« AnteriorContinuar »
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 discriminating navigation charges'? Vessels go from one State to another, through any river that may be navigable, whether running 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 control of that State? Such control, at the most, could be only nominal. Nay, it would jnot be control, but, in fact, a liability on the part of such State to keep such rivers in navigable order, at its own expense, if kept in such order at all.
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, canmt 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 mike 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.
They (the Committee) allude to that which provides that no State shall, without the consent of Congress, enter into any agreement or compact 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 framen 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 importanl a provision from being eluded, the provision immediately under consideration was inserted prohibiting the States from entering into agree ment8 or compacts in any case whatever, ex cept one State with another State, or withi foreign power; and to prevent the abuse evei of that limited power, the consent of Congres is required. Such is the prohibition and th reason for it. The reason for the exception u that without it the prohibition would suwtmit the federal authority for that of the State for the adjustment and regulation of all » various subjects in which the several Stati may have a mutual interest in adjusting aj regulating, including such as the one und consideration; and thereby would give grait extension and minuteness to the authority the General Government than was desirable consistent with the objects for which it was' stituted. Under the exception, it is left to I States, when only two are interested in I navigation of a river, or any other object, take it under their own jurisdiction and cont by an agreement or compact between th with the consent of Congress; as much so it would be under that of one if it was c fined exclusively to one instead of extend to two."
My main purpose, in reference to th two paragraphs, is to discuss them gether, with a view to the effect of the c nection of the two prohibitory clauses the Constitution referred to in them support the proposition under consideral
In the second paragraph, then, the thor asserts, that in order to undersl the proper meaning of the clause,' State shall, without the consent of ( gress, enter into any agreement or < pact with another State," and its bet upon the point under consideration, necessary to consider it in connection another provision of the Constitution, viding that "no State shall enter into treaty, alliance, or confederation." The two clauses considered together, then, are thus: Fi if, "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 fraraers 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 !«? 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 rea->on, 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 ibis 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, sad <*f 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 connecinm 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 »s to the "bearing" upon that " point" of the clause, "No State shall, without the wmseat 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 clsiises, that this "bearing" can have no other relation to this " point" than as it refers to the distinction between the power "f Congress over rivers bordered by three States, and the want of that power over nvrs confined to two. For, as the Rep,r; 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, hare 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, toC, 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, and the only qualified prohibition in the other: the first putting negotiations for treaties, alliances and confederations—importing the relations of peace, war, and the largest range of international politics— entirely beyond the power of the States, even with the consent ef 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 cognizance. 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.
But, if these views be just; if there be nothing in the reason presented by the Report for the insertion of the clause in question; and if it be true, that the two prohibitory clauses refer to entirely different objects, and have no more relation to each other than any other two independent clauses in the Constitution; then it is clear, that their connection together in this discussion sheds no light upon the matter which the Report intends to illustrate, and fails to establish the proposition which it affirms.
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
rest. But there are some matters in the second paragraph,* standing separately
♦There is also a matter in the Jirtt paragnpS, which, though not, as we conceive,vital lo the disco.sion, we stillregard as worthy of attention, cithern conveying* a doctrine singularly erroneous, or as betraying a looseness of thought or a slovenline* <i expression, quite discreditable, in my judgment, to the author of the Report. A careful analysis of ibis first paragraph gives the following proposition, tit, that the provision of the Constitution exempun' vessels bound to or from one State, from enterini, clearing or paying duties in another, would bniz all such streams as are confined to two States exclusively under the control of the Federal Government as much 60 as the Mississippi itself, so faraslhpower to regulate commerce is concerned, tarti! nor for another provision of the Constitution, previding that "no State shall, without the consentci Congress, enter into any agreement or compac with another State." Now the author may no mean what this language clesirly imports; but, i he does, it appears to me to contain a most extraot dinary statement, leading to a result more eitrwl dinary still; for, unless we greatly .misapprehend thi language, such result must be in direct conflict mi the previous proposition of the Report, elaimingth control of the Mississippi and all its navigable tnbi times, bordered by three States, as coming withi the power of Congress " to regulate commerce, This will appear from what follows.
We understand the statement, then, to affirm tn things:
f\rsl, that were it not for the prohibitory clam quoted in it, Congress would have the exclusi' control over such streams as are bordered by on two States; and, ucond, that this control won come, not from the power to regulate commer< buf from the clause exempting vessels going fra one State to another, from payment of duties, 6t And as the control thus ascribed to Congress, a so originating, would be possessed, as the propo tion declares, to the same extent as over "1 Mississippi itself," we might suppose, without at thing further, that it was intended to ascribe power of controlling the Mississippi itself to the empting clause also. But it will be remembe that, in a preceding part of the Report, the con over the Mississippi is ascribed to the powet regulate commerce, without any allusion lo the empting clause. Supposing the Report to m this, and supposing also the prohibitory clause al> quoted out of the way, the proposition makes control which Congress would, in such case, h oyer rivers confined to two States, to stand u different ground from that which it has over ri' extending to more States than two. And henci the proposition, in reference to the power in first class ol cases, assumes the exempting claus its proper source, and in connection with it, cifically bases the distinction, giving the eontr Congress over rivers bordered by three States the one hand, and denying that control over ri confined to two States, on the other, upon the ground of the clause that " no State ■ball, -wit the consent of Congress, enter into an ei ment or compact with another State," it rmis low, as the opinion of the Report, that, in th« sence of both the exempting and prohibitory els from the Constitution, the power of Cong-re: regulate commerce would extend only to r bordered by three States, to the exclusion of t confined lo two or only one. Now, as this tinction precedes all discussion of the effect of t? the exempting or prohibitory clauses, we hi right lo demand, especially of a ttrkt construcli, that he show us that clause of the Constituti, from the first, which we deem vital to this discussion, and which we cannot pass over without notice. Thus, in the first place, the Report says, "In order to prevent so important a provision from being eluded, (that is, the provision that " no State should enter into any treaty, alliance or confederation,") the provision immediately under consideration was inserted, prohibiting the States from entering into agreements or compacts in any case whatever, except one State with another State, or with a foreign Vower.' .*"<* to prevent the abuse even of that limited power, the consent of Congress is required.' Now, here is a jumble and confusion of words and ideas, utterly amaang in a mind so remarkable for precision «s Mr. Calhoun's. The text of the Constitution is, "No State shall, without the consent of Congress, enter into any agreement or compact with another State or with a foreign power." Mr. Calhoun's interpretation or paraphrase of this text is, that the States are prohibited from entering into any agreements or compacts in My case whatever, "except one State with another State, or with a foreign power." This exception in favor of '* one State with another State," Ac, 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 » 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
wtiicfa, expressly or bv implication, that distinction Cm or sustained ; and, if he cannot show it, as he ncv assuredly cannot, then we are at liberty to place !w<k eawrs on PTec,8*h' 'he nme ground, as rerinls the ]»wfr of Congress to regulate commerce; • nil a> the Report denie«, in the case supposed, that 2iinW'r ToM "Wd to the case of a river bordered by only two Stales, we, on our part, deny that it extends to the case of one bordered by three. The resalii is. that in the absence of the exempting and prohibitory clauses m question, the naked power to re 211 .air commerce alone remaining, that nower »r*ild not oxtend at ad to the improvementofriverf rennoH in one two, or a dozen States. All the arginrai of the Report then, in favor of the general propoaiiion of the power of Congress to facilitate raauu-ree by removing impediments to navigation, drawn from the power to regulate commerce, must tall u> the ground. Tai« conclusion, the author of the Report could
of Congress," and you have the naked unqualified prohibition thus: "No State shall enter into any agreement or compact.with another." Take from the text that phrase, and Mr. Calhoun would hardly be supposed capable of the absurdity of construing the remainder anything but an absolute prohibition, much less a limited power. And yet, strange as it may seem, he has, in effect, committed this absurdity, by separating, in his paraphrase, that part of the sentence which speaks of the prohibition— with one exception, creating a limited power—from that part which refers to the consent of Congress as a restraint, to prevent that limited power from being abused. He has, in effect, declared, that the words, "No State shall enter into any agreement or compact with another State," convey a grant of power(!), "to prevent the abuse of which, the consent of Congress is required."
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 not as fulfilling one. Hence the power 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, it 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 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 sucli 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 Congress, 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
utterly gratuitous; without a word in the 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 tubjtttt mailer of authority, and not to the parlief, 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 sup^ port, I may leave it, without further com ment, to fall by its own weight.
A single other matter in the paragrapl under consideration, is entitled to notirt "Under the exception," the paragrap goes on to say, "it is left to the State when only two are interested in the navigi tion of a river, or on any other subject,' take it under their own exclusive jurisdi tion and control by an agreement or cor pact between them, with the consent Congress." With the consent of Congres But suppose this consent in a given a should be refused? A work of vital mome to the two States—perhaps to the Union
foes unaccomplished. The States cam o it, because Congress will not pen them to make a compact; and Congr cannot do it, because their power to p mit the States to do it operates a proh tion to themselves. There can be escape from this dilemma, except by suming that the consent of Congress wc be always, in all cases, certain; wl would be, virtually, to annihilate the cli in the Constitution that requires it.' effect must, of course, make such an assu tion inadmissible in practice, as it certa is in theory. Now, can a result sucl