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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 the Report says, “In order to prevent so another.” Take from the text that phrase, 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 prohibition-power; 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 ment or compact with another State or of which, the consent of Congress is rewith a foreign power.” Mr. Calhoun's in- quired.” terpretation or paraphrase of this text is, But the whole idea of a grant of limited that the States are prohibited from enter-power, or power in any sense, is quite absurd. ing into any agreements or compacts in It must be observed, that the terms of the any case whatever, “except one State with clause are prohibitory and not permissive. another State, or with a foreign power.” | A State shall nol do a certain thing, wilhThis exception in favor of “one State without consent of Congress—10t a State may another State," &c., he calls a “limited do a certain thing, with such consent. power,” to prevent the abuse of which the The purpose of the clause is to deny a “consent of Congress ” is required. The power, not to grant one; to prevent sometext declares a prohibition with a qualifica- thing from being done, not to promote it ; tion, viz., the consent of Congress. The and the consent of Congress, if given, must interpretation declares a limited power with be considered as given against a rule and a restraint, viz., the consent of Congress ; not as fulfilling one. Hence the power and what is very curious is, that this very which a State might exercise with the conelement in the text, viz., the consent of sent of Congress, is, to all practical intents, Congress, which imposes this restraint, is dead, until such consent be asked and the very source from which the power re- given; and therefore the clause, until such strained is derived. For, take away from consent be asked, in a given case, must be the text the phrase, “without the consent regarded as though it were not in the which, expressly or by implication, that distinction not, of course, have thought of; and yet, it is becan be sustained; and, if he cannot show it, as he Jieved, it cannot be escaped. For if the proposition most assuredly cannot, then we are at liberty to place
that the power of Congress the two cases on precisely the same ground, as re over rivers bordered by three States is derived gards the power of Congress to regulate commerce ; from the power to regulate commerce, and if the and as the Report denies, in the case supposed, that power over rivers confined to two States, in the abthat power would extend to the case of a river bor sence of the exempting and prohibitory clauses, is, bered by only two States, we, on our part, deny that in fact, referable to the same source, it follows that it extends to the case of one bordered by three. The the latter power, if it exist anywhere, belongs as result is, that in the absence of the exempting and well to Congress as the former; which latter propoprohibitory clauses in question, the naked power to sition the Report, in effect, denies. Now, to esregulate commerce alone remaining, that power
cape the dilemma, the Report must either abandon would not extend at all to the improvement of rivers what it claims in reference to three States, or yield running in one, two, or a dozen States. All the ar | what it denies in reference to two; and if the pro. gament of the Report then, in favor of the general hibitory clause, relied upon to prove the power proposition of the power of Congress to facilitate wanung in the one case, shall be conclusive to that commerce by removing impediments to navigation, end, then the power in the other must share the drawn from the power to regulate commerce, musi same fate, and river and harbor improvements, fall to the ground.
under the auspices of the nation, be dispensed with This conclusion, the author of the Report could | altogether.
Constitution. Now the whole assumption / utterly gratuitous; without a word in the of the Report assumes the reverse of this ; Constitution to sustain it, or a thought in for, in making the qualified prohibition the necessity of the case to suggest it. It of two States to enter into an agreement, | defines what is “ desirable or consistent in relation to a river confined within with the objects for which the Federal Gov. them, to work the effect of taking from ernment was instituted,” in reference to its Congress all power over such river, is “authority,” by a purely arbitrary rule, in effect to assume that such qualified pro- and one, (in its application to two States as hibition was in fact no prohibition, but an distinguished from three or more, as the aflirmative power ; that the prohibition at objects of the exception,) without even the most was merely nominal; as though the semblance of a reason. If the argument consent would certainly be asked if it were from “greater extension and minuteness," wanted, and granted if it were asked. had any force, it must apply to subjects The case would be different if the power, inalter of authority, and not to the parties, instead of being prohibiled without the con- whether two States or three, that might sent of Congress, had been given unless be interersted in them. For nothing can be prohibited by Congress. In the last case, clearer, than that the authority of the a State might act unless stopped ; in the Federal Government, in the adjusting and first, it could not act unless permitted. regulating of various objects “in which the The first case might of itself furnish no several States may have a mutual interest," absolute refutation of the proposition of the may be quite as important, in given instanReport ; tlre last, in our judgment, if there ces, in its exercise upon two States as three ; be any such thing as inconsistency of ideas, and any discrimination between them, makes it impossible that the proposition such as the Report proposes, might, and should be true.
probably would, often work the rankest To conclude, in a word, this point in the injustice, if not the greatest danger. But discussion, our proposition would be this : | as the proposition is offered without supthat the power to “enter into treaties, port, I may leave it, without further comalliances and confederations,” and the ment, to fall by its own weight. power“ to make agreements and compacts,” A single other matter in the paragraph both existed in the States anterior to the under consideration, is entitled to notice. Constitution ; but that instrument prohib-“ Under the exception,” the paragraph ited the former absolutely, and the latter, goes on to say, “it is left to the Stat except when all the Stales, through Cun. when only two are interested in the navigagress, should assent.
tion of a river, or on any other subject, to But something worthy of attention still take it under their own exclusive jurisdicremains in the paragraph in hand. The tion and control by an agreement or comCommittee having found an exception to the pact between them, with the consent of prohibition, in favor of “one State with Congress.” With the consent of Congress ! another State,” feel bound to give a reason But suppose this consent in a given case for it. That reason is, that, without the should be refused ? A work of vital moment exception, “the prohibition would substitute to the two States-perhaps to the Union the federal authority for that of the States goes unaccomplished. The States cannot for the adjustment and regulation of all the do it, because Congress will not permit various subjects in which the several States them to make a compact; and Congress may have an interest in adjusting and regula- cannot do it, because their power to perting, including such as the one under con- | mit the States to do it operates a prohibisideration, and thereby would give greater tion to themselves. There can be no extension and minuteness to the authority escape from this dilemma, except by asof the Federal Government, than was desi- suming that the consent of Congress would rable or consistent with the objects for be always, in all cases, certain ; which which it was instituted.” This language is would be, virtually, to annihilate the clause
though felt to be undeniable, and intended effect must, of course, make such an assumpclearly to be impressed as by authority. tion inadmissible in practice, as it certainly Now, we affirm every syllable of it to be is in theory. Now, can a result such as this, in the action of this government, be I interested are deprived of the aid of the regarded in any other light than as General Government in necessary improvedestroying all claim to confidence in any ments of a river for navigation, they would proposition that shall lead to it? We trust clearly be entitled to levy duties upon vesour system is not quite so weak, puerile sels coming from other States, in order to and, we may add, unworthy, as the truth of supply the means of making such improvesuch a proposition would presuppose it. ments themselves. This power of levying In our judgment, the point is worthy of duties, in the case supposed, is manifestly serious discussion, only in consideration of sustained by the just principle of compenthe source from which it comes.
sation ; for, as other States have the adWe here close what we designed to offer vantage of a navigation, made practicable upon the two paragraphs of the Report, and useful by the sole means of the two whether singly or together ; but before States, they are, in equity, bound to conleaving the second general proposition tribute in the only way they can, to reimwhich we undertook to discuss, and upon burse those two States the expenditures to which the two paragraphs referred to have which they have been subjected for the so material a bearing, we shall offer a few general accommodation. Now is Mr. Calgeneral reasons why, in our judgment, that houn prepared for a consequence like this, of proposition cannot be sustained.
the doctrine of his Report ? We apprehend First. It is, to our mind, a most serious not. Nevertheless, we see not how he can objection to the doctrine of the Report, escape it, unless by assuming the Constithat it is of indefinite application as to the tution to be a mere convenience, to suit subjects of it. It will be observed that particular occasions, such as caprice may the Report specifically applies the opera- select, or a miserable jumble of contradiction of the clause, “No State shall, without tions, denying the uniform and equal justhe consent of Congress, enter into any | tice which it professes to secure. agreement or compact with another," only Second. In connection with the objecto the power of Congress “to regulate tion just offered, and without the advancommerce.” Now are there not other tage of the exception suggested in it, in provisions of the Constitution to which favor of the power of two States, in the that operation may be applied with just as case supposed, to levy duties, &c., it may much propriety as to this? We maintain be urged as a conclusive and overwhelmthat there are ; and in this, we are borne ing argument against the proposition of out by the Report itself, when it declares the Report, that its operation would work that there are “ various subjects in which the most monstrous injustice upon the the several States are mutually interested States to which its principle would attach. in adjusting and regulating," which come Two States, for instance, as New-York and within its doctrine. Now there are, at New Jersey, border upon the same river. least, a dozen of these “various subjects ” This river is open to the commercial enterwhich might be mentioned, in entire con- prise of all the other States; thousands of sistency with the reasoning and admission the inhabitants of the latter States trace of the Report, and coming within the doc- their fortunes to the navigation of it; the trine ; but we shall name only one. How, nation at large, by universal consent, derive then, for instance, stands the clause, that annually millions of profit from it; and “vessels bound to or from one State, shall get the two States, at an enormous annual not be obliged to enter, clear or pay duties expense, and by a standing compact, (Conin another ?” To our mind, the applica- gress kindly consenting to it,) must keep tion of the principle in question to this such river in order! the common national clause, forming an exception to it, would purse giving back nothing of the enormous be just as legitimate, as it is to the clause gains thus constitutionally realized by the giving to Congress the general power to whole confederacy, from the constitutional regulate commerce: nay, even more so; plunder of a pari! And more and worse for there is a reason of high justice for its than all this: when the two States implore application in the former case, if it be ap- of the nation relief from such a load of inplicable in the latter, in the fact, that as, justice, they are insultingly told that, to by its latter application, the two States 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 interfer- the “ treaty, alliance and confederation" ence of Congress to remove obstructions clause, must fall to the ground. But the from it, for the general good, would be an reasoning of the Report, upon the matter outrage upon their proper State dignity under consideration, consciously or unconand honor. We have heard much of sciously to its author, presupposes that State rights, and of nullification to vindi- clause, as is shown above; and therefore, cate them. The Report introduces us to a for all the purposes of this argument, the new category-State wrongs; but says clause “ to regulate commerce” must be nothing of nullification to redress them! considered as inapplicable. And hence, as
A third objection is, that the proposi- without the “treaty, alliance and confedtion of the Report, ascribing the control of eration" clause, three or more States Congress over rivers bordered by three might make a compact; and as it is, acStates to the power to regulate commerce, cording to the Report, because two States cannot stand consistently with the propo- may make a compact under the “agreesition under consideration.
ment and compact” clause, that Congress It will be observed that the whole force is denied the power over rivers confined of the argument of the Report, for the dis- to such two States; it follows, that, in the crimination which it sets up between three absence of the “ treaty, alliance and conStates and two, in regard to the power of federation ” clause, (three States being, in Congress over rivers, turns upon the as- such case, enabled to make a compact,) sumption that two States may make a the power of Congress over rivers borcompact, but that three or more cannot.dered by such other States, must be denied It follows, hence, that if three or more also—the clause “ to regulate commerce" States could make a compact, their case in notwithstanding. regard to the power in question would Now, this reasoning, to make the Report stand upon the same ground that the case consistent, requires that it shall abandon of two does; and, as the Report excludes either its proposition that the power of the latter from the power, it must necessa Congress over rivers running in three rily exclude the former also. Now if the States or more, comes from the clause “to "treaty, alliance and confederation" clause regulate commerce," or the proposition were not in the Constitution, it is admitted under discussion—which claims that that that three or more States might make a power does not extend to cases of rivers compact, as well as two; and that, hence, running in only two States. Which of the in such case, the power in question two propositions the Report shall abandon, would be no more applicable to the case remains for itself to say. Our purpose of rivers in three or more States, than to alone is to prove, that its adherence to the that of rivers confined to two. Now, the first proposition is a conclusive objection necessary effect of this view is, to make to the tenableness of the last. the power ascribed to Congress over rivers / A fourth objection to the proposition bordered by three or more States, to under consideration is, that it assumes a come, in point of fact, from the “ treaty, reading of the “agreement and compact” alliance and confederation" clause. But clause, which is not borne out by the good the Report, in terms, ascribes the power to sense of the case, or by acknowledged the clause giving to Congress the power rules of legal interpretation. This reading “to regulate commerce among the States." limits the application of the clause to two Now, it is quite clear that the power can- States only, where there is every reason not come from both of these clauses; for applying it to all of them. When it much less, sometimes from the one, and is said that “No State shall, without the sometimes from the other, as may suit the consent of Congress, enter into agreements convenience of some present purpose. It or compacts with another,” we understand must come certainly, definitely, and under the meaning to be, that the States, generall relations, from only one of them, if it ally, are prohibited from making agreecomes from either. Now this power ments with each other, in any number, comes from the clause " to regulate com- whether two or ten, without the consent merce," or it does not. If it does, then of Congress. This view, we say, is clearly
sustained by the obvious reasons for the conclusive argument against the existence insertion of the clause, as already explain- of a power, that it is not exercised; espeed; these reasons being just as applicable cially in a case like this, where the necessity to any other number of States as to two. of its exercise, in the infant growth of a It is as clearly borne out by acknowledged continent of States, must be so infrequent rules of legal interpretation ; for should a compared with the whole extent of counlaw declare that “no man shall do this or try, as to make no distinct impression that thing," without a certain penalty, every when it occurred. The States, then, we lawyer must say, that it is not one man hold, must have possessed the power to merely that is embraced in the provision, build commercial harbors at the period of but every combination of men, no matter the adoption of the Constitution; and being what the number who might, by violating so possessed by them, it must, according to such provision, come within its bearing the admission of the Report, have passed The clause in question, we maintain, stands | over to the present national government, on the same ground.
under the power “to regulate commerce.” We proceed now to the third proposition The second argument of the Report of the Report which we proposed to con- against the power of Congress to build sider, viz. : That the power “ to regulate | harbors for commerce, viz., that they commerce” cannot be exercised in the must necessarily be located within the construction of harbors for commerce, but limits of individual States, and therefore only those for shelter.
be controlled by them, has already been Three arguments are urged by the Re- answered in what we have said in relation to port in support of this proposition: First, the regulation of commerce within the that the States, in the exercise of the limits of a single State. A harbor must power of regulating commerce, never ex- have a locality within a single State, or tended it to the improvement or constrnc- nowhere. And to say that because it is tion of harbors for commerce-neither sub- so, therefore it is not a proper subject of sequent to, nor before the Revolution, while congressional legislation, is simply to beg colonies. This, if true, is an extraordinary the question; and there we leave it. fact; but the inference drawn from it is The third argument, viz., that the more extraordinary still. No one will be Constitution discriminates between the so absurd as to say, that harbors are not powers of a State to levy duties on imindispensable to commerce. The question ports and exports on the one hand, and on then is, who shall build them ? Undoubt-tonnage on the other, giving the net proedly the public, through its proper gov- ceeds of the first to the national treasury, ernment. You cannot expect individuals and reserving those of the last to the to do it, it being “beyond their means.” treasury of the State, appears to me to be Each of the States, then, certainly after founded in perfectly arbitrary conjecture, the commencement of the Revolution, and sustained neither by the history of the before the adoption of the Constitution, government, nor the reason of the thing. must have had the power to build them ; There are a hundred purposes to which a and if they did not exercise the power, it tonnage duty might be applied with equal was not because they did not possess it, / propriety as to that of building harbors ; but because they had no occasion to use and it is worthy of a moment's thought, it. They probably had harbors enough that harbors must be built before the duty already, and which had grown at differ can be levied; so that the question stands ent points on the Atlantic coast so grad- open for discussion before the fact can ually, as that their growth was not partic exist upon which the argument is predicaularly observed, and made no mark in the ted. Why it should be assumed and history of the times. There certainly asserted as a fact that the tonnage duty were harbors then as there are now; and which might be levied by a State, was they were built by somebody; and to say intended for the single purpose of building that the particular State governments did harbors, and for no other, we cannot comnot build them, is to say what all rational prehend; and before we will believe the probabilities pronounce to be untrue. But, fact, we demand the proof; and until this at any rate, it is no necessary, or at least, | comes, we shall regard the assertion of it as