Imágenes de páginas
PDF
EPUB

tant remark upon this proposition, would be, that as it stands in the Report, it involves 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, does 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 can perceive or imagine no other rule, than that afforded by the intentions of the parties as carried out and proved, either by a transmission of operations beyond the limits of the State, on the one hand, or a retention and consummation of them within these limits, on the other. In the one case, it is commerce with foreign nations or among the several States; in the other, it is not. In the one case, the congressional power applies; in the other, not. when a river, improved by act of Congress, though running within only a single State, (as the James in Virginia, or the Penobscot, or Kennebec, in Maine,) is used for the transportation of articles of commerce beyond the limits of the State, then the appropriation for such improvement is brought within the power to regulate commerce with foreign nations and among the several States.

And

If these views be sound, then, although the proposition, that the power to regulate commerce "is restricted to the external commerce of the States with each other, to the exclusion of their internal," be in itself true, yet it is not true as a reason why that power does not apply as well to an improvement of a river running in only one State, as to that of a river running through half a dozen. Whether such improvement shall come within the power or not in a given case, must depend upon whether the river requiring it shall, or shall not, be navigable for the general commerce of the States. And this would be as true of a river running through a dozen States,

as we hold it to be of a river running through only one. Its national navigability, so to speak, and not its locality, in either case, whether bordered on by one State or a dozen, 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 rule, as stated, is, that the commerce of such rivers (as run within one State only) is under the exclusive control of the States within whose limits their navigable waters are confined. The exceptions 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 navigating them, to which the vessels of the State to which they belong are not."

Now, this second reason (thus stated in the 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 exceptions. are co-extensive with the rule, and by neutralizing, destroy it.

First. The rule and the exceptions do not belong to the same category. The exceptions are stated, as though they were limitations to the power of a State in the control of its rivers, &c.; whereas, as to the first of them, it is clearly only a limitation of the general power of Congress "to regulate commerce." This appears from two considerations: first, that it is found under the limitations of the powers of Congress in the arrangement of the

[ocr errors]

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 exception, 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, have 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. 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,

The

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 States;" still, the fact that everything is comprehended within the exceptions which could be necéssary 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

1

fectly free and unlimited commerce among |
the States, than the liberty of entering any
river or port of any State, without liability
to duty on imports and exports, or to dis-
criminating navigation charges? Vessels
go
from one State to another, through any
river that may be navigable, whether run-
ning in one State only, or in many, and return
again-going as they please, and carrying
what they please, either way. What is this
but the freest commerce among the States?
and, in view of it, of what importance
would be the rule, that rivers running within
a single State are under the exclusive con-
trol of that State? Such control, at the
most, could be only nominal. Nay, it
would not be control, but, in fact, a lia-
bility on the part of such State to keep
such rivers in navigable order, at its own
expense, if kept in such order at all.

They (the Committee) allude to that which pro vides that no State shall, without the consen of Congress, enter into any agreement or com pact with another State; and which of course permits (with such consent) one State to enter into compact or agreement with another.

"To understand the intention of the framers of the Constitution for inserting this provision and its bearing on the point under consideration, it is necessary to view it in connection with another provision of the instrument already cited. They (the Committee) refer to that which prohibits the States from entering into any treaty, alliance, or confederation in any case whatever; plainly because it would be both dangerous and inconsistent with their federal relations to permit it. In order to prevent so important Nay, ita provision from being eluded, the provision immediately under consideration was inserted, ments or compacts in any case whatever, exprohibiting the States from entering into agreecept one State with another State, or with a foreign power; and to prevent the abuse even of that limited power, the consent of Congress is required. Such is the prohibition and the reason for it. The reason for the exception is, that without it the prohibition would substitute for the adjustment and regulation of all the the federal authority for that of the States, various subjects in which the several States may have a mutual 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 General Government than was desirable or stituted. Under the exception, it is left to the consistent with the objects for which it was inStates, when only two are interested in the navigation of a river, or any other object, to take it under their own jurisdiction and control, by an agreement or compact between them with the consent of Congress; as much so as it would be under that of one if it was confined exclusively to one instead of extending to two."

So much for the first proposition and the reasons offered to support it. We think we have shown the reasons to be utterly destitute of substance, and of course that the proposition, at least as depending upon these reasons, cannot be sustained.

The second proposition is, that the constitutional power of Congress over river obstructions, does not extend to such rivers as are confined to two States, whether dividing or running through them. We would here remark, that the whole of the preceding argument is as applicable to this second proposition as to the first; for if Congress have the power within one State, they must of course have it where two are concerned.

In order to understand the argument in support of this second proposition, and the commentary we shall make upon it, it is proper that we should quote at length the two following paragraphs from the Report:

"The case of a river whose navigable waters are confined to two States, whether dividing or flowing through them, requires more particular and full explanation. The provision of the Constitution, already cited, which exempts vessels bound to or from one State from entering, clearing, or paying duties in another, would make all streams, in effect, common highways of all the States, and bring them exclusively

under the control of the Federal Government, as far as the power to regulate commerce among the States is concerned-as much so, indeed, as the Mississippi itself-were it not for another provision in the same instrument.

My main purpose, in reference to these two paragraphs, is to discuss them together, with a view to the effect of the conthe Constitution referred to in them, to nection of the two prohibitory clauses of support the proposition under consideration.

In the second paragraph, then, the author asserts, that in order to understand the proper meaning of the clause, "No State shall, without the consent of Congress, enter into any agreement or compact with another State," and its bearing upon the point under consideration, it is necessary to consider it in connection with another provision of the Constitution, providing that "no State shall enter into any

treaty, alliance, or confederation." The two clauses considered together, then, are thus: Fist, No State shall enter into any treaty, alliance, or confederation." Second, "No State shall, without the consent of Congress, enter into any agreement or compact with another State." Now, the connection of these two clauses together, has, as is declared in the Report, a twofold object: first, the intention of the framers of the Constitution for the insertion of the clause in question, (that is, the first of the clauses above quoted;) and second, to show the bearing of that clause on the point under consideration.

As to the first of these objects, it will be observed, that the reason, and the sole reason, given by the Report for the insertion of the last clause as above quoted, was to prevent the elusion of the first. This reason, of course, logically implies that the first clause comprehended all that was expressed in the second, but which, not being expressed in the first, might be eluded. But this reason could not be the true one; for if it were, the last clause would simply say, "No State shall enter into any agreement or compact with another," without adding, "without the consent of Congress.' This addition carries the clause beyond the reason asserted for the introduction of it, and of course indicates some other reason for it than that affirmed by the Report. What that other reason is, will appear directly.

As to the second object of the connection of the two clauses, viz., to show the bearing of the last clause upon the point under consideration, it will be borne in mind that the "point under consideration" is, that the constitutional power of Congress does not extend to such rivers as are confined to two States; and the inquiry is as to the "bearing" upon that "point" of the clause, "No State shall, without the consent of Congress, enter into any agreement or compact with another State." Now, it is evidently the meaning of the Report, in the connection of the two clauses, that this "bearing" can have no other relation to this "point" than as it refers to the distinction between the power of Congress over rivers bordered by three States, and the want of that power over rivers confined to two. For, as the Report assumes the existence of the power

in the first class of cases, the distinction must presuppose that the clause was inserted with a sole reference to two States, and of course can be applicable to no possible case that shall be predicated of them. This distinction is evidently deduced by the Report from such a reading of the two clauses as makes their terms reciprocally equivalent, and their objects identical. Now we deny the correctness of this reading, and maintain that the terms, "treaty, alliance and confederation," in the one clause, have an entirely different meaning, and refer to entirely different subjects matter, from the terms "agreement and compact" in the other. We maintain that a larger meaning and application were intended by the former terms than by the latter; that the terms "compact and agreement," referred to minor matters of arrangements between the States, such as regulations of mutual police, boundary, jurisdiction, &c.; and that the terms "treaty, alliance and confederation," referred to the higher negotiations of international diplomacy; the first being permitted with the consent of Congress, and the last absolutely prohibited with or without such

consent.

That the reading of the two clauses here suggested is the true one, appears to us to be sustained by several obvious considerations. In the first place, we would say, that the detached form in which the two clauses are presented, affords the strongest prima facie evidence that they referred to entirely different subjects; and that if the one had been intended as a qualification of the other, it would have been so expressed. The distinction, too, between foreign relations and home relations, as predicable of the several States, was a sufficient reason for the insertion of the two clauses: the first clause using terms suited to the diplomatic dignity, and the last clause, the domestic simplicity, of the classes of subjects to which they respectively referred. And then, again, the qualification, "with the consent of Congress," in the one clause, and the absence of that or any other qualification in the other, cannot leave a doubt that entirely different topics were in the minds of the Convention, in the contemplation of the two clauses, respectively. The matter is made still clearer by considering the wisdom of the distinction between the

unqualified prohibition in the one clause, rest. But there are some matters in the and the only qualified prohibition in the second paragraph,* standing separately other: the first putting negotiations for treaties, alliances and confederations-im

porting the relations of peace, war, and the largest range of international politicsentirely beyond the power of the States, even with the consent of Congress; the last, leaving smaller matters-embracing topics of public convenience, boundaries, local jurisdictions, and the like-subjects to compact or agreement with the consent of Congress. The first were the subjects of unqualified prohibition, because they were of a class of which it could never be proper that any State should take cog nizance. The last were the subjects of qualified prohibition, because they were of a class upon which it might be highly convenient that the States should be at liberty to negotiate, provided the cases made were such as should be justly entitled to the assent of Congress.

Now, this reading of the two clauses makes them entirely independent of each other; and, while it presents in them two substantive and distinct matters, each of moment, for the Constitution to act upon, and furnishes the true reason for the insertion of the "agreement and compact clause, it at the same time vindicates the Convention from the imputation of an afterthought and repetition in one clause, to relieve a slovenly omission or imperfection in another.

There is also a matter in the first paragraph, sion, we still regard as worthy of attention, either as which, though not, as we conceive,vital to thediscusconveying a doctrine singularly erroneous, or as betraying a looseness of thought or a slovenliness of expression, quite discreditable, in my judgment, to the author of the Report. A careful analysis of this first paragraph gives the following proposition, viz., vessels bound to or from one State, from entering, that the provision of the Constitution exempting clearing or paying duties in another, would bring all such streams as are confined to two States exclusively under the control of the Federal Government, as much so as the Mississippi itself, so far as the power to regulate commerce is concerned, were it not for another provision of the Constitution, providing that "no State shall, without the consent of with another State." Now the author may not Congress, enter into any agreement or compact mean what this language clearly imports; but, if he does, it appears to me to contain a most extraordinary statement, leading to a result more extraordinary still; for, unless we greatly misapprehend that language, such result must be in direct conflict with the previous proposition of the Report, claiming the control of the Mississippi and all its navigable tributaries, bordered by three States, as coming within the power of Congress "to regulate commerce." This will appear from what follows.

We understand the statement, then, to affirm two things:

First, that were it not for the prohibitory clause quoted in it, Congress would have the exclusive control over such streams as are bordered by only two States; and, second, that this control would come, not from the power to regulate commerce, but from the clause exempting vessels going from one State to another, from payment of duties, &c. And as the control thus ascribed to Congress, and so originating, would be possessed, as the proposition declares, to the same extent as over the Mississippi itself," we might suppose, without anything further, that it was intended to ascribe the power of controlling the Mississippi itself to the exempting clause also. But it will be remembered that, in a preceding part of the Report, the control over the Mississippi is ascribed to the power to

But, if these views be just; if there be nothing in the reason presented by the Re-regulate commerce, without any allusion to the export for the insertion of the clause in ques-this, and supposing also the prohibitory clause above empting clause. Supposing the Report to mean tion; and if it be true, that the two pro- quoted out of the way, the proposition makes the hibitory clauses refer to entirely different control which Congress would, in such case, have objects, and have no more relation to each different ground from that which it has over rivers over rivers confined to two States, to stand upon other than any other two independent extending to more States than two. And hence, as clauses in the Constitution; then it is clear, the proposition, in reference to the power in the first class of cases, assumes the exempting clause as that their connection together in this dis- its proper source, and in connection with it, specussion sheds no light upon the matter cifically bases the distinction, giving the control of which the Report intends to illustrate, and the one hand, and denying that control over rivers Congress over rivers bordered by three States, on fails to establish the proposition which it confined to two States, on the other, upon the sole affirms. ground of the clause that "no State shall, without the consent of Congress, enter into an agreement or compact with another State," it must follow, as the opinion of the Report, that, in the absence of both the exempting and prohibítory clauses from the Constitution, the power of Congress to regulate commerce would extend only to rivers confined to two or only one. Now, as this disbordered by three States, to the exclusion of those tinction precedes all discussion of the effect of either the exempting or prohibitory clauses, we have a right to demand, especially of a strict constructionist, that he show us that clause of the Constitution by

We have thus far discussed, together, the two paragraphs quoted from the Report, with reference to the effect of the connection of the two prohibitory clauses of the Constitution referred to in them, upon the proposition under consideration; and here, perhaps, so far as the repetition of that proposition is concerned, we might safely

« AnteriorContinuar »