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the kind. In South Carolina, so intense was the feeling, and so evident the fear of defection, that though re-elected, by the Legislature then in session, to the Senate, Mr. Calhoun's course was much and strongly animadverted upon. A strong disposition was even evinced to pass resolutions which, under the circumstances, would have been equivalent to instruction-a course of conduct contrary to the general policy and doctrines of that State, evinced in its refusal to instruct a senator several years ago when he misrepre

senting her.

UNIVERS

The report upon the memorial preserves the consistency of Mr. Calhoun's views with those he has hitherto advan advanced, but at the same time furnishes him an opportunity for a more full declaration of them and their legitimate deductions. Age and experience have modified little his earlier opinions. The only novelty discovered in the report, is the masterly manner in which he has vindicated the rights of the great arteries of our domestic commerce, to be considered as standing upon other ground than that of dependence upon the States. The effort here strikes us as being equal to the very highest intellectual achievements of his life, and the whole report presents one of the most profound and ingenious discussions of the constitution in its most complicated and perplexing features, that it has ever been our fortune to meet with. Wrong or right it must be regarded as an admirable document, and whatever men may think of the author and of his doctrines, and however we may differ with him upon certain points ourselves, we can all unite upon common ground here, and yield the highest possible applause for the high stand that he has taken in relation to the Mississippi and its great tributaries, already the arteries of the trade of so many powerful and growing States.

The report opens with some reflections upon the trade of the valley, and the danger to which that trade is subjected, in its transit to a market. From a population of 200,000 in 1790, the West had grown up to a population of nearly 10,000,000 in 1846. From a tonnage of 6,500 in 1817, it has reached at last to 161,000 tons. The whole commerce of the Mississippi and its tributaries amounts annually now to the enormous sum of $300,000,000, equaling the whole exports and imports of the United States taken together. And this though great is but the beginning. "Looking beyond to a not very distant future, when this immense valley, containing within its limits 1,200,000 square miles, lying in its whole extent in the temperate zone, and occupying a position midway between the Atlantic and the Pacific oceans, unequaled in fertility and the diversity of its productions, intersected in every direction by the mighty stream, including its tributaries, by which it is drained, and which supply a continuous navigation of upward of 10,000 miles, with a coast including both banks of twice that length, shall be crowded with population and its resources fully developed, imagination itself is taxed in the attempt to realize the magnitude of its commerce."

And how has the safety of this great commerce been provided for, and what prospective arrangements can be made to keep pace with its advance? Is this trade at the mercy of the States, or can Congress, under the constitution, one of the objects of which at its ori

gin was the protection of commerce, legislate for it to the extent that it now legislates for our foreign trade. Has anything been done for this commerce at all, and in what condition is it now? The report declares the means of accurate information to be meagre in the extreme. Taking as a basis of calculation, a St. Louis memorial, and supposing the losses of steamboats in the trade of that city to be the mean average of losses upon the river generally, the total annual average loss would be about 11 per cent. upon the whole number of Western steamers, 8 per cent. of which being occasioned by snags, rocks, and logs, susceptible of removal. The money value on boats and cargoes annually lost is $2,601,200, whereof $1,820,200 is from snags, etc. Taking the rates of insurance (from 12 to 18 per cent.) into calculation, the lowest would indicate a loss annually of $3,600,000 on the estimated amount of the commerce of the riverto make no account of the frightful loss of life.

Whence arises then the sacrifice of the property and lives of the population of this vast region? Is there a remedy to be applied, and who shall apply it? This is the great question. Dismissing entirely from consideration the losses incident to sheer neglect, or criminal ignorance and rashness, which legislation might in some degree obviate, there are other perils, susceptible, perhaps, in a much larger degree of removal, and these result from the peculiar character of the rivers, and the impediments by which their navigation is at all times impaired and endangered. Can these impediments be removed, and by whom? Have the States interested the power, and is it their duty under the constitutional compact to carry it into execution—or is it one of the legitimate functions of the general government? If the latter, do the ability and the duty extend to all rivers indiscriminately, and under what clause or grant of power in the constitution can they be found? These are the interesting points to which Mr. Calhoun's mind at once directed itself, and we shall follow some of the steps in the reasoning of his luminous exposition.

Appropriations have been made from time to time, for the improvement of the Mississippi and its great tributaries. Under what grant of power is not so evident. The most usually understood grant is that of laying and collecting taxes, duties, imposts, and excises-to pay the debts and provide for the common defense and general welfare of the United States. Does this grant of power admit of a legitimate extension to the case before us? Does it delegate to Congress an independent power to be exercised at discretion, or is it not subordinate to other powers specially delegated, and expressive of the mode of carrying them into effect? Is there any other "common defense and general welfare," except that which the constitution expressly defines, and is not the instrument explicit in stating what shall be deemed so far common and general, as to attach the jurisdiction of the federal government rather than of the States? Shall we go beyond this plain limitation, and assert broadly, that Congress has uncontrolled power in every case where matters of a common and general character are concerned; and this without any other authority than the clause of the constitution we are considering? Could a government be conceived of more unlimited and omnipotent than ours would be, if it may thus sweep into its bosom every object of legisla

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tion at its sovereign will and pleasure? Is there no other limitation upon the power of Congress to "lay and collect taxes," etc., but its own understanding of what the "common defense and general welfare" of this government demands? Could any man in his senses suppose, in this state of things, that we were governed by a written constitution, or that the Congress of the United States was a single degree removed from the Parliament of England?

Mr. Calhoun rejects with indignation the course of reasoning which would lead to such conclusions. He adheres to the old doctrine of strict construction, and deems it impossible to justify the appropriation of a single dollar of the public money for any other purposes than those expressly stated in the constitution, or clearly deducible from them; in neither of which classes can the stupendous power of conducting internal improvements systematically be found.

By what right, then, have moneys been expended upon the Mississippi and its great tributaries, short of an absolute assumption of power and infraction of the constitution, and by what right can they ever be appropriated again? The answer is plain, and is given in a simple sentence in the report-by the chartered right of Congress to "regulate commerce among the States," a right without which our government, like that under the old articles of federation, must languish and fall into speedy and hopeless imbecility.

What is this right to regulate commerce among the States, and how far, in carrying out these regulations, may the rivers of our country be brought under the control of Congress, to the exclusion of the States through which they pass? The point is again a delicate one.

The constitution grew out of the defects of the articles of confederation, in force during the revolution, and for some time after. One of the most conspicuous of these defects, was the power reserved to the States of regulating their commerce with each other. It was discovered that the evil had become a crying one, and was sapping the very life blood of the Union. The States were but too happy to surrender this power and lodge it effectually in Congress, to be exercised in the same manner and to the same extent that they had exercised it themselves. What was their understanding of the power to regulate commerce among themselves? Their acts of legislation prior to the adoption of the constitution, evince that this regulation was extended to navigation as well as to trade-to the establishment of lighthouses, buoys, beacons, and public piers. The same construction was put upon the power by Congress, at its very first session; and that construction has been preserved to this day. The power to regulate commerce among the States is not the power to regulate the internal commerce of a State; but the commerce of States as States with each other. It was particularly intended to apply to the exposed condition of the Atlantic coast, and to protect the commerce of the country— mainly, if not entirely at risk there. The American States were at that period wholly eastward of the Alleghany mountains, and more or less open to the sea. Affairs have changed since then, and our population have swept in great masses to the westward, and founded powerful States there. These interior States have a commerce and a navigation too, and at peril. Different as may be the character of this commerce and navigation, and different the perils to which it is inci

dent, it is yet commerce and navigation among the States, and of course within the purview of the constitution. Are we to suppose any practical difference between the condition of States upon the seaboard and in the interior? Can it affect the question, that the particular character of protection required in the two cases are dissimmilar? Is Congress restricted in its power to regulate commerce, including navigation, to the particular class of measures hitherto employed by itthe construction of light-houses, buoys, beacons, etc.? Admit other and better means discovered, may not these be resorted to? Admit these means entirely inappropriate, and unsuited to particular kinds of commerce and navigation-for example, the commerce and navigation of western waters-does the regulating power of Congress cease its influence from that fact? Would not this be precious trifling? Could such partial and unjust legislation have been within the contemplation of the framers of the constitution? The conclusion is ir resistible. Wherever the commerce and navigation of the States, as States with each other, is at peril, there the fostering and protective hand of the general government is extended; and whether the means of relief be buoys, light-houses, beacons, and public piers, or machinery for the removal of snags, logs, sand-banks, rocks, etc., the case is essentially the same.

We have thus analyzed and imperfectly presented the argument of Mr. Calhoun, in illustration of the intention of the clause which gives to Congress the power to regulate commerce among the States. We shall now consider the application of the power to particular cases, and determine how far federal legislation may be legitimately extended. We recur again to the report.

Let us take the case of a river wholly confined to the territory of a single State. Does the power of Congress extend to this? Certainly not. Such a river is subject exclusively to State jurisdiction; with only such slight exceptions as have no kind of application to the subject before us. Its commerce cannot be "commerce among the States." A different construction would entirely destroy the individuality of the States, and sweep into the hands of government, in the result, all the powers that were so carefully reserved. As well might Congress "regulate" the canals, railroads, turnpikes, etc., of the State, as the waters wholly within its limits. As well might Congress set about digging ditches and cleaning out streets, as keeping in order and navigable each local and insignificant stream. Such powers are essentially the States'.

Enlarging the question to that of a river, embraced within the jurisdiction of two States-what becomes of the power to regulate its commerce and its navigation? The power cannot be lodged in either one of the States exclusively; for then we should have a State legislating beyond its domain. Has it been delegated to Congress? The clause "regulate commerce among the States" would seem in point and conclusive, were it not met and controlled by another clause. The parts of every instrument or compact are to be so construed as to give effect to the whole; for the parties contracting cannot be supposed to have intended an inconsistency. The ends intended to be accomplished by the compact, are also to be taken into account. Now, what were these ends, or in other words what is the great and

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The

cardinal principle of our system of government? It is, first, that individuals, or combinations of individuals shall be entrusted with the control and management of all enterprises within their power to conduct. Second, that the State shall have the management of those enterprises which are proper, and which cannot be accomplished by the unaided efforts of their citizens. Third, that the power of the general government extends to those cases only, in which the action of individuals, combinations of individuals, or of States, would be altogether inefficient, or would lead to consequences prejudicial to the general weal. Under this rule the powers of the federal government are limited to cases of necessity, and include all of those cases. constitution is explicit in prohibiting interference here, and so jealous is it that all combinations of the States, or treaties formed between them for any such purpose, are absolutely forbidden. There is one exception, however, and it is too remarkable to have been unintentional, or without important meaning. This exception could only have been intended to provide for cases like that of the river we are considering. It is declared that "no State shall without the consent of Congress enter into into any compact, or compacts with any other State." The inference is clear that with such consent a State may enter into compact with another State, but the inference cannot be extended farther, and a compact between a greater number than two States would be unconstitutional and void. Why, then, the remarkable exception? The answer is, that in the particular case, the advantages of a combination of States greatly preponderate over the dangers. The constitution was, however, unwilling to go farther. And this brings us back to the river. Either the power of combining yielded to two States, under certain restrictions, means something or nothing. If nothing, then we impute a school-boy blunder to sages in legislation-if something, what else can it refer to than to cases interesting to these States, and in regard to which the legislation of neither singly would be sufficient? What else is there, but for these States to combine together, form a compact, and legislate jointly in the matter? What else can there be if the theory of our government has been stated correctly to include only those cases which cannot otherwise be provided for? The opinion of Mr. Calhoun is, that the general power given to Congress to regulate commerce among the States, is restricted in the particular case of commerce or navigation, interesting to two States only, by another power recognized in these States, to combine and regulate that commerce, or navigation, themselves.*

The last proposition we shall discuss is that of a river passing

* Candor compels us to suggest an apparent flaw in the reasoning here, which we should gladly have Mr. Calhoun or some one else remove. Suppose the "consent" of Congress be systematically denied to every combination whatever, between one State and another State. Is not this a matter within the discretion of Congress; and have we any idea how that discretion will be exercised? If Congress have the power to consent," every man will see at a glance that Congress must have the power not to consent; and what then becomes of the river, we would ask. It is wholly without remedy, for the States can do nothing-and if Mr. Calhoun be right, Congress have not the power. But when the Constitution gives to Congress the power of withholding consent, does it not at the same time, by strong implication, give the power of legislating for those cases, from which the consent, if given, would have excluded it. Is it not within the discretion of Congress on this construction, either to act itself or to allow the action of the State? The difficulty is worthy of note.

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