulate commerce among the tates, 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 remov' of which would add
to the safety and facility of its navigation.' They are also of opinion that it " extend to the removal of like obstructions in it navigable tributaries, including such a have three or more States bordering on thei navigable waters, but not to those whos navigable waters are embraced within m or, farthest, two States."
In further prosecution of their inquirie as to the objects of the power " to regi late commerce,'' the Committee proceed " i consider whether harbors, or canals arour falls or other obstructions of the Miss sippi, including its great tributaries (there! meaning those bordered by three or im States,) are embraced in the power ;" ai they come to the conclusion, " that harbo except for shelter, are not" within the pi er; and that the cutting of canals or t construction of roads around falls, <kc, I also excluded from it.
From the abstract of the Report tl given, it appears, that the Committee c cede the power to Congress, of river; harbor improvements in its general prii pie, but encumber it with such modirj tions in the application of it, as to depi it largely of its value. It may well be gretted, that a mind so ingenious, and general, so sound, in vindicating a pri pie of such transcendent moment as author of the Report admits the on> question to be, should not have been: so to present it in its applications, a: make it as broad in its operation to good, as it is obviously capable, in itsel doing it.
We propose to discuss and to contrc the three following propositions prese in the abstract:—
1. That the constitutional power of'
fress "to regulate commerce amono tates," by the removal of obstruc from navigable waters, does not exter those waters which run within only State.
2. That it does not extend to thost fined to two States, whether dividir flowing through them.
3. That it does not extend to the struction of harbors for commerce, bu those for shelter.
A fourth proposition, vi*., that the er does not extend to the cutting of e or the construction of roads around shoals, or other obstructions or xa ments to navigation, <fec, has, in its principle, for years, been so much, and in such various forms, before the public, that I -hould 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:—
lursl. 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 navi
fiting them, to which the vessels of the tate to which they belong are not."
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 exclu* sion 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 important remark upon this proposition, would be, that as it stands in the Report, it inyolves a confusion of ideas ; which appears thus: The power given to Congress is, "to regulate commerce among the States." Of course, these terms exclude the power to regulate the commerce of a single State within its own limits; and yet we are told that this latter power exists, "as far as it may be indispensable to the due exercise of the former!" This must be the meaning of the Report; for, in the point in hand, no distinction is made between internal and external commerce, as respects operations within a single State. Now, we deny that the power exists in Congress, at all, or for any purpose, to regulate the commerce of a single State, within its own limits, as such ; and the confusion of ideas involved in the proposition of the Report, consists in this: that it makes an act of Congress, executed, within the limits of a single State, with a view to the external commerce of such State with other States, to be an act so far regulating the internal commerce of such State itself. Now, such an act can, in no conceivable bearing, be so construed or regarded; for,' the commercial operation to which it applies must take its character as an operation of internal or external commerce, from its purpose; and this, by the supposition, looks exclusively to a commerce beyond the State in which it is performed.
Our proposition, on this subject, would be this: that whatever legislation, to be carried out, for the regulation of commerce within the limits of a single State, is connected with, or bears upon, the promotion of commerce outside those limits, must be considered as embraced within the power "to regulate commerce with foreign nations and among the several States." Hence, any appropriation made by Congress for the improvement of a river running in only one State, the object of which would be, to promote the commerce of that State with other States, or with foreign nations, would manifestly be within the Constitution. This the Report denies, in its general proposition, that the power of Congress to improve rivers, docs not extend to rivers running in only one State. But this denial, in our judgment, cannot be sustained. For one thing is quite clear, that every instance of commercial opera
tion, foreign or domestic, must have its origin, as has already been intimated, in some single spot or State; and, if it is intended by the operator to go beyond the State, it is equally clear that he is entitled to the benefit of national legislation, "to regulate" his case, as making a part of the commerce with foreign nations or among the several States, for which the Constitution has provided. There will, of course, be instances innumerable, of commercial operations intended to terminate within the State in which they have originated. These are admitted, nay, claimed, to be exclusively subjects of State legislation. But a rule is necessary to discriminate between the two classes of cases, that we may know when to apply the power and when not; and, for this purpose, we car perceive or imagine no other rule, thai that afforded by the intentions of the par ties as carried out and proved, either by: transmission of operations beyond the lim its of the State, on the one hand, or a re tention and consummation of them withi these limits, on the other. In the one cast it is commerce with foreign nations o among the several States; in the other,: is not. In the one case, the congressiom power applies; in the other, not. An when a river, improved by act of Coi gress, though running within only a sing State, (as the James in Virginia, or tl Penobscot, or Kennebec, in Maine,) is us* for the transportation of articles of cor merce beyond the limits of the State, th.. the appropriation for such improvement, brought within the power to regulate coi merce with foreign nations and among t several States.
If these views be sound, then, although t proposition, that the power to regul; commerce "is restricted to the extern commerce of the States with each otri to the exclusion of their internal," V>e itself true, yet it is not true as a re or. why that power does not apply as well an improvement of a river running in o one State, as to that of a river rur»r-> through half a dozen. Whether simprovement shall come within the poor not in a given case, must depend x» whether the river requiring it shall, or si not, be navigable for the general comio.< of the States. And this would be as % of a river running through a dozen St** as we hold it to be of a river running through only one. Its national navigability, so to 'peak, and not its locality, in either case, whether bordered on by one State or a doaen, must determine its claim to national means for its improvement under the power to regulate commerce.
We come now to the second reason for the first proposition. It is stated in the form of a rule, with two exceptions to it. The nde, as stated, is, that the commerce of such rivers (as run within one State only) i* under the exclusive control of the States within whose limits their navigable waters are confined. The exception* are, 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 navigatmg them, to which the vessels of the State to which they belong are not."
Now, this second reason (thus stated in U»e form of a rule) is, without the exceptions, merely a corollary from the first; for, if the power of Congress be denied over rivers running only in one State, the exclusive power of the State over such rivers must, of consequence, be admitted; and hence, all the argument just presented against the first reason, must be of equal force against the second, unless the second, as a rule, be placed upon different ground from the first by the exceptions connected with it. These exceptions could give that different ground, only by their effect to establish the rule, of which they assume the proof, and which they profess to qualify. Have the exceptions that effect? We think not, for two reasons: first, because the rule and the exceptions do not belong to the same category; and second, because, if they did, the eeceptions are co-extensive with the rule, and by neutralizing, destroy it.
First. The rule and the exceptions do not Wong to the same category. The exceptions are stated, as though they were Imitations to the power of a State in the control of its rivers, <fcc.; whereas, as to the first of them, it is clearly only a limitation of the general power of Congress "to regulate commerce." This appears fmni two considerations: first, that it is found under the limitations of the powers <A Congress in the arrangement of the
Constitution; second, it is essentially embraced within the proper business of regulating commerce, which, being exclusively in Congress, is prohibited to the States. As to the second exception, it is clearly entitled to no force, because the power denied by it to a State, would be as fully prohibited in the exclusive power in Congress to regulate commerce, as it possibly could be by the provision of immunity to the citizens of each State in every other State, on which the Report professes to found it. For, any discrimination in the rights of navigation in a particular State, between the citizens of such State and the citizens of other States, would be obviously an exercise of the power to regulate commerce; and hence, the exoeption, from whatever provision of the Constitution it may be drawn, may properly, if not only, be regarded, as a limitation upon the power of Congress to regulate commerce. The effect, then, of the exceptions is, not to prevent a State from doing a thing which, without them, it might have done, (for the subject matter of the exceptions being exclusively in Congress, a State could not, as has been seen, nave done such a thing at any rate ;) but simply and only to impose particular limitations upon the legislation of Congress, which, without these limitations, the general power to regulate commerce would have authorized. The States therefore stand, with the prohibitions, precisely where they would have stood without them. Hence, the second reason in support of the general proposition being entirely unaffected by the exceptions connected with it, leaves it liable, as we have said, to all the objections urged against the first,—being a mere corollary from it. But,
Second. Admitting the reason and the prohibitions to belong to the same category; admitting that they sustain to each other the relation of such exceptions; that the prohibitions refer to the power of the States over their internal commerce, and not to the power of Congress " to regulate commerce among the btates;" still, the fact that everything is comprehended within the exceptions which could be necessary to a free and unlimited commerce among the States, makes the exceptions as broad as the rule, and, of course, nullifies it. What more, indeed, is necessary to a per