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 http://www.archive.org/details/cu31924030174985 
 
The 
 
 Commercial Power 
 
 of Congress 
 
 Considered in the Light of its Origin 
 
 The Origin, Development, and Contemporary Interpretation of 
 
 the Commerce Clause of the Federal Constitution, from 
 
 the New Jersey Representations, of 1778, to the 
 
 Embargo Laws of Jeiferson's Second 
 
 Administration, in 1 809. 
 
 By 
 
 David Walter Brown, Ph.D. 
 
 Of the New York Bar 
 
 G. P. Putnam's Sons 
 
 New York and London 
 
 ttbe IKnicRetbocher BSress 
 
 1910 
 

 Copyright, 1910 
 
 BY 
 
 DAVID WALTER BROWN 
 
 
 :> 
 
 Brr 
 
 Ube ftnicfteibocliet fiteea. new JI2orfi 
 
CONTENTS 
 
 PAGE 
 
 Introduction . . . . v 
 
 CHAPTER 
 
 I. Efforts to Increase the Commercial 
 
 Power of Congress. The New 
 Jersey Representations . . i 
 
 II. Proposals throughout the Coun- 
 
 try FOR Enlarging the Commer- 
 cial Power of Congress . . 9 
 
 III. Proposals in Congress . 35 
 
 IV. The Development of the West, and 
 
 ITS Effect upon the Movement to 
 Enlarge the Commercial Power 
 of Congress .... 48 
 
 V. The Annapolis Convention 69 
 
 VI. The Break-up OF the Confederation 80 
 
 VII. The Constitutional Convention. 
 
 Relation of its Work to the Com- 
 mercial Power of Congress . 98 
 
 VIII. The Commerce Clause in the Con- 
 
 vention 122 
 
 IX. The Commerce Clause in the State 
 Conventions .... 
 
 137 
 
iv Contents 
 
 CHAPTER PAGE 
 
 X. The Commerce Clause in the First 
 
 Congress .... i53 
 
 XI. The Non-Importation and Embargo 
 
 Laws of Washington's Second 
 Administration . .178 
 
 XII. The Non-Importation and Embargo 
 
 Laws of Jefferson's Second Ad- 
 ministration . . . .189 
 
 XIII. The Results of the Historical In- 
 
 quiry Confirmed by the Supreme 
 Court ..... 214 
 
 appendix 
 
 No. I The Power of Congress to Con- 
 struct THE Highways of Inter- 
 State Commerce . . . .241 
 
 No. 2. The Power of Congress to Lay Pro- 
 tective Duties .... 269 
 
 Index ...... 275 
 
INTRODUCTION 
 
 THE extent of the power of Congress, under 
 the Constitution, to regulate interstate 
 commerce has been more thoroughly investigated 
 during the last six years than ever before, unless 
 possibly during President Jefferson's second ad- 
 ministration. The ardent opposition to the Rail- 
 road Rate bill, the Employers' Liability bill, 
 and other measures proposed during President 
 Roosevelt's administration, for the purpose of 
 controlling the great railroad and other corpora- 
 tions through the power of Congress to regtilate 
 commerce, led to thorough inquiry into the basis 
 of the power; but, as is usual when radically 
 different positions are taken by opposite parties 
 to a debate, both sides advanced arguments 
 which sober reason would find it difficult to 
 approve. On the one hand, supporters of the ad- 
 ministration claimed powers for Congress exceed- 
 ing what were justified by the origin of the 
 Constitution or the decisions of the Supreme 
 Court ; on the other hand opponents of the Presi- 
 dent rested much of their case upon a statement 
 of facts, so partial as to be substantially incorrect. 
 It therefore seemed worth while to undertake an 
 
vi Introduction 
 
 independent inquiry into the events which pre- 
 ceded and attended upon the framing of the 
 Constitution and the first operating of the new 
 government under it, in order to ascertain the 
 opinions and purposes of the men who framed the 
 instrument and their contemporary interpretation 
 of the scope of the powers of the government; 
 and this with particular reference to the commerce 
 clause. I therefore entered upon the inquiry, 
 proceeded with it for several years, as my leisure 
 permitted, and present the results in the following 
 essay. 
 
 Of course such a study is quite different from 
 an essay in constitutional interpretation. For, if 
 the terms of a constitution are plain, their scope 
 cannot be varied by reference to the state of 
 contemporary opinion in the community in which, 
 or the assembly by which, the instrument was 
 framed. Nevertheless, it may be not without 
 interest, and perhaps not without value, to repro- 
 duce, as graphically as we can, the events and the 
 spirit of the times in which the Constitution was 
 made, so that we may see again with the eyes and 
 think the thoughts of its framers concerning their 
 handiwork. 
 
 In one important respect the view-point of this 
 essay differs from that of other recent publications 
 upon the same general subject. For they have 
 assumed that the terms of the Constitution are 
 accounted for by the earlier efforts to enlarge the 
 
Introduction vii 
 
 commercial powers of the old Congress; and this 
 opinion has sometimes been so expressed as to 
 imply that the Government of the United States 
 is a device for regulating trade, and that the scope 
 of the powers of that government is to be de- 
 termined by ascertaining what were the nature 
 and extent of the commercial regulations desired 
 by certain leaders of opinion in the years shortly 
 preceding the assembling of the Convention at 
 Philadelphia, in May, 1787. But, in the view here 
 presented, those efforts became, through the 
 Annapolis assembly of 1786, only the occasion for 
 calling the Constitutional Convention together; 
 but the terms in which the instrument was ex- 
 pressed and the ends sought to be attained through 
 it, resulted from a much deeper motive than the 
 desire to improve the regulation of commerce — ■ 
 from the conviction of a governmental and social 
 aristocracy, alarmed over the threatened break- 
 down of government and order in America, that a 
 strong central authority was indispensable to 
 the maintenance of order and civil peace, and to 
 the protection of rights of property against the 
 assaults of the multitude. In its origin, the Con- 
 stitution of the United States is not a trade 
 convention; it is the framework of a national 
 government with strong coercive powers, for- 
 mulated by the political, social, and financial 
 leaders of the time, under the influence of great 
 fear, for the purpose of protecting themselves and 
 
viii Introduction 
 
 their property. This determination of the domi- 
 nant party in the Convention drew into its design 
 all incidental powers bestowed upon the new 
 government ; and a correct view of the scope which 
 the members intended to give to the several 
 powers, including that over commerce, cannot 
 be obtained without recognition of this dominant 
 purpose. Had the trade convention at Annapolis 
 succeeded, in 1786, amendments to the Articles of 
 Confederation in certain particulars would have 
 resulted, as in vesting greater powers over com- 
 merce in Congress, but the principle of the govern- 
 ment would have remained the same. But from 
 the failure of that assembly, the break-up of the 
 Confederation, and the meeting of the Constitu- 
 tional Convention at Philadelphia, there issued 
 a new kind of government, framed for national as 
 distinguished from confederated administration. 
 
 This is, of course, not a new view of the origin 
 of the Constitution. It was asserted in the 
 discussions over the ratification of that instru- 
 ment and in the Congressional debates in the 
 early years of the Republic. It is also the view of 
 Curtis and Bancroft; but these authors wrote in 
 the interval between the settlement of the con- 
 troversy over nullification and that recently 
 arising about the affirmative exercise by Congress 
 of powers long ago virtually attributed to it by the 
 Supreme Court, but formerly unused; and there 
 was no occasion for their dilating upon the conse- 
 
Introduction ix 
 
 quences of such origin upon the several powers 
 of the government. Recent writers upon the 
 commercial powers of Congress have frequently- 
 overlooked this origin, and the weight of their con- 
 clusions has diminished accordingly. This essay 
 is, therefore, a return to the older, and, as I think, 
 the more correct opinion. 
 
 But though the cause which produced the Con- 
 stitution was deeper than the desire to improve 
 the regulation of commerce, that desire was power- 
 ful in initiating the movement toward the new 
 government, produced the Annapolis Convention, 
 and through it became the immediate occasion for 
 assembling the Constitutional Convention; and 
 therefore this inquiry properly begins with the 
 movements for enlarging the commercial powers 
 of Congress, from about the middle of the Revolu- 
 tionary War to the meeting of the Constitutional 
 Convention. 
 
The Commercial Power 
 of Congress 
 
 CHAPTER I 
 
 EFFORTS TO IMPROVE THE REGTJLATION OF COM- 
 MERCE — THE FIRST STEPS — THE NEW 
 JERSEY PROPOSALS OF 1 778 
 
 AT the outbreak of the Revolution the hard- 
 ships of the period of discovery and settle- 
 ment in the seaboard communities were over. The 
 Colonies were attaining much prosperity, and 
 were already beginning the western advance, 
 which has had important consequences, not only 
 in territorial expansion, but also in enlargement 
 of conceptions of national power. They had a 
 thriving foreign commerce, and an internal and 
 interstate trade, which though small was active, 
 and even then an object of encouragement. The 
 main highways of this interstate trade were the 
 bays, sounds, and rivers, making water communica- 
 tion between the principal towns on or near the 
 sea fairly convenient and regular. But this water 
 
2 Commercial Power of Congress 
 
 transportation was not, even then, the only inter- 
 state trade. There are abundant evidences also 
 of land traffic from State to State, and the develop- 
 ment of interstate coach lines and postal routes; 
 and, indeed, much of the principal interstate 
 trade and travel of this period, as between New 
 York and Philadelphia, and between Boston and 
 New York, was partly by water, partly by land. 
 That interstate traffic by land had grown to 
 considerable importance, before the meeting of 
 the Constitutional Convention, is proved by the 
 provisions in the tariff acts of various States for 
 regulating such traffic by duties upon goods thus 
 brought into the several States, and by other 
 measures. The volume of these various forms 
 of interstate traffic and intercourse was trifling 
 in comparison with the vast interstate commerce 
 of to-day; but the traffic and intercourse were 
 even then considerable in proportion to the small 
 population, and increased in importance as the 
 date of the Constitutional Convention approached, 
 both in themselves, and in their relation to foreign 
 commerce. For during all the formative period 
 of our history, and certainly until after the be- 
 ginning of the nineteenth century, the connection 
 between the internal and the foreign commerce 
 was much closer than can now be readily 
 understood. The extent of the settled regions of 
 the United States is now so great, and the inter- 
 state trade between localities distant from the 
 
Efforts to Increase Power 3 
 
 coast is so enormous and so specialized, that cer- 
 tain regulations might be applied either to the 
 foreign commerce or to such special interstate 
 trade without materially affecting the other 
 branch of commerce ; but, tmtil well after the date 
 mentioned, the connection between the interstate 
 and the foreign commerce was so intimate, that 
 adequate regulation of neither could be effected 
 without complete power of regulating the other. 
 This situation gradually brought the public men 
 of the period to that perception of the necessity 
 of vesting the power of regtilating both the 
 foreign and the interstate trade of the country 
 in the central authority, which produced the com- 
 merce clause of the Constitution. For before the 
 meeting of the Convention they had generally come 
 into agreement with Madison's remark, that the 
 regulation of commerce was in its nature indivisi- 
 ble, and ought to be wholly under one authority.' 
 
 A superficial consideration of this situation, 
 ignoring other facts in the history of the Colonies 
 and States, between the outbreak of the Revolu- 
 tion and the Constitutional Convention of 1787, 
 has led some to conclude, that, as a principle of 
 
 ' S Elliot's Debates, 548, Lippincott's Edition of 1866, in 
 which the supplementary volume is indicated as "vol. v." 
 The reader who is curious about the several editions of Elliot's 
 work will find interesting notes in P. O. Ford's Bibliography and 
 Reference List to the history and literature relating to the 
 adoption of the Constitution of the United States, Brooklyn, 
 1896. 
 
4 Commercial Power of Congress 
 
 constitutional interpretation, the powers of Con- 
 gress over interstate commerce are to be con- 
 strued as wholly or chiefly ancillary to the control 
 of foreign trade. But a more thorough study of 
 American history during the period in question 
 indicates that, prior to the meeting of the Conven- 
 tion, the regulation of the trade between the 
 States had become of importance in itself; a 
 means of affecting the relation of the growing West 
 to the communities on the Atlantic free-board; 
 and a part of a profound constitutional change, 
 which was broader and deeper than all regulation 
 of trade, foreign, interstate, or both. 
 
 The Articles of Confederation were termed by 
 the Congressional Committee of 1778, when re- 
 commending their ratification by the several 
 States, that "glorious compact, which, by uniting 
 the wealth, strength, and councils of the whole, 
 may bid defiance to external violence and internal 
 dissensions, whilst it secures the public credit at 
 home and abroad"'; and their ratification, in 
 1 78 1, by Maryland, the last of the States to ratify, 
 seems to have produced a general feeling of joy 
 and hopefulness.2 But Washington was already 
 convinced of the necessity of vesting Congress 
 with greater powers than they then exercised^; 
 
 - Elliot's Debates, vol. i., 68. 
 = Duane to Washington, Jany. 29, 1781. 
 
 > Washington to Duane, Feby. 19, 1781, in Bancroft, History 
 of the Constitution, vol. i., 283, 284. 
 
Efforts to Increase Power 5 
 
 and in the previous year Hamilton, in his cele- 
 brated letter to Duane/ had urged the need of 
 increasing the powers of Congress; particularly 
 that Congress should have complete power, 
 which he termed "complete sovereignty," over 
 aU that related to war, peace, trade, and finance. 
 
 The experience of the country soon showed that 
 the expectations of the Congressional Committee 
 were not to be gratified; and, even before the 
 Articles of Confederation went into effect, the 
 inadequacy of the power of the general govern- 
 ment under them to regulate the foreign commerce 
 of the country had been commented on by the 
 Legislative Council and General Assembly of the 
 State of New Jersey. In the second objection of 
 their representations to the Continental Congress, 
 in 1778, they say: 
 
 By the sixth and ninth articles, the regulation of 
 trade seems to be committed to the several States 
 within their separate jurisi diction, in such a degree as 
 may involve many difficulties and embarrassments, and 
 be attended with injustice to some States of the Union. 
 We are of the opinion that the sole and exclusive 
 power of regulating the trade of the United States with 
 foreign nations ought to be clearly vested in the Con- 
 gress, and that the revenues arising from all duties 
 and customs imposed thereon ought to be appropriated 
 to the building, equipping, and manning a navy, for the 
 
 ' Works of Alexander Hamilton (Lcxige's edition) vol. i., 203 
 et seq. 
 
6 Commercial Power of Congress 
 
 protection of the trade and defence of the coasts, 
 and to such other public and general purposes as to 
 the Congress shall seem proper, and for the common 
 benefit of the States. This principle appears to us to^ 
 be just, and it may be added, that a great security will, 
 by this means, be derived to the Union from the es- 
 tablishment of a common and mutual interest. ' 
 
 Two clauses in this objection deserve particular 
 attention. The first is that which affirms that 
 the sole and exclusive power of regulating the 
 trade of the United States with foreign nations 
 ought to be clearly vested in Congress. 
 
 For this phrase indicates the desire of the Legis- 
 lature of New Jersey to invest Congress with a 
 complete and positive power of regulating foreign 
 commerce. The words, "sole and exclusive 
 power," do not lend themselves readily to any 
 other interpretation, and it is clear that much 
 more was intended than the negative power of 
 preventing the inflicting of injuries upon our 
 commerce by foreign nations. The power in- 
 tended to be vested was to include authority to 
 regulate that commerce positively for the welfare 
 of the Union. In a few years, when the con- 
 ception of commercial regulation expanded to 
 include trade between the States, the intended 
 control of this branch also came to be expressed 
 
 ' I Elliot, 87. The representations are also given in full in 
 Curtis, History of the Constitution, vol. i., 493. 
 
Efforts to Increase Power 7 
 
 in the same words, or in others of identical mean- 
 ing ; and when these later proposals are compared 
 with the New Jersey representations of 1778, it 
 Jaecomes apparent, that the course of events had 
 forced upon the minds of some, at least, of the 
 foremost men of the time the conviction, that the 
 condition of the country required the giving to 
 Congress of that complete and positive control 
 over interstate trade, which New Jersey, in 1778, 
 recommended as to foreign trade. 
 
 The second of the clauses deserving attention is 
 that in which it is stated, that the bestowal of 
 the exclusive regulation of foreign commerce upon 
 Congress, and the appropriation of the resulting 
 revenues to national objects, would establish a 
 common and mutual interest between the States, 
 thereby conferring a great security on the Union. 
 This is a recognition, even before the ratification 
 of the Articles of Confederation, of the intimate 
 connection of trade regulation with other national 
 interests, which was deeply fixed in the thought 
 of that day; became one of the grounds relied 
 upon by Judge Davis for affirming the constitu- 
 tionality of the Embargo Laws of 1808'; and has 
 tmderlain some of the most important decisions 
 of the Supreme Court in recent years, as in the 
 Lottery cases.^ 
 
 »U. S. vs. Brigantine William, 2 Hall's Law Journal, 255 
 (1808). 
 2 188 U.S., 321 (1903). 
 
8 Commercial Power of Congress 
 
 Indeed, the principle that when a power over 
 a particular subject is vested in Congress, that 
 power may be exercised, not only to advance that 
 subject, but also, through such regulation, to 
 promote the general welfare of the country, has 
 supported much of the legislation of the last 
 twenty-five years, and it is interesting to find 
 the germ of this principle in these representations 
 of New Jersey one hundred and thirty-one years 
 ago. 
 
CHAPTER II 
 
 EFFORTS TO IMPROVE THE REGULATION OF COM- 
 MERCE, 1 781-1786 — THE GENERAL SITUA- 
 TION — EFFORTS OF INDIVIDUAL STATES 
 
 THE forebodings of New Jersey were justified 
 soon after the Confederation went into 
 effect. Between 1781 and 1787, events at home 
 and abroad produced a general opinion that the 
 limitation of the powers of the central government, 
 under the Articles of Confederation, was pro- 
 ductive of serious injury to the country; showed 
 the futility of legislation by individual States as a 
 remedy ; and engendered a conviction in the minds 
 of those who afterward controlled the Philadelphia 
 Convention, that a considerable change in the 
 distribution of powers between the central govern- 
 ment and the States was indispensable. Between 
 1 78 1 and the outbreak of Shays' s Rebellion, in 1 786, 
 the history of the country was largely the history 
 of efforts to increase the governmental revenues 
 and to improve the condition of trade. As the 
 revenue measures are but indirectly connected 
 with the subject of this essay, they will be referred 
 to only incidentally. Considering the efforts to 
 
10 Commercial Power of Congress 
 
 improve trade conditions broadly, rather than 
 strictly chronologically, they developed, out of 
 Congress, from attempts by individual State 
 legislation to a wide-spread demand, expressed iri 
 numerous proposals, that such individual efforts 
 be prohibited, and a general power of regulating 
 both interstate and foreign commerce be vested 
 in Congress. These proposals were peculiar to no 
 locality nor class of men. In widely separated 
 districts and among men of various callings, we 
 find propositions for increasing the powers of 
 Congress over commerce; and this general senti- 
 ment, being shared by members of Congress, 
 produced several proposals in that body, which 
 show how great was the extent of the powers over 
 commerce, which leaders of opinion of that day 
 were willing to vest in the central government. 
 Parallel with the experience of the Confederation 
 in connection with the regulation of trade went 
 the exhibition of its defects in other respects, pro- 
 ducing suggestions for more fundamental amend- 
 ment of the Articles, until in 1 786-1 787, the 
 disorders in Massachusetts and other States created 
 such alarm, lest all civil government would be 
 overthrown, that the various propositions for 
 amending the Articles were swept into the power- 
 ftil current of centralization, which was the real 
 force to bring the convention together, and to 
 direct its deliberations. 
 
 As we approach the date of the convention, the 
 
Proposals in the Country ii 
 
 commercial proposals are seen to develop from 
 a less to a more complete power of regulation ; and 
 the demands for enlarged power over commerce 
 and for a stronger central government inevitably 
 reacted. On the one hand, the enlarging concep- 
 tion of the necessary powers over commerce pro- 
 moted the movement for a stronger central 
 authority; on the other hand, the deepening con- 
 viction of the need of stronger central authority 
 to save the commonwealth enlarged the concep- 
 tion of the scope of the commercial powers to be 
 granted to Congress. The effort to obtain the 
 commercial powers therefore became the result 
 of many influences; and the power to regulate 
 commerce, vested in Congress by the Philadelphia 
 Convention, can no more be separated from the 
 irresistible movement of 1787 toward a strong 
 coercive government, than can any other power. 
 
 The demand for larger powers in the Confeder- 
 acy developed throughout the country before the 
 proposals were made in Congress for increasing 
 the powers of that body, the proposals being indeed 
 related to the demand, as the effect to the cause ; 
 and I shall therefore consider the movement for 
 enlarged powers throughout the country, before 
 turning to the Congressional proposals. 
 
 The prosperity of the country at the beginning 
 of the Revolution was checked by that war, and 
 the country came out of it with much poverty 
 and actual hardship, although later historians 
 
12 Commercial Power of Congress 
 
 incline to the opinion that the older writers 
 exaggerated the depressed condition. Hardship 
 and poverty, however, there were, and the sources 
 first looked to for improvement were the foreign 
 commerce and the ship-building industries. But 
 the action of Great Britain, even before the peace 
 of 1783, frustrated expectations from these, and 
 thereby started, or gave increased impetus to, 
 the movement which ended in a new government. 
 One result of independence was the alienage of 
 citizens of the States, and there were in Great 
 Britain interests sufficiently powerful to induce 
 that government to take advantage of this 
 alienage to deprive American shippers and mer- 
 chants of privileges which they had before en- 
 joyed, in common with other Englishmen. In 
 seeking terms upon which to arrange the peace, 
 it had been the earnest purpose of the American 
 commissioners to obtain the right of unrestricted 
 trade with the West Indies, but the British Orders 
 in Council, of July, 1783 excluded American 
 vessels from that trade. Burdensome restrictions 
 were imposed about the same time upon American 
 vessels trading with Great Britain and upon the 
 importation of American products into that 
 country. American merchants and industries 
 were not long afterward furthenmjured by the 
 reaction from unwise and excessive importations 
 of British goods, which both hurt the importers 
 and produced intense competitions with other 
 
Proposals in the Country 13 
 
 traders. The consequences of these unfavorable 
 conditions, which originated in Great Britain, or 
 at least were charged to her by public opinion in 
 America, were great depression in the ship-building 
 and other industries and business in the United 
 States, and a wide-spread demand for retaliation 
 by the passage of laws excluding British ships 
 and goods from American ports, and for protection 
 to domestic trades and industries by duties upon 
 imports. — - — 
 
 But tmder the Articles of Confederation, Con- 
 gress had no power of regulating commerce ade- 
 quate to the passage of such laws.' /' It had no 
 power to levy duties on imports or exports, nor 
 tonnage dues on foreign ships, nor had it any 
 power to exclude foreign ships or goods from 
 American ports ; while its power of entering into 
 
 ' By the Articles of Confederation the power of regulating both 
 foreign and interstate commerce was left to the several States, 
 with only such restrictions as arose from the provisions of Article 
 6, that no State should enter into any treaty, agreement, or 
 alliance with any other State or foreign power without the consent 
 of Congress, or lay any imposts or duties which might interfere 
 with any stipulation entered into by the United States in Con- 
 gress assembled, with any king, prince, or State, in pursuance of 
 any treaties already proposed to Congress, to the Courts of 
 France and Spain, and from the power bestowed upon Congress 
 by Article 9, of entering into treaties of commerce. The powers 
 of the States were further guarded by Article 2, which recited ■ 
 that each State retained its sovereignty, freedom, and indepen- 
 dence, and every power, jurisdiction, and right which was not 
 by this Confederation expressly delegated to the United States 
 in Congress assembled. 
 
14 Commercial Power of Congress 
 
 treaties and alliances was limited by the proviso 
 that no treaty of commerce should be made, 
 whereby the legislative power of the respective 
 States should be restrained from imposing such 
 imposts and duties on foreigners as their own 
 people were subjected to, or from prohibiting the 
 exportation or importation of any species of goods 
 or commodities whatever. It resulted from this 
 situation, that demands for retaliatory and pro- 
 tective legislation by Congress between 1783 and 
 1788 were often accompanied by suggestions that 
 the Articles of Confederation be amended to 
 confer adequate powers of commercial regulation 
 upon that body. These suggestions were at first 
 directed only to larger power over foreign com- 
 merce, but quickly came to include greater power 
 over interstate commerce also, because of the 
 close connection of the regulation of interstate with 
 the results sought to be obtained by the regula- 
 tion of foreign commerce. } | But amendment to 
 the Articles of Confederation required the assent 
 of every State to become effective; remedy by 
 amendment was therefore slow at best, and in the 
 division of public opinion respecting particulars, 
 was not accomplished even up to the end of the 
 Confederation. [The natural result followed; 
 individual States attempted "countervailing" 
 legislation by imposing various prohibitions, im- 
 port duties, and other burdens on British ships 
 and goods, and a great ntmiber of tariff and 
 
Proposals in the Country 15 
 
 tonnage acts were passed by various States be- 
 tween 1783 and I788^J7 
 
 In enacting these measures the States were 
 merely continuing, vmder novel conditions, a policy 
 with which they had become familiar before the 
 Revolution. jThe legislation aimed at three princi- 
 pal results : raising of revenues, protection to domes- 
 tic trades and industries, and retaliation upon Great 
 Britain for her Orders in Council ;^nd it is an inter- 
 esting and important observatiowr that this legisla- 
 tion, as also the earliest revenue measure of the 
 United States Congress after the adoption of the 
 Constitution, included the principle of protecting 
 domestic trade and industries by duties on imports. 
 That protection was a purpose of the acts, is explic- 
 itly stated in some of them, as in those passed by the 
 State of Pennsylvania, September 20, 1785 ; April 8, 
 1786; March 15, 1787, and March 29, 1788,' and in 
 that passed by Rhode Island in 1 785.^ Indeed, by 
 the men of that generation commonly, as by Hamil- 
 ton, in his papers published in 1 781 , imder the title, 
 "The Continentalist,"^ the imposing of protective 
 
 'Statutes at Large of Pennsylvania, vol. xii., p. 99 (Ch. M. 
 C. L. xxxviii.) ; p. 232 (Ch. M.C.C. xxvii.) ; p. 403 (Ch. M.C.C. 
 Ixxvi.) 
 
 2 Rhode Island Schedules, 1785, June, 1785, 18. 
 
 ' "The Continentalist," in Hamilton's Works, edited by Lodge 
 vol. i., pp. 248, 264. These essays, are considered by Mr. 
 Lodge to mark the beginning of the movement for a new system 
 of government, which resulted in the conventions of Aimapolis 
 and Philadelphia, the adoption of the Constitution, and the 
 foundation of the Federalist party. 
 
1 6 Commercial Power of Congress 
 
 duties was understood to be included under, and 
 was perhaps the most important particular of, the 
 power to regulate commerce. Hamilton was an 
 extreme nationalist, and his opinions upon the 
 need of complete supremacy of the central over 
 the State governments cannot, of themselves, 
 be fairly cited as evidence of any considerable 
 body of contemporary opinion in support of such 
 views. 1 1 But as to the need of bestowing large 
 commercial powers upon Congress, and of in- 
 vesting that body with authority to foster domes- 
 tic industries by duties and other burdens on 
 imports, all research indicates that the large^ 
 majority of the public were in agreement' with 
 him. In " No. IV of The Continentalist, " August 
 30, 1 78 1, he places first among the particulars 
 in which the authority of the Confederation 
 ought to be augmented, ' ' the power of regulating 
 trade, comprehending a right of granting bounties 
 and premiums by way of encouragement, of im- 
 posing duties of every kind, as well for revenue 
 as regulation, of appointing officers of the cus- 
 toms, and of laying embargoes in extraordinary 
 emergencies." 
 
 In later years there has been much ingenious 
 constitutional argument to support the proposi- 
 tion that the commerce clause of the Federal 
 Constitution does not bestow upon Congress the 
 power to impose duties on imports for protective 
 purposes. But however learned and ingenious 
 
Proposals in the Country 17 
 
 these arguments may be, as specimens of refined 
 constitutional interpretation, the history of the 
 period preceding the adoption of the Constitution, 
 and the views expressed in the first Congress 
 which met after the inauguration of the new 
 government, show that the public men of the 
 constitutional period considered the power to 
 impose protective duties on imports one of the 
 most important elements in the regulation of 
 foreign commerce. To them the regulation of 
 commerce was a practical matter, not a subject 
 of refined legal distinction; and they would have 
 been greatly surprised had they been informed 
 that, by placing various other clauses, as that 
 relating to taxation, in the Constitution, they had 
 taken from Congress that power of protecting 
 local industries, to secure which to the central 
 government was an important factor in bring- 
 ing about the meeting of the Constitutional 
 Convention. 
 
 The practical view which determined the for- 
 mulation of the Constitution has, perhaps, never 
 been more clearly set forth, than by Josiah Quincy, 
 in his speech in the House of Representatives, in 
 1808, on the .suspension of the Embargo, in which 
 he was in accord with the supporters of President 
 Jefferson. 
 
 The Constitution of the United States, as I under- 
 stand it [he said], has in every part reference to the 
 
1 8 Commercial Power of Congress 
 
 nature of things and the necessities of society. No 
 portion of it was intended to serve as a mere ground 
 for the trial of technical skill or verbal ingenuity. 
 The direct, express powers, with which it invests 
 Congress, are always to be so construed as to enable 
 the people to attain the end for which they were 
 given. This is to be gathered from the nature of 
 those powxr. :, compared with the known exigencies of 
 society and the other provisions of the Constitution. 
 If a question arises, as in this case, concerning the 
 extent of the incidental and implied powers vested in 
 us by the Constitution, the instrument itself contains 
 the criterion by which it is to be decided: We have au- 
 thority to make "laws necessary and proper for carry- 
 ing into execution" powers unquestionably vested. 
 Reference must be had to the nature of these powers 
 to know what is ' ' necessary and proper ' ' for their wise 
 execution. When this necessity and propriety appear, 
 the Constitution has enabled us to make the corre- 
 spondent provision.' 
 
 The way to the embodying of this power in the 
 central government was prepared by the tariff 
 acts of the several States, which by their conflict 
 one with another prevented the obtaining of that 
 protection for local interests which had been 
 sought in their enactment. Their failure turned 
 the public mind, not against the principle of pro- 
 tection, but toward the vesting in the central 
 government of power to prevent the conflict 
 
 ' Speeches of Josiah Quincy, Boston, 1874, p. 34; Annals, 10 
 Cong., 1st Session, 2200. 
 
Proposals in the Country 19 
 
 between the State enactments, and to provide the 
 protection which the States had been unable to 
 provide. 
 
 The number of the State tariff acts is so great, 
 and their provisions are so complicated, that it is 
 difficult to determine precisely their relation to 
 trade among the States. An examination of the 
 whole of this legislation, in a large majority of the 
 States, justifies the conclusion, that their pro- 
 visions were directed at first against Great Britain; 
 but that by 1 785-1 786, they had been turned in 
 most, if not all, of the States, against the products, 
 ships, or merchants of the sister States. It is at 
 least certain, that by 1785, either because of their 
 imposition of duties on the productions of other 
 than the enacting States, or "because of harsh 
 methods of administration, the enactments of 
 several States had excited much bitter feeling; 
 and one cause of the discontent was peculiarly 
 connected with interstate traffic, and by land. 
 Probably most of the commodities then consumed 
 in the country were of foreign production; and 
 that there was an active trade across State 
 botmdaries by land is shown by the numerous 
 provisions in the State tariff acts imposing duties 
 and other burdens expressly upon goods thus 
 brought into the enacting States. It was inevi- 
 table that such burdens, even if the tariff acts 
 imposed them only upon goods of foreign origin, 
 should be vexatious to merchants of various 
 
20 Commercial Power of Congress 
 
 States. For the foreign goods must have then 
 been the greater part of the merchants' stocks; and 
 the situation of certain of the States, and particu- 
 larly of New York, was such that the various 
 btirdens upon goods, even of foreign origin, 
 provoked resentment among consumers as well 
 as traders in other States. A forceful reference 
 to this situation is made by Dr. Hugh Williamson, 
 in his letter to James Iredell, of June ii, 1788, 
 in which, complaining of the selfish tariff policy 
 of New York, he writes that "half the goods 
 consumed in Connecticut, or rather three foiirths 
 of them; the goods consumed in New Jersey, or 
 three fourths of them; all the goods consumed in 
 Vermont, and no small part of those consumed in 
 the western parts of Massachusetts, are bought 
 in New York and pay an impost of 5 per cent, for 
 the use of that State." ' 
 
 The States also commonly imposed tonnage 
 dues upon American as well as foreign vessels enter- 
 ing their ports, although the dues upon American 
 vessels were generally fixed at lower rates than on 
 the foreign vessels. Various burdensome condi- 
 tions as to the entry of vessels at the customs- 
 houses within the several States were, however, 
 applicable as well to ships from other States as to 
 those from foreign nations, and it was a bitter 
 grievance of States which imposed restrictions 
 on British ships or goods, that neighbor States 
 
 ' Life of James Iredell, by Griffith McRee, vol. ii., p. 227. 
 
Proposals in the Country 21 
 
 opened their ports to attract those goods and 
 ships. 
 
 The private correspondence and public docu- 
 ments of the day very clearly exhibit the develop- 
 ment of public opinion from bitterness at the 
 trade situation up to the conception of a new kind 
 of government, which prepared the way for the 
 Philadelphia Convention. First, irritation at the 
 selfishness and arrogance of particular States, as 
 New York and Massachusetts, is expressed, and 
 the desire to prevent the conflict between the laws 
 of the several States arises; to this succeeds 
 the wish to bestow upon the central government 
 power adequate to prevent the conflicts between 
 the States, and to completely regulate commerce 
 both foreign and interstate; and this desire, co- 
 operating with the fear that the Confederation 
 is about to collapse, generates a rising demand for 
 a convention of all the States to revise the system 
 of government. A few extracts from the writings 
 of that day, in addition to those before given, 
 wUl suffice to graphically set forth the situation 
 of the country and the development of opinion. 
 
 In a letter to Madison, of December 14, 1784, 
 Monroe notes that Connecticut "hath also laid 
 a duty of 5% upon all goods imported from a 
 neighboring State. This effects Rhode Island 
 very sensibly."' On June 10, 1785, Governor 
 Bowdoin informed the Massachusetts Legislature, 
 
 » Writings of James Monroe (Hamilton), vol. i., 52. 
 
22 Commercial Power of Congress 
 
 that he was advised by the naval officer of the 
 port of Boston that several States had laid duties 
 on goods imported which injured the trade of the 
 Commonwealth,^ and on June 27, 1785, the 
 Legislature of Massachusetts authorized and re- 
 quested the Governor 2 "to expostulate with such 
 of the United States as had passed impost and 
 excise acts, or other laws for the regulation of trade, 
 that affect the commercial interests of citizens of 
 this State," and to urge upon the offending 
 States the propriety of making such alterations 
 and amendments (in their laws) "as shall render 
 them not only conformable to the spirit of the 
 confederation, but consistent with those principles 
 of reciprocity which, in a national view, ought 
 ever to be adopted." 
 
 New York was a principal offender in this inter- 
 state tariff war, as indicated by Dr. Williamson's 
 letter above quoted, and the citizens of Con- 
 necticut and New Jersey were particularly affected 
 adversely. In the latter State feeling arose to 
 such height that the legislature declined to 
 accede to the requisition of Congress, until this 
 situation was remedied. This attitude of New 
 Jersey created much alarm in Congress, a Con- 
 gressional committee remonstrated with the 
 legislature, and issued an address prepared by 
 Charles Pinckney, advising New Jersey to urge the 
 
 " Mass. Resolves, 1785, 1786, p. 75. 
 » Ibid., 1785, p. 32. 
 
Proposals in the Country 23 
 
 calling of a convention of all the States for the 
 purpose of increasing the powers of the Federal 
 Government, and rendering that government 
 more adequate for the ends for which it was in- 
 stituted.' Pinckney's advice bore fruit in the 
 instructions which New Jersey gave to its dele- 
 gates to the Annapolis Convention, empowering 
 them to consider how far a uniform system in 
 their commercial regulations and other important 
 matters might be necessary to the common interest 
 and ■ permanent harmony of the several States, 
 and these instructions, through the forethought 
 of Hamilton and his associates at Annapolis, 
 became the occasion for calling the Constitutional 
 Convention. 
 
 Contemporaneously with the enactment of the 
 State tariff laws, the Continental Congress was 
 attempting to effect commercial treaties with 
 France and other foreign powers, and it soon 
 became plain that independent State legislation 
 was as well a hindrance to the obtaining of the 
 
 ' Bancroft, Hist. Const., vol. i., pp. 256, 257. In a letter from 
 the French Charge d' Affaires, to Vergennes, 17th March, 1786, 
 quoted in Bancroft, it is stated that the motive for this conduct on 
 the part of New Jersey was jealousy of New York, "which by its 
 position enjoys an advantage in carrying on a great part of its 
 commerce, and which, by means of its customs duties, levies a 
 sort of impost upon New Jersey and Connecticut. New York, 
 not having acceded to the resolutions of Congress, derives a great 
 advantage from its customs, and obliges its neighbors, which 
 have no large commercial towns, to pay a part of the expenses of 
 its government." 
 
24 Commercial Power of Congress 
 
 treaties, as it was ineffective for retaliating against 
 Great Britain; and thus, even before the calling 
 of the Constitutional Convention, a general 
 sentiment developed in and out of Congress, that 
 the foreign and the interstate commerce were so 
 closely connected as to prevent proper regiolation 
 of the former, and the securing of advantages 
 in foreign trade, unless fuU power of regulating 
 the latter were vested in Congress.' 
 
 The States [wrote Madison to Jefferson, in March, 
 1786],^ are every day giving proofs that separate 
 regulations are more likely to get them by the ears 
 than to attain the common object. When Massa- 
 chusetts set on foot a retaliation of the policy of 
 Great Britain, Connecticut declared her ports free. 
 New Jersey served New York the same way. And 
 Delaware, I am told, has lately followed the ex- 
 ample, in opposition to the commercial plans of 
 Pennsylvania. 
 
 The evident remedy was a single control of 
 commerce, but there was sufficient attachment 
 to the system of government which had success- 
 fully ended the Revolutionary War, and distrust 
 of a strong central government deep enough to 
 defer a little longer the application of this remedy. 
 
 In the fifth essay of "The Continentalist, " 
 
 ' Report of Committee of Congress, in May, 1785, in Sparks's 
 Washington, ix., 503; McHeniy's letter to Washington, Sparks, 
 ix., 501. 
 
 = Writings of James Madison (Hunt), vol. ii., 227 et seq. 
 
Proposals in the Country 25 
 
 Hamilton had written that the position of the 
 American States as "parts of a whole, with com- 
 mon interests in trade as in other things, indicates 
 that there ought to be a common direction in 
 that, as in all other matters." "It is easy to 
 conceive," he writes, "that cases may occur in 
 which it would be beneficial to all the States to 
 encoiirage or suppress a particular branch of 
 trade, while it would be detrimental to either 
 [State] to attempt it without the concurrence of 
 the rest, and where the experiment would probably 
 be left untried for want of concurrence. " ' 
 
 Late in 1783, Virginia enacted a law, suggested 
 by Madison, proposing only to give to Congress 
 power to prohibit the importation into the 
 United States of the growth or produce of the 
 British West India Islands in British vessels, 
 or to adopt any other mode which might most 
 effectually counteract the designs of Great Britain 
 with respect to American commerce.^ 
 
 In December of the same year, the General 
 Assembly of Pennsylvania, perhaps taking the 
 hint from Virginia, instructed their delegates in 
 Congress, that 
 
 as the local exercise within the States of the power of 
 regulating and controlling trade can result only in 
 discordant systems productive of internal jealousies 
 
 ' Works of Alexander Hamilton (Lodge), vol. i., 258. 
 2 Virginia Laws, 1768-1783, p. 211. 
 
26 Commercial Power of Congress 
 
 and competitions, and illy calculated to oppose or 
 counteract foreign measures, which are the effect of a 
 unity of council, this house are clearly of opinion that 
 the individual as well as general good will be best 
 consulted by relinquishing to Congress all these 
 separate and independent powers. ' 
 
 By the middle of 1785, opinion throughout the 
 country seems to have quite generally advanced 
 to willingness to confer upon Congress full powers 
 of regulating both the foreign and the interstate 
 trade. In some of the propositions of this period 
 it is not explicitly stated whether the regulation 
 of interstate or of foreign commerce, or of both, 
 is intended, but in other proposals the intent to 
 secure the regulation of both is emphatically 
 expressed; and when the circumstances of the 
 times, the experiences of the several communities 
 which adopted the measures now to be referred 
 to, and the contemporary effort in Congress to 
 effect such amendment of the Articles of Confeder- 
 ation, as would vest Congress with the exclusive 
 power of regulating interstate as well as foreign 
 commerce, are considered, it seems probable 
 that the authors of all the proposals intended to 
 bestow upon Congress a complete and positive 
 power of regulating interstate as well as foreign 
 commerce. 
 
 In June, 1785, a Philadelphia town meeting 
 resolved that relief from the oppressions under 
 
 « Bancroft, History of the Constitution, vol. i., 334. 
 
Proposals in the Country 2^] 
 
 which American trade and mantif actures languished 
 could spring only from the grant to Congress 
 of full constitutional powers over the commerce 
 of the United States; and duties upon foreign 
 manufactures interfering with domestic industry 
 were suggested.' 
 
 In this year, also, the Council of Revision of 
 New York negatived a bill passed by the legisla- 
 ture to impose double duties upon all imports in 
 vessels owned in whole or in part by British 
 subjects, unless, for the purpose of encouraging 
 navigation, such vessels were built in the State, 
 upon the ground that "every attempt by a State 
 to regulate trade without the concurrence of the 
 others must produce injury to the State, without 
 any general good; that partial duties wotild lead 
 to countervailing duties, and that State legislation 
 on this subject, wotild interfere with and embarrass 
 the commercial treaties." ^ 
 
 A further advance toward the conviction that 
 State regulation of interstate trade was harmful 
 is shown by the resolution introduced by Madison 
 in the Virginia House of Delegates, in November, 
 1785,^ providing, among other things, that no 
 State should be at liberty to impose duties on any 
 goods imported by land or water from any other 
 State, although it might altogether prohibit the 
 
 ' Bancroft, Const., vol. i., 187. 
 
 ' Hamilton's Republic, vol. iii., p. 149. 
 
 ' Elliot's Debates, i., 114. 
 
28 Commercial Power of Congress 
 
 importation from any other State of any particu- 
 lar description of goods, of which the importa- 
 tion was at the same time prohibited from all 
 places whatsoever. This resolution was tabled, 
 but shows the point, at which Madison, at least, 
 had arrived, and had its influence in bringing 
 about the calling of the Annapolis Conven- 
 tion. 
 
 How far the unfavorable results of State regula- 
 tion of commerce had led public opinion in at 
 least one of the States, and that perhaps the most 
 devoted of any to local autonomy, is indicated by 
 the act passed by the Legislature of Rhode Island 
 during the October session of 1785. In this 
 enactment the delegates of that State in Congress 
 were instructed to agree to and ratify any amend- 
 ment of the Articles of Confederation, 
 
 by which the United States in Congress assembled 
 shall be solely empowered to regulate the trade and 
 commerce of the respective States, and the citizens 
 thereof with each other; and to regulate, restrain, or 
 prohibit, the importation of all foreign goods in any 
 ships or vessels owned by any of the States, or by a 
 citizen or citizens of either; and that the Article or 
 Articles containing the powers aforesaid, or sub- 
 stantially agreeing therewith, when adopted by all 
 the other States of the Union, shaU be in force for the 
 space of twenty-five years and no longer. ' 
 
 » Rhode Island Schedules, 1785, at the session of the General 
 Assembly begun on the last Monday in October, 1785, p. 10. 
 
Proposals in the Country 29 
 
 Had this proposal been favorably acted upon 
 by the several States and by Congress, that body 
 would have been vested with the exclusive con- 
 trol of both the interstate and the foreign com- 
 merce of the country, even to the extent of 
 prohibiting all interstate trade in commodities of 
 foreign origin, and it is an important indication 
 of the purposes of the men of that day with respect 
 to the vesting in Congress of power over com- 
 merce, that this proposition proceeded from the 
 State the most intensely devoted of all to its 
 local autonomy. 
 
 But contemporaneously with the commercial 
 difficulties the Confederacy was failing in efficiency 
 and nearing bankruptcy through its inability 
 to compel the States to perform their obligations. 
 The defect was seen by the larger minded men to 
 lie in the wrong system of the government, and 
 in accord with the principle, even then deeply 
 settled in the public thought upon the origin of 
 government, the means of providing the remedy 
 was considered to be a general convention of all 
 the States, to revise the Articles of Confederation. 
 Whether to any one the credit for first clearly 
 perceiving the need of, and first announcing this 
 remedy can be fairly given, — whether to Alexan- 
 der Hamilton, or to Pelatiah Webster, — or whether 
 it was rather a conviction in the air, at least Hamil- 
 ton was one of the first to perceive and declare 
 the need of such a convention. In his letter to 
 
30 Commercial Power of Congress 
 
 Robert Morris, of April 30, 1781, said by some to 
 have been the origin of the first national bank 
 incorporated under authority of the Continental 
 Congress, he accompanied the argument for the 
 bank, and for permanent ftinds, with perhaps the 
 most explicit demand for a convention to provide 
 a new Constitution which had yet been made. 
 
 They [Congress], [he wrote] must demand an instant, 
 positive, and perpetual investitvu'e of an impost on 
 trade ; a land tax and a poll tax to be collected by their 
 own agents to become a part of the Confederation. 
 ... It has ever been my opinion, that Congress 
 ought to have complete sovereignty in all but the 
 mere municipal law of each State, and I wish to see a 
 convention of all the States, \rith fvill power to alter 
 and amend, finally and irrevocably, the present futile 
 and senseless Confederation. ^ 
 
 In the year preceding "The Continentalist, " 
 delegates from the four New England States and 
 New York, in convention at Hartford, prepared 
 an address to their respective States and to Con- 
 gress, calling upon the latter to propose the levy 
 of certain taxes on specific articles, or duties on 
 imports, for the purpose of discharging certain 
 current liabilities of the Confederacy. The several 
 States were to invest Congress with the power to 
 levy and collect the duties, taxes, or imposts 
 within their respective boundaries, and their 
 
 • Works of Alexander Hamilton (Lodge), iii., ii6. 
 
Proposals in the Country 31 
 
 delegates in Congress were to pledge the faith 
 of their States to the passage of such laws as were 
 needed to give eflEect to these recommendations. 
 In a circtilar letter to the States, also prepared by 
 the Convention, the difficulties of their present 
 situation were attributed, in great measure, to the 
 lack of the "power of coercion" in the central 
 government — a phrase the significance of which, 
 as indicating the trend of thought of the time, in- 
 creases when it is compared with the explanations 
 given by Washington and others of the causes of 
 the disorders in the Eastern States in 1786-1787. 
 The letter recites that 
 
 all government supposes a power of coercion. This 
 power, however, in the general government of the 
 Continent never did exist or, which has produced 
 equally disagreeable consequences, never has been 
 exercised. We shall, however, be without a solid 
 hope of peace and freedom unless we are properly 
 cemented among ourselves, and although we feel the 
 calamities of war, yet we have not sufficient induce- 
 ments to wish a period to them, until our distresses, 
 if other means cannot effect it, have, as it were, forced 
 us into an union. ' 
 
 In July, 1782, the Legislature of New York 
 passed a resolution drafted by Hamilton, which 
 after referring to the defects of the Confederation 
 in not granting to Congress sufficient power 
 
 ' J. C. Hamilton's History of the Republic of the United States, 
 ii., 98, 198, 199. 
 
32 Commercial Power of Congress 
 
 to effectuate that ready and perfect co-operation of the 
 different States on which their immediate safety and 
 future happiness depend, and particularly in not 
 vesting the Federal Government either with a power of 
 providing revenue for itself, or with ascertained and 
 productive funds, secured by a sanction so solemn 
 and general as would inspire the fullest confidence in 
 them, and make them a substantial basis of credit, 
 
 resolved that it be proposed to Congress to recom- 
 mend, and to the several States to adopt, the 
 measure, of calling a general convention of all 
 the States especially authorized to revise and 
 amend the Articles of Confederation.' 
 
 In his Dissertation on the Political Union and 
 Constitution of the Thirteen United States of Amer- 
 ica, published in February 1783, Pelatiah Webster 
 suggested a general convention to formulate a 
 constitution conformable to the maxims stated by 
 him. He laid it down as his 
 
 first and great principle, that the Constitution must 
 vest powers in every department sufficient to secure 
 and make effectual the ends of it. The supreme 
 authority must have the power of making war and 
 peace, of maintaining armies and navies, of appointing 
 officers, both civil and military, of making contracts, 
 of emitting, coining, and borrowing money, of regulat- 
 ing trade, of making treaties with foreign powers, of 
 establishing post-offices, in short, of doing everything 
 
 ' Works of Alexander Hamilton (Lodge), i., 277 et seq. 
 
Proposals in the Country 33 
 
 which the well being of the Commonwealth may 
 require, and which is not compatible with the powers 
 granted to any partictilar State.' 
 
 Early in 1783, a proposition was under consider- 
 ation for a convention of the Eastern States and 
 New York, to assemble upon the invitation of 
 Massachusetts, for the purpose of regulating their 
 mutual trade and other interests. In April of 
 that year, it was explained in the Continental 
 Congress, where it excited much alarm, that the 
 measure was intended to guard against the 
 interference of taxes among the States, whose local 
 situation required such precautions. In the dis- 
 cussion which followed Hamilton hoped to soon 
 present to Congress, in pursuance of instructions 
 from his constituents, a plan to strengthen the 
 Federal Constitution.^ 
 
 In the summer of 1785, Governor Bowdoin, of 
 Massachusetts, in a message to the State Legisla- 
 ture, urged the importance of vesting Congress 
 not only with the power of regulating trade, but 
 "with aU the powers necessary to preserve the 
 Union, manage the general concerns of it, and 
 secure and promote the common interests"; and 
 he proposed a general convention of the States to 
 
 ' Quoted from Hannis Taylor's article in the North A merican 
 Review, for August i6, 1907. See also Taylor's A Memorial in 
 Behalf of the Architect of the Federal Constitution, Pelatiah 
 Webster, of Philadelphia, Penn., 1907. 
 
 ' Madison's Writings (Hunt), vol. i., 438, 439. 
 
34 Commercial Power of Congress 
 
 amend the Articles of Confederation to this end." 
 Pursuant to this suggestion, the State Legislature, 
 in July 1785, resolved that " the powers of Congress 
 [were] not fully adequate to the great ptirposes 
 they were originally designed to effect," and that 
 Congress be urged to recommend a convention 
 of all the States "to revise the Confederation, and 
 report to Congress how far it might be necessary 
 in their opinion, to alter or enlarge the same, in 
 order to secure and perpetuate the primary ob- 
 jects of the Union." 2 This resolution was sent, 
 together with a circular letter from Governor 
 Bowdoin, to the Governors of all the States and 
 to the Massachusetts delegates in Congress, to 
 be submitted to that body. But the delegates 
 (Elbridge Gerry, S. H. Holten, and Rufus King), 
 refused to submit them, and upon their urgency 
 they were rescinded and no further action taken. 
 
 In the meantime, however, Congress was re- 
 sponding to the public demand, various propositions 
 for enlarging the powers of Congress were being 
 brought forward in that body, to which attention 
 wUl be directed in the next chapter ; the convention 
 at Annapolis met and reported, the disorders of 
 1 786-1 787 broke out, the resistance of the conserv- 
 ative element in Congress to a general assembly 
 yielded, and the convention met at Philadelphia 
 determined to accomplish much more than enlarge- 
 ment of the power of Congress over commerce. 
 
 ' Massachusetts Resolves, 1785-1786, p. 70. ' Ibid. 38 and 39. 
 
CHAPTER III 
 
 PROPOSALS IN CONGRESS FOR ENLARGING THE 
 POWER OF THAT BODY OVER COMMERCE — ORI- 
 GIN OF THE DEFINITE MOVEMENT FOR EN- 
 LARGEMENT OF POWER IN A PROHIBITORY 
 MEASURE — THE REPORT OF MONROE's COM- 
 MITTEE IN 1785 — THE REPORT OF PINCKNEY's 
 COMMITTEE IN 1 786 
 
 THE proposals in Congress for enlarging the 
 powers of that body over commerce went 
 through a development from 1781 to 1786, 
 similar to that which we have seen proceeding in 
 the country. In Congress, as out of it, the develop- 
 ment virtually began with the representations 
 of New Jersey; for John Witherspoon's motion of 
 February 3, 1781, conformed to the principle of 
 the representations, he being a delegate from 
 that State. His motion recited that it was 
 indispensably necessary that the United States 
 in Congress assembled should be vested with a 
 right jPof superintending the commercial regula- 
 tions of every State, that none might take place 
 that shall be^jjartial or contrary to the com- 
 mon interest "/and granted to Congress the ex- 
 
 35 
 
36 Commercial Power of Congress 
 
 elusive right of laying duties upon all imported 
 articles ; no restriction, however, to be valid and no 
 duty to be laid without the consent of at least 
 nine States. ' 
 
 The motion was ahead of its time, opinion in 
 Congress had not developed sufficiently to support 
 it, and that body was on this very date occupied 
 with the Report of the Committee of the Whole 
 on the Revenue. The motion was therefore de- 
 feated, ^ and contributed nothing to subsequent 
 efforts to enlarge the powers of Congress. 
 
 Disregarding Witherspoon's motion and ne- 
 glecting the revenue measures, the permanent 
 movement for enlarging Congressional control 
 over commerce began in that body with the 
 recommendation of a prohibitory measure, in the 
 report of the committee of which Thomas Jeffer- 
 son was chairman, in April 1784, advising that 
 the legislatures of the several States vest the 
 United States in Congress assembled for the term 
 of fifteen years with the power to prohibit the 
 importation of goods, wares, or merchandise into, 
 or the exportation thereof from, any of the States, 
 in vessels belonging to the subjects of any power 
 with which the United States had no treaties of 
 commerce, and also advising the vesting in that 
 body, for the same term, of authority to prohibit 
 
 ' Journals of Congress, vii., 25, 26 The motion is in Elliot, 
 i., 92. 
 
 » Journals of Congress, vii., 26. 
 
Proposals in Congress 37 
 
 the subjects of any foreign power with which the 
 United States had no such treaties, from importing 
 into the United States any goods, wares, or mer- 
 chandise not the produce of the dominion of the 
 sovereign whose subjects they were. The report 
 also recommended that to all acts passed in the 
 exercise of the recommended powers, the assent 
 of nine States should be necessary. ' 
 
 The power proposed to be vested in Congress 
 was manifestly a great and positive one; it would 
 be considered to-day a dangerous and tyrannous 
 one. Yet the principle of the recommendation 
 originated in Virginia, in 1783, seems to have 
 aroused little opposition when first suggested in 
 Congress, and to have come into general favor 
 by 1786.^ The assent of the several States, how- 
 ever, to the general principle was attended by 
 such various and contradictory provisions as to 
 details, that the proposal failed to become a law, 
 and the movement in its favor became merged 
 in the wider propositions of the Annapolis Con- 
 vention. But it is significant of the scope which 
 the opinion of the coimtry in 178 1 to 1786 assigned 
 to that regulation of commerce which it was then 
 desired should be vested in Congress, that the 
 movement to secure the greater power to that 
 
 ' Journals of Congress, ix., i86, 187; Elliot, i., 106, 108. 
 
 2 See the Report of the Congressional Committee of March 31, 
 1786, on the state of the measure at that time, Journals of 
 Congress, xi., 31. 
 
38 Commercial Power of Congress 
 
 body really began with the recommendation of a 
 prohibitory meastire. 
 
 The proposals in Congress next advanced to the 
 vesting in that body of complete control over both 
 foreign and interstate trade, the report of the 
 committee of which James Monroe was chairman 
 recommending, in the spring of 1785, an amend- 
 ment to the Articles of Confederation to attain 
 this result.' The conviction of the necessity of 
 speedy action upon the recommendation, which 
 characterizes the report, was due principally to 
 the great contemporaneous development of the 
 West, fear of its drifting away from the Union, 
 and anxiety as to the effect its addition to the Con- 
 federation might have upon measures favored by 
 the seaboard communities. For men were al- 
 ready realizing somewhat of the great future of 
 the lands beyond the Alleghanies, and were fear- 
 ful that the interests of that region might con- 
 flict with the welfare of the older settlements, 
 and prevent the enactment of the commercial 
 measures which the latter desired. Monroe had 
 recently made a journey into Western New York, 
 and to the Great Lakes, one of his objects being to 
 "take into his view the practicability of communi- 
 cations from Lake Erie down the Potomac." 
 He also had in mind, about this time, the exam- 
 ination of the route from Fort Pitt to Lake 
 
 ■ Writings of James Monroe (Hamilton's edition), vol. i., pp. 
 80 to 83. 
 
Proposals in Congress 39 
 
 Erie. ' He was in correspondence with Governor 
 Harrison of Virginia, to whom Washington had 
 addressed his now famous letter on Western com- 
 munications a few months earlier, and with Thomas 
 Jefferson, who about this date was also much 
 concerned over the opening of highways of trade 
 between Virginia and the new communities. Mon- 
 roe was, therefore, fully advised, at the time 
 of the report, upon the western situation, and the 
 perils thought to lurk in it for the Union. In 
 the report he sought to arouse Congress and the 
 State legislattu-es to the speedy action upon its 
 recommendations which he considered necessary. 
 
 The situation of the commercial affairs of the Union 
 [says the report] requires that the several legislatures 
 should come to the earliest decision on the subject, 
 which they [the committee] now submit to their con- 
 sideration. They have weighed it with that pro- 
 found attention, which is due to so important an 
 object, and are fully convinced of its expedience. A 
 further delay must be productive of inconvenience. 
 The interests which will rest in every part of the Union 
 must soon take root and have their influence. The 
 produce raised upon the banks of the great rivers and 
 lakes which have their source high up in the interior 
 parts of the continent will empty itself into the Atlan- 
 tic in different directions, and of course, as the States 
 growing up at the westward attain maturity and get 
 
 ' Monroe to Jefferson, Writings of Monroe, vol. i., 39, 40; to 
 Governor Harrison, vol. i., 39. 
 
40 Commercial Power of Congress 
 
 admission into the Confederacy will their government 
 become more complicated. Whether this will be 
 the source of strength and wealth to the Union, must 
 therefore in great degree depend upon the measures 
 which may now be adopted . . . and while the in- 
 terests of each State and of the Federal Government 
 continue to be the same, the same evils wUl always 
 require the same correction, and of course the neces- 
 sary powers should always be lodged in the same 
 hands. They have therefore thought proper to pro- 
 pose an effective and perpetual remedy.' 
 
 The resolutions accompanying the report, 
 after revision in the Committee of the Whole, 
 recommended that the ninth article of the 
 Confederation be amended to provide that the 
 United States in Congress assembled should have 
 "the sole and exclusive right and power of deter- 
 mining on peace and war except in the cases 
 mentioned in the sixth article, of sending and 
 receiving ambassadors, entering into treaties 
 and alliances, of regiilating the trade of the States, 
 as well with foreign nations as with each other, and 
 of laying such imposts and duties upon imports 
 and exports as may be necessary for the purpose " ; 
 provided, however, that the legislative power of 
 the several States shoiild not be restrained from 
 prohibiting the importation or exportation of any 
 species of goods or commodities whatever, that 
 
 ' Writings of James Monroe (Hamilton), vol. i., p. 83. 
 
Proposals in Congress 41 
 
 all duties imposed should be collected under the 
 authority and accrue to the use of the State in 
 which the same should be payable, and that every 
 act of Congress for effectuating the purposes of 
 the amendment should have the assent of nine 
 States in Congress assembled.' Sttfficient op- 
 position developed in Congress to defer action on 
 the recommendation until the spring of 1786, 
 and the subject then became merged with the 
 meastues to be discussed at Annapolis. ^ 
 
 But the movement in Congress was not per- 
 mitted to die out, for the urgency of Charles 
 Pinckney procured from the subcommittee of 
 the Grand Committee of the Continental Congress, 
 in August 1786, a report recommending among 
 other things the addition of a new article to the 
 Confederation, to be numbered fourteen, by which 
 a power similar to that proposed by Monroe's 
 committee in the previous year was to be vested 
 in Congress. It, however, went farther than the 
 proposal of 1785, in limiting the authority of the 
 States to collect the duties which might be im- 
 posed by Congress, and in restricting their right 
 to impose embargoes to times of scarcity. The 
 proposed Article read as follows: 
 
 Art. 14: The United States in Congress assembled 
 shall have the sole and exclusive power of regulating 
 
 ' Writings of James Monroe (Hamilton), vol. i., pp. 80 to 83. 
 Sparks's Washington, ix., 503; Elliot's Debates, i., p. iii. 
 - Writings of Monroe, vol. i., 95, 96, loi, 127. 
 
42 Commercial Power of Congress 
 
 the trade of the several States, as well with foreign 
 nations as with each other, and of la3ring such pro- 
 hibitions, and such imposts and duties upon imports 
 and exports as may be necessary for the purpose; 
 provided that the citizens of the States shall in no 
 instance be subjected to pay higher duties and im- 
 posts than those imposed on the subjects of foreign 
 powers : provided also that all such duties as may be 
 imposed shall be collected under such regulations as 
 the United States in Congress assembled shall 
 establish consistent with the constitutions of the 
 States respectively, and to accrue to the use of the 
 States in which the same shall be payable; provided, 
 also, that the legislative power of the several States 
 shall not be restrained from laying embargoes in time 
 of scarcity; and provided, lastly, that every act of 
 Congress for the above purpose shall have the assent 
 of nine States in Congress assembled, and in that 
 proportion when there shall be more than thirteen in 
 the Union. ■ 
 
 The phrases in which these resolutions are 
 expressed indicate very clearly the intentions of 
 the respective committees as to the scope of the 
 powers to be vested in Congress: 
 
 The United States in Congress assembled shall 
 have the sole and exclusive right and power ... of 
 regtdating the trade of the States, as well with foreign 
 nations as with each other, and of lajdng such imposts 
 and duties upon imports and exports as may be 
 necessary for the purpose (Monroe's Committee). 
 
 ' Bancroft, Hist. Const., vol., ii., pp. 373-377. 
 
Proposals in Congress 43 
 
 The United States in Congress assembled shall 
 have the sole and exclusive power of regulating the 
 trade of the several States, as well with foreign na- 
 tions as with each other, and of lajdng such prohibi- 
 tions and such imposts and duties upon imports and 
 exports as may be necessary for the purpose (Pinck- 
 ney's Committee). 
 
 The words, "sole and exclusive," used in each 
 of these resolutions, are known to the lawyer to be 
 peculiarly appropriate to that case in which it is 
 intended to (i) invest one of the parties to an 
 agreement with the complete control over the 
 subject in question, and (2) divest the other party 
 of all share in that control. The lawyer is rarely 
 able to foresee all that time may determine should 
 be included under, or directly connected with, 
 the subject of negotiation; and when it is his 
 intention to secure to his client complete control 
 over all that the future, according to the develop- 
 ment of the arts, the changes of society, and the 
 enlarging understanding of men, may ascertain 
 to be within that subject, then the peculiarly 
 apt phrase is that employed in both of these 
 resolutions. Monroe and Pinckney were lawyers, 
 and conversant with this technical significance 
 of the terms used. This, or other equivalent 
 phrases, had also come to be much used in 
 documents of that day by those who desired to 
 take control over some subject wholly from the 
 States, and vest it wholly in the Confederacy. 
 
44 Commercial Power of Congress 
 
 Thus, when the legislature of the State of New 
 Jersey desired to take all authority over foreign 
 commerce from the several States, and confer it 
 wholly upon Congress, their words were: 
 
 We are of the opinion that the sole and exclusive 
 power of regulating the trade of the United States with 
 foreign nations ought to be clearly vested in Congress. 
 
 And Witherspoon's Resolution sought to take 
 from the States all power over the levying of 
 duties on imports, and bestow all upon the Con- 
 gress, by vesting Congress "with the exclusive 
 right of laying duties on all imported articles;" 
 while the legislature of the State of Rhode Island 
 suggested the transfer to the Union of complete 
 control over interstate trade, by advising an 
 amendment to the Articles of Confederation, "by 
 which the United States in Congress assembled 
 [should] be solely empowered to regulate the 
 trade and commerce of the United States, and the 
 citizens thereof, with each other. " 
 
 Thus, whether we consider only the ordinary 
 meaning of the terms in the resolutions of Mon- 
 roe's and Pinckney's committees, or compare 
 them with current usage in cases as to which there 
 is no doubt of the intent to confer upon Congress 
 an authority over a commercial subject, which is 
 at once complete in itself, and exclusive of the 
 power of the States, we are led to conclude, that 
 the sponsors of these resolutions intended to con- 
 
Proposals in Congress 45 
 
 fer upon Congress as complete a power over both 
 branches of commerce as language could express. 
 Only this conclusion is in harmony with the phrases 
 used; the opposite compels us to do violence to the 
 plain meaning of words. Nor does Monroe leave 
 us in doubt as to how he tmderstood the resolu- 
 tion of his committee. Thus, in explaining his 
 preference for the measure proposed by his 
 committee over other expedients, such as com- 
 mercial treaties, he writes to Jefferson on January 
 19, 1786: "Every expedient is unquestionably 
 inferior to the complete and absolute control over 
 commerce in the hands of the United States."' 
 
 To Madison he writes on December 26, 1785, 
 "I am perfectly satisfied that the more fully the 
 subject is investigated, and the better the interests 
 of the States severally are understood, the more 
 obvious will appear the necessity of committing 
 to the United States permanently the power of 
 regulating their trade." ^ 
 
 In a letter to Jefferson, of June 16, 1785, he 
 thus comments upon the relation of the powers, 
 which this measvire would confer upon Congress, 
 to the power at that time possessed by the States : 
 
 The political economy of each State is entirely 
 within its own direction, and to carry into effect its 
 regulation with other powers to attain any substantial 
 ends to the State, they must apply as well to the 
 
 • Writings of James Monroe (Hamilton), vol. i., p. ii6. 
 2 Writings of James Monroe, vol. i., 109. 
 
46 Commercial Power of Congress 
 
 States of the Union as other powers, and such a 
 course as this will produce very mischievous effects. 
 On the other hand, the effect of this report would be 
 to put the commercial economy of every State en- 
 tirely under the hands of the Union, the measure 
 necessary to obtain the carrying trade, to encourage 
 domestic by a tax on foreign industry, or any other 
 ends which, in the nature of things, become necessary, 
 will depend entirely on the Union. In short, you 
 will perceive that this will give the Union an 
 authority upon the States respectively, which will 
 last with it and hold it together in its present form 
 longer than any other principle it now contains will 
 effect. I think the expedience in a great degree of 
 the measure turns on one point (especially to the 
 Southern States), whether the obtainment of the 
 carrying trade and the extension of our national 
 resources is an object. And this depends entirely 
 upon the prospect of our connection with other 
 powers.' 
 
 As to Pinckney, it is probable that at the date 
 of his committee's report he was already en- 
 gaged in the study of the state constitutions, 
 which restilted in his draft of a constitution for the 
 United States; and we know that his regard for 
 the rights of the States at this period was only 
 such as was compatible with his insistence, the 
 next year in the Constitutional Convention, upon 
 the necessity of vesting Congress with the right 
 of negativing all laws whatever of the several 
 
 ' Writings of James Monroe, vol. i., 85. 
 
Proposals in Congress 47 
 
 States. There is nothing in what we know of 
 Pinckney's thinking upon public questions, at 
 this date, to suggest that he gave any more 
 limited meaning to the terms of his resolution 
 than they naturally have. 
 
 So far, then, as the reports of these committees 
 represented contemporaneous opinion as to the 
 extension of the commercial powers of Congress, 
 that opinion favored the vesting in that body of 
 the same complete and exclusive control over 
 the interstate as over the foreign commerce. 
 Neither Monroe, nor Pinckney, nor any of their 
 contemporaries foresaw the great development 
 of the arts, and of the influence of the central 
 authority, which have made the power over inter- 
 state commerce, perhaps, the greatest possessed 
 by the national government, — a power so great, 
 that it may even become a menace to the local 
 self-government of the States. But so far as 
 they did foresee, they intended to sweep the whole 
 field of regulation of interstate commerce into 
 the power of Congress; and they deUberately, as 
 lawyers, as well as statesmen, made use of terms 
 adapted to include within that power whatever 
 the future determined, although unforeseen by 
 them, it should from time to time include. 
 
CHAPTER IV 
 
 THE DEVELOPMENT OF THE WEST — ITS EFFECT 
 
 UPON THE MOVEMENT TO ENLARGE THE 
 
 COMMERCIAL POWERS OF CONGRESS 
 
 THE report of Monroe's committee is but one 
 of ntimerous indications that the great 
 contemporary development of the West was 
 opening men's minds to larger conceptions of the 
 future of the Union, and to the recognition of the 
 necessity of vesting Congress with powers ade- 
 quate to the regulation of a great internal trade. 
 "The West" has signified different localities to 
 different generations. For more than a century 
 the relation to the eastern communities of the 
 region and the people designated by that term 
 greatly influenced national legislation, and gave 
 a continental breadth to the thoughts of men 
 concerning the nature and ends of government, 
 which otherwise would have remained narrowly 
 local. "As we are laying the foundation of a 
 great empire," said Rutledge in the Constitu- 
 tional Convention, when opposing the proposition 
 that laws regulating commerce should require 
 two-thirds majorities, "we ought to take a per- 
 
 48 
 
Development of the West 49 
 
 manent view of the subject, and not to look at the 
 present moment only"'; and in this saying he 
 voiced an opinion which contemporary events 
 were pressing into the thoughts of all large-minded 
 men of his day. 
 
 In the years immediately preceding the framing 
 of the Constitution, "the West" signified particu- 
 larly the region now covered by the States of 
 Kentucky and Tennessee and the territory 
 northwest of the Ohio River, and occurrences in 
 that locality were forcing upon the Confederation 
 the serious problem of permanently attaching 
 it to the Union. From 1781 to the passage of the 
 "Ordinance for the government of the territory 
 of the United States northwest of the river 
 Ohio," 2 in 1787, men's thoughts had been much 
 occupied with the nature of the government to be 
 erected in that territory; from 1783 to 1788 the 
 settlement of the whole western region was pro- 
 ceeding with great rapidity; as the date of the 
 Convention approached, the danger that it would 
 drift away from the Confederacy to England or 
 Spain was thought to be serious, and the best 
 means of preventing its loss seemed to the men 
 of the day the increasing of facilities of trade 
 between it and the older parts of the Union. To 
 the leaders early action by the Confederation 
 seemed necessary, and for two reasons : unless wise 
 
 'Documentary History of the Constitution, vol. in., 641. 
 ' U. S. Revised Statutes, 13. 
 
 4 
 
50 Commercial Power of Congress 
 
 action were quickly taken, the West might become 
 permanently alienated from the Confederacy; 
 and unless action were taken before new States 
 were erected in that region, the effect of the added 
 members of the Confederacy might be to modify 
 the proposed alterations of the Confederation in a 
 manner not desired by the older communities. 
 
 We have seen that Monroe was keenly alive 
 to the situation. That Madison also perceived 
 that the relation of the West to the Union required 
 speedy action in enlarging the commercial powers 
 of Congress, is shown by his letter to Jefferson, of 
 March 1786, in which he writes that, "of two con- 
 siderations which particularlyremonstrated against 
 delay," one was "the probability of an early 
 increase of the confederated States which more 
 than proportionally impede measures which re- 
 quire unanimity, as the new members may bring 
 sentiments and interests less congenial with those 
 of the Atlantic States, than these of the latter 
 are with one another."^ That Washington also 
 had great anxiety over the outcome is indicated 
 by his correspondence to be presently quoted. 
 And there was a special occasion for their fears 
 in the western unrest over the question of the free 
 navigation of the Mississippi. In Kentucky 
 and Tennessee, and quite generally in the western 
 settlements, there was a strong desire to obtain 
 from Spain the right of free navigation of the 
 
 ' Writings of James Madison (Hijnt), vol. ii., 229-230. 
 
Development of the West 51 
 
 lower parts of that river; but in the East, both 
 in and out of Congress, opinion was much divided 
 as to whether it were more desirable to strive 
 for this, or for the improvement of direct routes of 
 communication between the western settlements 
 and the Atlantic seaboard ; and it was thought by 
 Washington and others that, upon the whole, the 
 interests of the Union would be better promoted 
 by the latter course. Richard Henry Lee, then 
 President of the Continental Congress, in a letter 
 to Washington, in the summer of 1786, indicates a 
 willingness on the part of that body to conclude 
 the pending treaty with Spain by waiving the free 
 navigation of the Mississippi,' and Washington 
 was, at this time, of the opinion, that the improve- 
 ment of trade communications between the At- 
 lantic States and the Western Territory was more 
 iu"gent than the securing of the free navigation 
 of that river. 2 
 
 Washington probably knew the Western coun- 
 try better, and appreciated its relation to the 
 Union with broader mind than any other public 
 man of his generation. At least since 1774, he 
 had been reflecting upon the promotion of its 
 trade with the coast settlements. He had also 
 a personal interest in it, through his holdings of 
 
 » Lee to Washington, in the Writings of George Washington, col- 
 lected and edited by Worthington Chauncey Ford, vol. xi., p. 42. 
 
 2 Washington to Lee, i8th June, 1786, Ford's Writings of 
 Washington, xi., pp. 41 and 42. 
 
52 Commercial Power of Congress 
 
 large tracts of lands in localities which would 
 be favorably affected by proposed trade routes' 
 and the contemplation of the great future of the 
 West roused his equal mind to a rare poetic 
 enthusiasm, so that he wrote of it as that "rising 
 world." He had reached the settled conviction, 
 that the West could only be permanently at- 
 tached to the Union by improving the trade 
 communications between them, and his advocacy 
 of internal improvements was part of his wise 
 political forethought. In a letter to Samuel 
 Purviance, of the loth March, 1786, he thus 
 explains his interest in various projects of river 
 improvement : 
 
 This [the James River project], equally with the 
 extension of the Potomac navigation, was a part of 
 my original plan and equally urged by me to our 
 Assembly; for my object was to connect the Western 
 and Eastern or Atlantic States together by strong 
 commercial ties. . . . All of them [the various pro- 
 jects] have my best wishes; for as I have observed 
 already, my object and my aim are political. If we 
 caimot bind these people to us by interest, and it is 
 not otherwise to be effected but by a commercial knot, 
 we shall be no more to them after a while than Great 
 Britain or Spain, and they may be as closely linked 
 with one or other of those powers as we wish them to 
 
 " See Washington's letters to Purviance, Witherspoon, 
 Slaughter, and others, in Washington's Writings (Ford), viii., 6; 
 X., 362; xii., 103; (Sparks) X., 220. 
 
Development of the West 53 
 
 be with us, and in that event, they may be a severe 
 thorn in otir side.' 
 
 In 1784, he had expressed the same sentiments 
 even more forcibly in a letter to George Plater.^ 
 
 But I consider [he had then written] the business of 
 improving trade routes in a far more extensive point 
 of view; and the more I have revolved the subject, 
 the more important it appears to me; not only as it 
 respects our commerce, but our political interest and 
 the well being and strength of the Union also. 
 
 And noting the projects promoted by various 
 States, both by water and over land, for smoothing 
 the roads and paving the way 
 
 for the trade of that Western World to their capital, 
 ... I am not [he writes] for discouraging any State 
 to draw the commerce of the Western country to its 
 seaports; the more communications are open to it, 
 the closer we bind that rising world (for indeed it may 
 be so-called) to our interests, and the greater strength 
 shall we acquire by it ; . . . but the political object 
 of it in my estimation is immense. 
 
 I need not remark to you, sir, that the flank and 
 rear of the United Territory are possessed by other 
 powers and formidable ones, too; nor how necessary 
 it is to apply the cement of interest to bind the several 
 parts of it together; for what ties, let me ask, should 
 
 ' Writings of Washington (Ford), xi., 20, 21. 
 ' Washington to Plater, 25 Oct., 1784, in Bancroft, Hist. 
 Cons., i., 383. 
 
54 Commercial Power of Congress 
 
 we have upon those people, and how entirely un- 
 connected must we be with them, if the Spaniards on 
 their right, or Great Britain on their left, instead of 
 throwing stumbling blocks in their way, as they now 
 do, should invite their trade and seek alliances with 
 them. What, when they get strength, which will be 
 sooner than is generally imagined from the emigration 
 of foreigners, who can have no predilection for us, 
 as well as from the removal of our own citizens, may 
 be the consequence of their having formed close 
 connection with both or either of those powers in a 
 commercial way, needs not the gift of prophecy to 
 foretell. . . . But, open the road once and make easy 
 the way for them, and see what an influx of articles 
 will be poured in upon us ; how amazingly our exports 
 will be increased by them, and how amply we shall be 
 compensated for any trouble and expense we may 
 encounter to effect it. 
 
 Washington was alone in the breadth of his 
 views concerning the political bearings of improved 
 trade communications, but others were as eager 
 for the improvements because of the immediate 
 commercial advantages. There was much rivalry 
 among the Eastern States in their efforts to control 
 highways of trade with the West, and numerous 
 proposals of routes to direct that trade to one or 
 another of the older States were advanced in the 
 years immediately preceding the meeting of the 
 Convention. The foregoing extracts from Wash- 
 ington's correspondence have indicated this, and 
 it is more explicitly set forth by Jefferson in his 
 
Development of the West 55 
 
 letter to Madison of February 20, 1784, in which, 
 explaining the importance to Virginia of retaining 
 her territory to the meridian of the mouth of the 
 Kanawha, he advances among other reasons, that 
 the Ohio and its branches, 
 
 which head up against the Potomac, affords the shortest 
 water commumcation by five hundred miles of any 
 which can ever be got between the western waters and 
 Atlantic, and, of course, promises us almost a monoply 
 of the Western and Indian trade. I think the opening 
 of this navigation is an object on which no time is to 
 be lost. Pennsylvania is attending to the western 
 commerce. She has had surveys made of the river 
 Susquehanna, and of the grounds through which a 
 canal must pass to go directly to Philadelphia. It is 
 reported practicable at an expense of £200,000 and 
 they have determined to open it. What an example 
 this is! If we do not push this matter immediately, 
 they will be beforehand with us, and get possession 
 of the commerce. And it is difficult to turn it from a 
 channel in which it is once established. ' 
 
 This realization of the importance of providing 
 for trade with the West was due to the extra- 
 ordinary contemporary development of the new 
 settlements. 
 
 The people east of the mountains, released from a 
 long and unnatural war, and having only partially 
 recovered from the consequent depression, after 
 
 ' Quoted from Bancroft, History of the Constitution, vol. i., 
 344-345; Writings of Thomas Jefferson (Ford), iii., 402. 
 
56 Commercial Power of Congress 
 
 peace had been restored with the Indian tribes, 
 sought ease and fortune in the West. The tide of 
 emigration began to set with unprecedented rapidity 
 from the Atlantic settlements across the mountains 
 and down the Ohio River. The roads from Cumber- 
 land and Bedford to Pittsburg and Brownsville were 
 traversed by continued and successive groups of 
 emigrant colonies, with their long lines of family 
 wagons followed by herds of cattle, hogs, all kinds of 
 stock, and the necessary appendages for agricultural 
 life.' 
 
 It is estimated that in 1784, 30,000 settlers came 
 into the valley of the Ohio, southern side, from 
 Virginia and North Carolina. The census of 1790 
 gave to Kentucky 73,677 inhabitants.^ Monette 
 estimated the population at more than 80,000, 
 and John Brown in a letter to Jefferson of August 
 ID, 1788, claimed 100,000.^ A consequence of 
 this growth of population was considerable increase 
 of trade between the new settlements and older 
 commtmities. "Wheat fields and cornfields and 
 orchards began to spring up in every direction, 
 and already the wagons that brought out mer- 
 chandise from Philadelphia went back laden with 
 grain."* 
 
 Nor was this great western development con- 
 
 " Monette, History of the Valley of the Mississippi, vol. ii., p. 
 146. 
 ' Ibid., cited, pp. 177, 163. 
 " Bancroft, Const., vol. ii., p. 477. 
 ' McMaster, History of the American People, vol. i., p. 149. 
 
Development of the West 57 
 
 fined to the southern side of the Ohio River; it 
 was turning also to the northern, and during the 
 sessions of the Constitutional Convention measures 
 were concluding which were presently to give an 
 extraordinary impetus to the settlement of the 
 regions north of that river. The principal agent 
 in this movement was the Ohio Company, an 
 association originally formed in New England to 
 afford opportunities to officers of the Revolu- 
 tionary Army to better their condition by remov- 
 ing to the Ohio valley. Members of Congress 
 and of the Convention were interested in its 
 project; its contract with Congress was closed in 
 the summer of 1787, and was closely connected 
 with the passage of the Northwest Ordinance; 
 and its operations tended to strongly direct 
 the thoughts of the men of the Convention to- 
 ward the importance of the power of regulating 
 trade between the eastern communities and its 
 settlements. 
 
 The journals and correspondence of Manasseh 
 Cutler, the principal agent of the Company in its 
 negotiations with Congress, and other letters and 
 documents of the time, show clearly how deeply 
 the idea of the growth of trade between the older 
 States and the new settlements was then occupy- 
 ing the thoughts of the leading men, — how deeply, 
 in fact, their own fortunes were concerned in 
 various projects of western settlement. 
 
 It was the original plan of the association of 
 
58 Commercial Power of Congress 
 
 the Ohio Company to ptirchase from Congress 
 about 1,500,000 acres of land in the Ohio valley 
 for about $1 ,000,000, and to settle colonists from 
 New England on the piirchase. The prospect of 
 receiving such a sum of money seemed, at first, 
 to the almost bankrupt Congress a godsend, but 
 presently, according to Cutler, various obstacles 
 were put in the way of the contract, until the 
 Company was induced to increase the amount 
 of their purchase from 1,500,000 acres to 5,000,000 
 acres, of which, 3,500,000 acres were to go to a 
 second company in which members of Congress 
 were secretly interested. Upon this basis, the 
 contract was entered into during the summer of 
 1787, and the Company immediately began the 
 work of settlement around the present city of 
 Marietta. ' 
 
 ' In his Journals Cutler says, that the Ohio Company obtained 
 one million and a half of acres and the remainder of five million 
 acres for "a private speculation in which many of the principal 
 characters in America were concerned. Without connecting 
 this speculation similar terms and advantages could not have 
 been obtainedjfor the Ohio Company.' ' (Cutler's Life, Journals, 
 and Correspondence, by his grandchildren, William Parker 
 Cutler and Julia Perkins Cutler, Cincinnati, 1888, Vol. i., 
 
 p. 305.) 
 
 Under date of July 30, 1787, Cutler writes that Col. Duer 
 came to him "with proposals from a number of the principal 
 characters in the City to extend the contract, and take in another 
 company, but that it should be kept a profound secret. He 
 explained the plan they had concerted and offered me generous 
 conditions if I would accomplish the business for them. The plan 
 struck me aggreably." Cutler, vol. i., p. 295. 
 
Development of the West 59 
 
 The plans of the Ohio Company were considered 
 of great poHtical, as well as economic, importance, 
 their enterprise stimulated other settlements, and 
 western emigration became the rage. Carrington, 
 a member of Congress, proposing to invest in the 
 shares of the Company writes Monroe, in August 
 1787, that the Company would be the means of 
 "introducing into the country, in the first instance, 
 a description of men who will fix the character 
 and politics throughout the whole territory, and 
 which will probably endure to the latest period of 
 time."' And about the same date Grayson 
 writes: "As their objects are actual settlement 
 and defence, there is every reason to conclude it 
 will be of the greatest advantage to that country. " 
 And he expresses the opinion that in a few years 
 the Company will be extended by additional pur- 
 chases quite to the Mississippi, thereby forming a 
 complete barrier for Virginia, and greatly "vali- 
 dating" the lands on the Virginia side of the 
 Ohio.^ In other letters, Grayson notes other 
 grants of large tracts of land in the Ohio valley 
 and on the banks of the Wabash, and says that a 
 very considerable emigration will take effect from 
 the five easternmost States. "A brigade files 
 
 The Ordinance authorizing the contract with the Ohio Com- 
 pany was passed by Congress, July 27, 1787. 
 
 The settlement at Marietta was made April 7, 1788. Cutler, 
 vol. i., p. 148. 
 
 ' Bancroft, Const. Hist., vol. ii., p. 436. 
 
 2 Ibid., 437, 438. 
 
6o Commercial Power of Congress 
 
 ofE from Massachusetts immediately, which is to 
 be followed by much more considerable ones next 
 spring and faU."' 
 
 As indicated by Grayson, the project of the Ohio 
 Company was followed in the same year, 1787, 
 by other schemes for western settlement, of such 
 magnitude, that Otto, French charge d' affaires, 
 at New York, writes to Montmorin in October 
 and November 1787, that "a great number of 
 adventurers are flocking thither to form settle- 
 ments there. The excess of population in the 
 Northern States, and all the discontented are 
 joiorneying thither in crowds, and the banks of 
 Ohio will soon be covered with plantations." ^ 
 He notes that a large settlement has been made 
 on the Mississippi, between the Illinois River and 
 that of the Kaskaskias; "it is proposed to build 
 a town, very nearly opposite to the Missouri, 
 whither they count upon attracting all the fur 
 trade which descends that great river. There is 
 always something of the wonderful in these pro- 
 jects, but there is perhaps no civilized nation which 
 changes its habitation more readily than the 
 Americans, and which founds settlements more 
 rapidly. " ^ 
 
 Few public men of that day could be indifferent 
 to the consequences of movements of such magni- 
 
 ' Bancroft, Const., vol. ii., pp. 439, 445. 
 2 Ibid., p. 447. 
 ^ Ibid., p. 450. 
 
Development of the West 6i 
 
 tude. But their emotions differed greatly. In 
 Washington, as we have seen, these events pro- 
 duced high hopes of a great national future. To 
 him they were the signs of a rising world, of the 
 dawning of a great American empire ; but the same 
 events inspired others with grave anxieties. The 
 older communities had fought the Revolution, 
 established the Confederation, and conducted it 
 until now ; might it not be that these new regions, 
 so much larger in extent, would deprive the older 
 States of their pre-eminence, and introduce 
 political ideas to which they were opposed? To 
 such men, the West was "the embryo of new 
 connections, a vast political field [they] dare not 
 explore."' 
 
 These hopes and fears were reflected in the 
 Constitutional Convention. Rutledge and Madi- 
 son saw in the western movements reasons for 
 building the framework of the government in 
 such permanent form as would provide for the 
 future. 2 But Gouverneur Morris proposed to 
 give to Congress power to admit the Western 
 States into the Union upon a different basis than 
 that of the older States, so that their influence 
 might be curtailed and their supremacy prevented^ ; 
 while Clymer thought that to encourage the 
 
 ' Crevecoeur to Jefferson, Oct. 20, 1788, in Bancroft, Hist. 
 Const., vol. ii., p. 482. 
 
 2 For Madison, Documentary History of the Constitution, vol. 
 iii., p. 543; for Rutledge, p. 641. 
 
 ' Documentary History, iii., 305. 
 
62 Commercial Power of Congress 
 
 western country would be suicide for the older 
 States'; and the history of the times contains 
 numerous references to the jealousies of the 
 older communities at the departure of swarms of 
 their inhabitants to the western country. But 
 whether in hope or in fear, the consequences of 
 the Western connection deeply occupied men's 
 thoughts on the eve of the Constitutional Con- 
 vention, and enlarged their comprehension of the 
 scope of the new Constitution from a plan for regu- 
 lating the affairs of a few small communities along 
 the Atlantic coast to one for governing an empire. 
 
 Not only, however, were the relation of the 
 West and the importance of its trade uppermost 
 in men's minds on the eve of the Convention, 
 but vehicles of internal commerce altogether sur- 
 passing what the world had before known, were 
 just then also coming to their knowledge. For 
 it is a curious coincidence in oiu- history, that, 
 just as the new settlements were thus enlarging 
 the conceptions of men as to the purposes of the 
 new government, the invention, or re-invention, 
 of the steamboat should have inspired them with 
 the expectation of a more efficient contrivance for 
 conducting the internal trade of the cotmtry than 
 anything yet known to the world. 
 
 Rumsey and Fitch had brought out their 
 respective inventions shortly before the meeting 
 of the Convention. Their rival claims had been 
 
 » Documentary History, iii., 633. 
 
Development of the West 63 
 
 iirged upon the Continental Congress and the 
 legislatures of several States, some of which had 
 granted monopolies to the one or the other inven- 
 tor for the use of their respective improvements 
 on vessels navigating the waters of the enacting 
 States. The inventors asserted, and prominent 
 men of the time recognized, the great importance 
 of the improvements to the internal trade of the 
 country. Thus Washington, in his certificate to 
 Rumsey, in 1784, speaks of the invention as of the 
 greatest usefulness to internal navigation.' Dr. 
 John Ewing, Provost of the University of Penn- 
 sylvania, commending Fitch's invention to Wil- 
 liam C. Houston, formerly a member of the 
 Continental Congress, wrote in 1788: "Should 
 such a machine be brought into common use in the 
 inland navigation through the United States, it 
 would be exceedingly advantageous in transport- 
 ing the productions of America to market, and 
 thereby greatly increase the value of our back 
 lands. " * Andrew EUicott, of Philadelphia, wrote, 
 after seeing Fitch's boat on the Delaware, in 1787, 
 "I am fully of the opinion that steamboats may 
 be made to answer valuable purposes in facilitat- 
 ing the internal navigation of the United States, 
 and that Mr. Fitch has great merit in applying the 
 steam engine to so valuable a purpose"^ ; and in a 
 
 ' Writings of Washington (Ford), vol. x., p. 402. 
 2 Westcott, Life of Fitch, p. 126. 
 s Ibid., p. 193. 
 
64 Commercial Power of Congress 
 
 letter to the public written dviring the construction 
 of his boat, Fitch quaintly expressed his confidence 
 in the benefits of his invention to internal com- 
 merce, as well as the too common vicissitudes of 
 inventors. His boat, he wrote, woiild be particu- 
 larly advantageous on the Ohio and Mississippi, 
 where "the God of Nature knew their banks covdd 
 never be travassed by horses, and has laid in a 
 store of fewU on their head waters sufficient to 
 last for the latest ages, for the very purposes of 
 navigating their waters by fire." He referred 
 to the interest Congress had shown in Rumsey's 
 inferior invention, and supposed himself dying in 
 obscurity and buried on the fair banks of the 
 Ohio, with his name inscribed on a neighboring 
 poplar, "that future generations, when traversing 
 the mighty waters of the West, in the manner 
 that I have pointed out, may find my grassy turff 
 and spread their cupboard on it, and circle round 
 their cheerful knogging of whisky with three 
 times three, till they should suppose a son of 
 misfortune could never occupy the place." ' The 
 boat was completed, and plied regularly on the 
 Delaware River in August 1787. It was observed 
 by the members of the Convention, several of 
 whom made trips on it, and thus had practical 
 experience of the possibilities of the invention. 
 
 The survey thus far made of the history of the 
 country between 1778 and 1787 has developed 
 
 " Westcott, Life of Fitch, pp. 190 and 191. 
 
Development of the West 65 
 
 a remarkable succession and combination of 
 events, all tending to enlarge the conception of 
 indispensable powers of Congress over commerce. 
 At first experience proved that the power of the 
 Confederacy over foreign commerce was too 
 limited to effect the desired relief from, or retalia- 
 tion for, injviries inflicted upon our foreign trade, 
 and a general sentiment arose in favor of vesting 
 Congress with complete and exclusive control 
 over foreign trade. Before the Articles of Con- 
 federation could be amended to attain this, the 
 efforts of the several States at relief and retaliation 
 showed that the power of the States was not ade- 
 quate to accomplish the desired ends, and that 
 the regulation of trade among the States was so 
 connected with the regulation of trade with foreign 
 nations, that the latter could be adequately at- 
 tained only if the regulation of the former were 
 taken from the several States and bestowed upon 
 Congress ; and a considerable sentiment developed 
 in favor of vesting Congress with the power of 
 regulating interstate as well as foreign commerce. 
 
 This sentiment was greatly strengthened by 
 the irritation over the burdens imposed by some 
 of the States upon interstate trade, and over 
 the obstacles deliberately placed by certain States 
 in the way of the regulation by other States of 
 their foreign commerce. The remedy for both 
 evils was considered to be the withdrawal from 
 the several States of the power to regulate 
 
66 Commercial Power of Congress 
 
 interstate commerce, and the bestowal of that 
 power upon Congress. According to the thought 
 of that day, the regulation of interstate trade 
 was to be exercised, first, in aid of the regulation 
 of foreign commerce and of the national policies 
 with respect to various foreign nations, and was to 
 include the power of burdening the interstate 
 trade with restrictions and prohibitions to that 
 end ; second, to relieve the trade among the States 
 from the burdens imposed by the States. 
 
 As public opinion was reaching this condition 
 the great development of the West was taking 
 place, and under circumstances which made the 
 development of trade between that region and 
 the Atlantic sea board of great importance to the 
 latter; and just then inventions became known 
 which greatly enlarged men's conceptions as to 
 the possibilities of such trade. It is not probable 
 — indeed it is wholly improbable — that the western 
 situation, with its grave anxieties and great hopes, 
 all centring about the development of trade with 
 that region, should not have deeply influenced the 
 thoughts of men concerning the means of con- 
 trolling that trade. The power of regulating it 
 was beyond the capacity of any State, for it led 
 into several States, or into territory owned by 
 the Confederacy, not by any single State. Con- 
 temporary thought was ready to admit the notion 
 of regulating this trade through the power of Con- 
 gress over interstate commerce, and the conception 
 
Development of the West 67 
 
 of the power of regtilation would naturally have 
 expanded to include such measures as promoted 
 the desired end. Such, if we had no docvimentary 
 evidence, would be the reasonable deduction from 
 the combined facts. But we are not left wholly 
 without persuasive evidence to support the deduc- 
 tion. The report of Monroe's committee shows 
 that the obtaining of adequate regulation of the 
 trade between the East and the West was one of 
 the results sought in the proposed enlargement 
 of the commercial powers of Congress. Madison 
 confirms Monroe's report, and Washington's 
 correspondence shows how vital some men of the 
 day must have deemed the fostering and regula- 
 tion of that trade. It seems to me, therefore, 
 certain that the relation of the West to the East 
 was an important element in the development of 
 contemporary opinion in respect to the power of 
 Congress over interstate commerce; that its 
 influence was inevitably to generate wUUngness 
 to bestow powers upon Congress adequate to the 
 regulation of the interstate trade of the great 
 interior empire, which the imaginations of men 
 were now conceiving. If this be a reasonable con- 
 clusion, then the power sought to be vested in 
 Congress was much more than a negative power of 
 preventing interferences by States; it was a posi- 
 tive power of fostering, in all appropriate ways, 
 the trade to be regtdated, and I do not doubt that 
 the thorough-going terms in which the resolutions 
 
68 Commercial Power of Congress 
 
 of Monroe's and Pinckney's committees are ex- 
 pressed result, in part, from their determination 
 to secvire to Congress an authority adequate to 
 the regulation of the trade of such an empire. 
 
 The events thus far considered comprise those 
 out of which issued one of the two great purposes 
 to attain which the Constitution of the United 
 States was framed — the adequate regulation of 
 commerce. This purpose became merged in and 
 dominated by the deeper one of providing a 
 government with strong coercive powers in the 
 interest of the security of persons and property 
 and of civil peace. But it led to the assembly at 
 Annapolis, which afforded the occasion of conven- 
 ing the Constitutional Convention. The way to 
 Philadelphia was by Annapolis, and the assembly 
 there in September, 1786, will be next considered. 
 
CHAPTER V 
 
 THE ANNAPOLIS CONVENTION OF 1 786 — THE CIR- 
 
 CXUVtSTANCES WHICH PRODUCED IT — THE 
 
 REPORT OF THE COMMISSIONERS 
 
 THIS convention assembled at Annapolis, Md., 
 in September, 1786, upon the suggestion of 
 Virginia, 
 
 to take into consideration the trade of the United 
 States; to examine the relative situation and trade 
 of the said States; to consider how far a uniform 
 system in their commercial regulations [might] be 
 necessary to their common interest and permanent 
 harmony; and to report to the several States such 
 an act relative to [that] great object as when unani- 
 mously ratified by them [would] enable the United 
 States in Congress effectually to provide for the 
 same. ' 
 
 The assembly resulted from measures taken by 
 Virginia and Maryland to adjust their respective 
 claims to the Potomac River and parts of Ches- 
 apeake Bay. The two States appointed a joint 
 commission in 1784, to report upon the question 
 
 'Elliot, vol. i., pp. 115-116; Virginia Journals, 1785, pp. 153, 
 154 (Richmond Reprint of 1828). 
 
 6q 
 
70 Commercial Power of Congress 
 
 of jurisdiction; and, at about the same time, a 
 memorial from their inhabitants, setting forth 
 the depressed condition of trade, and recommend- 
 ing the improvement of the navigation of the 
 Potomac River under control of both States, and 
 the urgency of Washington with the Governor 
 and members of the Legislature of Virginia, led 
 to the referring to the commission of the question 
 of improved communications with the "West. 
 The commissioners reported upon the subjects 
 referred to them, recommending the improve- 
 ment of several routes to connect the waters 
 flowing into the Atlantic with those of the western 
 country; and since one of these routes lay partly 
 in Pennsylvania, they advised that permission be 
 obtained from that State for the building within 
 her borders of the suggested road.' 
 
 But ibeside the questions of jurisdiction and 
 of improved communications with the western 
 settlements, there were numerous matters in the 
 policies of the two States which hindered their 
 prosperity, such as differences in coinage and 
 burdensome tariffs. The commissioners, there- 
 fore, going beyond their instructions, presented 
 a supplemental report upon the general trade 
 relations of the two States " : 
 
 It was [says McMaster] doubtless of great moment 
 that each State should have equal and well defined 
 
 » Maryland Journals, 1784, p. 64. 
 
 - Maryland Journals for November 1785, pp. 11, 19. 
 
The Annapolis Convention 71 
 
 rights on the waters of the river and the bay. But it 
 was also of much importance that every hundred- 
 weight of tobacco that went over the Potomac to 
 Maryland, and every barrel of com that came from 
 Maryland to Virginia, should be made subject to a 
 uniform system of duties. Nor was it less desirable 
 that all disputes about the currency or the meaning of 
 commercial laws should be settled in accordance with 
 some uniform principles. The commissioners were 
 well aware that however needful these things might be, 
 it did not fall within their instructions to meddle 
 with them. Yet they felt sure, that as good men and 
 true, they might with perfect propriety draw up a 
 supplementary report setting forth how, in the course 
 of their labors, they had been deeply impressed with 
 the want of legislation on the currency, on duties, and 
 on commercial matters in general. This indeed they 
 did, and added the suggestion that each year two 
 commissioners should be appointed to report upon the 
 details of a system for the next year. ' 
 
 The report was approved in substance by the 
 Maryland Legislature, which proposed that Penn- 
 sylvania and Delaware should be requested to 
 join with Virginia and Maryland in carrying 
 out its recommendations.* The Legislature also 
 recommended that in order to maintain that 
 equality of duties or imports and exports which 
 was considered essential to the commerce and 
 
 ' McMaster, History of the People of the United States, vol. i., 
 p. 278. 
 ' Maryland Journals, 1786, pp. 149, 150. 
 
72 Commercial Power of Congress 
 
 revenue of both States, each shotild annually 
 appoint an equal number of commissioners to 
 consider the question of duties and also such 
 other subjects as might concern the commercial 
 interests of both. ■ 
 
 The report of the commissioners, together with 
 the resolutions adopted by the Legislature of 
 Maryland, were sent to the Legislature of Virginia, 
 where they encountered some opposition, particu- 
 larly in the Senate. But the opportunity pre- 
 sented by the consideration of the subject was 
 seized by Madison to procure the introduction, 
 and finally the passage, of a resolution proposing 
 a convention of delegates of all the States to 
 consider the condition of the trade of the country, 
 and report such an act to Congress as would enable 
 that body to adequately provide for its regulation; 
 and seven commissioners, among whom were 
 Madison and Randolph, were appointed to meet 
 such delegates as might be named by the other 
 States, at a time and place to be thereafter 
 designated.^ 
 
 The Virginia commissioners met, and named 
 Annapolis, Md., as the place, and the first Monday 
 in September, 1786, as the date of the proposed 
 convention. But owing, in part, to the fears of 
 some that the convention would recommend too 
 
 " Maryland Journals, November 1785, pp. 11, 19. 
 ' Virginia Journals (Reprint of 1828), pp. 153, 154. See also 
 Madison's account in Writings of Madison (Hunt) ,vol. ii . , 396 el seq. 
 
The Annapolis Convention 73 
 
 great changes in the Articles of Confederation, in 
 part, to the fears of others that it would not go far 
 enough, and that its action would hinder the 
 thorough revision of the Articles which they 
 thought necessary, only five States — New York, 
 New Jersey, Pennsylvania, Virginia, and Delaware 
 — ^were represented in the convention, which met 
 on September 14, 1786. The assembled delegates, 
 considering themselves too few to enter upon the 
 main business entrusted to them, were content 
 to draw up a report to their respective States, 
 drafted by Hamilton and somewhat toned down 
 upon suggestions of Randolph. It happened that 
 New Jersey, through irritation at New York, had 
 broadened the instructions to her delegates to 
 include the consideration of a uniform system of 
 commercial regulations and other matters, and the 
 report took advantage of these instructions to 
 recommend a general convention of all the States 
 to meet at Philadelphia on the second Monday 
 of May, 1787, "to devise such further provisions 
 as shall appear to them necessary to render 
 the Constitution of the Federal Government 
 adequate to the exigencies of the Union, and to 
 report such an act for that purpose to the United 
 States in Congress assembled as, when agreed to 
 by them and afterwards confirmed by the Legisla- 
 ture of every State, will effectually provide for the 
 same."' 
 
 " Works 0} Alexander Hamilton (Lodge), vol. i., pp. 319-323- 
 
74 Commercial Power of Congress 
 
 The recommendation of a general convention 
 went beyond their commissions, and the delegates 
 sought to justify their conduct by their anxiety 
 for the welfare of the United States, and their 
 conviction that the power over commerce, which 
 was intended to be vested in Congress, was so 
 extensive as to require considerable change in the 
 nature of the government, their report saying on 
 this point, that 
 
 the idea of extending the powers of their deputies to 
 other subjects than those of commerce . . . well 
 deserved to be incorporated into that of a future 
 convention. The commissioners are the more nat- 
 urally led to this conclusion, as, in the course of their 
 reflections on the subject, they have been induced 
 to think that the power of regulating trade is of such 
 comprehensive extent, and will enter so far into the 
 general system of the Federal Government, that to 
 give it efficacy, and to obviate questions and doubts 
 concerning its precise limits and nature, may require 
 a corresponding adjustment of other parts of the 
 Federal System. 
 
 Copies of the report were sent to Congress and 
 to the legislatures of all the States, and its recom- 
 mendations were received with general favor out 
 of Congress, so that eight States soon afterward 
 appointed delegates to the proposed convention, 
 and ultimately all did so excepting Rhode Island. 
 
 The report as originally drafted by Hamilton was toned down 
 by Randolph. 
 
The Annapolis Convention 75 
 
 But Congress had not for some years represented 
 the progressive tendencies of the country at 
 large, with respect to alterations in the frame- 
 work of the government,' and the proposition 
 for a general revision of the Confederation met 
 sufficient opposition to prevent action upon the 
 recommendations of Hamilton's report until the 
 general alarm over the disorders in the Eastern 
 States, as well in as out of Congress, induced that 
 body, on February 21, 1787, to give reluctant con- 
 sent to a convention to meet at Philadelphia on 
 the date suggested by the Annapolis commis- 
 sioners, and the permission was phrased to confine 
 the convention, if possible, to revision and altera- 
 tion of the Articles of Confederation. = 
 
 But one result of the fears generated by the 
 disorders of 1786-1787 was the selection of dele- 
 gates to the convention at Philadelphia, of whom 
 a considerable majority entertained the most 
 progressive ideas concerning the need of a general 
 revision of the Articles of Confederation. Their 
 fears inclined them to favor a very different 
 system from that of the Articles ; they were in no 
 mood to confine their work within the limits pro- 
 posed by Congress, and having once assembled 
 proceeded to formulate a new government. 
 
 ' See Washington's opinion of the inferior quality of the mem- 
 bership of the Continental Congress, in Ford, v., 263, note. 
 
 2 Elliot, i., 120. See Madison's argument that the act of Con- 
 gress permitted the framing of such a Constitution as that 
 drafted at Philadelphia in The Federalist, No. xxxix. 
 
76 Commercial Power of Congress 
 
 In the view here taken, therefore, the Annapolis 
 assembly is rather only an episode in the train of 
 circumstances which produced the Philadelphia 
 Convention, than a principal event in determining 
 the substance of the Constitution. But it led to 
 the call for the convention, and the views of the 
 commissioners as to the scope of the commercial 
 power of Congress must have influenced opinion 
 at Philadelphia. It is, therefore, important to 
 reconstruct as accurately as we can, from avail- 
 able data, this power of Congress as conceived of 
 by them. 
 
 It is at once apparent that the plans of Virginia 
 and Maryland, out of which the convention at 
 Annapolis proceeded, provided for more specific 
 measures of regulation than had the previous 
 proposals. The latter had also been chiefly con- 
 cerned about foreign commerce, and extended to 
 interstate commerce mainly because the regula- 
 tion of the foreign could only become effective 
 through the control of the domestic trade. But 
 Virginia and Maryland proposed to deal directly 
 with commerce between several States, and to effect 
 its regulation by the co-operation of a number 
 of States, in matters to control which the power of 
 one State would not suffice. They also proposed 
 not general principles, but specific measiures, and 
 sought to secure the co-operation of at least four 
 States in establishing a uniform system of duties 
 on the commodities of their interstate trade. No 
 
The Annapolis Convention 77 
 
 suggestion seems to have been made that the 
 several States should combine in a measure to 
 free their mutual trade from all import or export 
 duties; but it was proposed to make the duties 
 uniform in all the States, and to determine them, 
 not by the arbitrary act of a single State, in its 
 own interest, but by the conjoint action of a 
 number of States in the interest of all. So far, 
 therefore, as the history of the times and con- 
 temporary documents indicate the purposes of 
 the commissioners to Annapolis, they point rather 
 to the devising of a system of uniform restrictions 
 upon interstate trade in the common interest, 
 than to the formulation of a plan to set that trade 
 free from all restrictions; and this view was ex- 
 pressed at the time, as by Dr. Stuart, who wrote to 
 Washington, on December 16, 1785, that Mary- 
 land proposed to Virginia that commissioners 
 of all the States be invited to meet and regulate 
 the restrictions on the commerce of the whole. ' 
 
 It would be pressing the above facts too far, 
 to conclude from them that they demonstrate that 
 the power of regulating interstate commerce, 
 as conceived by contemporary opinion generally 
 at this date, or by the Annapolis commissioners, 
 expressly included the power to tax the traffic 
 between State and State, but it is at least as un- 
 reasonable to deny that the facts indicate that the 
 power over interstate commerce contemplated 
 
 - Bancroft, Hist. Const., vol. i., p. 252. 
 
78 Commercial Power of Congress 
 
 by the commissioners was a positive, not merely 
 a negative, one, and included authority to restrict 
 branches of that commerce in the interest of the 
 Union. We probably think as the commissioners 
 thought, when we conceive of the power over 
 interstate commerce as taking from the several 
 States authority to arbitrarily burden that com- 
 merce in the interest of one State, and as sub- 
 stituting therefor the power of imposing burdens, 
 by the determination of all, in the interest of all. 
 And it is evident, that this view is in harmony 
 with all that we know, or can reasonably infer 
 from earUer proposals for enlarging the power of 
 Congress over commerce, for they contemplated 
 the authority to impose restrictions and prohibi- 
 tions as an important part of the power intended 
 to be conferred upon that body. 
 
 In the proposals of Virginia and Maryland the 
 co-operation of a ntmiber of States was also sought 
 for the construction of highways of interstate 
 commerce. We have seen how the development 
 of trade routes with the West was pressing upon 
 men's thoughts in the years from 1784 to 1787; 
 how important such routes were considered to be, 
 both for trade and for union; and it is at least 
 probable that commissioners going to Annapolis 
 from States which had shortly before proposed, or 
 favored, mutual co-operation in the making of 
 highways of interstate trade, as well as in the 
 regulation of duties, coinage, and other matters 
 
The Annapolis Convention 79 
 
 affecting commerce, shotild have perceived the 
 intimate connection of the improvement of high- 
 ways from State to State with the regulation and 
 promotion of traffic between the States. The 
 conjecture is, therefore, at least reasonable, that 
 within the limits of the power over interstate 
 trade designed by the commissioners to Annapo- 
 lis was included authority to construct highways 
 of that trade, at least with the consent of the 
 several States within which the improvements lay. 
 Thus conceived of, the power over commerce 
 intended by the commissioners to Annapolis to 
 be vested in the central government was a positive 
 power, both of controlling and of promoting inter- 
 state trade; and so interpreting their purpose, 
 we tinderstand their emphatic statement, that the 
 power was of such comprehensive extent, that to 
 give it efficacy, and obviate questions and doubts 
 concerning its precise limits and nattu-e, would 
 require a readjustment of the federal system. 
 But this statement is not accounted for, if all 
 they intended was the investing of Congress with 
 complete power over foreign commerce, coupled 
 with authority to prevent the States from burden- 
 ing interstate commerce. A power so limited 
 could have been attained by alterations of the 
 Articles of Confederation much less extensive 
 than those contemplated by the commissioners. 
 
CHAPTER VI 
 
 BREAK-UP OF THE CONFEDERATION — ^DISORDERS OF 
 1 786-1 787 — EFFECT OF THE ALARM PRODUCED 
 BY THEM IN STRENGTHENING THE DEMAND 
 FOR A STRONGER CENTRAL GOVERNMENT— 
 THE POWER OF CONGRESS OVER COMMERCE 
 AFFECTED BY THE GENERAL TREND OF OPINION. 
 
 BY the beginning of 1786 the Confederation 
 had come into a bad way. In February a 
 Congressional committee reported that it had 
 become the duty of Congress to declare most 
 explicitly the arrival of a crisis, when the people 
 of the United States must decide whether they 
 would support their rank as a nation by maintain- 
 ing the public credit at home and abroad, or 
 whether for want of timely exertion they would 
 hazard the existence of the Union.' In March, 
 Grayson wrote Madison, that it was the contention 
 of some in Congress that the Confederation was 
 utterly inefficient, and that if it remained much 
 longer in its state of imbecility, the United States 
 
 " Bancroft, Hist. Const., i., 255; Journals of Congress, vol. ii.i 
 29-30. 
 
 80 
 
Break-up of the Confederacy 8i 
 
 wovild become one of the most contemptible 
 nations on the face of the earth.' 
 
 Conditions grew steadily worse through the 
 year. The government of the Confederation was 
 practically bankrupt. It was able to pay neither 
 the interest on the foreign loans, nor its own cur- 
 rent expenses. The proposals for a permanent 
 revenue had come to no definite conclusion, and 
 the requisitions upon the States had been very 
 inadequately complied with; while, as we have 
 seen, the proposition to invest the general govern- 
 ment with the power of prohibiting conmiercial 
 intercourse with Great Britain, and of retaliating 
 upon nations whose commercial policy was ad- 
 verse to oiu:s, was in a state of suspended anima- 
 tion. Congress had fallen into disesteem. The 
 limits placed upon its powers by the Articles of 
 Confederation rendered it an unattractive field to 
 men of superior talent, who found their chances of 
 political advancement bettered by entering into 
 various political employments within their several 
 States, and the views held by the majority of its 
 members no longer represented the opinions of the 
 foremost men out of Congress. For the experience 
 of the past five or six years had convinced the 
 latter that a radical change in the principle of 
 the Articles of Confederation was necessary, to 
 adapt them to the needs of the country, and per- 
 mit the necessary powers to be vested in the 
 
 'Bancroft, Hist. Const., i., 491. 
 6 
 
82 Commercial Power of Congress 
 
 general government ; while the majority of the 
 delegates in Congress seem to have adhered to 
 the opinion, even after the meeting of the Annapo- 
 lis Convention, that the Articles were defective 
 only in such small particulars as could be rem- 
 edied by enlarging certain powers of Congress 
 without changing the character of the govern- 
 ment. It thus came about, that Congress had 
 but small powers, was averse to increasing them, 
 and enjoyed no popular favor to spur it to effec- 
 tively exercise such as it had. By the end of 
 1786, it had fallen into such decrepitude, that 
 Washington, writing to Humphreys in December, 
 described the Confederacy as nearly if not quite 
 at a stand. ' 
 
 In the meantime the poverty and hardship, of 
 which there was much, at least in the country 
 districts, notwithstanding the contrary opinion 
 advanced by recent writers, "^ was producing 
 political and economic movements, which cul- 
 minated in Shays's Rebellion in Massachusetts, in 
 the latter part of 1786 and the beginning of 1787. 
 The efforts in many of the States to obtain the 
 issue of paper money as full legal tender, the 
 
 ' Writings of Washington (Ford), xi., loi. 
 
 2 As in Professor McLaughlin's, "The Confederation and the 
 Constitution," Chapter V {The American Nation, vol. x.). The 
 numerous laws, however, of this period providing for stay of 
 execution, and making chattels and real estate legal tender for 
 debts, indicate a condition of great poverty in much of the 
 country. 
 
Break-up of the Confederacy 83 
 
 passage of laws staying execution for debt, and 
 making a variety of chattels, and even real estate, 
 legal tender for debts, and the levelling tendency 
 expressed in the clamors of the time — an in- 
 clination upon the part of the dissatisfied to 
 abolish rights of property and social distinctions 
 — had alarmed men of wealth and station, even 
 before actual violence broke out; and it is not 
 strange, that when the mob at Exeter, N. H., 
 howled at the Governor of that State demanding 
 "equal distribution of property," "the annihila- 
 tion of debts, " "a release from taxes, " and when 
 an armed revolt tmder Daniel Shays, an officer of 
 the Revolutionary Army, threatened the existence 
 of the State Government in Massachusetts, the 
 end of civil order in America seemed to be near 
 to the men whom we regard the founders of the 
 Republic, and anarchy at hand; and in the panic 
 of their fears they assembled at Philadelphia, and 
 framed the Constitution, with the deliberate 
 intention of making a central government strong 
 enough to prevent such disorders in the future. 
 Contemporary documents reveal how intense 
 their fears were. In a despatch from Mr. Temple, 
 the British Consul General at New York, to 
 Lord Carmarthen, in October, 1786, the former 
 writes: 
 
 Mobs, tumults, and bodies of men in arms are now 
 on tiptoe in various parts of this country, all tending 
 to the dissolution of not only what is called the 
 
84 Commercial Power of Congress 
 
 Supreme power (Congress), but to bring into contempt 
 and disregard the legislatures and governments of the 
 several States. . . . Indeed, dissatisfaction and un- 
 easiness prevail more or less throughout this country; 
 the greater part of the people poor, and many in 
 desperate circumstances, do not, it seems, want any 
 government at all, but had rather have all power 
 and property reduced to a level, and it is more than 
 probable that general confusion will take place before 
 any permanent government will be established in 
 this unhappy country.' 
 
 R. H. Lee wrote Washington in the same month 
 concerning the melancholy information from 
 Massachusetts: "We are aU in dire apprehension 
 that a beginning of anarchy with all its calami- 
 ties has approached, and have no means to stop 
 the dreadful work. " ^ To Washington, in Decem- 
 ber, "the prospect of affairs seem like the vision 
 of a dream"; that "there are combustibles in 
 every State, which a spark might set fire to."' 
 
 Washington was greatly depressed, and almost 
 despondent of relief from any quarter. But the 
 situation showed to him as it did to others, that 
 the only hope of escaping ruin was in a revision 
 of the Articles of Confederation. "How ever 
 delicate the revision of the federal system may 
 appear, " he wrote to David Stuart, on November 
 
 • Bancroft, Hist. Const., ii., 399. 
 = Ibid., ii., 402. 
 
 3 Washington to Knox, Washington's Writings (Ford), xi., 
 104. 
 
Break-up of the Confederacy 85 
 
 19, 1786, "it is a work of indispensable necessity. 
 The present constitution is inadequate; the super- 
 structure is tottering to its foundation, and with- 
 out helps will bury us in its ruins "'; and on the 
 same day he wrote to Randolph: "Our affairs 
 seem to be drawing to an awful crisis; it is neces- 
 sary, therefore, that the abilities of every man 
 should be drawn into action in a public line, to 
 rescue them, if possible, from impending ruin,"^ 
 and the shortest course for conveying to the 
 central government the powers it was wanting 
 of seemed to him best; for "otherwise, like a 
 house on fire, whilst the most regular mode of 
 extingiushing the flames is contended for, the 
 building is reduced to ashes."' To Madison, 
 the difiiculties which presented themselves in con- 
 nection with the impending convention seemed 
 almost sufficient to dismay the most sangtiine, 
 whilst the mortal diseases of the existing consti- 
 tution impelled the most timid to encoimter them'' ; 
 and even the moderate Randolph urged the con- 
 vention, in June, 1787, not to be scruptalous as to 
 the powers to be surrendered to Congress; for 
 "when the salvation of the Republic was at stake, 
 it would be treason to our trust not to propose 
 what we found necessary. " ' 
 
 ' Bancroft, Hist. Const., ii., 404. 2 Ibid. 
 
 3 Washington to Knox, in Washington's Writings (Ford), xi., 
 no. 
 ' Writings of Madison (Hunt), ii., 326. 
 s Documentary History of Constitution, iii., 136. 
 
86 Commercial Power of Congress 
 
 It is plain to us, with our advantage of historical 
 perspective, by which we see occurrences of one 
 hundred and twenty years ago in truer relation 
 than that in which they could be observed by the 
 men who participated in them, that the fears of 
 1786 and 1787 were out of all proportion to their 
 cause. The ease with which Shays's Rebellion 
 was suppressed by the determined measures of 
 Governor Bowdoin, and the small effect which the 
 principles of its adherents had on the subsequent 
 history of the United States, show to us that it 
 could hardly have been a very dangerous uprising; 
 and that there was but slight cause for the appre- 
 hension entertained at the time, that it fore- 
 shadowed the breakdown of civil government in 
 America, and the coming in of anarchy and class 
 hatred. But the Constitution of 1 787 was framed, 
 not in the light of the knowledge of 1910, but under 
 the influence of the hopes and fears of 1787; and 
 it is certain that the alarms of that year had great 
 influence in determining the powers granted to 
 the United States. In its guarantee of a republi- 
 can form of government to every State, the Consti- 
 tution has a patent reminder of the perils of 1786 
 and 1787. But the principle of the whole instru- 
 ment, in its contrast to that of the Articles of 
 Confederation, testifies as certainly, if less con- 
 spicuously, to its origin. In 1792, Edmund 
 Randolph, then Attorney-General of the United 
 States, in his argument in the case of Chisholm 
 
Break-up of the Confederacy 87 
 
 vs. Georgia (2 Dallas, 419), contrasting the 
 Articles of Confederation and the Constitution, 
 spoke of the former as "of so different a hue and 
 feature from the Constitution, as scarcely to ap- 
 pear a chUd of the same family" ; and the Consti- 
 tution is a child of a different family from the 
 Articles of Confederation, because it results, not 
 from the Annapolis Convention, but from the 
 alarm of the political, social, and financial aristo- 
 cracy over the disorders of that time. For, in 
 consequence of the alarms of 1 786-1 787 the Con- 
 stitutional Convention became a body in which a 
 predominant majority represented the well-to-do 
 and socially superior classes; not only patriotic 
 desire to serve the country, but strong personal 
 interest sent representatives of these classes to 
 Philadelphia. Washington had written in Novem- 
 ber, 1786, that it was necessary in the awful crisis 
 of affairs, that the "abilities of every man should 
 be drawn into action to rescue them, if possible, 
 from impending ruin " ' ; and Randolph had sought 
 to overcome the reluctance of Washington to 
 taking part in the convention, by suggesting that 
 every other consideration seemed of little weight 
 when compared with the crisis which might hang 
 over the United States by the time the conven- 
 tion assembled. Similar sentiments affected other 
 leading men of the day and sent them to the 
 convention, so that a recent special study of the 
 
 ' Bancroft, Hist. Const., ii., 404. 
 
88 Commercial Power of Congress 
 
 constitutional era states that it is qtoite safe to 
 affirm that the men who put their names to the 
 new constitution were, at the time, identified 
 with the aristocratic interest.' It was inevitable 
 that such men, assembUng under such circum- 
 stances, should frame a central government of 
 greatly increased powers, at the expense of the 
 powers of the States. For they traced the dangers 
 which they feared to the weakness of Congress, 
 and to the obstacles which the States had inter- 
 posed to the efforts of that body to give the coun- 
 try a more efficient administration. In their 
 view, the disorders of 1 786-1 787 were the cul- 
 mination, the inevitable result, of the weak and 
 conflicting methods of government which had pre- 
 vailed under the Articles of Confederation. The 
 aim of the majority of the convention was not, 
 therefore, to bestow upon the general government 
 only the least increase of powers, which would 
 correct the defects of the Confederation in certain 
 particulars, such as the regulation of commerce, 
 but to vest it with all powers necessary for effective 
 national administration, and to insure the country 
 against the recurrence of such perils as had 
 threatened them. In their view, the powers to be 
 reserved to the States were secondary; the pri- 
 mary object was the making of a strong effective 
 central government. If that could not be effected 
 
 ' The Federal Constitution in Massachusetts, by Samuel Ban- 
 nister Harding (Harvard Historical Studies, 1896), p. 75. 
 
Break-up of the Confederacy 89 
 
 without the subordination of the States in great 
 degree, then the States were to be subordinated; 
 if it could be effected without such subordination 
 of the States, then the States were to retain a 
 considerable degree of power under the new 
 system. At no time did the majority of the 
 convention intend to vest the general government 
 with unlimited powers. Always, I think, they 
 intended to vest it only with delegated powers. 
 But these were to be adequate to the needs of a 
 strong national administration, and to the States 
 were to be reserved only what was left after this 
 great body of powers had been transferred to the 
 central government. 
 
 If we had no contemporary documents, the 
 course of events preceding the meeting of the 
 convention, and the character of the membership 
 of that body, woiild assure us of this. But we 
 are not left to such reasonable inference only. We 
 have sufficient contemporary evidence to prove 
 such intention. In August, 1786, Washington 
 was of the opinion that we could not exist long 
 as a nation without having lodged somewhere a 
 power, which would pervade the whole United 
 States in as energetic a manner as the authority 
 of the State governments extended over the 
 several States.' Madison wrote, early in 1787, 
 suggesting a middle ground, which might at once 
 support the supremacy of the national authority, 
 
 ■ Writings of Washington (Ford), vol. xi., 53, 54. 
 
90 Commercial Power of Congress 
 
 and not exclude the local authorities wherever they 
 could be subordinately useful; and he proposed that, 
 "in addition to the present federal powers, the 
 national government should be armed with 
 positive and complete authority in all cases which 
 require uniformity, such as the regulation of trade, 
 including the right of taxing both exports and 
 imports, the fixing the terms and forms of naturali- 
 zation. " Over and above this positive power, a 
 negative in all cases whatsoever on the legislative 
 acts of the States, as heretofore exercised by the 
 kingly prerogative, appeared to him absolutely 
 necessary, and to be the least possible encroach- 
 ment on the State jurisdiction. Without this 
 defensive power he contended that every positive 
 power which would be given on paper would be 
 evaded, though a right to coerce the States should 
 be expressly declared. ' Later, in the convention, 
 he expressed the opinion, that the States ought to 
 be placed under the control of the general govern- 
 ment, at least as much so as they formerly were 
 under the King and British Parliament.' Knox 
 considered that all national objects should be 
 designated and executed by the general govern- 
 ment, without any reference to the local govern- 
 ment. This, he thought, was a government of 
 
 ' North American Review for October, 1827. See also Mad- 
 ison to Randolph, April 8, 1787, in Gilpin, ii., 631 et seq., and 
 Hunt's Writings of Madison, ii., 345 et seq. 
 
 ' Yates's Minutes, in Elliot's Debates (edition of 1866), vol. 
 i., 462. 
 
Break-up of the Confederacy 91 
 
 "the least possible powers, to preserve the con- 
 federated government. To attempt less will be 
 to hazard the existence of republicanism, and to 
 subject us either to a division of the European 
 powers or to despotism arising from high handed 
 commotions. ' ' ' Jay thought that the more power 
 there was granted to the general government the 
 better, the States retaining only so much as might 
 be necessary for domestic piirposes, and all their 
 principal officers, civil and military, being commis- 
 sioned and removable by the national government. ^ 
 That the quoted opinions of Washington, Madi- 
 son, Knox, and Jay fairly represent the general 
 trend of thought among the members who dom- 
 inated the Constitutional Convention, upon the 
 relation of the powers of the Central Government 
 to those of the States, is made evident by two 
 letters of this period, one from Edward Carring- 
 ton to Thomas Jefferson, the other from George 
 Mason to his son. Carrington's letter is especially 
 significant for its indication of a great change in 
 public opinion upon the need of greater powers 
 in the central government, since 1784, when 
 Jefferson went abroad. He writes: 
 
 The prevailing impression, as well in as out of con- 
 vention, is that a Federal Government, adapted to 
 the permanent circumstances of the country, without 
 
 ' North American Review for October, 1827. 
 2 Correspondence and Public Papers of John Jay (Johnston's 
 edition), vol. iii.,228. 
 
92 Commercial Power of Congress 
 
 respect to the habits of the day, will be formed, whose 
 efSciency shall pervade the whole empire; it may, and 
 probably will at first, be viewed with hesitation; but, 
 derived and patronized as it will be, its influence 
 must extend into a general adoption as the present 
 fabric gives way. ... I am certain that nothing 
 less than what will give the Federal Sovereignty a 
 complete control over the State governments will be 
 thought worthy of discussion. 
 
 The ideas here suggested are far removed from 
 those which prevailed when you was among us; and 
 as they have arisen with the most able from an actual 
 view of events, it is probable you may not be prepared 
 to expect them ; they are, however, the most moderate 
 of any which obtain in any general form among 
 reflective and intelligent men. ' 
 
 According to Mason, 
 
 the most prevalent idea in the principal states 
 [seemed] to be a total alteration of the present fed- 
 eral system, and substituting a great national council 
 or parliament consisting of two branches of the legis- 
 lature, founded upon the principles of equal propor- 
 tional representation, with full legislative powers 
 upon all the objects of the Union, and an executive; 
 and to make the several State legislatures subordinate 
 to the national, by giving the latter the power of a 
 negative upon all such laws as they "the national 
 parliament" shall judge contrary to the interest of 
 the Federal Union.* 
 
 » Bancroft, Hist. Const., ii., 426 et seq. 
 
 2 Life of George Mason, by Kate Mason Rowland (1892), vol. 
 ii., lOi. 
 
Break-up of the Confederacy 93 
 
 In a subsequent letter, dated June i, 1787, 
 Mason notes that the same principles are still 
 prevalent, and expresses his confidence that the 
 character and abilities of the members of the 
 convention will prevent too great a departtu-e 
 from republican principles. ' 
 
 A strong government is one strong in fact, in the 
 possession of great powers in respect to the various 
 subjects of legislation; and it was inevitable that 
 the nationalistic tendency which dominated the 
 majority of the Constitutional Convention should 
 draw into its current all particular powers deemed 
 necessary to be vested in the general government. 
 The conjecture is unreasonable, that men who 
 entertained the opinions set forth in Carrington's 
 and Mason's letters should not have contemplated 
 vesting the general government with great powers 
 over each subject which they determined to entrust 
 to it. They had no conception of a government 
 abstractly strong, but concretely weak; and this 
 remark applies particularly to the power to regu- 
 late commerce; for the deficiency of the Con- 
 federation, in this respect, had for years aroused 
 protests from many regions of the country. 
 Since 1781, at least, in and out of Congress, pro- 
 posals had been made to correct this defect in one 
 respect or another, and the call for the convention 
 proceeded from an effort to improve the regulation 
 of trade. It seems to me, therefore, impossible 
 
 ' Ibid., 129, 130. 
 
94 Commercial Power of Congress 
 
 that the nationalists, who were the majority of 
 the convention, contemplated the restriction of 
 this power, through any consideration for the 
 autonomy of the States. To suppose that they 
 did, is to assume a state of mind in them as to the 
 one subject, upon which all were agreed the powers 
 of the general government must be increased, 
 contrary to their general aims, as indicated in the 
 records of the time. 
 
 The opposite view belongs to a much later date 
 than the year of the convention, — to a time when 
 the emotions and intentions of the constitutional 
 period had been forgotten, or were misrepresented 
 for party piirposes. The more reasonable opinion, 
 based upon the contemporary documents, is that 
 the convention intended to vest the general 
 government with that fulness of power over com- 
 merce, both foreign and interstate, which is 
 indicated by the broad terms of the clause of the 
 Constitution bestowing it upon Congress; that 
 the men of the convention were at one with the 
 expressed purpose of the reports of Monroe's com- 
 mittee of 1785, and Pinckney's of 1786, in desiring 
 to vest in the general government the sole and 
 exclusive right and power of regulating commerce, 
 as well with foreign nations, as among the several 
 States, except in the few particulars reserved from 
 such general power by the Constitution. We 
 shall find in the debates in the Constitutional 
 Convention, and in the State conventions which 
 
Break-up of the Confederacy 95 
 
 ratified the Constitution, evidence of the great 
 scope assigned to the commercial power of Con- 
 gress by the opinion of that day; and we have a 
 suggestion by Madison before the convention 
 met, of such a power surpassing the extremest 
 range attributed to it in any recent proposal. In 
 1 78 1 he had already arrived at the principal of 
 using the power of the Confederacy over commerce 
 to coerce a State. In that year, as appears from a 
 letter to Jefferson, a committee of the Continental 
 Congress, of which Madison was a member, re- 
 ported an amendment to the Articles of Con- 
 federation, to enable the Confederacy to compel a 
 State to fulfil its obligations. Among other 
 modes of coercion, the amendment provided 
 particularly for making distraint on any of the 
 effects, vessels, or merchandise of such States, or 
 of any of the citizens thereof, and for prohibiting 
 and preventing their trade and intercourse, as 
 well with any other of the United States and the 
 citizens thereof, as with any foreign states, and as 
 well by land as by sea. As an easy way of enforc- 
 ing this prohibition, Madison suggests that 
 
 two or three vessels of force employed against their 
 trade, will make it the interest of most of the States 
 to yield prompt obedience, and with respect to States 
 which have little or no foreign trade, it was provided 
 that all inland trade with such States as supply them 
 with foreign merchandise might be interdicted, and 
 
96 Commercial Power of Congress 
 
 the concurrence of the latter might be enforced, in 
 case of refusal, by operation on their foreign trade." 
 
 In 1787, the power which he intended to bestow 
 upon the general government over commerce was 
 of such extent, that, as he explains its operation: 
 
 With the resources of commerce in hand, the national 
 administration might always find means for exerting 
 it [the power of coercion] either by sea or land; but 
 the difiSculty and awkwardness of operating by 
 force on the collective will of the State, render it 
 particularly desirable that the necessity of it might be 
 precluded. Perhaps the negative on the laws might 
 create such a mutuality of dependence between the 
 general and particular authorities as to answer this 
 purpose, or perhaps some defined objects of taxation 
 might be submitted along with commerce to the 
 general authority.'' 
 
 It is clear from this last extract, that the resources 
 over commerce which Madison proposed in 1787 
 to vest in Congress must have included a complete 
 and positive power of regulation; for nothing 
 short of that could effect the coercion of a State, 
 through prohibitions upon its commerce by land 
 and sea. If a member of Congress should now 
 propose to coerce such a State as New Jersey, into 
 corporate legislation conformable to the Congress- 
 man's ideas of dangerous monopolies in interstate 
 
 » Writings of Madison (Hunt), vol. i., 131, 132. 
 2 Ibid., vol. ii., 348. 
 
Break-up of the Confederacy 97 
 
 trade, by prohibitions upon the foreign and inter- 
 state commerce of the citizens of that State, 
 extraordinary as such a project would seem to us, 
 it would not be materially different from Madison's 
 views of the extent of the powers which should be 
 possessed by the general government. 
 
 Madison's extraordinary proposal was, of course, 
 not made to nor accepted by the convention; 
 but it is one among many indications that the 
 vesting of the general government with a great 
 commercial power was intended by the leaders of 
 opinion, while the Constitution was in process 
 of forming; and we know that the convention was 
 dominated by those who were strongly inclined to 
 nationaUst, as distinguished from State rights 
 sentiments. 
 
CHAPTER VII 
 
 THE CONSTITUTIONAL CONVENTION — ^THE RELATION 
 OF THE POWER OF CONGRESS OVER COMMERCE 
 TO THE PROCEEDINGS OF THE CONVENTION AS 
 A WHOLE — ^THE PREDOMINANT NATIONALIST 
 SENTIMENT OF THE CONVENTION AND THE 
 GREAT SCOPE OF THE COMMERCIAL POWER AS 
 UNDERSTOOD BY ITS MEMBERS 
 
 THE interpretation which the majority of the 
 Constitutional Convention probably gave to 
 the commerce clause can be understood only in 
 connection with the character of the membership 
 of the convention, and its work as a whole. 
 
 In the Massachusetts Convention of 1788, the 
 Rev. Thomas Thatcher explained the reasons 
 which induced the framers of the Constitution to 
 vest the general government with the great powers 
 then objected to and ever since ardently discussed; 
 and his statement is perhaps as accurate as has 
 ever been made. He was considering the ob- 
 jections that more power than was necessary had 
 been granted to the Union, that the Constitution 
 would tend to destroy the local governments of 
 the States, and that the end would be aristocracy 
 
 98 
 
The Constitutional Convention 99 
 
 or despotism. He thought it necessary to take 
 into view the situation of the continent when the 
 Constitution was formed, and to candidly examine 
 the condition of the States from New Hampshire 
 to Greorgia, and see how far vigor and energy in the 
 central government were required. 
 
 During the session of the late convention [he said], 
 Massachusetts was on the point of Civil War. In 
 Vermont and New Hampshire, a great disaffection to 
 their several governments prevailed among the people. 
 New York absolutely refused complying with the 
 requisitions of Congress. In Virginia, armed men 
 endeavored to stop the courts of justice. In South 
 Carolina, creditors by law, were obliged to receive 
 barren and useless land for contracts made in silver 
 and gold. I pass over the instance of Rhode Island : 
 their conduct was notorious. In some States, laws 
 were made directly against the Treaty of Peace; in 
 others, statutes were enacted which clashed directly 
 against any federal union — new lands sufficient to 
 discharge a great part of the Continental debt — 
 intruded upon by needy adventurers — our frontier 
 settlements exposed to the ravages of the Indians — 
 while the several States were unable or unwilling to 
 relieve their distress. Lay all those circumstances 
 together, and you will find some apology for the 
 gentlemen who framed this Constitution. I trust 
 you may charitably assign other motives for their 
 conduct than a design to enslave their country, and to 
 parcel out for themselves its honors and emoluments. ' 
 
 ' Elliot's Debates, vol. ii., 144. 
 
100 Commercial Power of Congress 
 
 Years afterwards, when writing his History of 
 the Constitutional Convention, ' Madison took a 
 similar view of the origin of the powers of the 
 Union. He recalled two periods "in which the 
 public mind had been ripened for a salutary reform 
 of the political system" ; one, the interval between 
 the proposal for and the meeting of the com- 
 missioners at AnnapoUs; the other that between 
 the last event and the meeting of deputies at 
 Philadelphia. He referred to Shays's Rebellion 
 in Massachusetts, to the tottering condition and 
 threatened dismemberment of the Confederacy, 
 and the danger of monarchy, and concluded this 
 portion of his History thus: "Such were the de- 
 fects, the deformities, the diseases, and the omi- 
 nous prospects for which the convention were to 
 provide a remedy, and which ought never to be 
 overlooked in expounding and appreciating the 
 Constitutional Charter, the remedy that was 
 provided." 
 
 It resulted, as we have seen, from the deformi- 
 ties, diseases, and ominous prospects of the Con- 
 federacy, that the majority of the delegates to 
 Philadelphia represented the upper classes, whose 
 minds were then filled with alarm as to the future 
 of civil government in America, and with ap- 
 prehensions of peril to person and property. The 
 events and sentiments of the times gave to those 
 
 ' "History of the Origin of the Constitutional Convention," 
 Writings of Madison (Hunt), vol. ii., 407. 
 
The Constitutional Convention loi 
 
 classes a predominance in the convention much 
 beyond their weight in the Union in normal times. 
 
 The Federalists were always in a minority [writes 
 De Tocqueville, giving to them the name by which 
 they were afterwards known], but they reckoned on 
 their side almost all the great men whom the War of 
 Independence had produced, and their moral power 
 was very considerable. Their cause was moreover 
 favored by circumstances. The ruin of the first 
 confederation had impressed the people with a dread 
 of anarchy, and the Federalists profited by this 
 transient disposition of the multitude . . . and the 
 Federal Constitution, which subsists at the present 
 day, is a lasting monument to their patriotism and 
 their wisdom. ■ 
 
 It was charged at the time, and the accusation 
 was the basis of the most dangerous opposition 
 to the ratification of the Constitution in several 
 States, that the instrument had been framed by 
 and for an aristocracy. "The new government, " 
 wrote Centinel to the people of Pennsylvania, 
 "was intended for the well-born, and would de- 
 grade the free men of the State. It was a rich 
 men's plan, devised to rob the poor and all who 
 labored for bread" ^; and a delegate to the Mas- 
 sachusetts Convention opposed the ratification 
 of the Constitution, for the reason, that, as he saw 
 
 ' Democracy in America, vol. i., 224, 225 (Bowen's edition of 
 1863). 
 « Thorpe, Constitutional History, ii., 44, 45. 
 
102 Commercial Power of Congress 
 
 it, "the lawyers, men of learning, and monied 
 men expected poor, illiterate people, like himself, 
 to swallow down the pill and get into Congress 
 themselves, and get all the power and money into 
 their own hands. This was what he was afraid 
 of."' 
 
 The nationalist majority was increased by the 
 refusal of several men of the opposite opinion to 
 attend at Philadelphia. For these latter, realizing 
 that the convention would be controlled by the 
 nationalists, were unwilling to share the respon- 
 sibility for its works; and being confident of their 
 ability to defeat the constitution before the coun- 
 try, remained away.^ Their conduct, therefore, 
 made easier the framing of that kind of a constitu- 
 tion to which they were bitterly opposed, and the 
 event proved that they were mistaken in their 
 expectation that it would be rejected by the 
 country. 
 
 The majority went to Philadelphia determined 
 to frame a government which would be strong 
 enough to prevent the recurrence of such dis- 
 orders as had alarmed them'; and in carrying 
 
 ' Harding's Federal Constitution in Massachusetts, p. 77. 
 
 2 See Grayson's letter to Monroe, for the confidence of the op- 
 ponents of the constitution that it would be defeated before the 
 country, in Documentary History of the Constitution, vol. iv., 
 170. 
 
 3 Washington writes to Lafayette on June 6, 1787, during the 
 sessions of the convention, that "it is to determine whether we 
 are to have a government of respectability under which life, 
 
The Constitutional Convention 103 
 
 out this purpose, they unavoidably, and with full 
 deliberation, reduced the power of the States 
 in the new system much below what it had been 
 in the Confederation. The leaders of the national- 
 ist sentiment found the root of the evil from which 
 the country suffered in the great power of the 
 States and the impotence of the central govern- 
 ment ; and as was nattural, and perhaps inevitable, 
 the majority of the convention, the men who 
 framed the Constitution, and to whose opinions 
 we must look for its contemporary interpretation, 
 went to an extreme in framing a strong central 
 government at the expense of the States. Whether 
 the Constitution, which they drafted is the same 
 as they would have formulated, had the origin 
 of the assembly been different ; whether its terms 
 and the relation of the national government to the 
 States thereby produced are those which later re- 
 flection would have led them to, after the panic of 
 1787 had passed and the comparative unimport- 
 ance of Shays's Rebellion was appreciated, is of no 
 consequence in this inquiry, which seeks to ascer- 
 tain, not what might have been the sentiments of 
 the members of the convention at a later date, 
 or under different circtmistances, but what they 
 
 liberty, and property will be secured to us, or are to submit to 
 one which may be the result of chance or the moment, springing 
 from anarchy and confusion, and dictated perhaps by some 
 aspiring demagogue who will not consult the interest of his coun- 
 try as much as his own ambitious views. Documentary History 
 of the Constitution, vol. iv., 185. 
 
104 Commercial Power of Congress 
 
 were in the summer and autumn of 1787, when the 
 Constitution was framed. 
 
 The predominance of nationalist opinions in the 
 convention was increased, even out of proportion 
 to the superiority in numbers of that party, by 
 differences among those who represented State 
 rights sentiments. The debates in the conven- 
 tion indicate, that upon the more fundamental 
 principles involved in the constitutional change, 
 the nationalists were united ; but that, with respect 
 to numerous important questions involved in the 
 general principle, the advocates of the rights of the 
 States were so divided as to weaken their opposi- 
 tion to the plans of the nationalists. Perhaps 
 equally, or almost equally, with them, the State 
 rights men proceeded from the upper classes of 
 society, and had been not less alarmed by the 
 events of 1786 and 1787 than the nationalists had 
 been. Richard Henry Lee, an extreme advocate 
 of the rights of the States, was as vehement in his 
 expressions of fear of anarchy as was Washington; 
 and one of the most outspoken denunciators in the 
 convention of democracy was Elbridge Gerry, a 
 leader of State rights sentiment in the Continent- 
 al Congress, and afterwards Democratic Vice- 
 president of the United States. Charles Pinckney, 
 later a leader of State rights opinion, was at 
 this time a persistent advocate of a general power 
 of negative in the central government over all 
 legislative acts whatsoever of the several States; 
 
The Constitutional Convention 105 
 
 and in the discussion of his plan for a constitution, 
 he wrote, that 
 
 the States should retain nothing more than that 
 mere local legislation, which, as districts of a general 
 government, they can exercise more to the benefit 
 of their particular inhabitants, than if it was vested 
 in a supreme council; but in every foreign concern, 
 as weU as in those internal regulations, which re- 
 specting the whole ought to be uniform and national, 
 the States must not be suffered to interfere. ' 
 
 The movement for the change of the govern- 
 mental system had proceeded from Virginia, one 
 of the greater States, and much of the strength of 
 the opposition to a strong central authority was 
 found, per contra, among the delegates of the 
 smaller States. But one of their most cherished 
 objects was the transfer from the great States to 
 the Confederacy of ownership of the western 
 lands; and this was not compatible with perma- 
 nent opposition to a strong Union. In fact, it 
 forced some of the foremost advocates of the 
 rights of the States in the convention to an 
 extreme centralizing position. William Paterson, 
 of New Jersey, for example, was one of the leaders 
 of the opposition to the Virginia plan; it was he 
 who formulated the alternative plan presented 
 
 ' The quotation from Pinckney's " Observations " is taken from 
 The Mystery of the Pinckney Draft, by Charles C. Nott, N. Y., 
 1909, pp. 115. "6. 
 
io6 Commercial Power of Congress 
 
 by the advocates of State rights. But Paterson 
 favored the throwing of the territory of all the 
 States into one common mass, and its division 
 into thirteen or more new States. ' 
 
 There is a certain consistency in great public 
 movements. It is not usually possible for a body 
 of men engaged in a fundamental change of govern- 
 ment to be devoted to particular purposes; and 
 yet to be equally effective in advocacy of contra- 
 dictory aims. It was, therefore, inevitable that 
 the opposition of the State rights party to the 
 erection of a strong central government should be 
 weakened, even below their inferiority in num- 
 bers, by the fears, political philosophies, and 
 cherished purposes of various members or groups 
 within that party. 
 
 The motives and fears which sent the majority 
 of the convention to Philadelphia led them to 
 favor the erection of a central authority independ- 
 ent of the States, and vested with great powers. 
 And it is an important observation, too generally 
 overlooked in later constitutional studies, that 
 there was not in the convention, until near its end, 
 
 ' Papers of William Paterson on the Federal Convention, 1787, 
 reprinted from the American Historical Review, vol. ix., No. 2 
 (January, 1904). Paterson's notes were apparently used in 
 preparing the New Jersey Plan. In the resolution referring 
 to the western territories, Paterson proposed, "that all the lands 
 contained within the limits of the individual States, and of the 
 United States, should be considered as constituting one body or 
 mass, and divided into thirteen or more integral States." 
 
The Constitutional Convention 107 
 
 if indeed there ever was, any considerable opposi- 
 tion to the grant of great specific powers to that 
 authority. The struggle between the two parties 
 in the convention was not over the question of 
 the extent of such powers, but over the more 
 ftindamental question of the organization and 
 control of the new government. For at the date 
 of the assembling, and tmtil shortly before the 
 close of the convention, if not quite to its end, all 
 parties were agreed that great powers must be 
 vested in the central government, but there was 
 much difference of opinion upon the question 
 whether that government should be made in- 
 dependent, or continued under the control, of the 
 States in their corporate capacities. The views 
 of those who favored the rights of the States 
 are probably correctly summarized in the letter 
 of an unknown author written to Washington 
 from Cambridge, in Maryland, in June, 1787.' 
 He would retain to the States their control over 
 Congress. But the powers of that body were 
 
 to be made as ample as the federal interest should 
 require; and when ascertained, should be as supreme, 
 as absolute, and obligatory upon all continental concerns 
 as the power of legislation in each republic. Congress 
 should consequently be authorized to enact laws, 
 statutes, or ordinances in all cases comprised within 
 their jurisdiction, whether relating to war, peace, 
 
 » Documentary History, vol. iv., 229, 231. 
 
io8 Commercial Power of Congress 
 
 commerce, navigation, armies, navies, piracies, treat- 
 ies, alliances, public debts, coinage, etc. etc. etc. 
 
 Had the majority of the convention been con- 
 tent merely to amend the Articles of Confedera- 
 tion, or even to construct a new government upon 
 their principle of control by the States as such, 
 very little opposition would probably have been 
 made to the vesting in the central authority of 
 specific powers even greater than those conferred 
 upon it by the Constitution. The full extent 
 of the powers of the central government when 
 freed from state control was probably not per- 
 ceived by the members of the convention; and the 
 victory for an independent central authority 
 having been won, over to it was carried the totality 
 of powers which could have been vested in that 
 authority without opposition, had the State 
 rights plan of its organization and control pre- 
 vailed. After the convention adjourned, and its 
 work became known to the cotmtry, the possibili- 
 ties of such powers possessed by a government, 
 of the kind outlined in the Constitution, began 
 to be perceived, and excited much opposition in 
 the ratifying conventions; which, however, failed 
 to prevent the ratification of the Constitution, and 
 the new government went into operation with 
 the totality of powers bestowed upon it by the 
 convention. 
 
 The majority of the convention were not certain 
 
The Constitutional Convention 109 
 
 that their opinions were those of the country at 
 large, and feared they were not; but they were 
 determined to frame a Constitution, rather as 
 they thought it shovild be, than as they conjectured 
 the country might desire it to be. For they be- 
 lieved the experiment they were bent upon making 
 would be useful in the future, even though it 
 failed of adoption in the present. 
 
 My wish [wrote Washington to Madison, in March, 
 1787] is that the convention may adopt no temporiz- 
 ing expedients, but probe to the bottom and provide 
 a radical cure, whether agreed to or not. A conduct 
 of this kind wiU stamp wisdom and dignity on their 
 proceedings, and hold up a light which sooner or later 
 will have its influence' ; and a few days later, Madison 
 expressed the opinion to Randolph, that " in framing 
 a system, no material sacrifices ought to be made to 
 local or temporary prejudices."* 
 
 And it is proved by the summary of the preva- 
 lent sentiment among the delegates by Carrington 
 and Mason, in the letters I have already quoted, 
 that a total alteration of the federal system had 
 been determined upon, to result in the erection 
 of a new government, which would be adapted, in 
 Carrington's phrase, to the permanent circum- 
 stances of the country, without regard to the 
 habits of the day, with complete control over the 
 
 ' Sparks, Washington, ix., 250. 
 
 » Writings of Madison (Htint), ii., pp. 337-340. 
 
no Commercial Power of Congress 
 
 State governments, and in which, according to 
 Mason, the several State legislattires, would be 
 made subordinate to the national legislature by 
 giving to the latter the power of negative upon 
 aU such laws of the former as the Congress should 
 judge contrary to the interests of the Federal 
 Union. 
 
 That, selected as they were, the opinions of the 
 majority of the delegates did not fairly represent 
 the wishes of the country at large, is possible; 
 that they did not express the prevalent sentiment 
 in some of the States seems to be certain. Whether 
 they did or did not fairly represent the opinions of 
 the majority of the men who then possessed the 
 suffrage throughout the thirteen States, is as yet 
 uncertain, and will probably never be ascertained. 
 But for the purpose of an inquiry into the origin 
 of certain clauses of the Constitution, and the 
 meaning assigned to them by contemporary opin- 
 ion, it is not important whether the views of the 
 majority of the convention were those of the 
 cotmtry at large or not. For the Constitution 
 was formulated, not by the country at large, but 
 by the convention, and in secret; the words in 
 which it was expressed were settled in the conven- 
 tion ; and the first step in that inquiry is to ascer- 
 tain what the origin and the environment of the 
 convention and its proceedings indicate these 
 clauses signified to the men who framed them. 
 And the important starting points of the investi- 
 
The Constitutional Convention iii 
 
 gation are, that the convention was largely 
 composed of representatives of the higher classes 
 of society, who settled the provisions of the Con- 
 stitution under the influence of fears inducing them 
 to frame a powerful central government; and 
 that the attaiimient of their purpose was facili- 
 tated by divisions among their opponents, and 
 by a general opinion that it was necessary to 
 vest great specific powers in the Union. 
 
 The predominance of nationalist sentiment in 
 the convention might reasonably be inferred from 
 the facts before cited; it is proved by the adoption 
 of the plan of drafting a new constitution, rather 
 than of merely amending the Articles of Con- 
 federation; and by the insertion of the "necessary 
 and proper" clause at the end of the eighth section 
 of the first article of the Constitution. 
 
 The advocates of State rights throughout the 
 cotmtry, and particularly in Congress, had sought 
 to restrict the work of the convention to revision 
 and amendment of the Articles of Confederation. 
 The resolution of the Continental Congress ap- 
 proving of the assembling of the convention had 
 been expressly phrased to that end'; and the op- 
 ponents of the Constitution made the departure 
 of the convention from this restricted plan the 
 basis of strong opposition to ratification. But 
 the experience of the cotmtry, as interpreted by the 
 nationaUsts, showed the need of more ftmdamental 
 
 » Doc. Hist. Const., i., p. 8; Elliot's Debates, i., 120. 
 
112 Commercial Power of Congress 
 
 change than revision of the Articles of Con- 
 federation. In their view, the situation required 
 the inauguration of a government upon a new 
 principle; and under the advocacy of Madison 
 Randolph's Virginia plan, which became the basis 
 of the work of the convention, was formtdated 
 and presented to that body.' As amended, the 
 plan provided for a national government consist- 
 ing of a supreme legislative, judiciary, and execu- 
 tive.^ It was at once perceived that this plan 
 involved more than amendment of the Articles 
 of Confederation — the framing, indeed, of a new 
 kind of government — and much opposition was 
 expressed to it upon that ground. During the 
 debate, Mr. William Paterson, of New Jersey, 
 representing the State rights opposition to the 
 Virginia plan, presented to the convention the 
 alternative New Jersey plan, which was framed 
 
 ' In a letter to Noah Webster, of Oct. 12, 1804, Madison gives 
 the following account of the origin of the Virginia plan: "When 
 the convention," he writes, "took place at Philadelphia, the de- 
 puties from Virginia supposed that some introductory proposi- 
 tions might be expected from them. They accordingly entered 
 into consultation on the subject immediately upon their arrival 
 in Philadelphia, and having agreed on the outline of a plan, it was 
 laid before the convention by Mr. Randolph at that time 
 Governor of the State, as well as member of the convention. 
 This project was the basis of its deliberations; and after passing 
 through a variety of changes in its important as well as its lesser 
 features, was developed and amended into the form finally agreed 
 to." (Hunt, Writings of Madison, vii., p. 166.) 
 
 2 Elliot's Debates, vol. i., 181, (Ed. 1866); Doc. Hist., iii., p. 
 23- 
 
The Constitutional Convention 113 
 
 to restrict the convention to amendment of 
 the Articles of Confederation. The two parties 
 joined issue on the adoption of the one or the 
 other of these plans, and the supremacy of the 
 national sentiment was shown by the vote, in 
 the Conmiittee of the Whole, upon Jvme 19th, to 
 postpone the consideration of the first resolution 
 of the New Jersey plan, which provided only for 
 the revision, correction, and enlargement of the 
 Articles of Confederation.' Immediately after 
 this vote, the committee, by seven States to three, 
 reported the Virginia plan in preference to the New 
 Jersey plan. ^ 
 
 The adoption of the Virginia plan also indicated 
 the supremacy of the nationalist sentiment upon 
 the fundamental question. Whether the States, 
 as such, should or should not control the new cen- 
 tral government. The Articles of Confederation 
 had insured the dominance of the States over the 
 national legislature, by providing that votes in the 
 Congress should be taken by States, each State 
 having one vote; and that, for the passage of all 
 important measures, the assent of nine States 
 shotild be necessary. That government was, 
 therefore, a Confederacy of essentially sovereign 
 States, and was controlled by them in their cor- 
 porate capacity. The Virginia plan, by omitting 
 all provisions for voting by States, and by con- 
 
 'Doc. Hist. Const.,n{., 125, 151. 
 2 Ibid., 162; Elliot's Debates, i., 180. 
 8 
 
114 Commercial Power of Congress 
 
 templating the taking of votes by individual 
 members of Congress, at once freed the national 
 legislature from State control, and erected it as an 
 independent organ of government. The signifi- 
 cance of this departure from the Articles of Con- 
 federation was clearly perceived in the convention, 
 was strenuously opposed by those who favored the 
 rights of the States, and the old system was sought 
 to be perpetuated in the New Jersey plan. The 
 defeat of that plan, therefore, on June 19th, also 
 involved the defeat of the State rights party 
 upon this fundamental question, and the suprem- 
 acy of the nationalist party was emphasized by 
 the vote in the convention, on June 21st, of nine 
 States to two, in favor of the election of the first 
 branch of the national legislature (House of 
 Representatives), by the people. When the 
 question of the suffrage of the several States in 
 the second branch, or Senate, arose, the smaller 
 States forced the concession of an equal represen- 
 tation of all the States in that body'; but there 
 also votes were to be taken by individual members, 
 and bills carried or lost by majorities of members 
 voting, not of the States. After the compromise 
 upon the representation in the Senate, on July 7th 
 and i6th,^ sufficient additional support was given 
 by delegates from the smaller States to the 
 nationalists, to insure their predominance in the 
 
 ■ Doc. Hist. Const., iii., p. 343; Elliot, v., p. 316. 
 ' Ibid., iii., pp. 291, 343. 
 
The Constitutional Convention 115 
 
 convention during the remainder of its sessions. 
 "From the day," writes Bancroft, "when every 
 doubt of the right of the smaller States to an equal 
 vote in the Senate was quieted, they — so I received 
 it from the lips of Madison, and so it appears from 
 the records — exceeded all others in zeal for grant- 
 ing powers to the general government. Ellsworth 
 became one of its strongest piUars, Paterson, of 
 New Jersey, was for the rest of his life a Federalist 
 of Federalists."' 
 
 The supremacy of the nationalist sentiment in 
 the convention as late as August 20th is further 
 proved by the adoption on that day, without dis- 
 sent, of the "necessary and proper clause," as 
 reported from the Committee of Detail:" "To 
 make all laws necessary and proper for carrying 
 into execution the foregoing powers, and all other 
 powers vested by this Constitution in the govern- 
 ment of the United States, or in any department or 
 officer thereof" (Constitution, Art. i.. Sec. 8, last 
 paragraph). 
 
 This clause is that out of which the great 
 judicial development of the powers of the general 
 government, and of the commercial power of 
 Congress in particular, has proceeded. Its im- 
 portance was perceived by the members of the 
 convention, and that it was adopted as late as 
 August 20th, without dissent, demonstrates the 
 
 • Bancroft, Hist. Const., vol. ii., p. 88. 
 ' Doc. Hist. Const., iii., p. 568. 
 
ii6 Commercial Power of Congress 
 
 control which men of nationalist sentiment had 
 at that time over the convention. 
 
 The clause gives a concise expression of the 
 purpose of the majority of the convention to 
 render the entunerated powers of Congress ade- 
 quate to the promotion of the general welfare of 
 the nation, in matters to which the exercise of any 
 of the enumerated powers is appropriate, and to 
 which the powers of the respective States are 
 inadequate. There is, I think, no justification 
 in the history of the convention for the opinion 
 that its members intended to bestow upon Con- 
 gress the power to legislate generally for the wel- 
 fare of the Union; but the history of the times, and 
 its proceedings, show that they did intend to so 
 enlarge the enitmerated powers, that each should 
 include all measiu-es properly within its particular 
 field, and adapted to promote the general welfare 
 of the country by legislation in that field. 
 
 The report of the commissioners to the Annapo- 
 Us Convention of 1786 had recommended the 
 calHng of a convention of aU the States, "to take 
 into consideration the situation of the United 
 States, to devise such fturther provisions as should 
 appear to them necessary to render the Con- 
 stitution of the United States adequate to the 
 exigencies of the Union, and to report such an act 
 as wotdd effectually provide for the same." The 
 reluctant consent of Congress to the calling of the 
 Philadelphia Convention had contemplated that 
 
The Constitutional Convention 117 
 
 the alterations proposed in the convention should 
 be such as shotdd "render the Federal Constitution 
 adequate to the exigencies of the government and 
 the preservation of the Union. " The first article 
 of the Virginia plan proposed that "The Articles 
 of Confederation ought to be so corrected and 
 enlarged as to accomplish the objects proposed 
 by their institution; namely, common defence, 
 security of liberty, and general welfare." The 
 sixth resolution of this plan, as amended in 
 the Committee of the Whole, and reported to the 
 convention on June 13th and 19th, recited: 
 
 That the national legislature ought to be em- 
 powered to enjoy the legislative rights vested in 
 Congress by the Confederation; and, moreover, to 
 legislate in all cases to which the separate States are 
 incompetent ; or in which the harmony of the United 
 States may be interrupted by the exercise of individual 
 legislation; to negative all laws passed by the several 
 states contravening, in the opinion of the national 
 legislature, the articles of Union, or any treaty sub- 
 sisting under authority of the Union. ' 
 
 On July 17th, the convention adopted Luther 
 Martin's proposal that all legislative acts and 
 treaties made by virtue of the articles of Union 
 be the supreme law of the land^; and perceiving 
 that this provision rendered a negative upon State 
 
 'Doc. Hist. Const., iii., pp. 121, 151. 
 ' Ibid., iii., p. 353; Elliot, v., p. 322. 
 
ii8 Commercial Power of Congress 
 
 laws mmecessary, on the same day, struck out the 
 clause relating to the negative on the State laws. 
 Upon this day, also, Roger Sherman proposed to 
 insert in place of "individual legislation," in the 
 resolution, as reported, the words, "to make laws 
 binding on the people of the United States in all 
 cases which may concern the common interest of 
 the Union; but not to interfere with the govern- 
 ment of the individual States in any matters of 
 internal poUce, which respect the government of 
 such States only, and wherein the general welfare 
 of the United States, is not concerned."' 
 
 But the convention was in no mood for even 
 so moderate a restriction of the powers of the 
 national legislature as Sherman proposed, and 
 his motion was rejected by a vote of eight States 
 to two.' Immediately afterwards, upon motion 
 of Mr. Bedford, and by a vote of six States to four, 
 the powers of Congress were enlarged to include 
 the capacity of legislating in aU cases for the gen- 
 eral interests of the Union, in addition to the 
 powers conferred by the resolution as reported 
 from the Committee of the Whole.' As sent to 
 the Committee of Detail, therefore, this resolution 
 was in the following form: 
 
 6. Resolved, That the national legislature ought 
 
 ' Elliot's Debates, v., pp. 319, 320; Doc. Hist. Const., iii., 
 
 PP- 349. 350- 
 
 2 Ibid., p. 350; Elliot, v., p. 320. 
 J Ibid., iii., p. 351; Elliot, v., p. 320. 
 
The Constitutional Convention 119 
 
 to possess the legislative rights vested in Congress by 
 the Confederation; and, moreover, to legislate in all 
 cases for the general interests of the Union, and also 
 in those to which the States are separately incompe- 
 tent, or in which the harmony of the United States 
 may be interrupted by the exercise of individual 
 legislation. ' 
 
 The experience of the country under the Con- 
 federation had led the men who afterwards 
 controlled the Constitutional Convention to the 
 conclusion, that the Articles must be so modified 
 as to vest in the central government powers 
 throughout the nation, and with respect to national 
 objects, co-extensive with those which the State 
 possessed over local objects, within their respective 
 limits. Washington had formulated this prin- 
 ciple in a letter to Jay, of August i, 1786, pre- 
 viously quoted, as follows : 
 
 "I do not conceive we can exist long as a nation, 
 without having lodged somewhere a power which 
 will pervade the whole Union in as energetic 
 a manner as the authority of the State govern- 
 ments extends over the several States. "' 
 
 Before the assembling of the convention, and 
 during its deliberations, the men who procured 
 the framing of the Constitution worked toward the 
 
 ' Meigs, Growth of Constitution in Federal Convention of 1787, 
 p. 334 (Phila., 1900). 
 ' Ford's Writings of Geo. Washington, vol. xi., pp. 53, 54. 
 
120 Commercial Power of Congress 
 
 accomplishment of the end proposed by Washing- 
 ton, and all parties seem to have favored the 
 vesting in the central government of powers 
 adequate to the exigencies of the Union. The 
 report of the Annapolis commissioners, the Con- 
 gressional call for the meeting of the Constitutional 
 Convention, the Virginia and the New Jersey 
 plans, the proposals of Roger Sherman, and the 
 Connecticut plan, and, finally, Bedford's amend- 
 ment to the sixth resolution of the Virginia plan — 
 all contemplated that the central authority should 
 have powers adequate to the needs of the body 
 politic. The resolution became the source out of 
 which the Committee of Detail drew its enumera- 
 tion of the specific powers of Congress, and the 
 "necessary and proper" clause enlarging those 
 powers. Such a history shows that the con- 
 vention intended to enlarge each enumerated 
 power up to such scope as would enable Con- 
 gress to legislate upon all subjects within the 
 range of that power, which promoted the wel- 
 fare of the country in respect to such subjects, 
 and were beyond the powers of the individ- 
 ual States. With respect, for example, to the 
 power of Congress over commerce, this his- 
 tory shows that the convention intended to 
 vest Congress with power over the several 
 divisions of commerce, to which the clause re- 
 lates, adequate to the passage of all measures 
 properly falling under any of those divisions, 
 
The Constitutional Convention 121 
 
 and appropriate to promoting the general wel- 
 fare of the country.' 
 
 ' In his " Political Observations, " written in 1 795, when he was 
 a strict constructionist, Madison stated this principle as follows: 
 
 "From this convention proceeded the present Federal Con- 
 stitution, which gives to the general will the means of providing 
 in the several necessary cases for the general welfare, and par- 
 ticularly in the case of regulating our commerce in such manner 
 as may be required by the regulations of other countries." Works 
 of Madison, vol. iv., 487. (Ed. 1865.) 
 
CHAPTER VIII 
 
 THE COMMERCE CLAUSE IN THE CONVENTION — 
 
 THE SCOPE ASSIGNED TO THE COMMERCIAL 
 
 POWER OF CONGRESS 
 
 THE sixth resolution of the Virginia plan, 
 broadened by Bedford, was referred to 
 the Committee of Detail, consisting of Randolph, 
 Rutledge, Gorham, Ellsworth, and Wilson. On 
 August 6, 1787, this committee reported to the 
 convention a draft of a constitution embodying 
 the principles of the several resolutions which 
 had been referred to them, and vesting Congress 
 with the power : 
 
 "To regulate commerce with foreign nations, 
 and among the several States."' 
 
 The terms of this clause make no distinction 
 between the scope of the power to regulate com- 
 merce with foreign nations and among the several 
 States. The convention included among its 
 members the ablest lawyers of the day in America ; 
 it contained men who were peculiarly capable in 
 the use of language to express legal concepts — 
 men whom the events of the preceding eight or 
 
 ■ Doc. Hist, of the Const., iii., p. 449; Elliot, v., p. 378. 
 122 
 
The Commerce Clause 123 
 
 nine years had compelled to much reflection upon 
 the relation of the regulation of commerce in aU 
 its branches to the powers of the States and the 
 central government. The commercial proposals 
 in Congress, the measures of various State legis- 
 latures, municipal and other public bodies, from 
 1778 to 1787, indicate that the committee under- 
 stood very well what they wished to accomplish. 
 The conjecture, that, although they expressed 
 the power of Congress over foreign and over 
 interstate commerce in similar terms, yet they 
 really intended to vest that body with a complete 
 and positive power over foreign, but with only 
 a limited and chiefly negative power over inter- 
 state trade, is without warrant in the history of 
 those times, or in the terms of the committee's 
 report, which indicate rather an intention to 
 vest Congress with power over interstate com- 
 merce, not more, but less restricted than that 
 over foreign commerce; for the report prohibited 
 the laying of a tax or duty on articles exported 
 from any State, the enactment of laws preventing 
 the migration or importation of such persons 
 as the several States should think proper to 
 admit, and the imposition of taxes or duties on 
 such persons. It also provided that no navigation 
 act should be passed without the assent of two 
 thirds of the members present in each house.' 
 But all of these restrictions related exclusively 
 ' Doc. Hist. Const, iii., p. 450; Elliot, v., p. 379. 
 
124 Commercial Power of Congress 
 
 to foreign commerce, while the power to regulate 
 trade among the States was left unrestricted. 
 
 The progress of the commerce clause in the 
 Committee of Detail also supports the inference 
 that they intended to vest Congress with a power 
 over interstate at least equal to that over foreign 
 commerce. For, besides the resolutions referred 
 to them by the convention, the committee had 
 before it the New Jersey plan, Charles Pinckney's 
 plan, and the draft of a constitution prepared by 
 Randolph. The New Jersey plan vested Con- 
 gress with power "to pass acts for the regulation 
 of trade and commerce, as well with foreign 
 nations as with each other," but provided that 
 no act for the purpose should be passed without 
 the consent of a prescribed number of States.' 
 This plan represented the views of State rights 
 advocates in the convention, but its terms indi- 
 cate an intention to vest Congress with similar 
 power over both foreign and interstate commerce. 
 Pinckney's plan conferred complete power of 
 regulating both foreign and interstate commerce 
 upon Congress, and expressed no intention to 
 limit the control of that body over interstate 
 trade. " 
 
 'Doc. Hist, of the Const., iii., p. 125; Elliot's Debates, v., 191, 
 192. 
 
 »Nott, The Mystery of the Pinckney Draft, p. 299; Meigs, 
 Growth of the Constitution, 135. It now appears that Pinckney 
 is entitled to greater credit as an author of much of the Federal 
 Constitution than was formerly conceded to him. Judge 
 
The Commerce Clause 125 
 
 In Randolph's original draft, the power was 
 given to Congress "to regulate commerce" 
 generally/ and no difference was stated between 
 the extent of its authority over foreign and over 
 interstate trade, except that certain restrictions 
 were imposed upon its power to regulate foreign 
 commerce. Rutledge amended Randolph's draft, 
 by inserting after "commerce" the words, "both 
 foreign and domestic," so that with his revision 
 the clause came before the Committee of Detail 
 in the following form: "To regulate commerce, 
 both foreign and domestic." The generality of 
 Randolph's original phrase and the terms of 
 Rutledge's amendment make it quite plain that 
 Rutledge, at least, believed he was conferring 
 upon Congress similar power over both branches 
 of commerce. To suppose that an experienced 
 lawyer would have made such an amendment as 
 Rutledge made, with an intent to vest in Congress 
 a restricted authority over domestic trade, is to 
 give no credit to Rutledge for the legal acumen 
 his career shows he possessed. 
 
 The working members of the Committee of 
 
 Nott's enthusiasm carries him perhaps too far in Pinckney's 
 favor; but Prof. Jameson's judicious summary of the controversy 
 over the draft allots Pinckney much credit. See " Studies in the 
 History of the Federal Convention of 1787," by John Franklin 
 Jameson, in Anntial Report of the American Historical Associa- 
 tion for 1904, vol. i., p. 132. 
 
 ' Meigs, Growth of the Constitution, pp. 135, 136, and sheet 5 
 of his facsimile reprint of Randolph's draft. 
 
126 Commercial Power of Congress 
 
 Detail were Randolph, Rutledge, and Wilson, 
 aU lawyers of note, and Wilson perhaps the fore- 
 most constitutional lawyer in the country. The 
 facts just noticed indicate that Randolph and 
 Rutledge had no intention of restricting the 
 authority of Congress over interstate below its 
 authority over foreign commerce. Wilson was 
 one of the most extreme nationalists in the con- 
 vention, and not less capable than his associates 
 upon the committee in the use of words to 
 express precise legal concepts. He is asserted 
 to have been the most active member of the 
 committee in preparing the draft of the Consti- 
 tution, and the whole tenor of his thought upon 
 the relation of the power of the central authority 
 to that of the States forbids the assumption that 
 he intended to restrict the power of Congress to 
 regulate interstate commerce below what was 
 implied in the general terms of the committee's 
 report. And so we must conclude that the Com- 
 mittee of Detail intended to confer upon Congress 
 equal power of regulating interstate and foreign 
 commerce, except as they imposed certain re- 
 strictions upon the power of regulating the latter. 
 The report of the committee came before the 
 convention on August 6th, and on August i6th 
 the commerce clause as framed by the committee 
 was adopted without dissent.' The power was 
 afterward enlarged, upon a suggestion by Madison, 
 
 ' Doc. Hist, of the Const., iii., 545; Elliot, v., p. 434. 
 
The Commerce Clause 127 
 
 to include the regulation of trade with the Indian 
 tribes, and after revision by the Committee on 
 Style, assumed the form it now has in the Consti- 
 tution: "The Congress shall have power 
 
 "To regulate commerce with foreign nations, 
 and among the several States, and with the 
 Indian tribes. " 
 
 The report of the Committee of Detail had 
 provided that no navigation act should be passed 
 without the assent of two thirds of the members 
 present in each house; and after the adoption of 
 the commerce clause, Charles Pinckney, George 
 Mason, and others made strenuous efforts to 
 induce the convention to qualify the power of 
 Congress over commerce by the proviso, that no 
 act for the purpose of regulating the commerce 
 of the United States with foreign powers or among 
 the several States should be passed without the 
 assent of two thirds of the members of each house. 
 The struggle over this subject was continued 
 until the compromise over the importation of 
 slaves was reached, after which a stiflficient number 
 of members from the Southern States joined with 
 the Northern members opposed to the proviso 
 to defeat it, and to confer upon Congress 
 power to pass navigation acts without the re- 
 striction of two-thirds majorities. This compro- 
 mise became a subject of bitter opposition to 
 the ratification of the Constitution in the State 
 conventions, and the debates respecting it 
 
128 Commercial Power of Congress 
 
 confirm the inference that the Philadelphia Con- 
 vention intended to confer upon Congress very 
 large powers of regulating interstate as well as 
 foreign commerce. For those delegates who 
 favored the requiring of two-thirds majorities 
 for the passage of commercial laws were so much 
 in earnest, that we may be sure they stated aU the 
 serious objections they had to the commerce clause 
 as adopted. But their objections went, not to 
 the scope of the power in general, but to the 
 passage of the laws by mere majorities. It does 
 not appear that they desired to directly limit 
 the constitutional power of Congress, but to 
 diminish the liability of the passage of laws in the 
 interest of one section of the country adverse to 
 that of another section. Their object was two- 
 fold: (i) to prevent legislation hostile to the non- 
 mercantile States, by requiring for the passage 
 of commercial laws majorities so large that no 
 coalition of a few States would suffice to enact 
 them; (2) to confine the passage of such laws to 
 occasions of such general importance as would 
 bring to their support all sections of the country. 
 But the size of the majority required for the 
 passage of a bill has no relation to the extent 
 of the field within which Congress can legislate; 
 and there is no indication in the debates that 
 Mason, Pinckney, Randolph or their associates 
 desired to limit the subjects to which the com- 
 mercial power of Congress should extend. The 
 
The Commerce Clause 129 
 
 debates, therefore, rather strengthen than weaken 
 the opinion, that there was no considerable 
 opposition in the convention to the bestowal 
 upon Congress of complete power of regulating 
 commerce, among the States as well as with 
 foreign nations, and this conclusion is supported 
 by other occurrences near the close of the con- 
 vention. 
 
 On September 14th, during a debate upon Mr. 
 Madison's proposal, that power be given to 
 Congress to grant charters of incorporation where 
 the interests of the United States might require, 
 and the legislative provisions of individual States 
 might be incompetent, it was objected that such 
 a power would include the granting of mercantile 
 monopolies, and Mr. Wilson expressed the opinion 
 that commercial monopolies were already in- 
 cluded in the power to regulate commerce.' 
 Mason objected to Wilson's view at the time, but 
 afterwards came to the same opinion, and based 
 one of the points in his opposition to the ratifi- 
 cation of the Constitution upon the proposition 
 that the power to regtdate commerce included 
 the power to create mercantile monopolies. "Un- 
 der their own construction of the general clause 
 at the end of the enumerated powers," Mason 
 wrote, "the Congress may grant monopolies in 
 trade and commerce."' The country at large 
 
 ' Doc, Hist, of the Const., iii., p. 745; Elliot, v., 544. 
 
 ' Elliot, L, p. 496; Ford, Pamphlets on the Constitution, p. 331. 
 
130 Commercial Power of Congress 
 
 took the view of Wilson and Mason, and the 
 power of Congress to create monopolies under its 
 power of regulating commerce was made the 
 ground of opposition to the ratification of the 
 Constitution in at least five of the States; led to 
 proposals for amending the Constitution in several 
 of the State conventions, and was accepted as 
 established in the debates in the first Congress 
 over certain constitutional powers of that body. 
 If a law were enacted by Congress to-day creating 
 a mercantile corporation with monopolistic powers 
 over some branch of trade in interstate or foreign 
 commerce, that act would be denounced as an 
 unconstitutional and outrageous exercise of power. 
 But the men who framed the Constitution and 
 their contemporaries believed that this power 
 had been conferred upon Congress. There is 
 no indication in the debates in the convention, 
 in the first Congress, or in the ratifying conven- 
 tions, that the exercise of the power was re- 
 stricted to foreign trade; upon the contrary, the 
 discussions in the several bodies indicate a belief 
 that the power to create monopolies was general, 
 and extended as well to interstate as to foreign 
 commerce. It is quite clear that a body of men 
 who supposed they had conferred authority to 
 create monopolies upon Congress, by a general 
 grant of power to regulate interstate commerce, 
 could not have intended that the general grant 
 should be limited and mainly negative. Nor is 
 
The Commerce Clause 131 
 
 the force of this plain inference sensibly diminished 
 by the action of the convention on proposals 
 relating to corporations and canals in its last 
 days. 
 
 On September 14th, a motion by Dr. Franklin, 
 amended by Madison and Mason, to give to 
 Congress the power to grant charters of incor- 
 poration for the cutting of canals where deemed 
 necessary, was rejected by a vote of eight States 
 to three ■ ; and this vote was regarded as also dis- 
 posing adversely of Madison's proposal to give 
 to Congress the power to grant charters of in- 
 corporation where the interests of the United 
 States might require, and the legislative provi- 
 sions of individual States might be incompetent.'* 
 
 This vote has been frequently cited as indi- 
 cating an intention to limit the powers of Congress 
 under its various specifically enumerated powers, 
 and among others the power to regulate commerce. 
 It is difficult to determine just what the vote does 
 signify as to the intention of the convention. But 
 when it is considered in connection with the de- 
 bates in the ratifying conventions, the controversial 
 pamphlets of the day, and the laws passed by the 
 first Congress organized under the new govern- 
 ment, the more reasonable opinion is that the ob- 
 jections to the power to cut canals, as well as to the 
 power to grant charters of incorporations, were : (i) 
 
 ' Doc. Hist, of the Const., iii., 744-745; Elliot, v., pp. 543, 544. 
 'Doc. Hist., iii., 744; Elliot, v., p. 543. 
 
132 Commercial Power of Congress 
 
 that they were unnecessary in view of the provi- 
 sions in the Constitution previously decided upon ; 
 (2) that neither the power to cut the canals, nor 
 the power to grant charters of incorporation, 
 was limited to cases in which they would have 
 been tributary to the exercise of some one of the 
 specifically granted powers. An objection to 
 the proposal to give Congress power to cut canals 
 may have been, for example, that it did not limit 
 the authority to cases in which the canals would 
 be aids to the transaction of interstate commerce, 
 but would have permitted their construction 
 entirely within a single State for purposes re- 
 stricted to that State. And similarly, an ob- 
 jection to the proposal to confer upon Congress 
 the power to erect corporations may have been 
 that the authority would have been general, and 
 not restricted to cases in which the corporations 
 wotdd have been incidental to the accomplishment 
 of the purpose of some of the specifically granted 
 powers. This is the view of the significance of 
 the vote taken by Hamilton and others in the 
 early years of the new government, and the large 
 majority by which both houses of the first Con- 
 gress passed the bill incorporating the United 
 States Bank indicates it was the prevalent opinion 
 of the public men of the constitutional era. 
 
 On September 17, 1787, after an eloquent and 
 pathetic appeal by Dr. Franklin, the Constitution 
 was signed and the convention adjourned sine die. 
 
The Commerce Clause 133 
 
 Copies of the instrument were sent to Congress 
 and to the legislatures of the several States, and 
 as soon as its terms became public, a discussion 
 began, which continued until eleven of the thirteen 
 States had ratified the Constitution and the new 
 government was preparing to go into operation. 
 
 Now looking back over the course by which 
 we have come, we see the effort to vest Congress 
 with power to regulate commerce directed, first, 
 to bestowing upon that body adequate power to 
 regulate foreign commerce. It is then extended 
 to include the regulation of interstate commerce. 
 Movements to this end are continued in and 
 out of Congress down to and even after the 
 assembling of the Annapolis Convention; and 
 they result at last in the commerce clause of the 
 Constitution. If the general terms of the clause 
 are fairly open to any question as to their meaning, 
 that question seems to be resolved in favor of 
 the broader interpretation, by comparing the 
 clause with the terms of earlier proposals, as in 
 the following list: 
 
 New Jersey's Representations of 1778: The sole and 
 exclusive power of regulating the trade of the United 
 States with foreign nations ought to be clearly vested 
 in the Congress. (Elliot, i., p. 87.) 
 
 Witherspoon's Resolution of 1781: It is indispensably 
 necessary that the United States in Congress as- 
 sembled should be vested with a right of superin- 
 
134 Commercial Power of Congress 
 
 tending the commercial regulations of every State, 
 that none may take place which shall be partial or 
 contrary to the common interests. (Elliot, i., p. 92.) 
 
 Instructions of the General Assembly of Pennsyl- 
 vania to their delegates in Congress, in December, 17B3: 
 As the local exercise within the States of the power of 
 regulating and controlling trade can result only in 
 discordant systems productive of internal jealousies 
 and competition, and illy calculated to oppose or 
 counteract foreign measures, which are the efEect of a 
 unity of council, this House are clearly of opinion 
 that the individual as well as general good-will will 
 be best consulted by relinquishing to Congress all 
 these separate and independent powers. (Bancroft, 
 Const., {., 335.) 
 
 Resolution of the Philadelphia Town Meeting of 
 June, 1785: Resolved, that relief from the oppres- 
 sion under which the American trade and manufac- 
 tures languish could spring only from the grant to 
 Congress of full constitutional powers over the com- 
 merce of the United States. (Bancroft, i., p. 187.) 
 
 Instructions of the Legislature of Rhode Island to 
 their delegates in Congress, in October, 1785: The 
 United States in Congress assembled shall be solely 
 empowered to regulate the trade and commerce 
 of the respective States and the citizens thereof with 
 each other. (Rhode Island Schedules, October, 1785, 
 p. 10.) 
 
 Report of Monroe's Committee to Congress in May, 
 1785: The United States in Congress assembled, to 
 have the sole and exclusive right and power ... of 
 regulating the trade of the States as well with foreign 
 nations as with each other, and of laying such imposts 
 
The Commerce Clause 135 
 
 and duties upon imports and exports, as may be 
 necessary for the purpose. (Sparks, Washington, 
 ix., p. 503-) 
 
 Report of Pinckney's Committee to Congress in 
 August, 1786: The United States in Congress 
 assembled shall have the sole and exclusive power of 
 regulating the trade of the States as well with foreign 
 nations as with each other, and of laying such pro- 
 hibitions, and such imposts and duties upon imports 
 and exports, as may be necessary for the purpose. 
 (Bancroft, Hist. Const., ii., 374.) 
 
 The Connecticut Plan of 1787: That in addition 
 to the legislative powers vested in Congress by the 
 Articles of Confederation the Legislature of the 
 United States be authorized to make laws to regulate 
 the commerce of the United States with foreign 
 nations, and among the several States. {Biography of 
 the Signers of the Declaration of Independence, vol. 
 iii., p. 270 et seq.) 
 
 The New Jersey plan of 1787: The United States in 
 Congress shall be authorized to pass acts for the regu- 
 lation of trade and commerce as well with foreign 
 nations as with each other. (Doc. Hist. Const., iii., 
 P- 125.) 
 
 Randolph's and Rutledge's draft of a Constitution: 
 The Congress shall have power to regulate commerce, 
 both foreign and domestic. (Meigs, Growth of the 
 Const., pp. 135, 136.) 
 
 The Constitution as adopted by the Convention: 
 The Congress shall have power ... to regulate 
 commerce with foreign nations, and among the 
 several States, and with the Indian tribes. (Consti- 
 tution, Art. I, Sec. 8, paragraph 3.) 
 
136 Commercial Power of Congress 
 
 These proposals indicate a steady development 
 to a wider and yet wider conception of the power 
 of Congress over the several branches of com- 
 merce. Proceeding from the regulations of for- 
 eign commerce only, they enlarge, through the 
 force of circiunstances, to include the regulation 
 also of interstate commerce, and the terms of the 
 successive propositions exclude the inference that 
 the power to regulate interstate was narrower 
 than the power to regulate foreign commerce. 
 The history of the times and these successive 
 proposals show that before the Constitutional 
 Convention assembled the conviction had become 
 widespread throughout the country, that Con- 
 gress must be vested with complete power of 
 regulating the several branches of trade. The 
 provision in the Federal Constitution simply 
 embodied this conviction in the framework of 
 the government, and by its omission of any 
 limitation upon the power to regulate commerce 
 between the States followed the wishes of the 
 country. 
 
CHAPTER IX 
 
 THE CONSTITUTION BEFORE THE COUNTRY AND IN 
 THE STATE CONVENTIONS — SCOPE ASSIGNED 
 BY CONTEMPORARY OPINION TO THE COM- 
 MERCIAL POWER OF CONGRESS 
 
 AS soon as the text of the Constitution became 
 public a vehement controversy arose over 
 its merits and demerits, which continued through 
 the debates in the conventions of the several 
 States to which it was referred for adoption or 
 rejection. The discussion in these conventions 
 and the controversial literature of that period 
 inform us clearly of the opinion then entertained 
 concerning the scope of the powers vested in 
 Congress, and particularly of its authority over 
 commerce. 
 
 The attitude of the State conventions toward 
 the Constitution indicates that a different align- 
 ment of States had occurred from that which 
 existed in the early days of the Philadelphia 
 assembly. For, whereas, in the latter the smaller 
 States were opposed to the radical change in the 
 system of government effected by the Constitution, 
 
 137 
 
138 Commercial Power of Congress 
 
 in the State conventions of every small State, 
 excepting New Hampshire, the Constitution was 
 adopted unconditionally. At Philadelphia the 
 smaller States had wrested from the larger the 
 right of equal representation in the Senate, and 
 the fears aroused in that struggle, the arrogant 
 attitude of the larger States, and apprehensions 
 as to the future of the western territory, continued 
 after the adjournment of the Constitutional 
 Convention, and, it would seem, converted the 
 smaller States to the belief that a strong central 
 authority would be their safeguard against the 
 larger States. Evidence of this change of atti- 
 tude is contained in Ellsworth's advocacy of 
 ratification in the Connecticut Convention, which 
 was based directly upon the proposition that the 
 Union created by the Constitution was necessary 
 to protect the smaller against the larger States.' 
 This realignment is of much importance in our 
 
 ' "Union is necessary to preserve commutative justice between 
 the States. If divided, what is to prevent the large States from 
 oppressing the small? What is to defend us from the ambition 
 and rapacity of New York when she has spread over that vast 
 territory which she claims and holds? Do we not already see in 
 her the seeds of an overbearing ambition? On our other side 
 there is a large and powerful State. Have we not already begun 
 to be tributaries? If we do not improve the present critical time, 
 if we do not unite, — shall we not be like ' Issacher ' of old, a strong 
 ass crouching down between two burdens? New Jersey and 
 Delaware have seen this and have adopted the Constitution 
 unanimously." (Ellsworth, in the Connecticut Convention, Jan. 
 4, 1788; Elliot's Debates, ii., p. 186.) 
 
The State Conventions 139 
 
 history; for it is one of the causes which insured 
 the predominance of nationalist opinions and of 
 the Federalist party in Congress and through the 
 country in the first years of the new government, 
 when precedents as to the scope of its powers were 
 being created, and constitutional principles de- 
 veloped. It insured the ratification of the Con- 
 stitution without changes affecting the nature of 
 the new government or materially reducing its 
 powers, and was therefore an agency in preserving 
 to Congress that fulness of control over commerce 
 which had been intended by the majority of the 
 Philadelphia Convention. 
 
 The controversy over ratification also took a 
 somewhat different course in the State conventions 
 from that followed by the debates at Philadelphia. 
 For, whereas, in the Constitutional Convention 
 the greatest difference of opinion had been rather 
 over the nature of the government than the extent 
 of its powers, in the discussions over ratification, 
 the nature of the government having been settled 
 at Philadelphia, the powers vested in it attracted 
 great attention. In the interval between the 
 adjournment of the Constitutional Convention 
 and the assembling of the State conventions, 
 the nature of the new government and the powers 
 vested in it, had become well known, and the 
 consequences of endowing an independent gov- 
 ernment of the kind created by the Constitu- 
 tion with powers of the range set forth in that 
 
140 Commercial Power of Congress 
 
 instrument attracted attention everywhere and 
 were made the subject of vehement controversy. 
 The discussions throughout the coimtry and the 
 debates in the State conventions, therefore, 
 throw more direct Ught upon the scope assigned 
 by contemporary opinion to the commercial and 
 other powers of Congress than did the debates 
 in the Constitutional Convention. And it is a 
 consideration of much importance, in arriving at 
 a just estimate of contemporary opinion con- 
 cerning the scope of the powers of Congress, 
 that there was not much difference between the 
 views of those who favored and of those who 
 opposed ratification, as to the extent of those 
 powers; for all were agreed that the Constitution 
 created a government of very great power, al- 
 though the opposing parties differed widely as 
 to the wisdom or unwisdom of erecting such a 
 government. On the one hand, the opponents 
 of ratification fotmd in that instrument powers so 
 great as to threaten the destruction of the States, 
 the loss of civil liberty, and the coming in of 
 aristocracy, monarchy, or tyranny. On the other 
 hand, those who favored ratification approved 
 the Constitution, for the very reason that it did 
 vest great power in the central authority, and 
 thereby determined, to apply the phrase used by 
 Washington in a letter to Lafayette, of June 6, 
 1787, quoted above,' that they were to have a 
 
 ' Doc. Hist, of the Const., vol. iv., p. 185. 
 
The State Conventions 141 
 
 government of respectability, under which life, 
 liberty, and property would be secured to them. 
 If Congress possesses the powers ascribed to it 
 by men of aU. parties in 1788, it is vested with 
 authority more extensive than has yet been 
 allotted to it by the most liberal decision of the 
 Supreme Court. While the comments of a 
 single controversialist might require to be much 
 qualified, by allowances for rhetorical exaggera- 
 tion, yet if we find a considerable body of docu- 
 ments in opposition to ratification substantially 
 agreeing upon the grounds of their opposition, 
 we are justified in concluding that they express 
 a wide-spread contemporary view of the Consti- 
 tution; and this condition is exhibited by the 
 literature relating to the Federal Constitution, 
 in the years 1787 to 1789, which represents that 
 instrument as creating a central authority of very 
 great power, and particularly with respect to 
 the regxilation of commerce. 
 
 It is also worthy of notice that, in this con- 
 troversy, as in the Constitutional Convention, 
 the advocates of the rights of the States were 
 less united in opinion than were the partisans of a 
 strong central government, and this is also par- 
 ticularly true with respect to the commercial 
 powers of Congress. For while some of the oppo- 
 nents of ratification dreaded the consequence 
 of vesting any central authority with powers over 
 commerce as great as those bestowed upon 
 
142 Commercial Power of Congress 
 
 Congress by the Constitution, others favored 
 bestowing such powers on some central body, and 
 would have been willing to vest them in a "feder- 
 ated" as distinguished from a "consolidated" 
 government. Thus " Centinel, " one of the ablest 
 opponents of ratification, in his fourth paper in 
 the Independent Gazetteer or the Chronicle of Free- 
 dom, for November 30, 1787, favored a transfer to 
 Congress of the power of imposing imposts on 
 commerce and the unlimited regulation of trade ■ ; and 
 examination of the debates and controversial 
 literature of this period, as a whole, strongly im- 
 presses the reader with the conviction, that there 
 were throughout the country large numbers of the 
 mercantile classes who, however much they may 
 have objected to a consolidated government, 
 nevertheless strongly favored the vesting of very 
 large powers over commerce, as well interstate as 
 foreign, in whatever form of central government 
 might be adopted. 
 
 It has been intimated that contemporary opin- 
 ion of the scope of the powers of the new govern- 
 ment is presented more fully in the writings of 
 the opponents than of the friends of the Consti- 
 tution; and this fact does not, perhaps, diminish 
 the weight of the writings as contemporary 
 expositions of that instrument, for they are at 
 least not open to the charge of bias in favor of 
 
 ' McMaster and Stone, Pennsylvania and the Federal Conven- 
 tion, p. 604. The emphasis is mine. 
 
The State Conventions 143 
 
 centralization. The importance of the documents 
 opposed to ratification is also increased by the 
 co-operation and the interchange of views among 
 adversaries of the Constitution in different parts 
 of the country, which were brought about by a 
 society in the State of New York, organized in 
 May, 1788, to effect unity of action in opposing 
 ratification in the different States, and known as 
 "Federal Republicans." Through this society 
 correspondence was opened with leaders of the 
 opposition to ratification in the several States, 
 and such unity of sentiment and action thereby 
 produced, that the views urged by a particular 
 opponent of ratification in one of the States 
 ceased to be merely individual opinions, and be- 
 came the sentiments of considerable numbers of 
 men in different parts of the country.' 
 
 While, however, the utterances of those who 
 favored ratification are less explicit in reference 
 to the extent of the commercial power of Congress 
 than are the statements of their opponents they 
 nevertheless confirm the view taken by the 
 latter, and exhibit the power as one of great 
 extent. Thus, Samuel Adams urged the ratifi- 
 cation of the Constitution, in the Massachusetts 
 Convention, because he considered "the article 
 which empowers Congress to regulate commerce, 
 to form treaties, etc. " highly valuable. ^ Bowdoin, 
 
 'William Wirt Henry's Patrick Henry, ii., p. 341, et seq. 
 N. Y., 1891. "Elliot, Debates, ii., p. 124. 
 
144 Commercial Power of Congress 
 
 in the same convention, emphasized the advan- 
 tages of general regulation of trade by the central 
 government as one of the benefits to be derived 
 from ratifying the Constitution'; and RusseU 
 urged the power of restricting trade to American 
 vessels conferred by the Constitution upon 
 Congress as an inducement to ratification'; while 
 Mr. Dawes advocated ratification, for the reason 
 that Congress must have power of imposing pro- 
 tective duties in order to encourage domestic 
 manufactures.' And that merchants, mechanics, 
 and tradesmen in different parts of the country 
 believed that the new Constitution vested Con- 
 gress with the power of imposing protective 
 duties on imports, is indicated in the numerous 
 petitions which came up to the new Congress 
 in 1789, requesting the imposition of such duties. 
 The phrasing of the petition from the trades- 
 men, mechanics, and others, of the city of 
 Baltimore, so clearly expresses the opinion of the 
 petitioners, as to the connection of the power to 
 impose the duty with the Constitution, that it 
 deserves quotation: 
 
 The happy period having now arrived [say the 
 petitioners], when the United States are placed in a 
 new situation, when the adoption of a general govern- 
 ment gives one sovereign legislature the sole and ex- 
 
 • Elliot, Debates, ii., p. 83. 
 ' Ibid., p. 139. 
 3 Ibid., p. 59. 
 
The State Conventions 145 
 
 elusive power of laying duties upon imports, your 
 petitioners rejoice at the prospect this affords them, 
 that America, freed from the commercial shackles 
 which have so long bound her, will see and pursue 
 her true interests, becoming independent in fact as 
 well as in name; and they confidently hope that the 
 encouragement and protection of American manu- 
 factures will claim the earliest attention of the 
 Supreme Legislature of the nation ; as it is a univer- 
 sally acknowledged truth that the United States 
 contain within their limits resources amply sufficient 
 to enable them to become a great manufacturing 
 country, and only want the patriotism and support 
 of a wise, energetic government. > 
 
 Mr. Thompson's book, from which the fore- 
 going is quoted, also cites other petitions from 
 mechanics and manufacturers of the cities of 
 New York and Boston of similar tenor; and it is 
 clear that in the period between the adjournment 
 of the Philadelphia Convention and the inaugu- 
 ration of the new government, a general belief 
 existed throughout the country that the Constitu- 
 tion empowered Congress to impose protective 
 duties upon imports, although the authority was 
 then referred rather to the clause relating to 
 taxation, than to that relating to commerce. 
 
 We have seen, that in the Constitutional Con- 
 vention the opinion was advanced by Wilson, 
 
 ' The History of Protective Tariff Laws, by R. W. Thompson, 
 ex-Secretary of the U. S. Navy, p. 38 et seq. (3d ed., Chicago, 
 1888). See American State Papers, Finance, vol. i., p. 5. 
 
146 Commercial Power of Congress 
 
 that under the power to regulate commerce 
 Congress could create commercial monopolies. 
 That the country at large was of this opinion, is 
 evident from the fact that the conventions of 
 five States — Massachusetts, New Hampshire, New 
 York, North Carolina, and Rhode Island — ^thought 
 it necessary to prevent the exercise of such a 
 power by express amendments to the Consti- 
 tution.' Thus, in Massachusetts the convention 
 accompanied its ratification by the recommenda- 
 tion to Congress, that the following amendment, 
 among others, be adopted: 
 
 "V. That Congress erect no company of 
 merchants with exclusive advantages of com- 
 merce." 
 
 In New York the recommendation took the form : 
 "That the Congress do not grant monopolies or 
 erect any company with exclusive advantages 
 of commerce"; and in New Hampshire, North 
 Carolina, and Rhode Island the recommendation 
 was expressed in equivalent and nearly identical 
 terms. 
 
 ■ Mass., Elliot, Debates, ii.,p. 177; N. Hampshire, Elliot, i., p. 
 326; New York, Elliot, i., p. 330; N. Carolina, Elliot, iv., p. 246; 
 Rhode Island, Elliot, i.,p. 337. Rhode Island and North Caro- 
 lina did not ratify the Constitution until after the new government 
 went into operation. The amendment respecting monopolies 
 was proposed in the North Carolina Convention, which con- 
 vened on 2ist of July, 1778, and adjourned without ratifying 
 the Constitution. The State ratified the Constitution on 
 November 21, 1789. 
 
The State Conventions 147 
 
 In Virginia George Mason based one of his 
 principal objections to the Constitution upon 
 its vesting in Congress the power to create com- 
 mercial monopolies, which, he predicted, would 
 be utilized by northern merchants to the injury 
 of the South. He enlarged upon this matter 
 in his pamphlet entitled: "The Objections of the 
 Honorable George Mason to the proposed Federal 
 Constitution. Addressed to the Citizens of Vir- 
 ginia,"' in which, as I have noted above, he 
 urged that the requirement of simple majorities 
 for the making of all commercial and navigation 
 laws would facilitate the creation of monopolies, 
 and explained their connection with the Consti- 
 tution as follows: 
 
 ^Pamphlets on the Constitution, 1787-8, edited by Paul 
 Leicester Ford, p. 331. Iredell attempted an answer to this 
 objection of Mason's, which seems to me weak in point of law, 
 as well as contrary to the prevalent opinion of the day. For 
 Iredell finds in the clause of the Constitution forbidding the 
 giving of a preference to the ports of one State over those of an- 
 other an effectual restriction upon the power to create monopolies, 
 whereas this clause would seem to have no relation to the subject, 
 and it is certain that so able constitutional lawyers as Wilson and 
 Hamilton, and the general sentiment of the country, afBrmed the 
 power of Congress to create monopolies under the commerce 
 clause. Iredell also seems to be of the opinion that particular 
 monopolies, which might severally promote the industries of 
 particular States, would be advantageous rather than otherwise, 
 and permissible under the Constitution. See "Answer to Mr. 
 Mason's objections to the New Constitution, recommended by 
 the late Convention. By Marcus" in Ford's Pamphlets on the 
 Constitution, pp. 356-359. 
 
148 Commercial Power of Congress 
 
 Under their own construction of the general clause 
 at the end of the enumerated powers, the Congress 
 may grant monopolies in trade and commerce, con- 
 stitute new crimes, inflict unusual and severe punish- 
 ments, and extend their power as far as they shall 
 think proper ; so that the State legislatures have no 
 security for the powers now presumed to remain to 
 them, or the people for their rights. 
 
 In Massachusetts the essays of "Agrippa, " 
 accredited to James Winthrop, declared that londer 
 the Constitution Congress had the "unlimited 
 right to regulate commerce, external and internal, 
 and [might] therefore create monopolies which 
 have been universally injurious to all the sub- 
 jects of the countries that have adopted them, 
 except the monopolists themselves. " ' In another 
 essay he further considered the power of Congress 
 over commerce, as evidencing the consolidation 
 of the government which was affected by the 
 Constitution, saying: 
 
 The idea of consolidation is further kept up in the 
 right given to regulate trade. Though this power 
 under certain limitations would be a proper one for 
 the Department of Congress; it is in this system 
 carried much too far, and much further than is 
 necessary. . . . The unlimited right to regulate 
 trade includes the right of granting exclusive char- 
 ters. . . . This, in aU old countries, is considered 
 as one principal branch of prerogative. . . . There 
 
 ' Ford, Essays on the Constitution, p. 97. 
 
The State Conventions 149 
 
 ought, then, to have been inserted a restraining 
 clause which naight prevent the Congress from making 
 any such grants, because they consequentially defeat 
 the trade of the out-ports, and are also injurious to 
 the general commerce, by enhancing prices and 
 destroying that rivalship which is the great stimulus 
 to industry.* 
 
 Pursuing the same subject in his thirteenth 
 essay, Agrippa concluded that, under the com- 
 merce clause, Congress had the vmlimited right 
 to regulate commerce, external and internal, 
 and might therefore create monopolies. That 
 under another clause they had the unlimited 
 right to imposts and all kinds of taxes, as well 
 to levy as to collect them. "They have indeed," 
 he says, "very nearly the same powers claimed 
 formerly by the British Parliament."^ 
 
 Agrippa's view of the extent of the power of 
 Congress over interstate commerce did not at all 
 agree with that presented by opponents of 
 recent legislation for controlling the great com- 
 mercial combinations, who have insisted that 
 contemporary views of the Constitution allowed 
 but limited scope to the power. For one of 
 Agrippa's chief objections to ratifying the Consti- 
 
 ' Ford, Essays on the Constitution, pp. 70-71. 
 
 'It was determined by Marshall, in Gibbons vs. Ogdens (9 
 Wheat., i), in 1824, that the power to regulate interstate as well 
 as foreign commerce is vested in Congress as absolutely as it 
 would be in a imitary government, which had in its constitution 
 only those restrictions which are found in the Federal Constitution. 
 
150 Commercial Power of Congress 
 
 tution was that the power was far greater than 
 it should have been, and he proposed to correct 
 the error by an amendrnent to the Constitution 
 which wo\ild have taken from Congress authority 
 to regulate intercourse between the States." 
 
 The letters of Agrippa were among the ablest 
 publications of their time in opposition to ratifi- 
 cation. They were much noticed in their day, 
 the principles of their opposition to the Consti- 
 tution were similar to arguments advanced by 
 others, but less forcibly, and we must suppose 
 these principles were not peculiar to Agrippa, but 
 were commonly shared by those who opposed 
 ratification. Thus considered, and combined with 
 the views of Mason, Melancthon Smith, Patrick 
 Henry, and others, they show clearly that a great 
 body of opinion throughout the Union, in 1788, 
 attributed wide range to the power of Congress 
 over interstate commerce. 
 
 We have seen that among the specific powers 
 conferred upon Congress by the Constitution, in 
 the estimation of the men of this period, were 
 those of levying protective duties upon imports and 
 of creating corporations even with monopolistic 
 privileges of trade. There seem to be no express 
 affirmations or denials, at this time, of the power 
 of Congress to construct highways of interstate 
 commerce, but a contemporary opinion that 
 
 ' See Agrippa 's letter to the Massachusetts Convention, of 
 February 5, 1788, in Ford's Essays on the Constitution, p. 118. 
 
The State Conventions 151 
 
 Congress possessed such power is at least indi- 
 cated in the proposal of Samuel Jones, in the 
 New York Convention, that the Constitution 
 be so amended as to deprive Congress of the 
 authority of "laying out, making, altering, or 
 repairing highways in any State, without the 
 consent of the Legislature of such State."' For 
 he would hardly have moved such an amendment, 
 had he not believed that the Constitution con- 
 ferred the power, luider the post-roads' clause, 
 which he was then considering. It is also notice- 
 able that Jones believed that the power was 
 possessed by Congress in such fulness that, 
 unless the Constitution were amended, it could 
 be exercised without the consent of the State or 
 States affected, and that the debate indicates no 
 opposition to his opinions. I have given in an 
 Appendix the reasons which indicate the exist- 
 ence of a widespread opinion, about this period, 
 that Congress had the power, under one or 
 another clause of the Constitution, to undertake 
 or authorize the undertaking of highways of 
 interstate commerce, and it is probable that 
 Jones's proposed amendment is simply one indi- 
 cation of this belief. 
 
 To summarize the results of the preceding 
 inquiry into the state of opinion as to the powers 
 of Congress, during the ratification controversy, 
 it appears that the commerce clause was then 
 
 ' Elliot's Debates, ii., p. 406. 
 
152 Commercial Power of Congress 
 
 understood to convey a very complete authority 
 of regulating foreign and interstate commerce 
 upon Congress; and that under the commerce 
 and other clauses of the Constitution, Congress 
 had, among other powers, specifically those of 
 levying duties on imports, of creating corpora- 
 tions and companies to conduct foreign or inter- 
 state commerce, of creating monopolies with 
 respect to the several branches of commerce, 
 of imposing restrictions and embargoes upon its 
 several branches, and of improving the highways 
 of interstate trade.' 
 
 ' From the earliest days imtil the present the power to improve 
 highways of foreign commerce, such as harbors and navigable 
 rivers opening into the sea, has been so well established, that it 
 has not been necessary to consider it. 
 
CHAPTER X 
 
 THE FIRST CONGRESS UNDER THE CONSTITUTION — 
 THE FIRST TARIFF BILL — ^THE AMENDMENTS TO 
 THE CONSTITUTION — ^THE UNITED STATES BANK 
 BILL 
 
 THE meastires and debates of the first Con- 
 gress are important aids to determining 
 the scope assigned by contemporary opinion to 
 the powers of that body; for upon this Con- 
 gress fell the work of organizing the new govern- 
 ment, providing its revenues, and developing the 
 machinery for its administration. Washington, 
 President of the Republic, had also been President 
 of the Constitutional Convention. In his Cabinet 
 were Randolph, proposer of the plan out of 
 which the Constitution developed, and Hamilton, 
 the principal writer of The Federalist. In the 
 Supreme Court were Jay, Chief Justice, also a 
 writer of The Federalist, and Wilson who had 
 perhaps most to do in preparing the draft of the 
 Constitution as submitted by the Committee 
 of Detail. In the two Houses of Congress there 
 were at least sixteen members who had sat in 
 the Federal Convention, and among them were: 
 
 153 
 
154 Commercial Power of Congress 
 
 Madison, Paterson, Sherman, Gerry, King, Ells- 
 worth, Clymer, and Robert Morris, all of whom 
 had taken prominent parts in the formulation 
 of the Constitution, and numerous other mem- 
 bers had sat in the State conventions. The 
 administration and the first Congress therefore 
 comprised a body of men unique in our history 
 for personal knowledge of the meaning assigned 
 to the Constitution by contemporaries of its 
 framing. Three of their measures, in particular, 
 throw light upon the contemporary understanding 
 of the scope of the commerce clause ; these are : the 
 first tariff bill, the amendments to the Constitu- 
 tion, and the bill incorporating the United States 
 bank, and they will be considered in this order. 
 
 The First Tariff Bill 
 
 Even before the inauguration of Washington, 
 on April 9, 1789, Madison introduced a bill to 
 provide revenues for the government. In its 
 original form it was practically a revenue measure 
 based upon the proposals of the old Congress in 
 1783, but a sentiment in favor of protecting 
 domestic industries by duties upon imports soon 
 developing, Madison acquiesced, and the bill 
 became a protective measure, as was explicitly 
 avowed in its preamble: "Whereas, it is necessary 
 for the support of the government, for the dis- 
 charge of the debts of the United States, and the 
 
The First Congress 155 
 
 encouragement and protection of manufactures, 
 that duties be laid on goods, wares, and merchan- 
 dise, imported."' 
 
 As the bill progressed through the two Houses 
 of Congress numerous amendments were made, 
 adding new articles to the dutiable list and in- 
 creasing the duty on other articles, until, among 
 a large number of commodities taxed by the bill, it 
 levied duties on the following articles in common 
 use: soap, boots, shoes, slippers or galoshes made 
 of leather, tarred cordage, cables, steel unwrought, 
 nails and spikes, salt, manufactured tobacco, gloves 
 of leather, leather, tanned or untanned, and manu- 
 factures of leather, castings of iron and split and 
 roUed iron, anchors, wrought tin, and pewter ware. ^ 
 
 The bin aroused an earnest and even acri- 
 monious debate over the practical advantages 
 or disadvantages of levying particular duties, 
 or any duties for protection; and many of the 
 arguments used were curiously modem. Propo- 
 sitions stated in recent tariff debates, sometimes 
 as if they were discoveries of the debaters, were 
 used in this first tariff controversy in the Republic 
 one htmdred and twenty years ago; and some of 
 the conflicts of opposing interests, which have 
 seemed original with our day, were brought to 
 light in 1789. 
 
 That the tariff is a local issue was certainly 
 
 ' Annals of Congress (ist Cong.), vol. u., 2129 (ed. 1834). 
 ' Annals of ist Congress, ii., 2129. 
 
156 Commercial Power of Congress 
 
 not a discovery of General Hancock, in 1880; for 
 much of the debate of 1789 ttims upon it. At 
 that earlier date the same man who advocated 
 protection for the industries maintained by his 
 locality, opposed duties desired by members from 
 other localities, because the latter would be in- 
 jurious to his constituents. ' In this debate, also, 
 as often since, the interests of " agriculture and 
 the husbandman" were represented as opposed 
 to those of the merchant and manufacturer; and 
 "infant industries" made their appearance in 
 debate in 1789, but at that time on the opposite 
 side from that in support of which they have been 
 latterly cited. For in that early time, Mr. Bland 
 considered that the infancy of the industries was 
 an objection to high protective duties. Some 
 degree of encouragement to home manufactures, 
 he thought, might be proper; but, "it was a well 
 known fact, that the manufacturing arts in America 
 were only in their infancy and far from being able 
 to answer the demands of the country; then cer- 
 tainly you lay a tax upon a whole community, 
 in order to put money in the pockets of a few 
 whenever you burden the importation with a 
 heavy impost." * 
 
 ' Fisher Ames, for example, was a strong protectionist with re- 
 spect to those interests in which protection benefited Massachu- 
 setts, but he was quite strongly opposed to a duty on molasses, 
 because it might injure the carrying trade of Massachusetts. 
 (Annals, ist Cong., i., 133.) 
 
 3 Annals, ist Cong., i., 124. 
 
The First Congress 157 
 
 In 1 789 the ' ' agriculturist and the husbandman' ' 
 claimed equal right with the merchant and manu- 
 facturer to be favored by governmental care, and 
 a duty on hemp was considered a partial discharge 
 of the equal obligation of the government ' ; and it 
 was already plain to Mr. Scott, of Pennsylvania, 
 that in the matter of protection, manufactures and 
 agriculture must stand or fall together. So he 
 favored a small duty on hemp, for agriculture 
 was entitled to its proportion of encouragement; 
 so were manufactures and commerce. ^ 
 
 Modem tariff legislation has made us familiar 
 with the pushing up of the duty on one commodity 
 to compensate the manufacturer for the duty 
 placed by the same bill upon another, and this 
 practice originated, or at least was early followed, 
 in the United States, by the first Congress, which 
 raised the duties on cables and cordage to make 
 up for the duty on hemp^; and a bounty on the 
 American product instead of a duty was proposed 
 by Hartley, because the existence of manufactures 
 and ship-building was involved in maintaining 
 a low price for the raw material.'' 
 
 Steel proved then, as often since, provocative 
 
 of much dispute. Lee and Tucker opposed a 
 
 duty upon it, as oppressive to agriculture, * but 
 
 ' Annals, ist Cong., i., 150. 
 ' Ibid., 154. 
 3 Ibid., 209. 
 *Ibid., 153. 
 s Ibid., 147. 
 
158 Commercial Power of Congress 
 
 Clymer approved of the duty for the reason, 
 often advanced since, that he "deemed it prudent 
 to emancipate our country from the manacles 
 in which she was held by foreign manufactures. "■ 
 
 While, however, the debate was earnest on 
 practical questions, it did not touch on the con- 
 stitutional power of Congress to levy duties for 
 protection; and this silence, in connection with 
 the frankly avowed protective purpose of the 
 bin, is strongly corroborative of the conclusion, 
 that the members of the first Congress quite 
 generally believed that body had power under the 
 Constitution to lay duties for that purpose. For 
 it is unlikely that had any considerable number 
 of members of Congress then believed the biU 
 transcended the powers of that body, they would 
 have refrained from advancing so radical an 
 objection during so earnest a debate. That they 
 did not advance the objection is strong proof 
 they did not entertain it; and that Madison, in 
 1789, although theoretically for free trade, be- 
 lieved Congress had constitutional authority to 
 levy protective duties, is clear from the terms 
 of his speeches in support of the first tariff bill 
 and of the tonnage bill of the same year, in which 
 he stated the relation of the central government 
 under the Constitution, to the protection of 
 various industries, and expressed a principle of 
 constitutional interpretation which has often been 
 
 < Annals, ist Cong., i., 147. 
 
The First Congress 159 
 
 cited since his time.' His exposition is so clear 
 that I here quote from both speeches: 
 
 The States that are most advanced in population, 
 and ripe for manufactures [he said in support of the 
 first Tariff biU] ought to have their particular interests 
 attended to in some degree. While these States re- 
 tained the power of making regiilations of trade, 
 they had the power to protect and cherish such 
 institutions; by adopting the present Constitution 
 they have thrown the exercise of this power into other 
 hands ; they must have done this with an expectation 
 that those interests would not be neglected here." 
 
 Gentlemen who are opposed to giving sufficient 
 encotu-agement to ship-building [he said, when sup- 
 porting the Tonnage bUl] ought to recoUect an argu- 
 ment that was considered of weight in the case of 
 encouraging manufactures. It is certain that manu- 
 factures have been reared up by the fostering care of 
 the State legislatures, displayed in the shape of 
 protecting duties; but the people, by the adoption 
 of this Constitution have put it out of their power to 
 continue them. The provision for the support of 
 navigation, made by the several States, ought to 
 induce us to suppose even a higher tonnage duty 
 pleasing to them, at least in those States where a 
 higher tonnage duty has been laid. Those States, 
 
 " The principle that various powers of the States under the 
 Confederacy, and essential to the conduct of government, were 
 not extinguished by the Constitution, but passed to the general 
 government. 
 
 "Speech of April 9, 1789, in Hunt's Writings of Madison, 
 vol. v., p. 341, also pp. 343, 345, 350, 351. 
 
i6o Commercial Power of Congress 
 
 not being able to continue their encotiragement, 
 expect that we will attend to their policy, and protect 
 their citizens in the property they were led to acquire 
 imder the State regulations. If we disappoint them, 
 they will suffer more than is consistent with good 
 policy. I am not apprehensive that forty cents will 
 be so low as to occasion any discontent.' 
 
 That Congress and the country at this time 
 entertained no serious doubt of the constitutional 
 power of Congress to levy duties for protection, 
 is further indicated by the passage of the bill of 
 July 20, 1789, just referred to, by which discrimi- 
 nating duties were imposed against vessels owned 
 in whole or in part by subjects of foreign powers, 
 and against vessels not built in the United States; 
 also by the enactment of the law of May 2, 1792," 
 increasing duties; and by the support given in 
 the House of Representatives to the restrictive 
 and discriminating system proposed by Jefferson 
 and Madison in 1794. The conclusion from a 
 survey of the work of the first Congress and of 
 Washington's first administration must therefore 
 be, that the men who organized the government 
 under the Constitution, did not agree with the 
 contention of later opponents of protective 
 tariffs, that the Constitution gave to Congress 
 no power to enact them. The early statesmen 
 
 'Annals, ist Cong., i., p. 285. The text of the bill is in 
 Annals, ist Cong., ii., p. 2132. 
 
 » Annals, 2d Cong., 1364. (Ed. 1849.) , 
 
The First Congress i6i 
 
 may have objected to the imposition of duties 
 on economic and political grounds, but they did 
 not deny the authority to levy them. 
 
 The Amendments to the Constitution 
 
 The conventions in several of the States having 
 accompanied their ratifications of the Consti- 
 tution with proposals for amendments, some 
 irritation arose over the delay of Congress to 
 enter upon the subject. Virginia therefore pre- 
 pared a memorial on the matter which was 
 presented to the House of Representatives, on 
 May 5, 1789, where it encountered some oppo- 
 sition because of the fear of several members that 
 the process of amending the Constitution woxild 
 open up the entire question of the nature of the 
 government, and might resiilt in the overthrow 
 of the new system, which it would be impossible 
 to replace. The recollection of the disorders out 
 of which the Constitution arose, and of the diffi- 
 culties attending upon its drafting and ratifica- 
 tion, inclined influential members of Congress to 
 look with fear upon the attempt to amend it, 
 which they then considered would be inseparable 
 from a reopening of the entire question of the 
 nature of the government. Madison was, how- 
 ever, particularly obligated to favor amendments 
 of the Constitution, because of statements ex- 
 pressing his support of that policy which he had 
 
1 62 Commercial Power of Congress 
 
 made during his candidacy for election to the 
 House of Representatives. ' He therefore brought 
 up the subject on June 8, 1789, and upon his 
 urgency the House entered seriously upon the 
 consideration of the amendments. Madison sug- 
 gested nine, the greater number of which related 
 to what has come to be termed a "bUl of rights," 
 and do not particularly concern this inquiry. 
 Parts of his fourth and his eighth propositions 
 were, however, important, and as stated by 
 him were as follows : 
 
 Fourthly: The exceptions here or elsewhere in the 
 Constitution, made in favor of particular rights, shall 
 not be so construed as to diminish the just importance 
 of other rights retained by the people, or as to enlarge 
 the powers delegated by the Constitution; but either 
 as actual limitations of such powers, or as inserted 
 merely for greater caution.^ 
 
 Eighthly: That immediately after Article 6, be 
 inserted, as Article 7, the clauses following, to wit: 
 
 The powers delegated by this Constitution are 
 appropriated to the departments to which they are 
 respectively distributed ; so that the legislative depart- 
 ment shall never exercise the powers vested in the 
 executive or judicial, nor the executive exercise the 
 powers vested in the legislative or judicial, nor the 
 
 • See Madison's letters to Washington, January 14, 1789, in 
 Hunt, v., p. 319, and to George Eve, January 2, 1789, quoted in 
 Hunt, ii., pp. 319, 320. 
 
 ' Annals, ist Cong., i., p. 436. 
 
The First Congress 163 
 
 judicial exercise the powers vested in the legislative 
 or executive departments. 
 
 The powers not delegated by this Constitution, nor 
 prohibited by it to the States, are reserved to the 
 States respectively. 
 
 The matter quoted from the fourth proposition 
 became the basis of the Ninth Amendment to the 
 Constitution, the second member of the eighth 
 proposal is now embodied in the Tenth Amend- 
 ment, and the first member thereof was not 
 incorporated into any amendment, but its prin- 
 ciple has become well settled in American 
 constitutional law. 
 
 In his speech accompanying the amendments, 
 Madison explained his purpose quite in accordance 
 with the moderate views of the time, to be to 
 procure such amendments as were demanded by 
 the country and could be accomplished without 
 opening the door for reconsideration of the whole 
 structure of the government. 
 
 I should be unwilling [he said] to see a door 
 opened for a reconsideration of the whole structure 
 of the government — ^for a reconsideration of the 
 principles and the substance of the powers given; 
 because I doubt, if such were opened, we should be 
 likely to stop at a point which would be safe to the 
 government itself. But I do wish to see a door 
 opened to consider, so far as to incorporate those 
 provisions for the sectuity of rights, against which I 
 believe no serious objection has been made by any 
 
1 64 Commercial Power of Congress 
 
 class of our constituents ; such as would be likely to 
 meet with the concurrence of two thirds of both 
 Houses and the approbation of three fourths of the 
 State legislatures. ' 
 
 With respect to the reservation of powers to 
 the State, suggested in his eighth proposition, he 
 added : 
 
 I find, from looking into the amendments proposed 
 by the State conventions, that several are particularly 
 anxious that it should be declared in the Constitution, 
 that the powers not therein delegated should be 
 reserved to the several States. Perhaps other words 
 may define this more precisely than the whole of 
 the instrument now does. I admit they may be 
 deemed unnecessary; but there can be no harm in 
 making such a declaration, if gentlemen will allow 
 that the fact is as stated. I am sure I understand 
 it so, and do therefore propose it.^ 
 
 On July 2 1st, the subject was referred to a grand 
 committee of eleven, which included five members 
 who had sat in the Constitutional Convention.' 
 Their report was considered in Committee of 
 the Whole on August 13th, and Mr. Sherman's 
 proposal that the amendments be added to the 
 Constitution by way of supplement, which had 
 been formerly defeated, was carried on August 
 
 » Writings of Madison, Hunt, v., p. 375. 
 
 ' Ibid., pp. 387, 388. 
 
 3 Annals, ist Cong., i., pp. 664, 665. (Edition 1834.) 
 
The First Congress 165 
 
 19th.' The House finally framed seventeen 
 amendments, which the Senate reduced to twelve, 
 and the House concurring these were sent to the 
 several States for adoption or rejection. The 
 last ten of the twelve submitted having been 
 accepted by a sufficient number of States, became 
 the first ten amendments to the Constitution. 
 
 Of special importance in ascertaining the scope 
 of the implied authority of Congress under the 
 express power to regulate commerce is, of course, 
 the Tenth Amendment, which is based on the 
 second member of Madison's eighth proposition. 
 Concerning the effect of this upon implied powers 
 great differences of opinion have existed from the 
 time of the first Congress until now, and certain 
 actions in that body concerning this particular 
 amendment throw much light upon the interpre- 
 tation which the majority of the House of Repre- 
 sentatives, at least, gave to it. For two attempts to 
 insert into this amendment the word "expressly, " 
 so that all powers not expressly delegated to the 
 United States, or prohibited to the States, would 
 have been reserved to the States or to the people, 
 were defeated. ^ 
 
 To the first of these attempts Madison ob- 
 jected, because it was impossible to confine a 
 
 " Annals, ist Cong., i., pp. 765, 766. 
 
 " Tucker's motion defeated August 18, 1789, Annals ist Cong., 
 i., pp. 761, 790; Gerry's motion defeated August 21, 1789, Annals, 
 1st Cong., i., pp. 767, 768. 
 
i66 Commercial Power of Congress 
 
 government to the exercise of express powers; 
 there must necessarily be admitted powers by 
 implication, unless the Constitution descended 
 to recount every minute particular. He remem- 
 bered the word "expressly" had been moved in 
 the Convention of Virginia, by the opponents 
 of ratification, and, after full and fair discussion, 
 was given up by them, and the system allowed 
 to retain its present form.' Sherman, agreeing 
 with Madison, observed "that corporate bodies 
 are supposed to possess all powers incident to 
 the corporate capacity, without being absolutely 
 expressed,^ The defeat in the House of Repre- 
 sentatives of both attempts shows that a ma- 
 jority of that body agreed with Madison and 
 Sherman, and the passage of the bUl incor- 
 porating the United States Bank by this same 
 Congress indicates that more than two thirds 
 of the members of both Houses were then of the 
 opinion, that the Tenth Amendment, in the form 
 in which it passed the first Congress and was 
 accepted by the States, did not materially limit 
 the range of the implied powers to which Congress 
 may resort as incidental to the grant of the several 
 enimaerated powers. 
 
 The Bill to Incorporate the United States Bank 
 
 While the amendments to the Constitution 
 were pending in the several States the bill to 
 
 * Annals, ist Cong., ist Sess., i., p. 761. = Ibid. 
 
The First Congress 167 
 
 incorporate the United States Bank was intro- 
 duced in the Senate, on January 3, 1791, was 
 passed by both Houses of Congress by large 
 majorities, and approved by Washington, after 
 considerable hesitation upon constitutional 
 grounds.' As was admitted at the time, the 
 Constitution granted no express authority to 
 Congress to create the bank or any other cor- 
 poration, and the bill was supported expressly 
 upon the grotind, that power to enact it was 
 derived by implication, and under the necessary 
 and proper clause, from one or another of several 
 enumerated powers of Congress, including that 
 to regulate commerce. The passage of the bill, 
 therefore, becomes an important exhibition of 
 the opinion of a large majority of Congress 
 upon the right of that body under the implied 
 powers, to create corporations as agencies to 
 carry into effect the commercial powers of Con- 
 gress, and that even to the extent of investing 
 such corporations with monopolistic privileges. 
 In the enactment of this measure, therefore, 
 the large majority of Congress approved the 
 view taken by Wilson in the Constitutional Con- 
 vention, that under the commerce clause. Con- 
 gress had the power to create companies with 
 monopolistic privileges, a view which we have 
 
 'The act incorporating the bank, approved Feb. 25, 1791, is 
 in Annals, ist Cong., ii., p. 2312. The supplemental act relating 
 to subscriptions to the bank is in Annals, ist Cong., ii., p. 2318. 
 
1 68 Commercial Power of Congress 
 
 seen confirmed by the propositions for amending 
 the Constitution made in five of the States, and 
 by the opposition to ratification of the Con- 
 stitution based upon the possession by Congress 
 of such a power. 
 
 The bill resulted from the report by Alexander 
 Hamilton to the House of Representatives, on 
 December 14, 1790, recommending the creation 
 of the bank. ' On December 23, 1790, the Senate 
 appointed a committee consisting of Strong, 
 Morris, Schuyler, Butler, and Ellsworth to prepare 
 a bUl. As reported on January 3, 1791, it formed 
 the subscribers of the Bank of the United States 
 into a corporation, with a capital not to exceed 
 $10,000,000; and by the twelfth section of the 
 sixteenth article bestowed an actual monopoly 
 in the provision, that no other bank should be 
 established by any future law of the United 
 States during the continuance of the corporation 
 created by the bUl; for which the faith of the 
 United States was thereby pledged.^ The bUl 
 encountered but little opposition in the Senate, 
 and was passed by a majority of more than two 
 thirds, on January 20, 1791.' 
 
 The measure was taken up in the House of 
 Representatives on February i, 1791, became 
 
 • Annals, 1st Cong., vol. ii., p. 2032. The report is also con- 
 tained in Lodge's edition of Works of Hamilton, vol. 13, p. 125. 
 ' Annals, ist Cong., ii., p. 1741, 2312. 
 3 Ibid., p. 1748. 
 
The First Congress 169 
 
 the subject of an ardent debate upon the con- 
 stitutional powers of Congress, and was passed 
 on February 8, 1791, by thirty-nine in favor to 
 twenty opposed to the bill.' Thus, rather more 
 than two thirds of the members voting in both 
 Houses of Congress approved the bill. It then 
 went to President Washington, who at first enter- 
 tained grave doubts as to its constitutionality, 
 and took the opinions of his Cabinet upon it; 
 Jefferson and Randolph opposing and Hamilton 
 and Knox favoring the bill. Upon consideration 
 of the opinions of his Cabinet officers Washington 
 finally signed the bill, which became a law on 
 February 25, 1791. 
 
 The most important questions considered in 
 the debate were: " Did the general clause of the 
 Constitution authorize the incorporation of the 
 bank, as incidental to some of the expressly 
 enumerated powers of Congress?" and "What 
 did 'necessary and proper' signify in that 
 clause?" 
 
 Upon the one hand it was contended against 
 the bUl that the grant of power to the Federal 
 Government was not a general grant, out of which 
 particular powers were excepted; it was a grant 
 of particular powers only, leaving the general 
 mass in other hands. ^ The interpretation which 
 authorized the incorporation of the bank de- 
 
 ' Annals, ist Cong., ii., p. i960. 
 
 ' Madison, in Annals, ist Cong., ii., p. 1896; Hunt, vi., p. 27. 
 
170 Commercial Power of Congress 
 
 stroyed the characteristics of the government. 
 This interpretation was opposed to contemporary 
 and concurrent expositions of the Constitution. 
 Upon the principle assumed by supporters of 
 the bill, by the cabalistic word, incident, the 
 Constitution is turned upside down, and instead 
 of being a grant of particular powers, guarded 
 by an implied negative to all others, it is made 
 to imply aU. powers. ' 
 
 Moreover, the bill created a monopoly of a 
 very extraordinary nature — a monopoly of public 
 money for the benefit of the corporation to be 
 erected. If the sweeping clause extended to vest- 
 ing Congress with the powers granted by the 
 bUl, Congress would soon be in possession of all 
 possible powers, and the charter under which 
 they sat would be nothing but a name.^ For 
 the essential characteristic of the government, as 
 composed of limited and enumerated powers, 
 would be destroyed, if instead of direct and inci- 
 dental means, any means could be used which, 
 in the language of the preamble to the bill, 
 "might be conceived to be conducive to the suc- 
 cessful conducting of the finances, or to tend to 
 give facility to the obtaining of loans. "^ 
 
 The incorporation of the bank could not be 
 
 ' stone, in Annals, ist Cong., ii., p. 1932. 
 ' Jackson, in Annals, ist Cong., ii., p. 1917. 
 3 Madison, in Annals, ist Cong., ii., p. 1898; Hunt, vi., pp. 
 19-42. 
 
The First Congress 171 
 
 justified tinder the general clause as means "neces- 
 sary and proper" for carrying into execution any 
 of the powers to which it had been referred. 
 For the meaning of the phrase must be limited 
 by the plain and obvious force of the terms of the 
 context, to such as are necessary to the end, and 
 incident to the nature of the specific powers.' 
 Moreover the bank was not a necessary means, 
 for all the enumerated powers could be carried 
 into execution without a bank.* With respect 
 to the power of regulating commerce in particular, 
 it was denied that the incorporation of a bank 
 had anything to do with trade. "To erect a 
 bank, and to regulate commerce, were very differ- 
 ent acts, and moreover the incorporation of 
 the bank would be void, as extending as much to 
 its internal as to its external trade. The power 
 to create corporations was not conferred by the 
 power to regulate commerce. For as to foreign 
 nations, the power was given : ( i) to prohibit them 
 or their commodities from our ports ; (2) to impose 
 duties on them where none existed before, or to 
 increase existing duties on them; (3) to subject 
 them to any species of custom-house regula- 
 tions; or (4) to grant them any exemptions or 
 privileges which policy might suggest. And with 
 respect to interstate trade, the heads of the power 
 
 ' Madison where last cited. 
 
 'Jeflferson's opinion to Washington in Ford's edition of 
 Writings, v., p. 284 et seq. 
 
172 Commercial Power of Congress 
 
 were said to be little more than to establish the 
 forms of commercial intercourse between the States 
 and to keep the prohibitions which the Consti- 
 tution imposes on that intercourse undiminished 
 in their operation; that is, to prevent taxes on 
 imports or exports; preferences to one port over 
 another, by any regulation of commerce or 
 revenue ; and duties upon the entering or clearing 
 of the vessels from one State to the ports of 
 another. ' 
 
 It was further said in opposition that the power 
 to incorporate a bank had been assumed to be 
 an accessory or subordinate power. But it was, 
 in its nature, a distinct and substantial preroga- 
 tive, which not being enumerated in the Con- 
 stitution could never have been meant to be 
 included in it, and not being included, could not 
 be rightfully exercised.'' There was a distinction 
 between a power necessary and proper for the 
 government, and a power necessary and proper 
 for carrying out the enumerated powers. The 
 latter might be implied, the former could not 
 be, and the power to incorporate the bank be- 
 longed to the former class. And pursuing this 
 principle, it was further objected that the 
 power to incorporate the bank could not be 
 implied until the exercise of the authority was 
 
 ' Randolph's opinion in Legislative and Documentary History 
 of the Bank of the United States, Washington, 1832, pp. 86 et seq. 
 ' Madison, Annals, ist Cong., ii., p. 1900; Hunt, vi., p. 33. 
 
The First Congress 173 
 
 proved to be necessarily connected with some 
 of the enumerated powers, and here the argument 
 for the bank was said to have failed. For the 
 authority to incorporate the bank was not an 
 incidental or subordinate authority but rather 
 a principal one. It was a distinct, substantive 
 branch of legislation, and perhaps paramount 
 to any of the enumerated powers to which it 
 had been referred. ' 
 
 Finally, the Ninth and Tenth Amendments 
 took from Congress the power to incorporate 
 the bank. The restrictive clause in the Tenth 
 Amendment afforded no pass over its limit, to 
 sustain the constitutionality of the bUl.^ "To 
 take a single step beyond the boundary thus 
 specially drawn around the powers of Congress 
 was to take possession of an unbounded field of 
 power, no longer susceptible of any definition." ^ 
 
 For the bill it was contended, upon the other 
 hand, that 
 
 every power vested in a government is in its 
 nature, sovereign, and includes, by force of the term, 
 a right to employ all the means requisite and fairly 
 applicable to the attainment of the ends of such power, 
 and which are not precluded by restrictions and 
 exceptions specified in the Constitution, or not im- 
 moral, or not contrary to the essential ends of society. 
 
 'Gil«, in Annals, ist Cong., ii., p. 1941. 
 
 ' Madison, in Annals, ist Cong., ii., p. 1957; Hunt, vi., p. 38. 
 
 3 Jefferson's opinion in Ford, vi., p. 285. 
 
174 Commercial Power of Congress 
 
 The circumstance, that the powers of sovereignty 
 were in this country divided between the National 
 and State Governments did not affect the distinction, 
 it cannot follow from this, that each of the portions of 
 power delegated to one or the other, is not sovereign 
 with regard to its proper object. It would only 
 follow from it that each had sovereign power as to 
 certain things, and not as to other things.' 
 
 Whenever a power was delegated for express 
 purposes all the known and usual means for the 
 attainment of the object expressed were conceded 
 also.' Congress was authorized to regulate for- 
 eign and domestic trade, and to make all laws, 
 necessary and proper, to carry these and other 
 enumerated powers into effect. If banks were 
 among the known and usual means to effectuate 
 or facilitate the ends which have been mentioned, 
 to enable the government with the greatest ease 
 and least burden to the people to collect taxes, 
 borrow money, regulate commerce, raise and 
 support armies, provide and maintain fleets, the 
 argument was irrefragable and conclusive to prove 
 the constitutionality of the bill.'* 
 
 For answer to the objection that the bill created 
 a monopoly, it was said that by the amendments 
 proposed by New Hampshire, Massachusetts, and 
 
 ' Hamilton's opinion to Washington in Lodge's edition of 
 his Works, iii., pp. i8o, i8i. 
 
 ' Sedgwick, in Annals, ist. Cong., ii., p. 1911, et seq. 
 ' Ibid., pp. 1911, 1912. 
 
The First Congress 175 
 
 New York, it plainly appeared that these States 
 considered that Congress did possess the power 
 to establish companies with monopolistic privi- 
 leges'; and Hamilton, pursuing this point, re- 
 ferred to the amendments proposed by several 
 States, as showing that in their opinion the power 
 of erecting trade companies or corporations was 
 inherent in Congress, and as objecting to it no 
 further than as to the grant of exclusive privileges. ^ 
 The words "necessary and proper" did not 
 restrict the power of the legislature to the enact- 
 ment of such laws only as were indispensable. 
 
 Such a construction would be infinitely too narrow 
 and limited; and to apply the meaning strictly would 
 prove, perhaps, that all the laws which had been 
 passed were unconstitutional, for few if any of them 
 could be proved indispensable to the government. 
 The great ends to be obtained as means to effect the 
 ultimate end — the public good and general welfare — 
 were capable, under general terms, of constitutional 
 specification; but the subordinate means were so 
 numerous, and capable of such infinite variation, as 
 to render an enumeration impracticable, and they 
 must therefore be left to necessary implication. 
 
 The Tenth Amendment did not take from Con- 
 gress the power to incorporate the bank. For 
 the implied powers were as much delegated as 
 
 'Lawrence, in Annals, ist Cong., ii., p. 1915. 
 "Hamilton's opinion cited, p. 221. 
 
176 Commercial Power of Congress 
 
 the express powers. The power of creating a 
 corporation might as well be implied as any other 
 thing, as an instrument or means for carrying 
 into execution any of the specified powers. A 
 corporation might be created in relation to the 
 collection of taxes, or to the trade with foreign 
 countries, or to the trade between the States, or 
 with the Indian tribes, because it was incidental 
 to the general sovereign or legislative powers to 
 regulate a thing to employ all the means which 
 related to its regulation, to the best and greatest 
 advantage. ' Mr. Gerry, pursuing a similar argu- 
 ment, reminded Mr. Madison that the latter, at 
 the time the amendments were pending, had 
 disavowed the opinion that only express powers 
 were delegated to Congress. Gerry contended, 
 therefore, that by a fair and candid application 
 of established rules of construction the bill was 
 authorized. ^ 
 
 The arguments for and against a liberal con- 
 struction of the implied powers of Congress were 
 thus thoroughly and profoundly gone into during 
 the discussion over the bUl, and the large ma- 
 jority of more than two thirds of the total member- 
 ship of both Houses of Congress, by the passage 
 of the bill, affirmed their belief in the broader 
 interpretation. By the passage of the bill, this 
 body of men, familiar with the proceedings of the 
 
 " Hamilton's Opinion, pp. 184 and 185. 
 ' In Annals, ist Cong., ii., pp. 1951, 1947. 
 
The First Congress 177 
 
 Philadelphia and the State conventions, ap- 
 proved the doctrine that under the power to 
 regulate commerce, Congress was authorized 
 to create corporations to effect the regulation, 
 and to invest those corporations with monopolistic 
 privileges. 
 
CHAPTER XI 
 
 THE NON-IMPORTATION AND EMBARGO MEASURES 
 
 OF Washington's second adminis- 
 tration 
 
 AS we have seen, in the period between the 
 close of the Revolutionary War and the 
 assembling of the Philadelphia Convention, pro- 
 posals had often been made to invest the central 
 government with power to restrict and even to 
 prohibit foreign commerce, for the purpose of 
 retaliating upon other nations for wrongs in- 
 flicted upon our trade, and of encouraging do- 
 mestic industries. The unfavorable situation of 
 the foreign relations of the country during the 
 administrations of Washington, Adams, Jefferson, 
 and Madison, together with the increased power 
 of the central government to enforce such meas- 
 ures, greatly increased the favor extended to such 
 proposals, and led, in each of those adminis- 
 trations, to measures directed to the enforcement 
 of various prohibitions and restrictions, some of 
 which affected interstate as well as foreign com- 
 merce. The consideration of the restrictive meas- 
 ures of Adams's and Madison's administrations, 
 
 178 
 
In Washington's Second Term 179 
 
 however, is complicated by their connection 
 with the imminence and the actual outbreak of 
 foreign wars, — in the one case with France, in 
 the other with England ; so that the ordinances of 
 these administrations throw less light upon the 
 peace powers of Congress than do those of the 
 administrations of Washington and Jefferson; 
 and I shall therefore confine my examination of 
 non-intercourse and embargo measures to those 
 enacted in the administrations of the two last- 
 named presidents. 
 
 The policy of restriction included measures of 
 two kinds: (l) the prohibition of the importation 
 of foreign commodities and of the entry of foreign 
 vessels into our ports; and (2) embargoes upon 
 commerce. They illustrate, upon a grand scale 
 and in a drastic manner, the application of the 
 commercial power of Congress to the attainment 
 of great national ends, through restrictions placed 
 upon various branches of trade, and extending 
 even to total prohibition; and in so far as the 
 precedents furnished by them are authoritative, 
 they indicate the unsoimdness of the view that 
 the power of Congress to regulate commerce is 
 restricted to the passing of measures to advance 
 it, but stops short of the power to prohibit it. 
 For the history of those times and the explicit 
 statements of men who were prominently con- 
 nected with the advocacy and enforcement of the 
 measures show that they were aimed at righting 
 
i8o Commercial Power of Congress 
 
 wrongs stifEered by the United States, with respect 
 to such varied matters as the retention of the 
 western posts by the British, impressment of 
 American seamen, and the promotion of do- 
 mestic trades and industries. Under Washington 
 the embargo was at first appHed only to foreign 
 commerce, but was afterwards extended to reach 
 interstate trade. Under Jefferson, the first em- 
 bargo act affected certain branches of interstate 
 trade, and subsequent laws so increased the re- 
 straints imposed on both foreign and interstate 
 traffic, over land as weU as by water, that 
 Jefferson described Congress as bidding "agri- 
 culture, commerce, and navigation to bow before 
 the complete enforcement of the embargo, to 
 be nothing when in competition with that."' 
 
 Non-Importation in Washington' s Administration 
 
 The retention by the British of the western 
 posts, their Orders in Coimcil injurious to our 
 trade, their insistence upon the right of impressing 
 seamen from American vessels, intensely irritated 
 the cotmtry and prepared the way for retaliatory 
 measures. Jefferson was Washington's Secretary 
 of State, and thoroughly informed as to the un- 
 satisfactory condition of negotiations for the 
 righting of our wrongs. His sympathy with 
 France increased his antagonism to Great Britain, 
 
 " Writings of Gallatin (Adams), i., p. 385. 
 
In Washington's Second Term i8i 
 
 and he originated the movement toward a re- 
 taliatory policy by his "Report to Congress on the 
 Privileges and Restrictions on the Commerce 
 of the United States in Foreign Countries," of 
 December i6, 1793,' in which he set forth the 
 existing condition of the laws and practice of 
 various foreign nations with respect to American 
 commerce, and advocated the adoption by the 
 United States of a retaliatory system of dis- 
 criminating duties and prohibitions. 
 
 From the standpoint of constitutional law, 
 this report indicated Jefferson's approval of the 
 principle that foreign comnierce could be burdened 
 in the interest of the international relations of 
 the country, and of domestic trades and in- 
 dustries. For, of course, the discriminating duties 
 which he advocated would not directly promote 
 the commerce upon which they would be laid — 
 would, in fact, directly obstruct it, in greater 
 or less degree. But this obstruction was con- 
 sidered by Jefferson authorized under the Con- 
 stitution, for the sake of the advantages to 
 other national interests resulting from the duties. 
 Among those advantages, were, as I have noticed, 
 the encouragement to domestic industries; Jeffer- 
 son supporting his advocacy of the duties by the 
 suggestion, that they would have the effect of 
 indirect encouragement to domestic manufactures 
 of the same kind, and might induce the foreign 
 
 ' Writings of Thomas Jefferson (Ford), vi., p. 470. 
 
1 82 Commercial Power of Congress 
 
 manufacturer to come himself into these States. 
 In this encouragement of manufactures he thought 
 the States might co-operate with the general 
 government, by opening the resources of encour- 
 agement which were under their control, extend- 
 ing them liberally to artists in those particular 
 branches of manufacture for which their soil, 
 climate, population, and other circumstances were 
 suited, and by fostering the precious efforts and 
 progress of household manufacture by some 
 patronage suited to the nature of its objects, 
 guided by the local information they possess, 
 and guarded against abuse by their presence and 
 attentions. "The oppressions on our agriculture 
 in foreign ports," he said, "would thus be made 
 the occasion of relieving it from a dependence 
 on the councils and conduct of others, and of 
 promoting arts, manufactures, and population 
 at home." 
 
 Attempts have been made to distinguish be- 
 tween the power to impose restrictions and 
 embargoes upon foreign and upon interstate com- 
 merce, the former power being admitted, the latter 
 denied ; but the distinction is not supported by the 
 text of the Constitution, nor by the decisions of 
 the Supreme Court; and, as we shall see more 
 clearly in the chapter which considers the embargo 
 laws of Jefferson's administration, it was not 
 recognized by him. For he resorted to embargoes 
 upon interstate as well as upon foreign commerce. 
 
In Washington's Second Term 183 
 
 to secure certain great public benefits, and par- 
 ticularly the relief of our foreign trade from the 
 burdens placed upon it by England and France. 
 Jefferson's report, therefore, presented but one 
 side of a general power of Congress, of which later, 
 when President, he was to exhibit another side. 
 His report was made the basis of Madison's 
 resolutions of January 3, 1794,' recommending 
 higher duties and reciprocal restrictions against 
 nations having no commercial treaties with us. 
 The first resolution relating to higher duties was 
 passed. The consideration of the others was 
 postponed; and meantime, news coming of the 
 Orders in Council of November, 1793, the more 
 drastic policy of the embargo was entered upon. 
 On April 7, 1794, however, resolutions sus- 
 pending all commercial intercourse with Great 
 Britain were introduced into the House of Repre- 
 sentatives, "" and a bill was carried by a large 
 majority, 3 which prohibited the importation of 
 all articles of British or Irish production after 
 November 15, 1794. It failed in the Senate 
 by the casting vote of the Vice-President, that 
 body preferring, in deference to Washington's 
 wishes, to await the result of Jay's mission, which 
 had then been decided upon. ^ The defeat of the 
 
 'Annals, 3d Cong., p. 155 (1849). " /6«i., p. 561. 
 
 ' Ibid., pp. 602, 605. 
 
 ■• Madison to Jefferson, Apr. 28, 1794, and to James Madison, 
 May 4, 1794, iQ Writings of Madison (Hunt), vol. vi., pp. 211, 215. 
 
1 84 Commercial Power of Congress 
 
 bill in that body, therefore, has no bearing upon 
 any constitutional questions connected with it. 
 
 The terms of the resolutions, however, again 
 indicated very clearly the connection of the power 
 to regulate commerce with the promotion of other 
 national purposes, which we have seen exemplified 
 in previous measures. For they prohibited all 
 commercial intercourse between the citizens of 
 the United States and the subjects of the King 
 of Great Britain, so far as the same respected 
 articles of the growth or manufacture of Great 
 Britain and Ireland, until Great Britain should 
 cause restitution to be made for losses or damages 
 sustained by citizens of the United States, from 
 armed vessels, or any person, acting under com- 
 mission or authority of the King of Great Britain, 
 in violation of rights of neutrality ; and until she 
 should surrender all posts held and detained by 
 the King of Great Britain within the territories 
 of the United States. ' 
 
 The resolutions and the biU aroused earnest 
 debate, in which, however, no objection was made 
 upon the ground that they were not supported 
 by the commerce clause of the Constitution, 
 because prohibition was not regulation. And 
 this silence is strongly persuasive of the preva- 
 lence of a belief among the public men of that 
 day, that the power of prohibiting, as well as of 
 restricting, foreign commerce, at least, was pos- 
 
 ' Annals, 3d Cong., p. 561. 
 
In Washington's Second Term 185 
 
 sessed by Congress. Other constitutional objec- 
 tions were raised against the resolutions; that, 
 for example, the Constitution declared that the 
 President, under certain conditions, should be 
 the organ to treat exclusively with foreign powers, 
 but the resolution prescribed, in effect, the terms 
 of a treaty, and was therefore beyond the powers 
 of Congress.' That this constitutional objection 
 was raised, but that based upon prohibition not 
 being regulation was not, is again strongly in- 
 dicative that the latter objection was not con- 
 sidered of weight, if it was thought of. 
 
 The Embargo Measures of Washington' s Adminis- 
 tration 
 
 The British Orders in Council of November 
 16, 1793, directed British cruisers to detain all 
 ships laden with goods the produce of any French 
 colony, and also all ships carrying supplies for 
 the use of any such colony. The enforcement of 
 the orders seriously interfered with the American 
 carrying trade, and a number of American vessels 
 were seized. When the orders became known 
 in the United States much excitement arose over 
 them,^ in consequence of which a joint resolution 
 laying an embargo for thirty days was passed 
 
 ' Thisobjection was made by Sedgwick and by Dexter, Annals, 
 3d Cong., pp. 570, 589, 590. 
 
 'Washington to Lear in Writings of Washington (Ford), 
 xii., 424. 
 
1 86 Commercial Power of Congress 
 
 by both Houses of Congress on March 26, 1794,^ 
 and received the approval of Washington. On 
 the 31st of the same month a resolution passed 
 both Houses for carrying the embargo into more 
 complete effect, which was also approved by 
 Washington.^ In the same month also, a com- 
 mittee was appointed in the House of Represen- 
 tatives to bring in a bill for continuing and 
 regulating embargoes,^ their report resulting in 
 the law of June 4, 1794. On April 17, 1794, 
 a resolution continuing the embargo imtil May 
 25th of that year, and safeguarding treaty rights, 
 passed the House of Representatives by a large 
 majority, and having been amended in the Senate 
 in respects which did not affect the constitutional 
 principle involved, was concurred in by that body. ■• 
 The joint resolution of March 26th extended, 
 in terms, only to foreign commerce. But the 
 resolution of March 31, 1794, enlarged the embargo 
 so that it also affected interstate commerce. 
 For it provided that, during the continuance of 
 the embargo, no registered vessel having on 
 board goods, wares, or merchandise should be 
 allowed to depart from one port of the United 
 States to any other port in the same, except upon 
 bond given, with sureties in the sum of double 
 the value of vessel and cargo, that the goods, 
 
 ' Annals, 3d Cong., pp. 530, 531. ^ Ibid., pp. 556, 79. 
 
 3 Ibid., pp. 531, 114. The law is in Annals, p. 1450. 
 ' Ibid., pp. 598, 600; 84. 
 
In Washington's Second Term 187 
 
 wares, or merchandise should be relanded in some 
 part of the United States. And it is noteworthy, 
 that this enlargement was suggested by Wash- 
 ington in his message to Congress of March 28, 
 1794,' in which he directed attention to the possi- 
 bility of evasions of the embargo by clearances 
 from one district to another. 
 
 The law of June 4, 1794, to which reference 
 has been made, is a precedent for another con- 
 stitutional principle, which has been much debated 
 in recent years — viz. : that Congress can lawfully 
 delegate to the executive, the performance of 
 certain fxmctions respecting the enforcement of 
 legislative measures. For it authorized the Pres- 
 ident, whenever in his opinion the public safety 
 might require, to lay an embargo on all ships and 
 vessels of the United States, or within its ports, 
 under such regulations as the circumstances of 
 the case might require, and to continue or revoke 
 the same; and the President was also authorized 
 to give all such orders to the officers of the United 
 States as might be necessary to carry the measure 
 into operation. It was, however, provided that 
 no embargo could be laid by the President while 
 Congress was in session, and that any embargo 
 laid by him should cease and determine fifteen 
 days from the actual meeting of Congress next 
 after the laying of the same. " 
 
 ' Writings of Washington (Sparks), xii., p. 102. 
 ' Annals, 3d Cong., p. 1450. 
 
1 88 Commercial Power of Congress 
 
 The debates over the embargo measures of 
 Washington's administration are silent as to the 
 constitutional objections arising from the pro- 
 hibition of commerce, and this silence is again 
 persuasive of the existence of a general opinion 
 in that day, that Congress had the power to 
 prohibit commerce, as an incident to its authority 
 to regulate it. It is, at least, probable that if 
 any general objection to the prohibitory power 
 were then entertained, it would have found ex- 
 pression in the debates. That the objection was 
 not expressed is strong evidence that it was not 
 entertained; and we know that such measures 
 were approved by Washington, Jefferson, and 
 Madison, and that their enactment under Wash- 
 ington was held to be a powerful precedent for 
 the embargo laws of Jefferson's time. Considera- 
 tion of all the circumstances, therefore, justifies 
 the conclusion that, during Washington's ad- 
 ministration, when a large number of members of 
 Congress were thoroughly conversant with the 
 views of the Constitution entertained in the 
 federal and the several state conventions, a gen- 
 eral opinion affirmed the power of Congress to 
 utilize the regulation of commerce for the attain- 
 ment of various national ends, not in themselves 
 necessarily constituting commercial regulation, 
 and to extend this utilization even to the pro- 
 hibition of one branch or another of trade. 
 
CHAPTER XII 
 
 the non-importation and embargo laws of 
 Jefferson's second administration 
 
 JEFFERSON'S career is affected with a certain 
 irony. The chief advocate, and perhaps 
 the author, of the strict construction theory 
 of the Constitution, and the founder of the party 
 which has ever since professed to be devoted 
 to the defence of that theory, it was his fortune 
 to enter wilfully upon, and to support to the end 
 of his long life the propriety of, one of the greatest 
 extensions of the powers of the central government 
 under the Constitution which has been made by 
 any President, at least in time of peace. I refer 
 to his non-importation and embargo measures, 
 which were among the important enactments of 
 his second administration. 
 
 The non-importation and embargo ordinances 
 of Washington's time were precursors of these 
 measures; and more forceful precedents were also 
 furnished by the law of March 2, 1807, forbidding 
 the importation of slaves after January i, 1808,' 
 and by the acts of February 28, 1806, and 
 
 ' Annals, 9th Cong., 2d Session, p. 1266. (Ed., 1852.) 
 189 
 
190 Commercial Power of Congress 
 
 February 24, 1807, suspending all commercial in- 
 tercourse between the United States and certain, 
 parts of the island of St. Domingo.' The simi- 
 larity of these measures, in principle, to the non- 
 importation and embargo laws of Jefferson's time 
 was perceived at the time; and as no objection 
 appears to have been made to them upon con- 
 stitutional grounds, they were regarded, and 
 properly, as strong precedents to support the 
 constitutionality of the embargo laws. 
 
 The Non-Importation Law 
 
 Decisions of the British Admiralty adverse to 
 neutrals, in 1805, the impressment of American 
 seamen, and the injuries to the neutral commerce 
 of the United States, were brought to the atten- 
 tion of Congress by Jefferson's annual message 
 of December 3, 1805,^ and his special message 
 of January 17, 1806'; and on January 29, 1806, 
 a resolution was introduced into the House of 
 Representatives by Gregg, of Pennsylvania, which, 
 as amended, provided that until Great Britain 
 should make equitable and satisfactory arrange- 
 
 ' Annals, 9th Cong., ist Session, p. 1228; 2d Session, p. 1262. 
 The territorial limits of the restriction and the duration of the 
 act were extended by the law of February 24, 1807. Annals, 
 9th Cong., 2d Session, p. 1262. 
 
 ^ A draft of this message is in Ford's Writings of Jefferson, 
 vol. viii., p. 384. 
 
 3 Writings of Jefferson (Ford), vol. viii., p. 416. 
 
Jefferson's Second Administration 191 
 
 ments concerning impressment and also seizures 
 of goods and vessels, no goods, wares, or merchan- 
 dise of the growth, produce, or manufacture of 
 Great Britain, or any of the colonies or depen- 
 dencies thereof, ought to be imported into the 
 United States after November 15, 1806. The 
 resolution also provided that whenever satis- 
 factory arrangements should be made, the Presi- 
 dent might, by proclamation, fix a day on which 
 the prohibition should cease. ' 
 
 The fear arising that Gregg's resolution might 
 restdt in reducing the revenues, and in preventing 
 the importation of goods which were indispensable 
 to the welfare of the country, Nicholson intro- 
 duced a resolution limiting the prohibition against 
 importation to such goods as we could produce 
 for ourselves, or obtain from other countries 
 than Great Britain.^ The change from Gregg's 
 to Nicholson's resolution did not, of course, affect 
 any constitutional principle, the two resolutions 
 being identical in this respect; and the strong 
 public approval of the restrictive policy at that 
 date is indicated by the passage of Nicholson's 
 resolution in the House of Representatives by 
 87 votes in favor to 35 against it,' and by the 
 passage in the same body of the law of April 
 18, 1806, which gave effect to the resolution, 
 
 ' Annals, 9th Cong., ist Session, p. 413. 
 ' Ibid., p. 45 J. 
 3 Ibid., p. 823. 
 
192 Commercial Power of Congress 
 
 by 93 votes in its favor to 32 against; while in 
 the Senate the bill was approved by 19 votes in 
 its favor to 9 against it.^ Thus, by a majority 
 of almost three to one, the Congress of 1806 sup- 
 ported the policy of a strict-construction Presi- 
 dent in favor of prohibiting certain branches 
 of trade. The operation of the law of April 18, 
 1 806, was suspended until July i, 1807, by the 
 act of December 19, 1806, which also authorized 
 the President to further suspend it, but not beyond 
 the second Monday in December, 1807.^ This 
 act, therefore, repeated the delegation to the 
 President of certain functions in connection with 
 the carrying out of legislative policies, which we 
 have seen Congress exercising in connection 
 with the embargo measures of Washington's 
 second administration, and this feature of the 
 
 ' Annals,9th Cong., ist Session, pp. 877, 240. The text of the 
 law is in Annals, p. 1259. It provided among other things, that 
 after November 15, 1806, it should not be lawful to import 
 into the United States or the territories thereof, from any port or 
 place situated in Great Britain or Ireland, or in any of the 
 colonies or dependencies of Great Britain, any goods, wares, 
 or merchandise of the description of articles ermmerated in the 
 act; nor shduld it be lawful to import into the Utiited States, or 
 the territories thereof, from any foreign port or place ariy of the 
 above mentioned goods, wares, merchandise; and the act con- 
 tained a proviso in favor of goods imported from beyond the 
 Ca,pe of Good Hope within the period of fifteen months. By 
 the Embargo Repeal Law of March i, 1809, this act was repealed 
 to take effect after May 20, 1809. 
 
 ' Annals, 9th Cong., 2d Session, p. 1249. 
 
Jefferson's Second Administration 193 
 
 law seems to have excited no constitutional 
 objection at this time. 
 
 Events occurring in Great Britain and France 
 soon, however, resulted in a determination upon 
 the part of Jefferson's administration and sup- 
 porters in Congress to enter upon the more 
 drastic policy of embargo, in connection with 
 which arguments for and against the prohibitory 
 powers of Congress were greatly developed. 
 
 The Embargo Measures of Jefferson's Adminis- 
 tration 
 
 The proclamations, Orders in Council, and 
 decrees of England and Prance in 1806 and 1807 
 had so harassed the trade of the United States 
 with Europe and European colonies, as to reduce 
 it nearly to the condition in which it would have 
 been had England and France declared war upon 
 the United States. ' 
 
 These iajuries and the capture of the Chesa- 
 peake by the Leopard produced so great irritation 
 in the United States, that Jefferson's annual 
 message of October, 1807, and his special message 
 on commercial depredations, of December 18, 
 1807, were followed by speedy action in Congress. 
 A bill was reported in the Senate laying an embargo 
 
 'So said by John Quincy Adams, in his address: "To the 
 Citizens of the United States," written after his presidency. 
 Henry Adams, New England Federalism, 1800-1815, p. 187. 
 
 13 
 
194 Commercial Power of Congress 
 
 on December i8th, passed under suspension of the 
 rules on the same day, by 22 votes in favor to 6 
 against, sent to the House of Representatives, 
 which passed the bill with some amendments 
 by 82 votes in favor to 44 against, and the amend- 
 ments being concurred in by the Senate, the bill 
 became a law, with Jefferson's approval, December 
 22, 1807.' 
 
 The act affected interstate as well as foreign 
 commerce. For it was among other things pro- 
 vided, that during its continuance no registered 
 or sea-letter vessel, having on board goods, wares, 
 or merchandise, should be allowed to depart from 
 one port to another of the United States, without 
 the giving of a bond with sureties to the collector 
 of the district, that the cargo should be relanded 
 in some other port of the United States, dangers 
 of the sea excepted. 
 
 The application of the embargo measures to 
 interstate trade was further insured by certain 
 provisions of the law of January 9, 1808," and the 
 policy of the embargo was further extended in 
 March of the same year, to explicitly reach small 
 imlicensed vessels, and transportation by land. 
 For the law of March I2th3 made it unlawful to 
 export from the United States, in any manner 
 whatever, any goods, wares, or merchandise of 
 
 * Annals, loth Cong., ist Session, ii., p. 2814. 
 " Ibid., p. 2815. 
 3 Ibid., p. 2839. 
 
Jefferson's Second Administration 195 
 
 foreign or domestic manufacture, and further 
 provided that if during the continuance of the 
 acts of December 22, 1807 and January 9, 1808, 
 any goods, wares, or merchandise were exported 
 from the United States, either by land or water, 
 the vessel, boat, raft, cart, wagon, or sleigh, or 
 other carriage in which the same should have been 
 exported, should, together with the tackle, ap- 
 parel, horses, mules, or oxen, be forfeited, and the 
 owner or owners of the goods, wares, or mer- 
 chandise, and every other person knowingly con- 
 cerned in such exportation should be fined. 
 
 Oppressive and almost tyrannous as such a 
 measure then did and now would seem, it was 
 supported by the dominant sentiment in Congress, 
 for the bill was passed in the House of Represen- 
 tatives by the great majority of 97 votes in 
 its favor to 22 opposed. ' 
 
 But even this measure did not satisfy the 
 President. Doubtless the great Congressional 
 majority behind him emboldened Jefferson to 
 go to great lengths in carrying his policy through, 
 and he determined to put a stop to the evasions 
 of the embargo, even if in so doing he had to 
 create monopolies in necessaries of life, and treat 
 trade in certain food-supplies as so inherently 
 suspicious that it might not be permitted to be 
 carried on between one port and another, even 
 in the same State. Jefferson entertained no 
 
 " Annals, loth Cong., ist Session, ii., p. 1712. 
 
196 Commercial Power of Congress 
 
 doubts of the constitutional power of Congress 
 to enact the necessary measures, although they 
 laid heavy burdens upon interstate trade, and 
 by land, and even seriously hindered trade wholly 
 within a single State. He was bent upon 
 securing great national ends, to which all lesser 
 considerations must yield, and probably no more 
 forcible statement of the extent of the power of 
 the central government to accomplish such pur- 
 poses, by the temporary arrest or destruction of 
 branches of trade, has ever been made than by 
 Jefferson in his suggestions to Gallatin at this 
 time. 
 
 The leading object of the legislature was, and ours 
 in execution of it ought to be [he writes], to give 
 complete effect to the embargo laws. They have 
 bidden agriculture, commerce, navigation to bow 
 before that object, to be nothing when in competition 
 with that. Finding all their endeavors at general 
 rules to be evaded, they finally gave us the power of 
 detention as the panacea, and I am clear we ought 
 to use it freely, that we may, by fair experiment, 
 know the power of this great weapon, the embargo. 
 Therefore, to propositions to carry flour or other 
 provisions into the Chesapeake, the Delaware, the 
 Hudson, and other exporting places, we should say 
 boldly it is not wanted there for consumption, and 
 the carrying it there is too suspicious to be permitted.' 
 
 Jefferson was, as he writes, suspicious of pro- 
 
 ' Adams, Writings of Gallatin, i., p. 385. 
 
Jefferson's Second Administration 197 
 
 visions, and particularly of flour. He determined 
 to put an end to evasions of the embargo, through 
 the shipping of this commodity out of the country 
 from places along Lake Champlain, from East 
 Port, Maine, and parts of Georgia; and even- 
 tually so far gave effect to his animosity against 
 this necessary of life, as to prevent the shipping 
 of it into certain States of the Union from other 
 States, until his restrictions broke down.' In 
 his effort to attain his purpose, however, he did 
 not hesitate to create local monopolies in the 
 commodity, by authorizing the governors of 
 States to give certificates in favor of particular 
 merchants directed to the collectors of the ports 
 from which flour was exported, and on which 
 certificates those merchants would be permitted 
 to bring in such quantities of flour as were named 
 in the certificates.^ 
 
 The urgency of Jefferson transmitted to Con- 
 gress through Gallatin, who drafted the bill, led 
 to the passage of the "Act of April 25, 1808, in 
 addition to the act laying the Embargo."^ This 
 law, even more explicitly than its predecessors, 
 extended the embargo to interstate commerce by 
 land as well as by water, and to articles of domestic 
 
 ■Schouler's History U. S., ii., pp. 179, 180. 
 
 'Adams, Writings of Gallatin, i., p. 384. The monopolistic 
 character of this measure was noted by Gallatin at the time. 
 See, also, Writings of Jefferson (Washington), v., p. 286. 
 
 ' Annals, loth Cong., ist Session, ii., p. 2870. 
 
198 Commercial Power of Congress 
 
 growth and manufacture. It empowered col- 
 lectors to seize deposits of commodities on land, 
 apparently merely upon the ground of suspicions 
 of the collectors arising out of the unusual char- 
 acter of the deposits, without direct proof of any 
 unlawful intent or act upon the part of the de- 
 positor. It also provided that no vessel of any 
 description whatever, or wherever bound, whose 
 employment was confined to bays, sounds, rivers, 
 and lakes, in the jurisdiction of the United States 
 (excepting packets, ferry-boats, and vessels ex- 
 empted from giving any bonds whatever) should 
 be allowed to depart, without having received a 
 clearance and furnishing a manifest of her whole 
 cargo, nor unless her lading was under the direc- 
 tion of revenue officers. It further provided, 
 that, during the continuance of the embargo, 
 no vessel having any cargo whatever on board 
 should be allowed to depart from any port of 
 the United States for any other port or district 
 of the United States adjacent to the territory 
 of any colony or province of a foreign nation, 
 nor should any clearance be furnished to any 
 such vessel without the special permission of the 
 President. The act authorized the commanders 
 of public armed vessels to stop any vessel, flat, 
 or boat belonging to any citizen of the United 
 States, either on the high seas, or within the 
 jurisdiction of the United States. It gave author- 
 ity to collectors to detain any vessel ostensibly 
 
Jefferson's Second Administration 199 
 
 bound with a cargo to some other port of the 
 United States, whenever in the collector's opin- 
 ion the intention was to violate the embargo 
 law. 
 
 But even this measure did not satisfy Jefferson 
 who, disregarding the rising wrath of the New 
 England States, procured the passage of the 
 "Embargo Force Act," of January 9, 1809.' In 
 this law Jefferson's restrictive policy reached its 
 zenith, and that it was generally approved by 
 members of Congress is indicated by its passage 
 in the Senate by 20 votes for the bill to 7 against, 
 and in the House of Representatives by 71 votes 
 affirmative to 32 negative votes." That these 
 great majorities represented a settled opinion in 
 favor of the policy is shown by the defeat of 
 HiUhouse's motion for repeal of the' embargo in 
 the Senate, by 25 to 6,' and by the approval in 
 the House of Representatives of the report of 
 Campbell's committee in favor of prohibiting 
 the admission into this country of the goods, 
 wares, or merchandise of belligerent powers which 
 violated the rights of neutrals, and the entrance 
 of the ships of such powers into our ports by 
 84 to 30. < 
 
 The Force Act extended prohibitions and 
 
 ' Annals, loth Cong., ad Session, p. 1798. 
 
 ' Ibid., pp. 298, 1024. 
 
 3 Ibid., p. 230. 
 
 < Ibid., p. 894. Resolution, pp. 520, 521. 
 
200 Commercial Power of Congress 
 
 penalties to land transportation and land vehicles, 
 and forbade all vessels whatever from taking on 
 board any specie or merchandise without a permit 
 from the collector, and unless the lading were 
 imder the inspection of proper revenue officers, 
 and a bond were given, in six times the value 
 of the vessel and cargo, that the vessel would 
 not leave without a clearance and would not 
 proceed to any foreign port or place, nor put 
 any article upon another vessel bound thither. 
 It authorized collectors to take into their cus- 
 tody the specie and other cargoes of vessels, 
 when there was any reason, in the judgment of 
 the collector, to believe these were intended for 
 exportation, or when they were in vessels, carts, 
 wagons, sleighs, or in any manner apparently 
 on their way toward the territory of a for- 
 eign nation, or to a place whence such articles 
 were intended to be exported; and when taken 
 in custody the articles were to be permitted 
 to be removed only on the giving of a bond for 
 the delivery of the same in some place in the 
 United States, whence in the opinion of the 
 collector there would be no danger of their be- 
 ing exported. 
 
 But the rising opposition of merchants and ship- 
 owners in the seaboard States defeated the 
 President's policy, and in less than two months 
 after the passage of the Force Act, Jefferson 
 was compelled by fears of dismemberment 
 
Jefferson's Second Administration 201 
 
 of the Union,' to approve the so-called 
 "Embargo Repeal Act" of March i, 1809,^ by 
 which the embargo acts were repealed except as 
 to England and France, and the President was 
 empowered to suspend the embargo as to either 
 of them, upon their ceasing to violate the rights 
 of neutrals. This act, however, did not effect 
 an entire repeal of the embargo, and it ex- 
 pressly interdicted the entrance of the harbors 
 and waters of the United States to all ships or 
 vessels flying the flag of England or France, after 
 May 20, 1809, and forbade the importation after 
 that date of any goods, wares, or merchandise 
 whatever from any port or place in Great Britain, 
 Ireland, or the colonies or dependencies of Great 
 Britain, from any port or place in France, or her 
 colonies or possessions, and from any place in the 
 actual possession of England or France. But by 
 supporters and opponents alike of the embargo, this 
 act of March i, 1809, was considered the downfall 
 of the President's policy, and its passage was cele- 
 brated by public rejoicings among his adversaries. 
 
 'Jefferson to Dearbome, July i6, 1810, Works (Washington 
 edition), vol. v., p. 529; to Giles, December 25, 1825, Works, 
 vol. vii., p. 425; Ford's edition, vol. x., p. 350. Pickering had 
 advised that a convention of delegates be called to consider 
 the reserved rights of the States, and determine how far the 
 States might judge for themselves as to infractions of the Con- 
 stitution by the embargo measures, and interpose a negative. 
 Adams, New England Federalism, p. 378. 
 
 ' Annals, loth Cong., 2d Session, p. 1824. 
 
202 Commercial Power of Congress 
 
 Surveying the several laws down through the 
 Force Act of January 9, 1809, it is clear that they 
 were correctly represented by Jefferson's oppo- 
 nents at the time, as extending to interstate com- 
 merce, and HiUhouse was justified, in his speech 
 against the Force Act, in considering it as reach- 
 ing the whole commerce and intercourse between 
 the different States, ' although he exaggerated the 
 terrors arising from the acts of tyrannous col- 
 lectors. Upon whatever grounds the embargo 
 measures may be defended, they cannot be sup- 
 ported as laying burdens only upon foreign, not 
 upon interstate commerce, and that Jefferson 
 clearly understood this is proved by his letter 
 to Gallatin of May 6, 1808, quoted above. But 
 it was inevitable that laws which inflicted such 
 injuries upon the trade or commerce of a section 
 of the country as the embargo acts inflicted 
 upon New England, should be opposed by every 
 argument that the injured could conjure. And 
 so, in the embargo controversy, as in probably 
 every other serious debate over a measure during 
 our history, the constitutional objection was 
 produced, although late in the day, and under 
 unfavorable circumstances, by the Federalists, 
 who had been supporters of the restrictive 
 measures of Washington's time. The localities 
 which they represented had but recently demanded 
 retaliatory measures against England and France, 
 
 " Annals, loth Cong., 2d Session, pp. 287, 288. 
 
Jefferson's Second Administration 203 
 
 and it was generally understood that such meas- 
 ures would include the embargo. The Federalists, 
 therefore, were now in the position of men who 
 resorted, not from deep conviction, but from 
 economic expediency, to a constitutional prin- 
 ciple which they had not before admitted, but 
 had implicitly denied. Coming from the Fed- 
 eralists of 1 808-1 809, the constitutional argument 
 against the embargo was not a reason, but an 
 excuse — ^it was, as it were, dragged in by the 
 heels. As the embargo policy persisted from 1807 
 to 1809, however, the constitutional, as well as 
 the economic, arguments against it were greatly 
 developed. The constitutional argument indeed, 
 both against and for the embargo, was more 
 thoroughly worked out in the debates on several 
 of the embargo bills, than ever since. Not even 
 in the recent debates in Congress and the public 
 press, over the constitutionality of laws dealing 
 with the regulation of the interstate business of 
 railroads and other corporations, has the power 
 of Congress to lay prohibitions on commerce, 
 foreign and interstate, been so thoroughly ex- 
 plored as in Congress, the courts, and the public 
 press from 1807 to 1809. 
 
 All of the arguments with which we have re- 
 cently been made familiar were developed in 
 that earlier debate. It was insisted, for example, 
 that prohibition was not regulation; Jefferson's 
 opponents, indeed, saying his measures annihilated 
 
204 Commercial Power of Congress 
 
 commerce, and annihilation was not regulation, 
 and the argument was enforced by this ingenious 
 analogy: "But, Mr. Speaker, supposing you should 
 hand your watch to a proper artisan, in order to 
 have it regulated, and he should dash it to pieces 
 in your presence, would you call this regulating 
 it? I believe not."' It was also objected that 
 certain of the bills reached commerce between 
 two ports in the same State, which commerce 
 could not be regulated by Congress. It was also 
 insisted that the embargo violated the provision 
 of the Constitution, which jforbids the giving of 
 preferences to the ports of one State over those 
 of another.^ As to certain powers entrusted to 
 the President in connection with the enforcement 
 and suspension of the embargo, it was objected 
 that the granting of these amounted to a delega- 
 tion of legislative powers to the Executive, in 
 violation of the Constitution.' 
 
 For the measures, on the other hand, it was 
 pointed out, that their principle had been recog- 
 nized as soimd in Washington's administration, 
 and in the passage of the laws prohibiting im- 
 portation of slaves, and trade with St. Domingo. 
 That Congress lacked power to lay prohibitions 
 was therefore characterized as a discovery of an 
 
 'Annals, loth Cong., 2d Session, p. 870 et seq. 
 same, pp. 1005, 1006. 
 
 ' Annals, loth Cong., 2d Session, p. 288 et seq. 
 3 Ibid., ist Session, pp. 2144, 2233. 
 
Jefferson's Second Administration 205 
 
 extraordinary nature made during that session 
 of Congress. ' In support of the embargo it was 
 also urged that it was authorized by the clause 
 granting power to Congress to regulate commerce. 
 "This power included every possible commercial 
 legislative power that was not expressly excepted," 
 and the making of certain specified exceptions 
 in the Constitution demonstrated that every 
 part of the power which was hot excepted was 
 granted.^ When general powers are delegated, 
 it was said, if any exceptions thereto are intended, 
 they are expressly made in that instrument. 
 Without such exceptions, the general powers 
 delegated are considered unrestricted. Whence 
 is derived the power to prohibit the migration 
 or importation of slaves from Africa? From the 
 power to regulate commerce with foreign nations. 
 
 This general power ... to regulate commerce must 
 include power to determine to what nation, on what 
 terms, and to what extent we will permit it to be 
 carried on; without this power, the power to regtilate 
 commerce would be altogether nugatory. ... If you 
 have the power to restrict your trade in any degree 
 you have the like power to restrict it to the full 
 extent of an entire prohibition both of exports and 
 imports.' 
 
 With respect to the objection that the giving 
 
 ■ Annals, loth Cong., ist Session, p. 2145. 
 'Ibid., p. 2225. 
 'Ibid., p. 2147. 
 
2o6 Commercial Power of Congress 
 
 to the President of authority to suspend the 
 embargo and perform other acts in connection 
 with it was an unconstitutional delegation of 
 legislative powers to the Executive, the argument 
 often since repeated, in and out of court, was 
 made, that Congress had delegated no legis- 
 lative power to the President ; that the legislative 
 act had been performed by the legislature in 
 the passage of the law; that the carrying of the 
 law into effect was all that was left to the Presi- 
 dent, under conditions prescribed in the law.' 
 Precedents were quoted from laws of 1794 and 
 1799, for authorizing the President to suspend 
 the embargo under conditions prescribed in the 
 laws, and it was said by a leading Federalist, 
 that the objection that Congress could not give 
 to the President power to suspend the embargo 
 was "a new dogma, contrary to the old canons, 
 received both of faith and practice by every 
 political sect which has had power ever since the 
 adoption of the Constitution. "^ 
 
 Before the passage of the Force Act, the earlier 
 embargo laws came into court, where their con- 
 stitutionality was sustained by John Davis, 
 District Judge of the district of Massachusetts; 
 and this summary of the arguments of 1807 to 
 1809 may properly close with an extract from 
 his opinion. For Davis was himself a contem- 
 
 ■ Annals, loth Cong., ist Session, pp. 2084, 2085, 2142. 
 
 ■■ Josiah Quincy, in Annals, loth Cong., ist Session, p. 2200. 
 
Jefferson's Second Administration 207 
 
 porary of and participant in the debates which 
 had preceded the ratification of the Constitution, 
 and was personally familiar with the working 
 of the government tmder' that! instrument. He 
 had been a member of the Massachusetts State 
 Convention, which ratified the Constitution, was 
 afterward appointed a United States district 
 attorney by Washington, and was made a United 
 States judge by Adams, in 1801. The consti- 
 tutionality of the embargo laws was raised before 
 him in 1808, in the case of the United States 
 vs. the Brigantine WilUam.^ The question par- 
 ticularly considered was whether the power to 
 regtdate commerce under the Constitution in- 
 cluded authority to impose restrictions and pro- 
 hibitions upon that commerce. It was contended 
 by counsel for the vessel that it did not; while 
 the representatives of the government argued 
 that the power to regulate included the power to 
 prohibit, at least to the extent exercised by the 
 laws then before the court. Judge Davis agreed 
 with the latter view, stating his argument with 
 a clearness and breadth of insight, perhaps not 
 inferior to Chief Justice Marshall's in M'Culloch 
 vs. the State of Maryland and Gibbons vs. Ogden. 
 
 It will be admitted [he said] that partial pro- 
 hibitions are authorized by the expression; and how 
 shaU the degree, or extent of the prohibition be ad- 
 
 " 2 Hall's Law Journal, p. 255. 
 
2o8 Commercial Power of Congress 
 
 justed, but by the discretion of the national govern- 
 ment, to whom the subject appears to be committed. 
 . . . Further; the power to regulate commerce is 
 not to be confined to the adoption of measures, ex- 
 clusively beneficial to commerce itself, or tending 
 to its advantage; but, in our national system, as in 
 all modem sovereignties, it is also to be considered 
 as an instrument for other purposes of general policy 
 and interest. The mode of its management is a 
 consideration of great delicacy and importance; but 
 the national right, or power, under the Constitution, 
 to adapt regulations of commerce to other purposes, 
 than the mere advancement of commerce, appears 
 to me unquestionable. . . . The situation of the 
 United States, in ordinary times, might render 
 legislative interferences, relative to commerce, less 
 necessary; but the capacity and power of managing 
 and directing it, for the advancement of great na- 
 tional ptuposes, seems an important ingredient of 
 sovereignty. 
 
 It was perceived, that, under the power to regulate 
 commerce. Congress would be authorized to abridge 
 it, in favor of the great principles of humanity and 
 justice. Hence the introduction of a clause, in the 
 Constitution, so framed as to interdict a prohibition 
 of the slave trade, until 1808. Massachusetts and 
 New York proposed a stipulation — to prevent the 
 erection of commercial companies, with exclusive 
 advantages. Virginia and North CaroUna suggested 
 an amendment that "no navigation law or law regu- 
 lating commerce should be passed without the 
 consent of two thirds of the members present in 
 
Jefferson's Second Administration 209 
 
 both Houses." These proposed amendments were 
 not adopted, but they manifest the pubhc conception, 
 at the time of the extent of the powers of Congress 
 relative to commerce. 
 
 That, notwithstanding the objections urged 
 against the power of Congress to enact embargoes, 
 the large majority of members of Congress ap- 
 proved of the laws, is indicated by the great 
 majorities in both Houses by which they were 
 passed. That Washington approved of embargoes 
 we know. That to the end of his long life Jeffer- 
 son regarded the embargo measures as consti- 
 tutional, and among his most important policies, 
 is made plain by his references to them in his 
 old age. ' And we are also assured that Madison, 
 throughout his life, believed the embargo was 
 constitutional. In 1794 he moved the restrictive 
 resolution which aimed to give effect to Jefferson's 
 report. In 1795 he defended his course in his 
 "Political Observations," in which he attributed 
 great virtue to the embargo, and wrote as follows 
 of the power of prohibition in the new govern- 
 ment compared with the lack of it in the Con- 
 federation : 
 
 Under the old Confederation, the United States 
 had not the power over commerce; of that situation 
 she [Great Britain] took advantage. The new 
 government, which contained the power, did not 
 
 I See his letters to Giles and Dearborn cited above. 
 
210 Commercial Power of Congress 
 
 evince the will to exert it; of that situation she still 
 took advantage. Should she yield, then, at the 
 present juncture, the problem ought not to be solved 
 without presuming her to be satisfied by what has 
 lately passed — that the United States has now not 
 only the power but the wiU to exert it.' 
 
 And his letter to George Joy, of September, 1834, 
 written in his extreme age, shows that even until 
 then, he doubted neither the constitutionality 
 nor the value of the embargo.* 
 
 It is, therefore, a reasonable conclusion from 
 our survey, that contemporaries of the formation 
 and ratification of the Constitution quite generally 
 believed, that under the power to regulate com- 
 merce, Congress had authority to prohibit, at 
 least for limited periods, both interstate and 
 foreign commerce; and the general prevalence 
 of this opinion enabled Jefferson, the strict- 
 constructionist, to carry his measures through 
 Congress. 
 
 The history of the country has now been ex- 
 amined as far as the plan of this essay contem- 
 plated it should be. The historical inquiry is 
 fortunately freed from a certain verbal narrowness 
 
 ' Works of Madison, vol. iv., p. 500 (Ed., 1865). 
 
 ' Ibid., p. 360. John Quincy Adams had acquiesced in Jef- 
 erson's embargo, and when President, in 1826, approved of total 
 interdiction of trade with all the British Colonies both in the 
 West Indies and in North America. Memoirs of John Quincy 
 Adams, vii., p. 213 (1879). 
 
Jefferson's Second Administration 211 
 
 and drjmess, which perhaps necessarily attaches 
 to constitutional interpretation. For the his- 
 torical inquiry is concerned with facts and their 
 large significance. It necessarily considers nations 
 and their institutions as organisms, not primarily 
 as subjects of dialectical discussion. To the 
 historian, however it may be to the interpreter 
 of a constitutional text, the history of the United 
 States, in the formation and practical application 
 of the Constitution, is an example of the develop- 
 ment of a living organism, not a subject of tech- 
 nical verbal discussion. And the historical study 
 brings out the practical view which the men who 
 made the Constitution took of their work. They 
 regarded their labors primarily as the formulating 
 of institutions to attain practical ends of govern- 
 ment. This purpose, and not the interpretation 
 of the written docimient, was that about which 
 they felt themselves chiefly concerned. They 
 produced the document, and its interpretation 
 must be for us, to a considerable degree, an 
 exploration of the meaning of words. But for 
 them the production of that document was pri- 
 marily the making of a government intended to 
 practically operate. The necessity out of which 
 the instrument grew was a practical necessity. 
 Certain needs had become plain to them before 
 1787, and they set out to satisfy them ; and through 
 the chain of circumstances, which has been exam- 
 ined, it came about, that the men who framed the 
 
212 Commercial Power of Congress 
 
 instrument were mostly those who favored a 
 powerftil central government, because they be- 
 lieved no other would satisfy their needs. This 
 opinion of theirs, that large powers in a central 
 body were needed, was particularly true of the 
 power over commerce. Proceeding from the 
 regulation of foreign commerce only, they were 
 soon forced to consider also the regulation of 
 commerce between the States, and, as a matter 
 of considerable interest at that time, the regula- 
 tion also of commerce with the Indian tribes. 
 The necessities of the years preceding 1787 had 
 forced the conviction upon them that the regu- 
 lation of aU branches of commerce was practically 
 one, and that it was necessary to place the 
 regulation of all within the central authority. 
 They, therefore, in the same clause of the 
 Constitution, and in the same terms, conferred 
 upon the central government the power to 
 regulate commerce with foreign nations, among 
 the several States, and with the Indian tribes; 
 and the examination which I have made of their 
 proceedings and debates through the Con- 
 stitutional Convention and the administrations 
 of Washington and Jefferson, indicates that 
 they intended to bestow upon the central 
 government equal powers over the several 
 branches of trade, except as they imposed re- 
 strictions upon the power to regulate foreign 
 commerce. 
 
Jefferson's Second Administration 213 
 
 But the interpretation of a law or a consti- 
 tution is not to be determined solely by ascer- 
 taining the opinions of members of legislatures 
 by which the constitution or the law is enacted, 
 or of the community at the time of the enactment. 
 For it may happen that the terms of the instru- 
 ment preclude an interpretation in harmony with 
 such opinions. It may be, that from one cause 
 or another, the instrument as enacted, fails to 
 give effect to the opinions of such members or 
 communities. Therefore, the inquiry which has 
 been made here is not the equivalent of an essay 
 in constitutional interpretation. It is simply 
 a study of the state of facts and opinions out 
 of which the Constitution arose; and to complete 
 it there remains the comparison of the results 
 of that study with the principles settled by the 
 leading decisions of the Supreme Court relating 
 to the commercial power of Congress. This 
 comparison wiU be made in the next chapter, 
 with which this essay wUl conclude. 
 
CHAPTER XIII 
 
 THE RESULTS OF THE HISTORICAL INQUIRY AND 
 THE DECISIONS OF THE SUPREME COURT — 
 THE DECISIONS OF THE COURT GENERALLY 
 CONFIRM THE CONCLUSIONS OF THE HIS- 
 TORICAL INVESTIGATION 
 
 THE powers assigned by contemporary opinion 
 to Congress under the commerce clause of 
 the Constitution are, in general, those which the 
 Supreme Court has determined that body pos- 
 sesses. The agreement between the decisions of 
 the Court and the conclusions of the historical 
 inquiry is exhibited in judgments of the Court 
 in cases which have considered: (i) the extent of 
 the commercial power of Congress ; (2) the equality 
 of its authority over interstate and foreign trade; 
 (3) its power to erect corporations as agencies to 
 carry on various branches or incidents of com- 
 merce; (4) its power to construct or authorize 
 the construction of highways of interstate com- 
 merce ; (5) its power to lay duties upon imports for 
 the purpose of protecting domestic industries; 
 and (6) its power to restrict and prohibit various 
 branches of commerce in the interest of great 
 national purposes. 
 
 214 
 
Supreme Court's Determinations 215 
 
 I . The Extent of the Commercial Power 
 
 The extent of the authority of Congress under 
 any of the specially delegated powers depends 
 upon the extent and nature of the implied powers ; 
 and before the commerce clause was considered 
 in the Supreme Court the nature and scope of 
 these had been determined in the case of M'Cul- 
 logh w. The State of Maryland,' decided in 1819, 
 in an opinion by Chief Justice Marshall. The 
 case arose over the right of the State of Maryland 
 to tax the Bank of the United States, and as 
 presented to the Court, raised, among other 
 questions, that of the nature and extent of the 
 implied powers of Congress, under the necessary 
 and proper clause of the Constitution. Marshall 
 settled these powers upon a very broad basis, and 
 his determination has never been shaken. His 
 view of their extent is made evident in the 
 following extracts from his opinion: 
 
 This government is acknowledged by aU to be one 
 of enumerated powers. The principle, that it can 
 exercise only the powers granted to it, would seem 
 too apparent to have required to be enforced by all 
 those arguments which its enlightened friends, while 
 it was depending before the people, found it necessary 
 to urge. That principle is now universally admitted. 
 But the question respecting the extent of the powers 
 actually granted, is perpetually arising, and will 
 
 '4 Wheaton, U. S.,316. 
 
2i6 Commercial Power of Congress 
 
 probably continue to arise, as long as our system 
 shall exist. 
 
 If any one proposition could command the universal 
 assent of mankind, we might expect it would be 
 this — ^that the government of the Union, though 
 limited in its powers, is supreme within its sphere of 
 action. This would seem to result necessarily from 
 its nature. It is the government of all, its powers are 
 delegated by all; it represents all, and acts for all. 
 . . . But this question is not left to mere reason; 
 the people have, in express terms, decided it, by 
 saying, "this Constitution, and the laws of the United 
 States which shall be made in pursuance thereof, 
 shall be the supreme law of the land," and by re- 
 quiring that the members of the State legislatures, 
 and the officers of the executive and judicial depart- 
 ments of the States, shall take the oath of fidelity to 
 it. 
 
 The government of the United States, then, 
 though limited in its powers, is supreme; and its 
 laws, when made in pursuance of the Constitution, 
 form the supreme law of the land, "anything in the 
 Constitution or laws of any State to the contrary 
 notwithstanding. ..." There is no phrase in the 
 instrument which, like the Articles of Federation, 
 excludes incidental or implied powers; and which 
 requires that everything granted shall be expressly 
 and minutely described. Even the Tenth Amend- 
 ment, which was framed for the purpose of quieting 
 the excessive jealousies which had been excited, omits 
 the word "expressly," and declares only that the 
 powers "not delegated to the United States, nor 
 
Supreme Court's Determinations 217 
 
 prohibited to the States, are reserved to the States 
 or to the people"; thus leaving the question, whether 
 the particular power which may become the subject 
 of contest has been delegated to the one government, 
 or prohibited to the other, to depend on a fair con- 
 struction of the whole instrument. 
 
 Marshall considered and negatived the con- 
 tention of the State of Maryland, that the words 
 "necessary and proper," in the general clause 
 of the Constitution, limited the power of Congress 
 to the passing of only such laws for the execution 
 of the granted powers as were indispensable, and 
 without which the power would be nugatory. 
 He devoted an elaborate analysis to ascertaining 
 the meaning of "necessary and proper," and 
 concluded that these words left to the national 
 legislature a wide discretion. 
 
 We admit [he said], as all must admit, that the 
 powers of the government are limited, and that its 
 limits are not to be transcended. But we think the 
 sound construction of the Constitution must allow 
 to the national legislature that discretion, with 
 respect to the means by which the powers it confers 
 are to be carried into execution, which will enable 
 that body to perform the high duties assigned to it, 
 in the manner most beneficial to the people. Let the 
 end be legitimate, let it be within the scope of the 
 Constitution, and all means which are appropriate, 
 which are plainly adapted to that end, which are not 
 
2i8 Commercial Power of Congress 
 
 prohibited, but consist with the letter and spirit of 
 the Constitution, are constitutional. 
 
 The extent of the implied powers having been 
 thus settled, the way was cleared for the dis- 
 cussion of the extent of the power of Congress 
 over commerce, when the first case under the 
 commerce clause reached the Court, in 1824,' 
 This presented primarily the question of the right 
 of the State of New York to grant certain monopo- 
 listic privileges for the use of steam as the motive 
 power of vessels over the waters and bays of 
 that State. In the opinions of the Court, how- 
 ever, and in the arguments of counsel, the broader 
 questions of the power of Congress over com- 
 merce, interstate as well as foreign, and of the 
 relation of the powers of the States to the au- 
 thority of the national legislature, were treated 
 at length, and Marshall's opinion has become the 
 foundation of the law relating to the commercial 
 power of Congress. After determining that the 
 power included navigation, Marshall thus ex- 
 plained and defined its nature and extent: 
 
 It is the power to regulate; that is to prescribe 
 the rule by which commerce is to be governed. This 
 power, like all others vested in Congress, is complete 
 in itself, may be exercised to its utmost extent, and 
 acknowledges no limitations other than are prescribed 
 in the Constitution. These are expressed in plain 
 
 ' Gibbons vs. Ogden, 9 Wheaton, i. 
 
Supreme Court's Determinations 219 
 
 terms, and do not affect the questions which arise 
 in this case, or which have been discussed at the bar. 
 If, as has always been understood, the sovereignty 
 of Congress, though liniited to specified objects, is 
 plenary as to those objects, the power over commerce 
 with foreign nations, and among the several States, 
 is vested in Congress as absolutely as it would be in 
 a single government, having in its Constitution the 
 same restrictions on the exercise of the power as are 
 found in the Constitution of the United States. The 
 wisdom and the discretion of Congress, their identity 
 with the people, and the influence which their con- 
 stituents possess at elections, are, in this, as in many 
 other instances, as that, for example, of declaring 
 war, the sole restraints on which they have relied to 
 secure them from its abuse. They are the restraints 
 on which the people must often rely solely, in all 
 representative governments. 
 
 2. Equality of the Power over Interstate and over 
 Foreign Commerce 
 
 It was clearly Marshall's opinion, that the 
 power of Congress over interstate was at least 
 as great as its power over foreign commerce. 
 "It has been said," he remarks, "that commerce, 
 as the word is used in the Constitution, is a unit, 
 every part of which is indicated by the term. If 
 this be the admitted meaning of the word, in its 
 application to foreign nations, it must carry the 
 same meaning throughout the sentence, and 
 remain a unit, unless there be some plain in- 
 
220 Commercial Power of Congress 
 
 telligible cause which alters it. " Justice Johnson, 
 an appointee and follower of President Jefferson, 
 in his concurring opinion, asserted that the power 
 of Congress was co-extensive with that which 
 previously existed in the States and, further 
 explaining his meaning, he said: 
 
 The States were, unquestionably, supreme; and 
 each possessed that power over commerce, which is 
 acknowledged to reside in every sovereign State. 
 The definition and limits of that power are to be 
 sought among the features of international law ; and, 
 as it was not only admitted, but insisted on by both 
 parties, in argument, that, "unaffected by a state of 
 war, by treaties, or by municipal regulations all 
 commerce among independent States was legitimate," 
 there is no necessity to appeal to the oracles of the 
 jus commune for the correctness of that doctrine. 
 The law of nations, regarding man as a social animal, 
 pronounces all commerce legitimate in a state of 
 peace until prohibited by positive law. The power 
 of a sovereign State over commerce, therefore, 
 amounts to nothing more than a power to limit, 
 and restrain it at pleasure. And since the power to 
 prescribe the limits to its freedom necessarily implies 
 the power to determine what shall remain unrestrained, 
 it follows that the power must be exclusive, it can 
 reside but in one potentate, and hence the grant 
 of this power carries with it the whole subject, leaving 
 nothing for the State to act upon. 
 
 Although there have been occasional remarks 
 
Supreme Court's Determinations 221 
 
 in later decisions of the Supreme Court indicating 
 that there might be a difference between the 
 extent of the power of Congress over interstate 
 and over foreign commerce, yet the greatly pre- 
 ponderating weight of authority in that Court 
 favors the proposition that the former is at least 
 co-extensive with the latter, and this remark 
 is particularly true of the Court's recent decisions. 
 For its great judgments during the last twenty 
 years, as in the Northern Securities case, ' United 
 States vs. Joint Traffic Association,^ United States 
 vs. Trans-Missouri Freight Association, ^ United 
 States vs. Delaware & Hudson Co.," necessarily 
 imply the equality of the power to regulate 
 interstate and foreign trade. Indeed, these de- 
 cisions could not have been rendered, had the 
 Court been of the opinion, that the power of Con- 
 gress to regulate interstate was less than its power 
 to regulate foreign commerce. The prepon- 
 derating view of the Court is indicated in the 
 following quotation from the majority opinion in 
 Bowman vs. Chicago, etc., Railway Company^: 
 "The power conferred upon Congress to regulate 
 commerce among the States is indeed contained 
 in the same clause of the Constitution which 
 
 • Northern Securities Co. vs. United States, 193 U. S., 197. 
 ' United States vs. Joint Traffic Association, 171 U. S., 505. 
 3 166 U. S., 290. 
 ■I 213 U.S., 366. 
 
 5 Bowman vs. Chicago & Northwestern Ry. Co., 125 U. S., 
 465, (482). 
 
222 Commercial Power of Congress 
 
 confers upon it power to regulate commerce with 
 foreign nations. The grant is conceived in the 
 same terms, and the two powers are undoubtedly 
 of the same class and character and equally 
 extensive." 
 
 Analogous to the question whether the authority 
 of Congress over interstate and foreign commerce 
 is equal, is that of the existence of a "Border- 
 land," in the field of commercial regulation, into 
 which neither the power of the States nor of 
 Congress extends. In recent years it has fre- 
 quently been contended by opponents of laws 
 enacted by Congress directed to the control 
 of corporations doing interstate business, that 
 the States have been deprived of all power of 
 regulating interstate commerce by the adoption 
 of the Constitution, but that the power of the 
 central government to positively regulate that 
 commerce is limited by an assumed purpose of 
 the framers of the Constitution, of by something 
 in the nature of the government created by that 
 instrument, although that something is not 
 expressed. This theory, however, is without 
 historical justification; the men who framed the 
 Constitution believed that they were conferring 
 upon the central government that complete power 
 over the several branches of commerce which the 
 States then possessed, except as they placed in 
 the Constitution certain express limitations upon 
 that power, most of which relate only to foreign 
 
Supreme Court's Determinations 223 
 
 commerce. Justice Johnson correctly stated the 
 intention of the Constitutional Convention in 
 the quotation which has been made from his 
 opinion in Gibbons vs. Ogden. Nor has this 
 theory found any favor with the Supreme Court. 
 It was urged upon the Court in the case of Addy- 
 ston Pipe & Steel Co. vs. United States, '■ and the 
 Court thus disposed of it : 
 
 Asstuning, for the purpose of the argument, that 
 the contract in question herein does directly and 
 substantially operate as a restraint upon and as a 
 regulation of interstate commerce, it is yet insisted 
 by the appellants at the threshold of the inquiry, 
 that by the true construction of the Constitution 
 the power of Congress to regulate interstate com- 
 merce is limited to its protection from acts of inter- 
 ference by State legislation, or by means of regulations 
 made under the authority of the State by some politi- 
 cal subdivision thereof, including also Congressional 
 power over common carriers, elevator, gas and water 
 companies, for reasons stated to be peculiar to such 
 carriers and companies, but that it does not include 
 the general power to interfere with or prohibit private 
 contracts between citizens, even though such con- 
 tracts have interstate commerce for their object, and 
 result in a direct and substantial obstruction to or 
 regulation of that commerce. 
 
 This argument is founded upon the assertion that 
 the reason for vesting in Congress the power to 
 regulate commerce was to insiure uniformity of 
 
 ' 17s U. S., 226 et seq. 
 
224 Commercial Power of Congress 
 
 regulation against conflicting and discriminating 
 State legislation; and the further assertion that the 
 Constitution guarantees liberty of private contract 
 to the citizen at least upon commercial subjects, and 
 to that extent the guarantee operates as a limitation 
 on the power of Congress to regulate commerce. 
 Some remarks are quoted from the opinions of 
 Chief Justice Marshall . . . and from the opinions 
 of other justices of this Court ... all of the 
 effect that the object of vesting in Congress the 
 power to regulate interstate commerce was to 
 insure uniformity of regulation against conflict- 
 ing and discriminating State legislation. The 
 iuxther remark is quoted from Railroad Co. vs. 
 Richmond that the power of Congress to regulate 
 commerce was never intended to be exercised so 
 as to interfere with private contracts not designed 
 at the time they were made to create impedi- 
 ments to such commerce. It is added that the 
 proof herein shows that the contract in this case 
 was not so designed. 
 
 It is undoubtedly true that among the reasons, if 
 not the strongest reason, for placing the power in 
 Congress to regulate interstate commerce, was that 
 which is stated in the extracts from the opinions of 
 the Court in the cases above stated. 
 
 The reasons which may have caused the framers of 
 the Constitution to repose the power to regulate 
 interstate conmierce in Congress do not, however, 
 affect or limit the extent of the power itself. 
 
 In Gibbons vs. Ogden, supra, the power was de- 
 clared to be complete in itself, and to acknowledge 
 
Supreme Court's Determinations 225 
 
 no limitations other than are prescribed by the 
 Constitution. 
 
 Under this grant of power to Congress, that body, 
 in our judgment, may enact such legislation as shall 
 declare void and prohibit the performance of any 
 contract between individuals or corporations, where 
 the natural and direct effect of such a contract will 
 be, when carried out, to directly, and not as a mere 
 incident to other and innocent purposes, regulate, 
 to any substantial extent interstate commerce. . . . 
 We do not assent to the correctness of the proposition 
 that the constitutional guarantee of liberty to the 
 individual to enter private contracts limits the power 
 of Congress and prevents it from legislating upon 
 the subject of contracts of the class mentioned. 
 
 The power of Congress [said the Court, in re Rahrer '] 
 to regulate commerce among the several States, 
 when the subjects of that power are national in their 
 nature is also exclusive. The Constitution does not 
 provide that interstate commerce shall be free, but, 
 by the grant of this exclusive power to regulate it, it 
 was left free except as Congress might impose re- 
 straints. The cases show [said the Court in the 
 Lottery Cases ^] that commerce among the States em- 
 braces navigation, intercourse, commtmication, trafEc, 
 the transit of persons, and the transmission of mes- 
 sages by telegraph. They also show that the power 
 to regulate commerce among the several States is 
 vested in Congress as absolutely as it would be in a 
 single government, having in its Constitution the 
 
 ■ 140 U. S., p. 555- 
 ' 188 U. S., 352 et seq. 
 IS 
 
226 Commercial Power of Congress 
 
 same restrictions ©n the exercise of the power as are 
 found in the Constitution of the United States; that 
 such power is plenary, complete in itself, and may 
 be exerted by Congress to its utmost extent, subject 
 only to such limitations as the Constitution imposes 
 upon the exercise of the powers granted by it ; and that 
 in determining the character of the regulations to be 
 adopted Congress has a large discretion, which is not 
 to be controlled by the courts, simply because, in 
 their opinion, such regulations may not be the best 
 or most efEective that could be employed. 
 
 There is perhaps no express decision of the 
 Court, to the effect that the power of Congress 
 to regulate traffic by land is coextensive with 
 its power to regulate traffic by water, and it has 
 sometimes been denied, in recent years, that they 
 are equal. That, however, they are coextensive, 
 is necessarily implied in a great body of recent 
 decisions of that Court, and particularly in those 
 relating to the extent of the control by Congress 
 over interstate railroads. Several decisions, which 
 have already been referred to, involve the prin- 
 ciple that the power of Congress to regulate 
 commerce by land is coextensive with its power to 
 regulate commerce on the high seas or inland 
 waters, and this doctrine is very clearly presented 
 in in re Debs,' in which the Court considered 
 particularly the power of Congress to regulate 
 traffic by land, and recited a large number of Acts 
 
 ' 158 u. S., 564. 
 
Supreme Court's Determinations 227 
 
 in which Congress had exercised the power. Fur- 
 ther reference to this topic will be made in connec- 
 tion with the decisions of the Court bearing upon 
 the power of Congress to construct or authorize the 
 construction of highways of interstate commerce. 
 
 3. The Power of Congress to Erect Corporations 
 
 The power of Congress to erect corporations, as 
 an incident of its power to regulate commerce, as 
 well as of other powers, was settled in 1819, in the 
 case of M'CuUoch vs. State of Maryland" cited 
 above, in which Marshall reasoned as follows : 
 
 The creation of a corporation, it is said, appertains 
 to sovereignty. This is admitted. But to what 
 portion of sovereignty does it appertain? Does it 
 belong to one more than to another? In America 
 the powers of sovereignty are divided between the 
 government of the Union and those of the States. 
 They are each sovereign with respect to the objects 
 committed to it, and neither sovereign with respect 
 to the objects committed to the other. . . . The 
 power of creating a corporation though appertaining 
 to sovereignty, is not, like the power of making war, 
 or levying taxes, or of regulating commerce, a great 
 substantive and independent power, which cannot be 
 implied as incidental to other powers, or used as a 
 means of executing them. It is never the end for 
 which other powers are exercised, but a means 
 by which other objects are accomplished. . . , The 
 
 • 4 Wheat., 316 (410, et seq.). 
 
228 Commercial Power of Congress 
 
 power of creating a corporation is never used for its 
 own sake, but for the purpose of effecting something 
 else. No sufhcient reason is, therefore, perceived 
 why it may not pass as incidental to those powers 
 which are expressly given, if it be a direct mode of 
 executing them. 
 
 But the Constitution of the United States has not 
 left the right of Congress to employ the necessary 
 means for the execution of the powers conferred on 
 the government, to general reasoning. To its enu- 
 meration of powers is added that of making "all laws 
 which shall be necessary and proper for carrying into 
 execution the foregoing powers, and all other powers 
 vested by this Constitution, in the government of 
 the United States, or in any department thereof." 
 After the most deliberate consideration it is the unani- 
 mous and decided opinion of this Court, that the act 
 to incorporate the Bank of the United States is a law 
 made in pursuance of the Constitution and is a part of 
 the supreme law of the land. 
 
 In Luxton vs. North River Bridge Co.' the 
 Court having before it the right of Congress to 
 incorporate a Bridge Company for interstate 
 trade, citing with approval M'CuUoch vs. Mary- 
 land, and other decisions, said: "Congress there- 
 fore may create corporations as appropriate means 
 of executing the powers of government, as for 
 instance a bank for the purpose of carrying on 
 the fiscal operations of the United States, or a 
 railroad corporation for the purpose of promoting 
 
 ' 153 U. S., 529. 
 
Supreme Court's Determinations 229 
 
 commerce among the States." And the doctrine 
 was applied to sustain the Act of Congress of 
 July 4, 1884 (23 Stat. 73, ch. 179) granting a right 
 of way through the Indian Territory to the South- 
 em Kansas Railway Company, the Official Re- 
 porter correctly summarizing the doctrine of the 
 case in the syllabus of Luxton vs. North River 
 Bridge Co. as follows: "In the execution of the 
 power to regulate commerce Congress may em- 
 ploy, as instrumentalities, corporations created by 
 it or by the States. " 
 
 4. The Power of Congress to Construct or to 
 
 Authorize the Construction of Highways of 
 
 Interstate Commerce 
 
 The development of opinion in the Supreme 
 Court, respecting the power of Congress to con- 
 struct highways of interstate commerce seems 
 to have followed the same course as it did in 
 the country at large. It would appear that, in 
 Marshall's time, the Court approved of the ex- 
 istence of the power; at least it is difficult to 
 reconcile the sw^eeping terms of Marshall's judg- 
 ments with the doctrine that Congress lacked 
 this power. After his time a doubt seems to have 
 arisen in the minds of the Justices whether Con- 
 gress possessed the power; but after the Civil 
 War, and the change which that produced in 
 public opinion respecting the relation of the 
 
230 Commercial Power of Congress 
 
 central government to the States, the Supreme 
 Court rendered a number of judgments, which 
 determined that Congress has the power to con- 
 struct the highways, and even without the consent 
 of the States in which they lie. 
 
 Thus, in the case of California vs. Pacific Rail- 
 road Company, in 1888,' the Court said of the 
 laws under which the Central Pacific Railroad 
 and other roads were constructed : 
 
 It cannot at the present day be doubted that 
 Congress, under the power to regulate commerce 
 among the several States, as well as to provide for 
 postal accommodations and military exigencies had 
 authority to pass these laws. The power to con- 
 struct, or to authorize individuals or corporations to 
 construct national highways and bridges from State 
 to State, is essential to the complete control and regu- 
 lation of interstate commerce. This power in former 
 times was exerted to a very limited extent, the Cum- 
 berland or National Road being the most notable 
 instance. Its exertion was but little called for, as 
 commerce was then mostly conducted by water, and 
 many of our statesmen entertained doubts as to the 
 existence of the power to establish ways of communi- 
 cation by land. But since, in consequence of the 
 expansion of the country, the multiplication of its 
 products, and the invention of railroads and locomo- 
 tion by steam, land transportation has so vastly 
 increased, a sounder consideration of the subject has 
 prevailed and led to the conclusion that Congress has 
 
 • 127 U.S., p. I. 
 
Supreme Court's Determinations 231 
 
 plenary power over the whole subject. Of course 
 the authority of Congress over the Territories of the 
 United States and its power to grant franchises exer- 
 cisible therein, are and ever have been, undoubted. 
 But the wider power was very freely exercised, and 
 much to the general satisfaction, in the creation of 
 the vast system of railroads connecting the East with 
 the Pacific, traversing States as well as Territories, 
 and employing the agency of State as well as Federal 
 corporations. 
 
 In the case of Cherokee Nation vs. Kansas 
 Railway Company,' the Court affirmed the au- 
 thority of Congress to vest railway and other 
 companies with the power of eminent domain, 
 adequate to the taking of lands within the States, 
 for the purpose of constructing interstate high- 
 ways, without the consent of the States. 
 
 The fact [said the Court] that the Cherokee Na- 
 tion holds these lands in fee simple under patents 
 from the United States, is of no consequence in the 
 present discussion ; for the United States may exercise 
 the right of eminent domain even within the limits of 
 the several States, for purposes necessary to the exe- 
 cution of the powers granted to the general govern- 
 ment by the Constitution. Such an authority, as 
 was said in Kohl vs. United States, 91 U.S., 367, is 
 essential to the independent existence and perpetuity 
 of the United States, and is not dependent upon the 
 consent of the States. . . . The lands in the Chero- 
 kee territory, like the lands held by private owners 
 
 - 135 U. S., 641. 
 
232 Commercial Power of Congress 
 
 everywhere within the geographical limits of the 
 United States, are held subject to the authority of the 
 general government to take them for such objects 
 as are germane to the execution of the powers granted 
 to it; provided only, that they are not taken without 
 just compensation being made to the owner. 
 
 The Congress of the United States [said the Court 
 in Luxton vs. North River Company] being em- 
 powered by the Constitution to regulate commerce 
 among the several States, and to pass all laws neces- 
 sary or proper for carrying into execution any of the 
 powers specifically conferred, may make use of 
 any appropriate means for this end. . . . Congress, 
 therefore, may create corporations as appropriate 
 means of executing the powers of government, as, for 
 instance, a bank for the purpose of carrying on the 
 fiscal operations of the United States or a railroad 
 corporation for the purpose of promoting commerce 
 among the States. . . . And whenever it becomes 
 necessary for the accomplishment of any object 
 within the authority of Congress, to exercise the right 
 of eminent domain and take private lands, making 
 just compensation to the owners. Congress may do 
 this, with or without a concurrent Act of the States 
 in which the lands lie. 
 
 5. The Power of Congress to Lay Protective Duties 
 on Imports 
 
 The power of Congress to lay duties upon im- 
 ports, for the purpose of protecting domestic trades 
 • 153 U. S., 529, 530. 
 
Supreme Court's Determinations 233 
 
 and industries, has rather been implied by the 
 Supreme Court than expressly decided. The 
 power indeed has been treated by the Court as so 
 well established that it did not require affirmation. 
 Several of the decisions of the Court, however, 
 have necessarily involved the doctrine that 
 Congress possesses the power; as, for example, the 
 decisions of the court in Cross vs. Harrison, 16 
 How. U. S., 164; Downes vs. Bidwell, 182 U. S., 244; 
 Dooley vs. United States, 183 U. S., 151 ; De Lima 
 vs. Bidwell, 182 U. S., i. How clearly the Court 
 understands that Congress possesses the power 
 to levy protective duties, appears in the following 
 extract from its opinion in the case of Buttfield 
 vs. Stranahan.' 
 
 The power to regulate commerce with foreign 
 nations is expressly conferred upon Congress, and 
 being an enumerated power is complete in itself, 
 acknowledging no limitations other than those pre- 
 scribed in the Constitution. . . . Whatever differ- 
 ence of opinion, if any, may have existed, or does 
 exist concerning the limitations of the power resulting 
 from other provisions of the Constitution, so far as 
 interstate commerce is concerned, it is not to be 
 doubted that from the beginning Congress has exer- 
 cised a plenary power in respect to the exclusion of 
 merchandise brought from foreign countries; not 
 alone directly by the enactment of embargo statutes, 
 but indirectly as a necessary result of provisions con- 
 tained in tariff legislation. 
 
 ' 192 U. S., 492, 493. 
 
2,34 Commercial Power of Congress 
 
 6. The Power of Congress to Restrict and Pro- 
 hibit Interstate and Foreign Commerce 
 
 Although the power of Congress to restrict and 
 prohibit interstate and foreign commerce has 
 been denied, from time to time, during a century 
 by commercial interests which have been injured 
 by the exercise of the power, yet, for nearly an 
 equal length of time, the Supreme Court has 
 affirmed its existence, and recent decisions have 
 established it firmly in the law of commerce. 
 
 In Gibbons vs. Ogden' the obiter dicta of Chief 
 Justice Marshall affirmed the authority of Con- 
 gress to lay embargoes as follows: 
 
 The universally acknowledged power of the govern- 
 ment to impose embargoes must also be considered 
 as showing that all America is united in that con- 
 struction which comprehends navigation in the 
 word commerce. Gentlemen have said in argument, 
 that this is a branch of the war-making power, and 
 that an embargo is an instrument of war, not a regu- 
 lation of trade. . . . But all embargoes are not of 
 this description. They are sometimes resorted to 
 without a view to war, and with a single view to 
 commerce. In such case, an embargo is no more a 
 war measure than a merchantman is a ship of war, 
 because both are vessels which navigate the ocean 
 with sails and seamen. 
 
 When Congress imposed that embargo which, for 
 a time, engaged the attention of every man in the 
 
 1 9 Wheat., igi, et seq. 
 
Supreme Court's Determinations 235 
 
 United States, the avowed object of the law was, 
 the protection of commerce and the avoiding of war. 
 By its friends and its enemies it was treated as a 
 commercial, not as a war measure. 
 
 Congress may [said the court in the "Legal Tender 
 Cases"'] relieve parties from their apparent obli- 
 gations indirectly in a multitude of ways. It may 
 declare war, or even in peace, pass non-intercourse 
 acts, or direct an embargo. All such measures 
 may, and must operate seriously upon existing con- 
 tracts, and may not merely hinder, but relieve the 
 parties to such contracts entirely from perform- 
 ance. It is, then, clear that the powers of Congress 
 may be exerted, though the effect of such exertion 
 may be in one case to annul, and in other cases to 
 impair the obligations of contracts. . . . An embargo 
 suspends many contracts and renders performance 
 of others impossible, yet the power to enforce it 
 has been declared constitutional. [The court citing 
 Gibbons vs. Ogden, 9 Wheat, i.j The power to 
 enact a law directing an embargo is one of the 
 auxiliary powers, existing only because appropriate 
 in time of peace to regulate commerce or appropriate 
 to carrying on war. Though not conferred as a 
 substantive power, it has not been thought to be in 
 conflict with the Constitution because it impairs 
 indirectly the obligation of contracts. That dis- 
 covery calls for a new reading of the Constitution. 
 
 In the Lottery Cases "^ the Court expressly 
 
 - 12 Wall, U. S., 550- 
 = i88U. S., 355, et seq. 
 
236 Commercial Power of Congress 
 
 decided that Congress had the power to prohibit 
 certain forms of interstate commerce, among 
 them the carriage of lottery tickets from State 
 to State. The Court held that, under its plenary- 
 power to regulate interstate commerce Congress, 
 in the interest of public morals, and for the pro- 
 tection of the people of all the States, might devise 
 such means as would drive the traffic of lottery 
 tickets out of commerce among the States. 
 
 In this connection [the Court said] it must not be 
 forgotten that the power of Congress to regulate 
 commerce among the States is plenary, is complete 
 in itself, and is subject to no limitations except such 
 as may be found in the Constitution. What provi- 
 sion in that instrument can be regarded as limiting 
 the exercise of the power granted? What clause can 
 be cited which, in any degree, countenances the sug- 
 gestion that one may, of right, carry or cause to be 
 carried from one State to another that which will 
 harm the public morals? We cannot think of any 
 clause of that instrument that could possibly be 
 invoked by those who assert their right to send lottery 
 tickets from State to State except the one providing 
 that no person shall be deprived of his liberty without 
 due process of law. But surely it will not be said to 
 be a part of any one's liberty, as recognized by the 
 supreme law of the land, that he shall be allowed to 
 introduce into commerce among the States an element 
 that will confessedly be injurious to the public morals- 
 
 If it be said that the Act of 1895 is inconsistent 
 with the Tenth Amendment, reserving to the States 
 
Supreme Court's Determinations 237 
 
 respectively or to the people the powers not dele- 
 gated to the United States, the answer is that the 
 power to regulate commerce among the States has 
 been expressly delegated to Congress. 
 
 In United States vs. Delaware & Hudson Co.,' 
 the Court decided that the power of Congress to 
 regulate commerce included authority to prohibit 
 a railroad company engaged in interstate com- 
 merce from transporting in such commerce articles 
 or commodities, when (o) the article or com- 
 modity had been manufactured, mined or pro- 
 duced by a carrier or under its authority; and at 
 the time of transportation the carrier had not 
 in good faith, before the act of transportation, 
 disassociated itself from such article or commodity ; 
 (b) when the carrier owned the article or com- 
 modity in whole or in part ; (c) when the carrier, 
 at the time of transportation had an interest, 
 direct or indirect in a legal or equitable sense, in 
 the article or commodity, not including articles 
 or commodities manufactured, mined, produced, 
 or owned, etc., by a bona fide corporation in which 
 the railroad company was a stockholder. 
 
 In reaching its conclusions the Court said 
 (pages 405, 406) : 
 
 Let it be conceded at once that the power to regu- 
 late commerce possessed by Congress is in the nature 
 
 'United States vs. Delaware & Hudson Co., 213 U.S., 415, 
 et seq. 
 
238 Commercial Power of Congress 
 
 of things ever enduring, and therefore the right to 
 exert it at all times in its narrow and all times in 
 its plenitude must remain, free from restrictions and 
 limitations arising or asserted to arise from or by 
 State laws, whether enacted before or after Congress 
 has chosen to exert and apply its lawful power to 
 regulate. 
 
 The foregoing quotations from the decisions of 
 the Supreme Court thus indicate that under each 
 of the six heads which I have considered, and 
 under which are included practically all of the 
 topics concerning which the powers of Congress 
 have been disputed in recent years, the Court 
 has affirmed as law the views which the historical 
 inquiry shows were entertained by the men who 
 drafted the Constitution and conducted the new 
 government in its early years. Marshall was 
 himself a man of the constitutional period, efficient 
 in procuring the ratification of that instrument by 
 Virginia, a member of one of the early Congresses, 
 and experienced in the administration of various 
 departments of the government. He arrived at 
 his great decisions with the aid of his knowledge 
 of contemporary opinion and of the needs of the 
 government. He thus opened up that mode of 
 constitutional interpretation which embodied the 
 opinions of contemporaries of the formation of 
 the Constitution into our fvmdamental law. 
 The road thus opened was followed by his suc- 
 cessors. Perhaps it would be more correct to say 
 
Supreme Court's Determinations 239 
 
 that Marshall extended the road which Hamilton 
 opened. For the author of those fundamental 
 principles of American constitutional law is 
 neither Marshall nor Webster, but Alexander 
 Hamilton. Marshall's orderly and comprehen- 
 sive intellect adopted the principles which the 
 creative genius of Hamilton had first formulated. 
 With these principles, Marshall, as I have said, 
 extended the road of constitutional interpretation, 
 which his successors in the Supreme Court have 
 followed; and through him the views of the con- 
 temporaries of the Constitution, as profoundly 
 formulated by Hamilton, have become a part, for 
 good or for ill, of the constitutional law of the 
 United States. 
 
APPENDIX NO. I 
 
 THE POWER OF CONGRESS TO CONSTRUCT OR 
 
 AUTHORIZE THE CONSTRUCTION OF 
 
 INTERNAL IMPROVEMENTS 
 
 THE suggestion in the body of this essay, that the 
 leaders in the constitutional movement of 1787 
 intended to vest Congress with power to construct, 
 and authorize the construction of highways of inter- 
 state commerce, accords with the principle settled 
 by several decisions of the Supreme Court since the 
 Civil War, that Congress possesses such power under 
 the Constitution, as an incident of its control over 
 commerce between the States. Several publications 
 have, however, recently denied the existence of such 
 a power; and have particularly denied that the his- 
 tory of the country in the years immediately preceding 
 the adoption of the Constitution justifies the con- 
 clusion that the framers of that instrument intended 
 to bestow such power on that body. It is, therefore, 
 proper to state somewhat at length the reasons upon 
 which my opinion is based. To them is added a 
 summary of the opinions of later generations to 
 the year i860, as the same are to be gathered from 
 the messages of the Presidents. The opinions of the 
 Presidents have been selected as the most available 
 and the most authoritative examples of the views of 
 
 241 
 
242 Commercial Power of Congress 
 
 large numbers of the people at the dates of the several 
 messages. For they have generally been heads of 
 their parties, representing, upon all hotly debated 
 questions, the average opinion of great masses of 
 men. In their messages may be traced, perhaps 
 more clearly than in any equal number of other docu- 
 ments, the history of opinion in the United States 
 upon constitutional questions; and this, of the power 
 of Congress over internal improvements, is one 
 which has sometimes greatly divided the people. 
 The messages of the Presidents respecting it have 
 provided party platforms and have greatly influenced 
 the development of popular opinion respecting the 
 Constitution. If, therefore, we can accurately ascer- 
 tain the views of successive Presidents we shall be 
 able to trace quite correctly the development of 
 opinion upon this question. I have closed my 
 examination with the messages of President Bu- 
 chanan, because after him came the Civil War, and 
 the great change which it produced in public thinking 
 concerning the relation of the States to the Union. 
 The views of no President after Buchanan can essen- 
 tially add to or detract from the reasonableness of 
 any earlier interpretation of the powers of the 
 national government under the Constitution. For 
 another reason, also, it was unnecessary to pursue the 
 inquiry beyond Buchanan's administration. After 
 him, and after the Rebellion, came the successive 
 decisions of the United States Supreme Court, which 
 have taken the question out of the region of debate, 
 and definitely settled it in favor of the larger power 
 of Congress. 
 
Construction of Highways 243 
 
 Since the adoption of the Constitution, the power 
 has been referred to different clauses of that instru- 
 ment. Thus by Calhoun, in 1817, it seems to have 
 been based rather on the authority to lay and collect 
 taxes, duties, imposts and excises, to pay the debts, 
 and provide for the public defence and general welfare 
 of the United States, than on that of regulating com- 
 merce"; while Mr. Bayard, in 1807, and Mr. Webster, 
 in 1830, referred it to the latter power. ^ But waiving 
 consideration of the particular clause of the Constitu- 
 tion by which the power may be supported, and con- 
 sidering the broader historical question: Did the 
 founders of the Republic intend to vest such a power 
 in the general government under any provision of 
 the Constitution? — the facts upon the whole, strongly 
 support the conclusion that they did so intend, 
 probably, however, under certain restrictions which 
 will be hereafter noticed. 
 
 From the formation of the Confederation, in 1781, 
 to the end of the second administration of President 
 Monroe, in 1825, the ideas expressed by public men 
 upon this power of Congress develop with a certain 
 consistency, which divides this term of years into two 
 periods, the first ending approximately with the 
 year 1800, the second terminating with Monroe's 
 second administration. After Monroe, however, the 
 opinions of one President are so diverse from those 
 of another, that I have been able to reduce them to 
 
 ' Works of John C. Calhoun (Crall6), vol. ii., p. 192 et seq. 
 
 " As to Bayard, Elliot's Debates, vol. iv., p. 265 {Opinions, 
 Ed. 1830); as to 'WebsteT,\Works of Daniel Webster, vol. iii., p. 
 296 (edition 1890). 
 
244 Commercial Power of Congress 
 
 no consistent general principles, and shall therefore 
 consider them simply one by one. 
 
 The First Period: 17 81-1800 
 
 I have found no document or statement of this 
 period which expressly affirms, or expressly denies, 
 an intention to vest the central government with 
 power to improve the highways of interstate com- 
 merce by land or by water. But the events of this 
 epoch, as a whole, support the conclusion that the 
 men who were active in bringing about the change 
 of government intended to bestow such a power 
 upon Congress. 
 
 The rapid development of the West, and the 
 problems thereby presented to the Confederacy, were 
 intently occupying men's thoughts in the years 
 immediately preceding the Philadelphia Conven- 
 tion. The development of means of communication 
 with the Western settlements was considered of the 
 greatest importance, as well for political as for com- 
 mercial reasons; the permanent retention of the 
 West in the Union was, in fact, thought to depend 
 upon the development of such communications. 
 Contemporaneously with this Western growth other 
 events were producing a general demand for the 
 vesting in Congress of larger powers over commerce, 
 interstate as well as foreign, and the development of 
 the West was considered to be so related to the 
 movement to enlarge the commercial powers, that 
 the rapid growth of that region was urged by Madi- 
 son and Monroe as a reason for haste in vesting 
 Congress with the larger authority. 
 
Construction of Highways 245 
 
 But the Western settlements were so far from the 
 Eastern communities, that different parts of the 
 proposed highways lay in different States, and por- 
 tions of them in territory over which the Confedera- 
 tion alone had jurisdiction. Therefore no State was 
 singly adequate to making the highways, nor was any 
 combination of States adequate; without the con- 
 sent and co-operation of the Confederation they could 
 not be made. 
 
 When, therefore, Washington, Monroe, Madison, 
 and others advocated the construction of highways 
 of interstate commerce as helpful to attach the 
 Western territory to the Union, and urged timely 
 action on the commercial proposals because the 
 relation of that region to the Confederacy made such 
 action necessary, they must have reflected that the 
 complete power over commerce which they wished 
 to vest in Congress would be connected with the 
 making of the highways of that commerce. Even 
 at that time, the making of the highways must have 
 been performed partly by the Confederacy or under 
 its authority. For the jurisdiction of no State 
 included the whole of any highway; and the leaders 
 of that date were firmly set upon a great enlargement 
 of the commercial powers of Congress, and upon a fun- 
 damental change in the relation of the powers of the 
 States to those of the Confederacy. The conclusion 
 seems to be forced by the survey of the history of the 
 country between 1781 and 1787, that the men of that 
 time intended to vest this power in the central 
 government, without which their aims could not be 
 effected, nor their fears allayed. As respects Wash- 
 
246 Commercial Power of Congress 
 
 ington, this inference accords better than the opposite 
 with the whole tenor of his public life and way of 
 thinking on public questions. It is impossible, I 
 think, to read the documents from which extracts 
 have been given in Chapter IV., and come to the op- 
 posite conclusion concerning his views. With respect 
 to other leaders of that day, this inference better 
 accords than does its opposite with the circumstances 
 of those times, and with their contemporary utter- 
 ances, several of which were quoted in that chapter. 
 And among those who probably favored vesting 
 Congress with this power, I include the Monroe of 
 1785, notwithstanding his partial denial of such 
 opinions more than thirty years later. For unless 
 Monroe was mentally more obtuse than anything in 
 his career indicates that he was, then, when, in 
 1784 and 1785, he, on the one hand, favored 
 the development of trade routes with the West, 
 and on the other hand urged the bestowal upon 
 Congress of the sole and exclusive power of regu- 
 lating commerce, as well interstate as foreign, he 
 could not have failed to reflect, that the exercise of 
 the power by Congress would be related to the devel- 
 opment of the routes. Surely, when he recited the 
 volume of the Western trade in his Report, and lurged 
 the approaching accession to the Union of Western 
 States as a reason for quickly bestowing upon Con- 
 gress the complete power over commerce which he 
 then advocated, he was aware that the exercise of the 
 commercial power and the development of the routes 
 would be necessarily connected; nor can I believe 
 he was then averse to vesting Congress, which was 
 
Construction of Highways 247 
 
 alone adequate to the construction of the routes, 
 with authority to construct them, without which the 
 power to regulate commerce must have been largely 
 ineffective. We cannot appeal to the Monroe of 
 1822 from the Monroe of 1785. For his opinions 
 in 1785 were the result of contemporary observations, 
 not affected by party considerations. But his views 
 of 1822 were those of a party leader, necessarily 
 committed to a party doctrine, to which advocacy of 
 power in Congress to construct highways of interstate 
 commerce was opposed. Not only the inevitable dull- 
 ing of the convictions of 1785 through the lapse of 
 years, but the stress of party politics takes from the 
 opinions of Monroe, the President, much of their 
 weight when opposed to the words of Monroe, the 
 member of the Continental Congress. It is not, 
 however, certain, that there was any direct opposition 
 between Monroe's opinions at the several dates in 
 question. As President, he admitted the constitu- 
 tional power of Congress to aid the construction of 
 public improvements, and approved numerous bills 
 to that end; what he was chiefly opposed to, was 
 the assertion by the general government of ownership 
 in and jurisdiction over the land. 
 
 But enough as to Monroe. The circumstances 
 which immediately led to the calling of the Annapolis 
 Convention support the conclusion that the dele- 
 gates to that assembly favored the bestowal of this 
 power upon Congress. 
 
 Among those circumstances, as we have seen, was 
 the joint effort of Maryland and Virginia to improve 
 lines of communication with the West. But those 
 
248 Commercial Power of Congress 
 
 lines entered or affected other States also, and there- 
 fore Maryland and Virginia sought the co-operation 
 of Delaware and Pennsylvania, and thus furnished 
 an example of several States co-operating in the con- 
 struction of roads, which neither alone was adequate 
 to make. And as I have above pointed out, their 
 aims could not be attained without the consent and 
 co-operation of the Confederacy as a whole. It is not 
 probable that such an example of the inadequacy of 
 a single State, and of the increased capacity of a 
 number of States, and of the Confederacy, to carry 
 through improvements affecting interstate com- 
 merce should have been entirely ignored; it is not 
 probable that the commissioners to Annapolis forgot 
 that one of the objects out of which their convention 
 grew was the providing of highways of interstate 
 trade; and I cannot doubt that had they completed 
 the business of their appointment, the larger powers 
 of Congress recommended by them would have been 
 framed to include authority to construct highways of 
 interstate trade, at least with the consent of the 
 States within which the improvements lay. 
 
 In the proceedings of the Constitutional Convention 
 there is nothing which clearly shows the opinions of 
 its members upon the power of Congress to construct 
 highways of interstate commerce. For as is pointed 
 out above, ' the adverse vote of the Convention, on 
 September 14, 1787, upon the proposition to empower 
 Congress to cut canals is to be explained on other 
 grounds than on the opposition of the Convention 
 to vest Congress with this power. In the early years 
 
 ' See Chapter viii. 
 
Construction of Highways 249 
 
 of the new government, however, there is a little 
 which bears upon and supports the conclusion here 
 contended for. Thus, in 1790, John Jay, a dis- 
 tinguished lawyer, one of the authors of The Federalist, 
 and at the time Chief Justice of the United States, 
 writes to Washington, with respect to the power of 
 Congress, under the post-roads clause of the Consti- 
 tution, that the "power would be nugatory unless it 
 (implied) a power either to repair these roads them- 
 selves, or to compel others to do it. The former 
 seems to be the more natural construction."' In 
 1796, Madison offered a resolution, and supported a 
 bill drawn pursuant thereto, authorizing the President 
 to cause surveys to be made of a post-road from Maine 
 to Georgia'' ; and remarks in the debate, as well as the 
 text of the bill, show that the surveys were pre- 
 liminary to work of actual construction, to be under- 
 taken by the central government. Mr. Baldwin, 
 for example, stated, that it was properly the business 
 of the general government to undertake improve- 
 ments of the roads; for the different States were 
 incompetent to the business, their different designs 
 clashing with each other. It was enough, he thought, 
 for the States to make good roads to the different 
 seaports; the roads crossing them should be left to 
 the government of the whole.' 
 
 At this time, also, Jefferson seems to have had no 
 definite constitutional scruples against the exercise 
 
 ■ Correspondence and Public Papers of John Jay, edited by 
 Henry P. Johnston (1891), vol. iii., p. 407. 
 
 ' Annals of 4th Congress, ist Session, 297, 314, 1406, 14 15. 
 3 Elliot, Debates, vol. iv. ; Opinions, 244 (edition 1830). 
 
250 Commercial Power of Congress 
 
 of the power by Congress. His objections to Madi- 
 son's proposal are, that it is "the entering wedge of 
 enormous expenditures, boundless patronage by the 
 executive, a bottomless abyss of public money." 
 He only suggests the question, without insisting on 
 the answer, whether the power to establish post- 
 roads means the power to make the roads, or only 
 to select among those already made.' His subse- 
 quent approval of bills relating to the Cumberland 
 Road indicates that neither this query nor any other 
 consideration induced him to deny the power of 
 Congress to authorize the construction of highways 
 of interstate commerce, until after the close of his 
 Presidency. 
 
 In the first period, I find no suggestion that the 
 power to construct the highways should be exercised 
 only with the consent of the States within which they 
 lay. But the inference from this silence, that the 
 power of Congress to construct such improvements 
 without the consent, and even against the wishes of 
 the respective States, was then favored, would be 
 unreasonable. It is more probable that the strong 
 contemporary desire for such improvements made 
 the question whether the assent of the States afEected 
 shotdd be first obtained merely an abstract one — it 
 never occurring to anybody, that a State would 
 object to the prosecution by the central government 
 of so desirable a work; and the serious practical con- 
 sequences of the construction of public improvements 
 within a State, but without its consent, not yet 
 presenting themselves to men's minds. 
 
 ' Writings of Thomas Jefferson (Ford), vol. vii., p. 63. 
 
Construction of Highways 251 
 
 The Second Period : 1800 to 1825 
 
 In this period the question of the power of Con- 
 gress to construct highways of interstate commerce, 
 without the consent of the States within which they 
 lie, is distinctly raised, and usually, though not always, 
 answered in the negative. 
 
 But in the first part of this second period insistence 
 upon the principle that works of internal improve- 
 ment must receive the assent of the States affected 
 by them, does not seem to have changed the former 
 opinion, that the power to undertake, or to authorize, 
 them was vested in Congress; it only coupled with 
 the exercise of the power the condition that a given 
 work should be undertaken only with the consent of 
 the State affected. Perhaps the first assertion of this 
 principle is found in the Acts of 1802 and 1803, 
 relating to roads from the Atlantic seaboard to the 
 Ohio River, and both approved by Jefferson. Under 
 the first of the acts the State of Ohio was admitted 
 into the Union, and provision was made for applying 
 part of the proceeds of the sale of the public lands 
 to the laying out and making of roads "leading from 
 the navigable waters emptying into the Atlantic, to 
 the Ohio, to the said States, and through the same"; 
 such roads to be laid out under the authority of Con- 
 gress, and with the consent of the several States 
 through which they passed.- The second Act, 
 passed March 3, 1803, in modification of the pre- 
 ceding act, provided that the Secretary of the 
 Treasury should pay from time to time three per cent. 
 
 ■ Annals 7th Congress, ist Session, 1351. 
 
252 Commercial Power of Congress 
 
 of the net proceeds of lands sold by the United States, 
 pursuant to the Act of 1802, to such persons as 
 might be authorized by the I>;gi>lature of the State, 
 to be applied to the laying out, opening and making 
 of roads within the State. ■ 
 
 That the majority of the House of Representatives 
 at thLs date approved of the constitutional power of 
 Congress to construct highways of interstate com- 
 merce, is further indicated by the passage in Decem- 
 ?..er, 1805, of Mr. Jackson's resolution providing for 
 the appointment of a committee to prex^are a bill 
 making provision for the application of certain 
 money theretofore appropriated to the laying out 
 and making of certain public toads* 
 
 This power of Congress is ako implied by the terrm 
 of the law authorizing the construction of the cele- 
 brated Cumberland Road, apj^roved by Jefferson in 
 1806.3 
 
 By this act the President v.as authorized and 
 directed to aryT^nnt commissioners to lay out a road 
 from CumberLand, or a point on the northern bank of 
 the Potomac, in the State of Maryland, to the State 
 of Ohio. The act specified the width of the road, the 
 manner of marking its margins, etc., and authorized 
 the President, after obtainir;g the consent of the State 
 or States through -.vhicti the road was located, to take 
 prorriTjt and efiecti-.e mea,':iire^ f''/r its construction. 
 
 Jefferson's sigriatixre to t?ie bill implies his appro /al 
 of the doctrine that O-^ngress had power t/j construct 
 
 'Annate y.h Cor.^i-fr.; 2': SeE;:or., 1588. 
 
 =■ Ar^rjAb 9th Cor^r%3, ist Ses-.iofl, 276. 
 
 » Annals 'yth Congress, ist Seeskm, 1236 «< i*?. 
 
Construction of Highways 253 
 
 internal improvements, at least after the consent of 
 the States within which they lay had been obtained, 
 and his wTitings prior to 1808 indicated no change of 
 opinion. In 1806 he signs the Cumberland Road 
 Bill, and writes Gallatin concerning the road in 
 terms which show he favored the project, and then 
 felt no constitutional objection to it. ■ 
 
 In his annual message of this year, as in that 
 of 1808, he enlarges upon the advantages to the 
 country of appU-ing the revenue from imposts to 
 public education, roads, rivers, canals, and such 
 other objects, as it may be thought proper to add to 
 the constitutional enumeration of federal powers. 
 It is not clearly stated in either message that he 
 thought a constitutional amendment necessary to 
 give to Congress the power to construct internal 
 improvements, and the context of both indicates that 
 his suggestion of possible need of an amendment 
 refers rather to the educational and other proposals 
 than to internal improvements. But if he is referring 
 to the last, and if Gallatin's report of 1808 cor- 
 rectly represents Jefferson's \'iews, he considered an 
 amendment necessar}- only to enable Congress to 
 undertake such works \^-ithout the consent of the 
 States, not necessary to undertake them after receiv- 
 ing the consent of the States. For Gallatin says in his 
 report, that, under the Constitution, the United 
 States could not open any road or canal without the 
 consent of the State tlirough which such road or 
 
 ' Writings of Jefferson (Ford), \ol. viii., p. 4.66; .\dains, Wrii- 
 ing of GaUaliri. vol. ii., 305. ^;tig: Jfferson (FordV vol. viii., p. 
 494; ix.. p. -VM- 
 
254 Commercial Power of Congress 
 
 canal must pass. "In order, therefore, to remove 
 every impediment to a national plan of internal 
 improvements an amendment to the Constitution 
 was suggested by the Executive, when the subject 
 was recommended to Congress. Until that be 
 obtained, the assent of the States being necessary for 
 such improvements, the modifications under which 
 this assent may be given, will necessarily control the 
 manner of applying the money. ' 
 
 Gallatin's report presented a most comprehensive 
 scheme of internal improvements under the four 
 heads, of (i) a great canal from north to south along 
 the Atlantic coast; (2) communications between the 
 Atlantic and western waters; (3) communication 
 between the Atlantic waters and the great Lakes 
 and River St. Lawrence; (4) interior canals. He 
 estimated the total cost at $20,000,000, and expressed 
 no doubt of general constitutional power to con- 
 struct, asserting only the necessity of first obtaining 
 the consent of the States within which the several 
 works would be performed. 
 
 The bills, reports, and other documents bearing 
 upon the power of Congress to construct internal 
 improvements in the period from Madison's resolves 
 of 1796 to Gallatin's report of 1808, therefore con- 
 firm the view heretofore expressed, that the men of 
 the constitutional era intended to vest Congress with 
 such power, probably, however, with the proviso 
 that the States in which the works lay should consent 
 
 ' An excellent summary of Gallatin's plans is contained in 
 Henry Adams's Life of Albert Gallatin, p. 351. 
 
Construction of Highways 255 
 
 to the undertakings; and this conclusion is further 
 supported by numerous appropriations for such 
 works between the passage of the Cumberland Road 
 Bill and Madison's veto of the Bonus Bill in 1817; 
 Mr. Hulbert, in his book, The Cumberland Road, 
 noting seven bills appropriating money to that enter- 
 prise alone during these years, all of which were 
 approved by President Madison. ' 
 
 But by 181 7, Madison seems to have changed his 
 mind, and for a time to have held the opinion that 
 Congress lacked the power to construct internal im- 
 provements, even after obtaining the consent of the 
 States affected thereby. 
 
 "The Bonus Bill," which he vetoed near the end 
 of his Presidency, set apart and pledged certain 
 funds "for constructing roads and canals, and im- 
 proving the navigation of water courses, in order 
 to facilitate, promote and give security to internal 
 commerce among the several States, and to render 
 more easy and less expensive the means and pro- 
 visions for the common defense." Madison vetoed 
 it upon the ground that the power to construct such 
 works was not granted by the Constitution. He does 
 not make it clear whether he construed ' ' construction ' ' 
 as implying the assertion of jurisdiction over the soil 
 occupied by the works, but the message as a whole, 
 as also Monroe's explanation in 1822, of the powers 
 exercised by the Cumberland Road Bill and other 
 early measures, renders it at least not improbable 
 that he did so construe it. Neither does the message 
 
 ■ The Cumberland Road, by Archer Butler Hulbert (1904). 
 Appendix, pp. 192, 193. 
 
256 Commercial Power of Congress 
 
 explicitly affirm or deny the principle afterward 
 advocated by Monroe, that, under its power to 
 appropriate money Congress could aid the States in 
 such works; but it at least hints at such a doctrine, in 
 its statement that, "restriction of the power to provide 
 for the common defense and general welfare to cases 
 which are to be provided for by the expenditure of 
 money would still leave within the legislative power 
 of Congress all the great and most important meas- 
 ures of Government, money being the ordinary and 
 necessary means of carrying them into execution. " ■ 
 
 By the date of Madison's veto, Jefferson had 
 departed sufficiently from the views he held at the 
 time of signing the Cumberland Road Bill, to approve 
 its doctrine^; and he developed his new opinions to 
 the extreme views embodied in his "Solemn Declara- 
 tion and Protest of the Commonwealth of Virginia," 
 in 1825, on the principles of the Constitution of 
 the United States and on the violations of them by 
 various contemporary proposals for internal improve- 
 ments,^ which he sent to Madison with the character- 
 istic statement, that if Madison approved it and it 
 were published, Jefferson would see that the pub- 
 lication would be effected in such manner that it 
 could not be traced to either of them. 
 
 Madison's views expressed in the Bonus Bill veto 
 were, however, not accepted by all of his own party 
 
 ' Writings of Madison, viii., 386; Richardson: Messages and 
 Papers of the Presidents, i., 584. 
 
 ^ Writings of Jefferson (Ford), x., 91. 
 = Ibid., X., 349. 
 
Construction of Highways 257 
 
 at the time they were uttered. Thus Calhoun, when 
 advocating the bill which Madison vetoed, asserted 
 the authority of the general government to construct 
 internal improvements under the power "to lay and 
 collect taxes, duties, imposts and excises, to pay the 
 debts and provide for the common defense and 
 general welfare." He left it an open question whether, 
 under this power, the general government could con- 
 struct works in a State without its consent, considering 
 this merely an abstract question of no practical im- 
 portance, since no State would withhold its consent.- 
 And the "Report of the Committee of the House of 
 Representatives on so muchof the President's Message 
 as relates to Roads, Canals and Seminaries of Learn- 
 ing," of December 15, 18 17, affirmed the power of 
 Congress, under the Constitution, (i) to lay out, con- 
 struct, and improve post-roads through the several 
 States, with the assent of the respective States; and 
 (2) to open, construct, and improve military roads 
 through the several States, with the assent of the 
 respective States. It declined to "enter upon the 
 delicate inquiry whether the right can be exercised by 
 the general government without the assent of the 
 respective States through whose territories a road is 
 constructed in time of peace, with a view to military 
 operations in any future wars."^ 
 
 If Madison had hinted at the power of appropriat- 
 ing money, as sufficient to aid internal improvements, 
 this position was explicitly taken by Monroe upon 
 principle, and applied in practice in connection with 
 
 " Works of John C. Calhoun (Crall^), vol. ii., 192. 
 
 2 State Papers, ist Session 15th Congress, vol. vi., p. 11. 
 
258 Commercial Power of Congress 
 
 his veto of the Cumberland Road Bill of 1822, which 
 he accompanied by a long and elaborate statement of 
 his "views upon the subject of internal improve- 
 ments."' 
 
 This message can be understood only by observing 
 that Monroe construed the bill to virtually assert 
 the jurisdiction of the central government over the 
 land occupied by the road within the several States 
 through which it extended. He had previously 
 approved four bills appropriating money to various 
 extensions, repairs, etc., of the same road." The 
 particular bill which he vetoed provided for the 
 establishment of turnpikes, with toll gates and tolls, 
 and the levying of tolls he held to be equivalent to 
 the assertion of ownership in and jurisdiction over 
 the soil. When, therefore, he refers throughout the 
 message to the power of constructing roads, etc., it 
 seems clear he intends a power which includes the 
 assertion of ownership in and jurisdiction over the 
 soil, not the bare power to authorize the employment 
 of men to do work on the road, or to appropriate 
 money to have such work done. With this under- 
 standing of the meaning of "power to construct," 
 Monroe denied that it had been granted to Congress 
 by any clause of the Constitution. But while denying 
 the power to construct improvements, or to exercise 
 sovereignty over the lands they occupied, he insisted 
 that Congress had a very wide power to appropriate 
 
 ' Writings of Monroe (Hamilton), vol. vi., 216 to 284. See 
 also the veto message in Richardson: Messages, etc., of the 
 Presidents, vol. ii., 142. 
 
 2 Hulbert, The Cumberland Road, Appendix, pp. 193, 194. 
 
Construction of Highways 259 
 
 money for their construction, repair, etc.; and his 
 remarks upon prior laws relating to the Cumberland 
 Road and other internal improvements imply his 
 beHef that Congress could authorize and carry on the 
 mere work of construction, if the consent of the 
 States affected were first obtained, and jurisdiction 
 over the land were not asserted. For he says that, 
 under earlier laws, the United States had exercised 
 no act of jurisdiction or sovereignty within any of the 
 States by taking the land from the proprietors by 
 force, by passing acts for the protection of the road 
 (against malicious injuries and the like), or by raising 
 a revenue from it by the establishment of turnpikes 
 or tolls, nor any act founded on the principle of 
 jurisdiction or right. All that they had done had 
 been to appropriate the public money for the con- 
 struction of the road, and to cause it to be constructed. 
 He asserted the principle, that under the Constitution, 
 Congress has a great power of raising and appropriat- 
 ing money, extending not only to appropriations in 
 aid of other powers specifically enumerated in the 
 Constitution, but to appropriations for all national 
 purposes ; and he explicitly stated, that Congress had 
 the right to appropriate money for internal improve- 
 ments, to be expended under the protection of the 
 laws of the several States. But he considered that 
 the power of the United States to acquire the owner- 
 ship of and exercise jurisdiction over the land occu- 
 pied by the improvements, was necessary to their 
 proper construction and maintenance, and he there- 
 fore advocated an amendment to the Constitution to 
 secure such power to the general government. 
 
26o Commercial Power of Congress 
 
 As the principles of the "Views" were interpreted 
 by Monroe, doubtless, in part, under the pressure of 
 public demands for works of internal improvements, 
 the power of Congress continued liberal enough to 
 considerably advance such works. For shortly after 
 his veto of 1822, Monroe approved a bill by which 
 $25,000 was appropriated for repairs to the Cumber- 
 land Road, and the President was authorized to 
 appoint a superintendent'; and one of his last acts 
 as President, was to approve a bill, under which 
 $150,000 was appropriated for constructing portions 
 of the road in the State of Ohio, and surveying exten- 
 sions of it to the Mississippi.^ Monroe gave further 
 proof of the extent to which his views allowed the gen- 
 eral government to foster internal improvements, 
 upon one Constitutional ground or another, by reit- 
 erating, in his annual message, of December 2, 1823, 
 his belief that Congress had power to appropriate 
 money for such national objects as canals, and recom- 
 mending that under such power, authority be given 
 to employ engineers to make surveys for and report 
 upon a great waterway to connect the waters of the 
 Chesapeake and the Ohio by one continuous canal. ^ 
 Pursuant to this recommendation a law was passed 
 by Congress, and approved by President Monroe, on 
 April 30, 1824, authorizing the President to cause the 
 necessary surveys, plans, and estimates to be made 
 of "the routes of such roads and canals as he may 
 
 ' Hulbert, The Cumberland Road, Appendix, p. 194. 
 '' Ibid., 194, 195; (Laws U. S. 1821 to 1827, vol. vii., p. 
 417; vi., 536). 
 
 ' Richardson: Messages, etc., of the Presidents, ii., 216. 
 
Construction of Highways 261 
 
 deem of national importance, in a commercial or 
 military point of view, or necessary for the transpor- 
 tation of the public mail."' That the construction 
 of extensive improvements was understood to be 
 authorized by this act seems to be indicated by the 
 fact noted by the President in his annual message of 
 December 7, 1824, that under the act surveys of the 
 routes of five canals were in progress, the message 
 adding that there was good cause to hope that the 
 object would soon be accomplished.^ 
 
 Monroe's second administration completes the 
 second period in the development of principles con- 
 cerning the power of Congress over internal improve- 
 ments. Down to this date, we can trace a certain 
 regiilarity in the progressive changes of view. We 
 find first, under the Confederation, evidence of a 
 general intention to vest Congress with the power to 
 construct such works. Next, under the Constitution, 
 it is asserted that Congress possesses the power, and 
 it is not expressly limited to cases in which the State 
 consents to the undertaking. But after the demo- 
 cratic uprising which carried Jefferson into the Presi- 
 dency, the danger to the autonomy of the States, if the 
 power were exercised within their limits without their 
 consent, is recognized, and it is now asserted that the 
 Constitution bestows the authority, only when the 
 State which is affected consents to its exercise. Next, 
 as the attitude toward "States Rights " becomes more 
 and more the test of party, the power is further 
 limited to the making of appropriations for the works 
 
 ' Laws U. S. 182 1 to 1827, vol. vii., 239. 
 
 ' Richardson: Messages, etc., of the Presidents, vs.., 255. 
 
262 Commercial Power of Congress 
 
 without assertion of jurisdiction over the soil. But 
 this limitation is so applied practically, that many- 
 works of internal improvement still go on, the demand 
 for them throughout the country forcing this course 
 upon the party leaders, without the formality of 
 amendment of the Constitution, and in this condition 
 the matter is left by Monroe. 
 
 After his second administration, it is not possible to 
 reduce the discordant ideas of successive Presidents 
 to any principle, or simple group of principles, and I 
 shall therefore consider the successive administrations 
 simply in chronological order, without attempting 
 to express any generalizations concerning them. 
 
 Although, however, it is not possible to reduce the 
 opinions of the Presidents after Monroe to a system, 
 a general tendency toward relaxation of "strict con- 
 struction" of the constitutional power of Congress 
 over internal improvements is clearly indicated, and 
 certain later Presidents are hard pressed to reconcile 
 their support of the improvements which the country 
 demands, with their constitutional principles. The 
 consequence is, the enumeration of barren, verbal 
 rather than substantial, principles of constitutional 
 interpretation or construction. 
 
 The pressure of events is too great to be resisted 
 by constitutional theories. Party exigency over- 
 rules historic principles, and for definite broadly 
 based doctrines are substituted artificial excuses for 
 occasional lapses from asserted principles, and thus 
 the development of the favor shown by all political 
 parties to the construction by Congress of works of 
 internal improvement is a conspicuous example of 
 
Construction of Highways 263 
 
 the displacement of political theories by concrete 
 public needs. 
 
 Monroe, as well as John Quincy Adams, after him, 
 approved bills authorizing the Secretary of the 
 Treasury to subscribe, in the name and for the use 
 of the United States, to the stock of various internal 
 improvement companies.' But under Adams inter- 
 nal improvement schemes attained such extravagance, 
 that reaction set in, upon economical as well as upon 
 constitutional grounds, and President Jackson, in 
 1830, vetoed a bill authorizing a subscription to the 
 stock of the Maysville, Washington, Paris and Lex- 
 ington Turnpike Road Company. In his veto mes- 
 sage, he approved the doctrine of Monroe, that 
 Congress could not construct, but could appropriate 
 money for internal improvements, and his veto seems 
 to be principally based upon the consideration that 
 the particular project was not one of national, but 
 only of local importance. ^ 
 
 Jackson frequently repeated opinions similar to 
 those of his Maysville Road veto in subsequent vetoes 
 and annual messages, and, upon the whole, his diffi- 
 culty with bills for such purposes seems to have been 
 rather that they were of local character, than that 
 they violated a fundamental constitutional principle.' 
 
 In his veto of the bill making appropriations for 
 improvements of certain rivers and harbors, June 1 1 , 
 
 ' As to Monroe, see Laws of U.S. relating to the Improvement 
 of Rivers and Harbors (U.S. Engineers), vol. i., 29; as to Adams, 
 ibid., p. 45. 
 
 "Richardson, Messages, etc.,i of the Presidents, ii., 483, 485. 
 
 5 Ibid., ii., 491, 493, 51I1 639; iii-i ^S- 
 
264 Commercial Power of Congress 
 
 1844, President Tyler denied that Congress had 
 power adequate to such works under the commerce 
 clause of the Constitution. But his most important 
 objection seems to have been based upon the merely 
 local importance of some or all of the improvements. 
 For he refers to his approval of bills for improving 
 the Mississippi and certain harbors on the Lakes, in 
 such terms as to indicate he was not ready to commit 
 himself to a principle, which would have taken from 
 Congress the power to authorize all internal improve- 
 ments, national and local. ' His last annual message 
 of December 3, 1844, reiterates opinions similar to 
 those noted. ^ 
 
 President Polk, in his veto message of August 3, 
 1846, asserted principles opposed to those advanced 
 by Monroe; for he based his objections to the river 
 and harbor bill then before him, upon the ground 
 that the Constitution did not confer upon the Federal 
 Government the power to construct works of internal 
 improvement within the several States, nor to ap- 
 propriate moneys from the Treasury for such pur- 
 poses.^ In his veto message of December 15, 1847, 
 he still more directly opposed the principle asserted 
 by Monroe, as to power to appropriate money, saying: 
 
 "It is impossible to conceive on what principle the 
 power of appropriating public money when in the 
 Treasury can be construed to extend to objects for 
 which the Constitution does not authorize Congress 
 
 ' Richardson, iv., 330 et seq. 
 
 ' Ibid., iv., 351. 
 
 3 Ibid.,iv., 461 ei seq. 
 
Construction of Highways 265 
 
 to levy taxes, or imposts, or raise money. The 
 power of appropriation is but the consequence of the 
 power to raise money ; and the true inquiry is whether 
 Congress has the right to levy taxes for the objects 
 over which power is claimed." ' 
 
 Zachary Taylor, we may be sure, differed from 
 Polk in his opinions upon the power of Congress 
 over internal improvements; at least his annual 
 message recommended surveys for the Pacific 
 Railroad.^ 
 
 President Fillmore repeated this recommendation 
 in his first annual message, entertaining no doubts 
 as to the authority of Congress to make appropria- 
 tions for internal improvements. He derived the 
 power chiefly from the commerce clause of the 
 Constitution, 3 and repeated similar views in his 
 annual message of December 2, 1851.* 
 
 In his first annual message. President Pierce did 
 not commit himself to any definite constitutional 
 principle, but recommended to Congress the recon- 
 sideration of the entire question, apparently with a 
 view to preventing all future appropriations for 
 merely local improvements. He, however, favored 
 the grant of lands to such railroad lines as would be 
 of real public importance, and suggested that the 
 principle should be to confine the grant to cases 
 where a prudent landed proprietor would make it.^ 
 
 ' Richardson, iv., 620. 
 
 ' Ibid., v., 20. 
 
 ' Ibid., v., 90. 
 
 ■• Ibid., v., 130 
 
 ' Ibid., v., 217, 219. 
 
266 Commercial Power of Congress 
 
 He repeated similar views in his second annual 
 message,' and, in his veto of August 4, 1854,' indi- 
 cated that he would be willing to approve bills making 
 appropriations for internal improvements of national 
 importance, but not for those of merely local import- 
 ance. In the exposition of his views he asserted that 
 the Constitution gave no power to undertake works 
 of internal improvement generally, but admitted that 
 it gave power to undertake particular works when 
 manifestly required to aid the performance of some 
 other power; such as the power to establish post- 
 roads, to regulate commerce, etc. "If," he wrote, in 
 his message, December 30, 1854,^ "the particular 
 improvement, whether by land or sea, be necessary 
 to the execution of the enumerated powers, then, but 
 not otherwise, it falls within the jurisdiction of 
 Congress. To this extent only can the power be 
 claimed as the incident of any express grant to the 
 Federal Government." Upon the whole, therefore, 
 this message seems to greatly enlarge the powers of 
 Congress beyond the limits within which the vetoes 
 of Pierce's predecessors in office had attempted to 
 confine them. His veto of May 19, 1856, reiterated 
 the same principles^; but in that of May 22, 1856, 
 he seems to have intended to restrict the power of 
 Congress more narrowly than in his message of 
 August 4, 1854, a^nd to deny the constitutional power 
 to make internal improvements, even of national 
 
 ' Richardson, v., 256. 
 ' Ibid., v., 260. 
 ' Ibid., v., 261. 
 *Ibid., v., 387. 
 
Construction of Highways 267 
 
 importance," while the messages of August ii and 14, 
 1856, reiterate the principles of the veto message of 
 August, 1854.== 
 
 In his first annual message. President Buchanan 
 advocated a strict construction of the Constitution, 
 but he considered it clear that, under the war-making 
 power, Congress could appropriate money for a 
 military road through the Territories; and under 
 this principle he advocated a railroad to the Pacific 
 Coast. ^ But the work was to be performed by other 
 agencies, the general government only aiding by 
 land grants, etc. In his second annual message he 
 repeated his recommendation as to the Pacific Rail- 
 road, again deriving the Constitutional authority 
 from the war-making power, and saying that the 
 work of construction ought to be entrusted to 
 companies incorporated by the States, or to other 
 agencies. Congress aiding by grants of lands and 
 money"; and he repeated these ideas in his third 
 annual message.' 
 
 In his veto message of February i, i860,* he denied 
 that authority to deepen the channels of rivers is 
 granted by the power to regulate commerce, and he 
 expressed similar views in his veto of February 6, 
 i860, his constitutional theory apparently being that 
 the power from which authority to construct or 
 
 ' Richardson, v., 387. 
 ' Ibid., v., 388. 
 ilbid., v., 457. 
 ■< Ibid., v., 526. 
 5 Ibid., v., 573. 
 ^ Ibid., v., 603, 607. 
 
268 Commercial Power of Congress 
 
 appropriate money for internal improvements must 
 be derived is the war-making power alone. 
 
 It appears, therefore, that the power of Congress 
 was most restricted under Polk. After him, through 
 Pierce and Buchanan, an enlargement of the power 
 was allowed, and since the Civil War, the authority 
 of Congress to construct or authorize the construction 
 of works of internal improvements, when incident to 
 the power to regulate commerce, or to other powers, 
 has been settled by the Supreme Court upon a basis 
 so broad, as to warrant such works without the con- 
 sent, and even against the will of the States within 
 which the works lie. ' 
 
 I Luxton vs. North River Bridge Co. (1894), 153 U.S., 525; 
 California vs. Central Pacific Railway Co. (1888), 127 U.S., I. 
 
APPENDIX NO. II 
 
 THE CONSTITUTIONAL POWER OF CONGRESS TO LEVY 
 PROTECTIVE DUTIES ON IMPORTS 
 
 IF a long continued practice can legalize any exercise 
 of the power of Congress, then the authority of 
 that body to lay duties on imports, in order to protect 
 domestic trades and industries, is approved by 
 usage. The power has, however, been strenuously 
 denied for more than eighty years, and is still contro- 
 verted by learned writers. The following notes on 
 books and documents, although without pretensions 
 to completeness, may, therefore, be of interest to the 
 student of the subject. 
 
 The views of Alexander Hamilton in The Conti- 
 nentalist (Lodge, vol. i., 231-273), have been already 
 noticed. His paper in The Federalist, (no. xxxiii) 
 "Concerning an Indefinite Power of Taxation," 
 implies the power of Congress to levy duties which 
 afford protection to domestic trades and industries. 
 
 Hamilton's Report on Manufactures, presented to 
 the House of Representatives, on December 5, 1791 
 (Lodge, vol. iii., 294 et seq.), takes the general power 
 of Congress to lay protective duties for granted, but 
 contains an elaborate argument in support of the 
 power to grant bounties. Senator Lodge's historical 
 note, pages 416 and following, is useful. 
 
 269 
 
270 Commercial Power of Congress 
 
 Of the first importance are Madison's letters to 
 Joseph C. Cabell, in volume iii. of Works of Madison, 
 Philadelphia, 1865. In the notes Madison states 
 with great clearness a principle of constitutional 
 interpretation which has been often resorted to by 
 the Courts, as an aid to ascertaining the scope of the 
 powers of Congress under the Constitution. 
 
 "It cannot be denied," writes Madison, "that a 
 right to vindicate the commercial, manufacturing, 
 and agricultural interests against unfriendly and 
 reciprocal policies of other nations, belongs to every 
 nation; that it has belonged at all times to the United 
 States as a nation ; that, previous to the present Federal 
 Constitution, the right existed in the governments of 
 the individual States, not in the Federal Government; 
 that the want of such an authority in the Federal 
 Government was deeply felt and deplored; that a 
 supply of this want was generally and anxiously 
 desired; and that the authority has, by the substi- 
 tuted Constitution of the Federal Government, been 
 expressly or virtually taken from the individual 
 States; so that if not transferred to the existing 
 Federal Government, it is lost and annihilated for 
 the United States as a nation. Is not the presump- 
 tion irresistible, that it must have been the intention 
 of those who framed and ratified the Constitution, to 
 vest the authority in question in the substituted 
 Government. And does not every just rule of 
 reason allow to a presumption so violent a propor- 
 tional weight in deciding on a question of such a 
 power in the Congress, not as a source of power dis- 
 
Protective Tariffs 271 
 
 tinct from and additional to the constitutional source, 
 but as a source of light and evidence of the true 
 meaning of the Constitution." 
 
 A useful reprint of the Cabell letters, which is also 
 interesting from a bibliographical point of view, is 
 the pamphlet entitled "Letters on the Constitution- 
 ality and Policy of Duties for the Protection and En- 
 couragement of Domestic Manufactures. By James 
 Madison, late President of the United States." Rich- 
 mond, Printed by Thomas White, opposite the Bell 
 Tavern (Lenox Branch of the New York Public Lib- 
 rary, 1829). This pamphlet contains an Appendix of 
 useful extracts from Debates, State Papers, etc., from 
 Washington's to Monroe's administrations, inclusive. 
 
 "A Letter to Colonel William Drayton, of South 
 Carolina, in assertion of the Constitutional Power 
 of Congress to impose Protecting Duties," by Mr. 
 Gulian C. Verplanck, published for E. Bliss in New 
 York, 1 83 1 (Lenox), is an able and thorough presen- 
 tation of the constitutional argument in favor of the 
 power of Congress to levy protective duties. 
 
 In the division of Professor F. W. Taussig's "The 
 Tariff History of the United States," entitled "Pro- 
 tection to Young Industries as applied in the United 
 States," there is a valuable discussion of the history of 
 legislation both in its legal and its economic aspect, 
 from the earliest days to 1868. (New York, 1910). 
 
 Professor William Hill's " Protective Purpose of the 
 Tariff Acts of 1789" {Journal of Political Economy, 
 vol. ii., p. 54), and his "Early Stages of the 
 Tariff Policy of the United States" {Publications 
 
272 Commercial Power of Congress 
 
 of the American Economic Association, viii, 107), 
 state concisely, but with great clearness and force, 
 the facts bearing upon the question whether con- 
 temporary opinion, at the formation of the Con- 
 stitution, did or did not attribute to Congress the 
 power to impose protective duties. 
 
 The Financial History of the United States, by Davis 
 E,ich Dewey (New York, London, and Bombay, 1903), 
 contains a concise argument in favor of the power. 
 
 The Financial History of the United States, from 
 1789 to i860, by Albert S. Bolles (New York, 1885), 
 contains a useful account of early tariff and other 
 protective legislation. 
 
 American Tariff Controversies in the Nineteenth 
 Century, by Edward Stanwood (Boston, 1903), 
 presents the results of a thorough study of the ques- 
 tion. The author considers that a great change of 
 opinion with respect to the tariff took place among 
 the leaders of the country, shortly before the meeting 
 of the Constitutional Convention of 1787, in conse- 
 quence of which the large majority of them came to 
 favor protective duties. 
 
 A recent argument in favor of the power is con- 
 tained in Conrad Reno's "Protective Tariff Laws 
 and the Commerce Clause" {American Law Review, 
 vol. xxvii., p. 519). 
 
 The works in opposition to the power are of less 
 importance. But a vigorous argument on this side 
 of the question is contained in "Is Congress a Sov- 
 ereign Legislature?" by St. George T. Brooke {Ameri- 
 can Law Review, vol. xxvii., p. 33). 
 
 "The original draft of the South Carolina Exposi- 
 
Protective Tariffs 273 
 
 tion, prepared for the Special Committee on the 
 TarifE, and, with considerable alterations, adopted 
 by the legislature of South Carolina, December, 1828," 
 is contained in volume vi. of the Works of John C. 
 Calhoun, edited by Richard K. Crall6. In this same 
 volume are also contained Calhoun's Address "On 
 the relation which the State and General Government 
 bear to each other," the "Address to the people of 
 South Carohna," the "Address to the People of the 
 United States," and other papers by Calhoun touch- 
 ing upon the tariff controversy and the nullification 
 proceedings of South Carolina. In these, however, 
 the weight of Calhoun's argument goes rather to 
 justify the power of the States to nullify the operation 
 of an Act of Congress, than to the question of the 
 Constitutional power of Congress to enact a pro- 
 tective tariff measure. 
 
 At least of some historical and bibliographical 
 interest is "The Report, Ordinance and Addresses of 
 the Convention of the people of South Carolina, 
 adopted November 24, 1832, Columbia, S. C, 
 printed by A. S. Johnston, Printer to the Convention, 
 1832" (Lenox). This pamphlet contains the report 
 of the committee to which was referred the matter of 
 providing for calling a convention of the people of the 
 State of South Carolina. It also contains a nullifi- 
 cation ordinance, states the constitutional grounds 
 in opposition to the power of Congress to impose pro- 
 tective duties, and presents an Address to the people 
 of South Carolina by their Delegates in Convention, 
 and also an Address to the people of the United States, 
 by the convention of the people of South Carolina. 
 
274 Commercial Power of Congress 
 
 An interesting little publication, in opposition to 
 the power of Congress, is "A Catechism on the Tariff 
 for the use of Plain People of Common Sense. Politi- 
 cal Tract No. 3, September, 1831. Published by the 
 States' Rights and Free Trade Association, Charles- 
 ton, 1831." (Lenox). This pamphlet does not dis- 
 cuss the law or history of tariff enactments, but 
 summarizes a few points of the controversy in the 
 form of questions and answers. 
 
 Perhaps of some slight bibliographical interest, on 
 the affirmative side of the question is, the "Address 
 to the Friends of Domestic Industry assembled in 
 Convention at New York, October 26, 1831, to the 
 people of the United States. Published by order of the 
 Convention, Baltimore, November 10,1831" (Lenox), 
 in favor of protection. 
 
 And on the same side is John Melish's little 
 pamphlet entitled "Letter to James Monroe, Esq., 
 President of the United States, on the State of the 
 Country, with a Plan for improving the condition of 
 Society." Philadelphia, June i, 1820 (Lenox). 
 Mr. Melish apparently beUeved that society could 
 be regenerated by a protective tariff. 
 
 But a very different opinion is expressed by Mr. 
 John Taylor, of Virginia, in Tyranny Unmasked, 
 Washington City, 1822 (Lenox). It is interesting to 
 learn from this book, that the "captains of industry" 
 have suffered a reduction of rank in eighty years since 
 Mr. Taylor's book was published; for in his time 
 they were, the "generals of the industrial army." 
 
INDEX 
 
 Adams, John Quincy, Presi- 
 dent, favors commercial re- 
 strictions, 210, note; favors 
 internal improvements, 263. 
 
 "Agrippa's" articles in op- 
 position to ratification of the 
 Constitution, 148-150. 
 
 Amendments of the Con- 
 stitution, see Constitution, 
 Amendments of. 
 
 Annapolis Convention of 
 1786, 69-79; only ^^ episode 
 in the development of the 
 Constitution, iv-vii ; re- 
 sulted from a dispute be- 
 tween Maryland and Vir- 
 ginia over the Potomac 
 River and Chesapeake Bay, 
 69; report of the com- 
 missioners to, 73-75; com- 
 missioners probably favored 
 giving power to Congress to 
 construct interstate high- 
 ways, 247, 248; probable 
 views of, 76-79. 
 
 Articles of Confederation, 
 joy over their ratification, 4; 
 New Jersey's representa- 
 tions as to, 5-8; secured lit- 
 tle control over commerce to 
 the Confederacy, 5, 13; 
 Monroe's and Pinckney's 
 committees propose amend- 
 ments to, 38-47. 
 
 B 
 
 Baltimore tradesmen and 
 mechanics favor protective 
 tariff, 144. 
 
 Bank of the United States, 
 see United States Bank. 
 
 Boat, Steam, see Steamboat. 
 
 BoLLEs's, Albert S., The Fi- 
 nancial History of the United 
 States from i78g-i86o," 272. 
 
 "Bonus Bill' 
 Madison, 255 
 
 vetoed by 
 
 BowDOiN, Governor of Massa- 
 chusetts, on injurious ef- 
 fects of State tariffs, 22. 
 
 Brooke's, St. George T., 
 Is Congress a Sovereign 
 Legislature? 272. 
 
 Buchanan, James, President, 
 on the power of Congress to 
 construct internal improve- 
 ments, 267. 
 
 Cabell, Joseph C, Madison's 
 letters to, on the constitu- 
 tionality of protective tariffs, 
 270, 271. 
 
 Calhoun, John C, on inter- 
 nal improvements, 243, 256, 
 
 27s 
 
276 
 
 Index 
 
 Calhoun, John C. (Continued): 
 257; his draft of South 
 Carolina exposition of the 
 tariff, 273. 
 
 Canals, clause providing for 
 construction of, defeated in 
 the Convention, 131; Gal- 
 latin's plans for, 254. 
 
 Carrington, Edward, on the 
 purposes of the members of 
 the Constitutional Conven- 
 tion, 91. 
 
 Catechism on the tariff for 
 South Carolina, 273. 
 
 "Centinel" favors a great 
 power of Congress over com- 
 merce, 142. 
 
 Commerce, condition of, prior 
 to the Convention of 1787, 
 1-3; proposals to regulate, 
 development of, 10, 11, 24- 
 34, 64-68. 
 
 Commerce Clause of the 
 Constitution, broad scope 
 given to it by the Consti- 
 tutional Convention, 93, 94; 
 development of, in the Con- 
 vention, 122-127; compared 
 with earlier proposals, 133- 
 136; in the State conven- 
 tions, 137-152; "Agrippa's" 
 views on, 148-150; "Cen- 
 tinel" on, 142. 
 
 Commerce, Foreign, Con- 
 federation had little con- 
 trol over, 5, 13; close con- 
 nection with interstate, in 
 the eighteenth century, 2-4. 
 
 Commerce, Interstate, 
 closely connected with 
 foreign commerce in the 
 eighteenth century, 2-4; 
 
 Rhode Island's proposals as 
 to, in 1785, 28; proposals of 
 Monroe's and Pinckney's 
 committees in 1785 and 
 1786, 38-47; these com- 
 pared with the commerce 
 clause of the Constitution, 
 134. 1351 development of 
 ideas concerning, 64-68; ex- 
 tent of the power over, con- 
 templated by the Annapolis 
 commissioners, 76-79, 247, 
 248. 
 
 Commerce, Interstate, 
 highways of, see Internal 
 Improvements. 
 
 Commercial Restrictions 
 favored after adoption of 
 the Constitution, 178, 179. 
 
 Commercial Treaties inter- 
 fered with by State legisla- 
 tion, 23. 
 
 Committee of Detail, com- 
 merce clause as reported by, 
 122-126. 
 
 Confederation, Articles of, 
 see Articles of Confedera- 
 tion. 
 
 Confederation, break-up of, 
 in 1786, 80-97; fears pro- 
 duced by the break-up, the 
 source of the provisions of 
 the Constitution, 82-89. 
 
 Confederation, Congress 
 of, see Congress of the 
 Confederation. 
 
 Congress of »he Confed- 
 eration, had small power 
 to regulate commerce, 13; 
 movements to increase com- 
 mercial powers of, 24-34; 
 effect of Western develop- 
 
Index 
 
 277 
 
 Congress of the Confederation 
 {Continued): 
 ment on, 48-62; Hartford 
 Convention favors grant of 
 duties to, 30; necessary 
 powers of, considered, 24- 
 34; various proposals (1785, 
 1786) for increasing powers 
 ofi 35~47> grant of exclusive 
 powers over commerce pro- 
 posed by Rhode Island, 28; 
 grant of exclusive powers 
 over commerce proposed by 
 Monroe's and Pinckney's 
 committees, 38-47. 
 
 Congress of the United 
 States, decisions of the 
 Supreme Court on the 
 powers of, 214; on the im- 
 plied powers of, 215; on 
 the extent of the commer- 
 cial power of, 218; on the 
 equality of the power of, 
 over foreign and over in- 
 terstate commerce, 219; on 
 the "border-land" between 
 authority of Congress and 
 of the States, 222; on power 
 of, to erect corporations, 227; 
 on power of, to construct 
 highways of interstate com- 
 merce, 229; on power of, to 
 lay protective duties, 232; on 
 power of, to prohibit com- 
 merce, 234. 
 
 Connecticut Plan of a Con- 
 stitution, commerce clause 
 in, 135- 
 
 Constitution of the United 
 States, not a trade con- 
 vention, iv-vii; originates 
 in the fears of an aristocracy, 
 v, vi, 86, 87, 88, 100; and 
 the protective tariff, 16 
 (and see Protective Tariff); 
 Quincy's practical view of, 
 17; practical views of 
 
 framers of, 210-212; "neces- 
 sary and proper" clause in, 
 1 1 5- 1 2 1 ; " commerce clause " 
 in, development of, in the 
 Convention, 122-127; "com- 
 merce clause" in, compared 
 with earlier proposals, 133- 
 136. 
 
 Constitution, Amendments 
 of, proposed by Madison, 
 162; considered in the First 
 Congress, 163; Tenth 
 Amendment considered in 
 the First Congress, 165, 166; 
 amendments prohibiting cre- 
 ation of monopolies pro- 
 posed by five States, 129, 
 146. 
 
 Constitutional Conven- 
 tion, the, dominated by 
 nationalists, 88-93, 100- 
 107, 111-115; purposes of 
 members of, 91, 92; rep- 
 resented the higher classes 
 of society, 100; members of, 
 generally desired to vest 
 great specific powers in the 
 central government, 106- 
 119; adopts Virginia plan, 
 111-115; adopts "necessary 
 and proper" clause, 115; 
 commerce clause in, 122- 
 136. 
 
 Convention, Constitution- 
 al, see Constitutional 
 Convention. 
 
 Corporations, clause pro- 
 viding for creating, defeated 
 in the Constitutional Con- 
 vention, 131; power of Con- 
 gress to create, is implied, 
 175-177. 227. 
 
 ' ' Countervailing Legisla- 
 tion" of the several States, 
 14. 15. 65- 
 
278 
 
 Index 
 
 Cumberland Road, measures 
 relating to, 251, 252, 253, 
 255. 259, 260. 
 
 Cutler's, Manasseh, ac- 
 count of the Ohio Company, 
 
 57, 58. 
 
 D 
 
 Davis, John, Judge of U. S. 
 District Court, decision of, 
 on the constitutionality of 
 the embargo, 206-209. 
 
 Delegation of legislative 
 power to the executive con- 
 sidered, 185, 187, 192, 204, 
 206. 
 
 Dewey's, Davis Rich, The 
 Financial History of the 
 United States, 272. 
 
 E 
 
 Embargo measures in Wash- 
 ington's second administra- 
 tion, 185-188; in Jefferson's 
 second administration, 193- 
 210; summary of laws en- 
 acted in Jefferson's second 
 administration, 194, 195, 
 i97> 199; embargo poHcy 
 breaks down through fear of 
 disunion, 200 ; inconsistent 
 attitude of the Federalists 
 toward, 202, 203; summary 
 of constitutional arguments 
 for and against, 203-206; 
 Judge Davis' decision on 
 constitutionality of, 206- 
 209 ; constitutionality of , con- 
 sidered by the Supreme 
 Court, 234, 235. 
 
 Federal Republicans, 
 Society of, interchange views 
 cm the Constitution, 143. 
 
 Fitch's, John, Steamboat, 
 contemporary opinions as to 
 benefit of, to internal com- 
 merce, 63, 64. 
 
 Foreign Commerce, see 
 Commerce, Foreign. 
 
 Gallatin's, Albert, report on 
 internal improvements, 254. 
 
 Great Britain, policy of, to- 
 ward the United States at 
 close of the Revolutionary 
 War, 12, 13; efforts of the 
 States to retaliate upon, 13, 
 14; policy of, toward neutral 
 trade in wars with Napoleon, 
 180, 184, 190, 193. 
 
 H 
 
 Hamilton, Alexander, 
 favors protective tariffs, 15; 
 letter to Duane, 5; resolu- 
 tion (1782) on grant of re- 
 venues to Congress, 31; 
 opinion on the constitu- 
 tionality of the U. S. Bank 
 Bill, 169, 174, 175, 176; the 
 author of the constitutional 
 principles stated in Mar- 
 shall's decisions, 239; on the 
 constitutionality of pro- 
 tective tariffs, 269; Report 
 on Manufactures, 269. 
 
 Hartford Convention favors 
 grant of power to Congress 
 to impose duties, 30. 
 
 Highways of Interstate 
 Commerce, see Internal 
 Improvements. 
 
 Hill's, William, Protective 
 Purpose of the Tariff Acts of 
 1789, 271; Early Stages of 
 
Inde 
 
 X 
 
 279 
 
 Hill's, William (Continued): 
 the Tariff Policy of the 
 United States, 271. 
 
 I 
 
 Imports, prohibition of, pro- 
 posed by Jefferson's com- 
 mittee, 36; proposed by- 
 Virginia, 25. (See further 
 under Prohibitions of Com- 
 merce.) 
 
 Internal Improvements, 
 power of Congress to con- 
 struct, probably favored by 
 Annapolis commissioners, 
 78, 79, 248; power of Con- 
 gress to construct, assumed 
 by Jones in New York con- 
 vention, 151; messages and 
 opinions of the Presidents 
 concerning, 241, 251-268 
 (for opinions of particular 
 Presidents, see the names 
 of the Presidents); deci- 
 sions of the Supreme Court 
 upon the power of Congress 
 to construct, 229; develop- 
 ment of opinion concern- 
 ing power of Congress to 
 construct, prior to 1800,242- 
 250; Monroe's views on, 246, 
 257-261 ; John Jay's opinion, 
 249 ; Madison favors, ini 796, 
 249; Jefferson on, 250; Gal- 
 latin's report on, 254; re- 
 port of Congressional Com- 
 mittee on, in 1817, 257; 
 popular favor of, affects 
 party principles, 261, 262. 
 
 Interstate Commerce, see 
 Commerce, Interstate. 
 
 Interstate Highways, see 
 Internal Improvements. 
 
 Iredell, James, denies power 
 of Congress to create mono- 
 polies, 147, note. 
 
 Jackson, Andrew, President, 
 vetoes and messages of, re- 
 lating to internal improve- 
 ments, 263. 
 
 Jay, John, on powers needed 
 by the central government, 
 9 1 ; on power of Congress to 
 construct highways of inter- 
 state commerce, 249. 
 
 Jefferson, Thomas, his com- 
 mittee proposes to vest 
 Congress with power to 
 prohibit imports, 36; on 
 importance of improving 
 Western communications, 
 55; his report on commer- 
 cial restrictions (1794), 180; 
 his approval of the embargo, 
 196; his willingness to create 
 monopolies in aid of the 
 embargo, 195, 197; once 
 favored power of Congress 
 to construct internal im- 
 provements, 252, 253; his 
 change of opinion, 256. 
 
 K 
 
 Knox, General, on powers 
 needed by the central gov- 
 ernment, 90. 
 
 Lee, Richard Henry, on dan- 
 ger of anarchy in 1786- 
 1787, 84. 
 
 M 
 
 Madison, James, on futility 
 of State tariff legislation, 24; 
 his resolution in Virginia in 
 opposition to State tariffs, 
 27; on the importance of en- 
 larging commercial powers 
 
28o 
 
 Index 
 
 Madison, James (Continued): 
 of Congress before admis- 
 sion of new States, 50; on 
 the perils of 1786-1787, 85; 
 on powers needed by the 
 central government, 89, 90; 
 on coercion and the com- 
 mercial power of Congress, 
 95-97; on the events which 
 led up to the Constitution, 
 100; proposes and discusses 
 tariff bill (1789), 154, 158- 
 160; proposes and discusses 
 amendments to the Consti- 
 tution, 161, 162, 164; his re- 
 solution favoring commercial 
 restrictions (1794), 183; be- 
 lieved the embargo to be con- 
 stitutional, 209; early favor 
 toward internal improve- 
 ments, 249; veto of the 
 "Bonus Bill" (1817), 255; 
 letters to Joseph C. Cabell 
 on the constitutionality 
 of the tariff, 270-271 ; on 
 delegated powers and the 
 public welfare, 121, note. 
 
 Marietta, Ohio, settlement 
 of, 59, and note. 
 
 Marshall, John, Chief Jus- 
 tice, decisions on implied 
 powers of Congress, 215; on 
 extent of the commercial 
 power of Congress, 218; es- 
 tablishes the opinions of con- 
 temporaries of the framing 
 of the Constitution in Amer- 
 ican law, 238; on power of 
 Congress to erect corpora- 
 tions, 227. 
 
 Maryland, dispute of with 
 Virginia leads to Annapolis 
 Convention, 69. 
 
 Mason, George, letter of, on 
 the purposes of members of 
 the Constitutional Con- 
 
 vention, 92; on the power of 
 Congress to create monop- 
 olies, 129, 147. 
 
 Melish's, John, Letter to 
 President Monroe, etc., on 
 the tariff, 274. 
 
 Mississippi River, free navi- 
 gation of, a serious question 
 in 1786, 50. 
 
 Monopolies, power of Con- 
 gress to create, asserted by 
 Wilson, 129; assumed in 
 propositions in various 
 States for amendingthe Con- 
 stitution, 146; Mason's 
 views on, 147; "Agrippa" 
 on, 148-150. 
 
 Monroe, James, letter to 
 Madison on State tariffs 
 (1784), 21; report of his 
 committee (1785) on in- 
 creasing the commercial 
 power of Congress, 38; the 
 report compared with com- 
 merce clause, 134, 145; in- 
 tended to grant great power 
 to Congress, 47; originally 
 favored internal improve- 
 ments, 246 ; vetoes and views 
 on internal improvements 
 when President, 257-261. 
 
 N 
 
 Navigation included in com- 
 merce, 2X8. 
 
 Navigation Laws of the 
 several States produce irrita- 
 tion,' 20. 
 
 "Necessary and Proper" 
 clause of the Constitution, 
 1 15-120. 
 
 New Jersey, representations 
 
Index 
 
 281 
 
 New Jersey (Continued) : 
 of (1778), as to the powers 
 of the States and of Congress 
 over commerce, 5-8; plan of 
 a Constitution defeated in 
 the Constitutional Conven- 
 tion, 112, 113; plan, com- 
 merce clause in, 135. 
 
 New York, tariff policy of, 
 produces irritation, 22, 23; 
 Council of Revision op- 
 poses State regulation of 
 commerce, 27; resolution of 
 1782 favoring grant of 
 revenues to Congress, 31; 
 convention on the tariff 
 (1831), report of, 274. 
 
 Non-Importation Measures 
 in Washington's second ad- 
 ministration, 180-185; in 
 Jefferson's second adminis- 
 tration, 190-193. 
 
 O 
 
 Ohio Company's plans for 
 settling the Ohio Valley, 
 57-59- 
 
 Orders in Council (British) 
 prepare the way for non- 
 importation and embargo 
 measures, 180, 185, 193. 
 
 Otto to Montmorin on mi- 
 grations to the West in 
 1786-1787, 60. 
 
 Paterson, William, his pro- 
 position for throwing the 
 territory of all the States 
 into one common mass, 106, 
 and note. 
 
 Pennsylvania favors grant of 
 commercial powers to Con- 
 gress, 25. 
 
 Philadelphia Town Meet- 
 ing favors grant of com- 
 mercial powers to Congress, 
 26. 
 
 Pierce, Franklin, President, 
 views on internal improve- 
 ments, 265. 
 
 Pinckney, Charles, report of 
 his committee (1786) on in- 
 crease of commercial powers 
 of Congress, 41, 46; re- 
 commendation of his com- 
 mittee compared with com- 
 merce clause of the Consti- 
 tution, 135; his views on the 
 powers needed by the cen- 
 tral government, 105. 
 
 Polk, James K., President, 
 views on internal improve- 
 ments, 264. 
 
 Prohibition of Imports, 
 authorized by Virginia, 25; 
 proposed by Jefferson's com- 
 mittee, 36. 
 
 Prohibitions of Commerce, 
 opinion of Judge Davis on, 
 207-209; power of Congress 
 to prescribe, approved by 
 Madison, 209; opinions of 
 the Supreme Court on, 234. 
 
 Protective Tariffs of the 
 several States, 15; produce 
 much irritation, 19-24. 
 
 Protective Tariffs (U. S.), 
 authorized by practical 
 view of the Constitution, 16; 
 favored by Baltimore trades- 
 men, 144; in the First Con- 
 gress, 154-161; no doubt of 
 constitutionality of, enter- 
 tained in First Congress, 160; 
 opinions of the Supreme 
 Court as to, 232; books and 
 
282 
 
 Index 
 
 Protective Tariffs (Continued): 
 documents bearing on the 
 question of constitutionality 
 of, 269-274. 
 
 Q 
 
 QuiNCY, JosiAH, on the prac- 
 tical construction of the 
 Constitution, 17, 18. 
 
 R 
 
 Railroads, Interstate, de- 
 cisions of Supreme Court on 
 power of Congress to con- 
 struct, 230. (See further 
 on the pages cited under 
 Internal Improvements.) 
 
 Randolph, Edmund, on perils 
 of 1786-1787,85; his draft of 
 a commerce clause amended 
 by Rutledge, 125, 135; his 
 opinion to Washington 
 against the constitutionality 
 of the U. S. Bank Bill, 172. 
 
 Reno's, Conrad, Protective 
 Tariff Laws and the Com- 
 merce Clause, 272. 
 
 Rhode Island, proposes 
 granting large powers to 
 Congress over commerce, 
 28; proposal compared with 
 commerce clause of the Con- 
 stitution, 134, 135. 
 
 Roads, see Internal Im- 
 provements. 
 
 Rumsey's, James, steamboat, 
 Washington's comments on 
 utility of, for internal com- 
 merce, 63. 
 
 Rutledge, John, amends 
 Randolph's draft of com- 
 merce clause, 125. 
 
 Shays's Rebellion (1786- 
 1787), and the alarm it 
 caused, 83-85; its influence 
 in advancing the move- 
 ment for a strong central 
 government, 83-89, 100, 103. 
 
 South Carolina, original 
 draft of exposition of, on 
 tariff of 1828, 273; report, 
 ordinances, and addresses, 
 etc., of convention of, to the 
 people of the State (1832), 
 273; Catechism of the tariff, 
 273- 
 
 Stanwood's, Edward, Ameri- 
 can Tariff Controversies in 
 the Nineteenth Century, 272. 
 
 State Conventions to ratify 
 the Constitution, actions of, 
 137-152; indicate different 
 alignment of States from 
 what had existed in the 
 Constitutional Convention, 
 137-139; debates in, prove 
 contemporary opinion that 
 great powers over commerce 
 were vested in Congress by 
 the Constitution, 140-142. 
 
 State Tariffs, see Tariffs, 
 State. 
 
 States, "countervailing legis- 
 lation" of, 15, 65; interferes 
 with negotiation of foreign 
 treaties, 23; produces irrita- 
 tion, 19-24. 
 
 States' Rights, advocates of, 
 in the Constitutional Con- 
 vention divided, 104-106; 
 less united than their op- 
 ponents in the State con- 
 ventions, 141. 
 
Index 
 
 283 
 
 Steamboat, invention of, im- 
 portant in connection with 
 commercial power of Con- 
 gress, 62-64. (See further 
 under Fitch's, John, and 
 Rumsey's, James.) 
 
 Steam Navigation, see 
 Steamboat. 
 
 Supreme Court of the 
 United States, decisions of, 
 on: implied powers of Con- 
 gress, 215-218; on extent of 
 the commercial power of 
 Congress, 218, 219; on 
 equality of the power of Con- 
 gress to regulate interstate 
 and foreign commerce, 219; 
 on the so-called "border- 
 land " between the authority 
 of Congress and of the 
 several States, 222; on the 
 power of Congress to erect 
 corporations, 227; on the 
 power of Congress to con- 
 struct -highways of com- 
 merce, 229; on the power of 
 Congress to lay protective 
 duties on imports, 232; on 
 the power of Congress to 
 prohibit commerce, 234. 
 
 Tariff, first bill levying 
 (1789), 154-161. 
 
 Tariff, Protective, see Pro- 
 tective Tariffs 
 
 Tariffs, State, irritation 
 aroused by, 19-24. 
 
 Taussigs, F. W., The Tariff 
 History of the United States, 
 271. 
 
 Taylor's, John, Tyranny 
 Unmasked, 274. 
 
 Taylor, Zachary, President, 
 on internal improvements, 
 265. 
 
 Temple, Sir John, Consul 
 General, on disorders of 
 1786-1787, 83. 
 
 Thatcher, Rev. Thomas, on 
 the causes which led the 
 Constitutional Convention 
 to bestow large powers on 
 the central government, 98. 
 
 Tonnage Acts of the several 
 States produce irritation, 20. 
 
 Treaties of Commerce in- 
 terfered with by State legis- 
 lation, 23. 
 
 Tyler, John, President, 
 vetoes and messages of, on 
 internal improvements, 263. 
 
 U 
 
 United States Bank, bill 
 creating, 168; debates on 
 bill in Congress, 169-177; 
 Supreme Court on power of 
 Congress to incorporate, 
 215, 227, 228. 
 
 United States Supreme 
 Court, see Supreme Court 
 of the United States. 
 
 Verplancks, Gulian C, let- 
 ter to Colonel Wm. Dray- 
 ton on the constitutionality 
 of protective tariffs, 271. 
 
 Virginia, opposes State *ariffs, 
 27; dispute of, withMaryland 
 leads to Annapolis Con- 
 vention, 69. 
 
284 
 
 Index 
 
 w 
 
 Washington, George, con- 
 siders Articles of Confedera- 
 tion defective, 4; considers 
 improvement of communica- 
 tions with the West im- 
 portant, 50-54; probably 
 favored power of Congress 
 to construct highways of 
 commerce, 245, 246; dis- 
 heartened by the disorders 
 of 1786-1787, 84; on powers 
 necessary for the central 
 government, 89; his second 
 presidential administration, 
 non-importation measures 
 of, 180-185; embargo meas- 
 ures of, 185-188; advocated 
 prohibitions affecting inter- 
 state commerce, 187. 
 
 Webster, Daniel, referred 
 the power of Congress to 
 construct highways of in- 
 terstate commerce to the 
 commerce clause of the 
 Constitution, 243. 
 
 Webster, Pelatiah, on pow- 
 ers needed by the central 
 government, 32. 
 
 West, the, effect of develop- 
 ment of, on commercial pro- 
 posals, 38, 39 ; importance of, 
 in influencing legislation, 48; 
 significance of the term from 
 1781 to 1787, 49; importance 
 of improved commercialcom- 
 munications with, 49-54; 
 rapid development of, from 
 1784-1788, 55-62; jealousy 
 of growth of , felt by the older 
 communities, 61; efforts in 
 the Constitutional Conven- 
 tion to limit the power of, 
 61; Washington's broad- 
 minded view of the future of, 
 51-55- 
 
 Williamson's, Hugh, letter 
 to Iredell on New York 
 tariff acts, 20. 
 
 Wilson, James, a member of 
 the Committee of Detail, 
 122-126; asserts power of 
 Congress to create monop- 
 olies, 129. 
 
 Witherspoon's, John, mo- 
 tion of 1 78 1, for increasing 
 commercial powers of Con- 
 gress, 35. 
 

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