SPEECH HON. T. H. BAYLY, OF VIRGINIA, THE HARBOR BILL, AND IN REPLY TO THE HON. C, HUDSON, OF MASSACHUSETTS, CORN TRADE OE ENGLAND. IN THE HOUSE OP REPRESENTATIVES, WEDNESDAY, MARCH 11, 1846. WASHINGTON: PRINTED OFFICE OF BLAIR AND RIVES. HARBORS AND RIVERS. The House being in Committee of the Whole on every principle of construction applicable to our the state of the Union on the bill making appro- Constitution, an implied newer must not be a dis- priations for certain Rivers and Harbors— tinct, independent, and substantive prerogative,but Mr. BAYLY rose and said: I have very little « must be secondary; such as it is fair to presume to say, Mr. Chairman, upon the bill before the was meant to be conferred by implication. Is the committee. The subject is one with which the power in question of that secondary character ? Is country, for a long time, has been familiar, and it not a distinct, independent, and substantive pre- the opinions of nnjst persons are made up in refer- rogative ? It seems to me that there cannot be two ence to it. I have never thought that this Gov- opinions on this point. The second test to which eminent had power to carry on a system of inter- I re f" er is l his: A power claimed by implication, as nal improvements; and 1 have always been of a means of executing a power expressly granted, opinion that it would be inexpedient, if the power must > m i |3 nature, be inferior or subordinate to existed. means expressly granted to execute the same The Government of the United States is one of power. For you cannot suppose when die Con- delegated powers; and by the provisions of the vention granted expressly inferior means, diat Constitution itself, it is declared that all powers they meant to confer, by implication, those in their not delegated are reserved to the States or the character superior. To show that the power in people. The Constitution not only contains a del- question is not of this inferior class, I have nothing egationof powers, but also of means to execute to dobutto refer to theConstitution,whichisfull of them; and the delegation of one class of means, enumerated means of executing granted powers, according to the most familiar rules of construe- °* , a vast u e al less consequence than the one now don, excludes the idea of an intention to delegate claimed. any other. These are positions which no Repub- -Ltd u s examine this question a little more in lican, who understands the first principles of his detail. The power in question is sought to be de¬ creed, will dispute. Then the inquiry arises: Is rived from various sources. In the language of the power to carry on a system of internal im- Mr. Clay, “it is a vagrant power”—now seeking provements to be found among the powers ex- ? habitation in one clause of the Constitution, now pressly granted to Congress? This is not pretend- jn another, and, in truth, having a legitimate home ed. Is tt enumerated among the specified means jo none. Wot to detain the committee in an exam- to execute the granted powers? Neither is this ination of all the fanciful sources from which gen- pretended. It is not granted in express terms flemen attempt to derive this power, let us exam- eitlier as an end or a means. And it was not in- me the two from which it is most generally advertence that it is so. On the contrary, a mo- thought to flow. tion was made in the Convention which framed The first is the power to “lay and collect taxes, the Constitution to grant the power, and it failed, duties, imposts, to pay the debts and provide for And now gentlemen seek to confer upon the Gov- the common defence and general welfare of the eminent, by construction, what the Convention United Slates; but all duties, imposts, and excises, refused to confer by express grant! shall be uniform throughout the United States.” But gentlemen do not contend that the power to It is insisted,that under this clause Congress can carry on a system of internal improvements is do anything that can be done by money, which in conferred by express grant. They claim it as an its opinion will provide for the general-welfare. In implied power. There are two tests of implied other words, the power is sought to be derived un¬ powers, either of which is fatal in tills case. Upon der what is well known as “ the general-welfare” 4 doctrine. There is a very short answer to this whole doctrine, which is perfectly conclusive. The Constitution was designed as a restraint on Congress; to fetter discretion; to confine it within narrow and prescribed limits: in a word, as an ex¬ act measure of the powers of Congress. But this doctrine makes “ the discretion of Congress, and not the Constitution, the measure of its power.” If this docrine is true, nearly every other clause of the Constitution is surplusage; for there is very little pertaining to Government which may not be done under the sweeping power to provide for the general welfare. But there is nothing superfluous in the Constitution. The words in question, so far from being designed as an enlargement of the pow¬ ers of Congress, were designed as a restriction. Congress not only may not'do whatever it may fancy will provide for the general welfare, but it may not even exercise the powers expressly grant¬ ed for any other purpose than to promote the gen¬ eral welfare. The powers granted are not to be used for special, but general purposes—not for State, but for national purposes. This view alone is fatal to the bill before the House, as it will be to any one which will be introduced with any pros¬ pect of success. Local appropriations will have to be made to secure strength enough to carry any The internal-improvement power is also claimed under the clauses authorizing Congress “ to regu¬ late commerce with foreign nations, and among the several States, and with the Indian tribes;” and “ to make all Iaw3 which shall be necessary and proper for carrying into execution the foregoing The word commerce, at the time it was used in the Constitution, had a received and recognised meaning. It meant “ trade, traffic,” in an en¬ larged sense. It meant a. pursuit, rather than a thing. It is the business of commerce, and not the means by which it is carried on, which Congress has a right to regulate. Under the power to regu¬ late commerce, Congress may prescribe the terms upon which trade may be conducted with foreign nations, but it cannot prescribe the medium through which it is earned on. It cannot say to a merchant that he shall export his goods in a sloop and not in a schooner—in a sail-vessel and not in a steamboat. But if it were other¬ wise, I would still deny the power in this case. The provision of the Constitution confers power only over things inexistence; and so, if we con¬ cede to it the utmost latitude of regulation, it does not give the power of creation. I deny that Con¬ gress can regulate the means of commerce. But suppose it can, that confers no power to create them. I may admit, for the argument, that Con¬ gress may regulate the shipping of merchants; but does it thereby acquire the power to furnish them with shipping at its own expense ? I deny that Congress has the authority to furnish ships and wagons to carry our produce to market; but it has as much power to do that as it has to furnish ca¬ nals and boats, railroads and cars. Gentlemen also claim the power in question under the clause au¬ thorizing Congress “ to make all laws which shall be necessary and proper for carrying into execution" the granted powers. A stronger argument against i this whole doctrine of power by implication could not be devised than from this provision of the Con¬ stitution. If there is any principle of universal ap¬ plication, it is, that where a power is explicitly delegated, the means necessary for its execution is delegated also; and yet so averse was the conven¬ tion which framed the Constitution to powers by implication, that even in this case they resorted to an express grant. Nov/, sir, in all the discussions relative to the clause under consideration, it seems to me that there is a great confusion of ideas. The arguments advanced tend to show that the exercise of the power claimed is necessary for the welfare of the people—for the Government. This might be admitted, and yet it would not advance them one step in the argument. To get power to pass laws under the clause we are discussing, you must show that they are necessary to the ptruecr; and that without them the power cannot be executed. When¬ ever you can do that—whenever you can show that the passage of any particular law is necessary to give vitality to a granted power, without the pas¬ sage of which it would be dormant, then I grant vou have authority to pass it. The necessity must be co-existent with the power. But when you have shown that the exercise of any given power is very expedient or convenient for the Govern¬ ment—nay, I will go further, and say, when you show that it is absolutely necessary for the Govern¬ ment to possess such a power, you have not ad¬ vanced a step towards showing that the Govern¬ ment in fact possesses it. All you have done in such a case is, to demonstrate the propriety of amending the Constitution, so as to confer the power, express provision for which is made. And in the very fact of providing it, the framers of the Constitution showed that they contemplated a state of things in which additional powers would be needed by the Government, that could not be de¬ rived in any other manner. They had no idea of deriving additional powers by the mode of con¬ struction now contended for. As an illustration of the sort of necessity which will authorize the passage of a law for carrying into execution a granted power, I will take the case of the Mint. Congress is empowered to coin not possible; the necessity is inherent. It is inde¬ pendent of circumstances. It existed the day the Constitution was adopted; it will exist forever. Thus construed, you make the Constitution what it was designed to be—a stable and fixed thing. But construe it as gentlemen would persuade us, and yon make it anything else—as changing as fickle circumstances. But not satisfied with the argument derived from the Constitution itself, gentlemen resort to prece¬ dent, and they refer particularly to the establish¬ ment of lighthouses. The power of the Govern¬ ment to establish lighthouses is very questionable. Mr. Jefferson and Mr. Madison both so regarded it. They did not derive the power to erect them from the power to regulate commerce. They re¬ ferred it to the power to maintain a navy. Light¬ houses were considered as necessary for that pur¬ pose as dock-yards, power to construct which is recognised by the Constitution to be in Congress; and. the power in the case of lighthouses was con- 5 sitlered as also recognised in the same clause, under the head of