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The proceedings of the Convention at Chicago in July last, and the hope founded upon them of an early and favorable action of Congress on the subject of river and harbor improvements, give a new interest to what has heretofore been said and written, touching the extent of the power of Congress in making the desired appropriations. In this connection, several of the doctrines advanced by Mr. Calhoun, in his Report to the Senate on the Memorial of the Memphis Convention, hold a conspicuous place; and, from the character of their author, as well as the novelty and importance of the principles presented, are worthy of a special examination. Such an examination we propose to give, prefacing what we may offer with a brief abstract of so much of the Report as comes within my purpose.

Convinced of the importance of the navigation of the Mississippi and its great tributaries, and of the indispensable necessity of removing the obstructions to them, Mr. Calhoun raises the inquiry, by whom these obstructions shall be removed. “Who,” he asks, “has the power, and whose duty is it, to improve the navigation of the Mississippi and its great tributaries 2" He answers: “It is certainly not that of individuals. Its improvement is beyond their means and power. Nor is it that of the several States bordering on its navigable waters: it is also beyond their means and power, acting separately. Nor can it be done by their joint action. There are sixteen States, and two Territories that soon will be States, lying either wholly or partly within the valley of the Mississippi, and there is still ample space for several more. These all have a common interest in its commerce. Their united and joint action would be requisite for the improvement of its navigation. But the only means by

WOL. I. No, 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, the Report 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 dis

tinct 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 Congress to regulate commerce among the States, 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 removal of which would add

to the safety and facility of its navigation.” They are also of opinion that it “extends to the removal of like obstructions in its navigable tributaries, including such as have three or more States bordering on their navigable waters, but not to those whose navigable waters are embraced within one, or, farthest, two States.” In further prosecution of their inquiries, as to the objects of the power “to regulate commerce,” the Committee proceed “to consider whether harbors, or canals around falls or other obstructions of the Mississippi, including its great tributaries (thereby meaning those bordered by three or more States,) are embraced in the power;” and they come to the conclusion, “that harbors, except for shelter, are not” within the power; and that the cutting of canals or the construction of roads around falls, &c., are also excluded from it. From the abstract of the Report thus given, it appears, that the Committee concede the power to Congress, of river and harbor improvements in its general principle, but encumber it with such modifications in the application of it, as to deprive it largely of its value. It may well be regretted, that a mind so ingenious, and, in general, so sound, in vindicating a principle of such transcendent moment as the author of the Report admits the one in question to be, should not have been able so to present it in its applications, as to make it as broad in its operation to do i. as it is obviously capable, in itself, of oing it. We propose to discuss and to controvert the three following propositions presented in the abstract:— 1. That the constitutional power of Conress “to regulate commerce among the tates,” by the removal of obstructions from navigable waters, does not extend to those waters which run within only one State. 2. That it does not extend to those confined to two States, whether dividing or flowing through them. 3. That it does not extend to the construction of harbors for commerce, but only those for shelter. . A fourth proposition, viz., that the power does not extend to the cutting of canals, or the construction of roads around falls, shoals, or other obstructions or impediments to navigation, &c., has, in its principle, for years, been so much, and in such various forms, before the public, that I should 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:— Airst. 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 i. ;” 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.” 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 exclusion 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 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 amon 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. And 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. 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 narigability, 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 #. 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 2 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

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. 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 rohibitions refer to the power of the tates 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 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

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