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RIVER AND HARBOR IMPROVEMENTS BY THE FEDERAL GOVERNMENT.
SPEECH AT THE RIVER AND HARBOR CONVENTION IN CHICAGO, JULY 6, 1846.
The convention met on the 5th of July, and was occupied the first day chiefly in arranging the order of business. During the forenoon of the second day, while the convention was waiting for the report of the Committee on Resolutions, several speakers were called up, and among others Mr. Stewart, of Pennsylvania, who addressed the convention, and in the course of his speech claimed for the Federal Government the most extended power over internal improvements. When he sat down, Mr. Field was called to the stand, and said:
THIS call, gentlemen, is entirely unexpected. I had not intended to speak, except in the ordinary course of debate, upon resolutions before the convention; but now that I am on the stand, inasmuch as I think that the doctrines of the gentleman from Pennsylvania ought not to pass unchallenged, I shall take this occasion, notwithstanding the apparent favor with which they have been received, to express my dissent, and to give my reasons against them.
In common with many others of similar opinions, I came here in earnest to promote, as far as I might be able, the avowed and legitimate objects of this convention. We are ready to do so yet, but we can not assent to the constitutional doctrines of that gentleman, nor acquiesce in the policy which he advocates. Indeed, I think I may venture to predict that if his views are adopted by the convention, the questions which should command its attention will be merged in party issues.
For my own part, I am prepared to affirm at the outset that
the Federal Government has the same power over commerce among the States, and over all its incidents, that it has over foreign commerce; and, in that respect, that our inland lakes and rivers are included in the same category with our sea-coast. Whatever right the Government has to improve the rivers and harbors of the Atlantic, it has the same to improve those of the Northwest. It may build a breakwater in Lake Michigan as rightfully as in Delaware Bay. But there I stop, and deny altogether the power of the Government to engage in any general scheme of internal improvements-to dig canals, build railways, or open new avenues for commerce.
Let me explain what I conceive to be the true construction of the Constitution on this subject. In doing so, I purposely omit all reference to the power of Congress to construct ports and open avenues as a means of carrying on war. Acts may be constitutional and justifiable as war measures, which would be neither, considered as measures of peace or commerce. I omit equally all reference to the power of the Government as proprietor of the public lands. As owner of the soil, and sovereign of the Territories, it may do what it can not do as the Government of the States. What I have to say shall be confined to the power it may exert within the jurisdiction of the States, and in the exercise of its ordinary constitutional functions.
There are two provisions of the Constitution, under which is claimed the power to improve rivers and harbors; the first subdivision of the eighth section of the first article, in these words: "The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States," and the third subdivision of the same section : "To regulate commerce with foreign nations, and among the several States, and with the Indian tribes." Whatever power there may be over the subject, I believe is to be found, not as many seem to think, in the former of these provisions, but as an incident to the latter, pursuant to the supplementary provision, contained in the eighteenth subdivision, which is in these words: "To make 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 or officer thereof."
The first provision has been, as we all know, the subject of a great deal of controversy. It was once insisted by the advocates of a large construction, that the words, "to pay the debts and provide for the common defense and general welfare of the United States," were themselves a substantive grant of power; but that ground has been abandoned, and it is now admitted that they are not a grant, but a limitation of the power conferred by the previous words in the same sentence. How strict, then, is this limitation? What does it signify? Does it mean that Congress may raise and apply money to any purpose which may conduce to the general welfare, or, what in practice is the same thing, which it may vote to be for the general welfare, or does it mean that Congress may raise and apply money to any of the designated objects of the Constitution? We insist that the latter is its true meaning.
The reasons for it are these: While the language of the sentence is susceptible of either interpretation, the design and character of the whole instrument favor one and reject the other. The language, I admit, is susceptible of either interpretation. In the one case the words, as herein declared," are understood; in the other, "according to the discretion of Congress." I read the whole sentence as if it were written thus: "The Congress shall have power to lay and collect taxes, duties, imposts, and excises, in order to pay the debts of the United States already contracted, or for the purposes herein declared hereafter to be contracted, and to provide for the common defense and general welfare of the United States, as herein declared, but all duties, imposts, and excises shall be uniform throughout the United States." If the qualification thus given is not understood in the former part of the sentence, then the general expression, "to pay the debts of the United States," more especially when taken in connection with the subsequent power, "to borrow money on the credit of the United States," would amount to a power to contract a debt for any purpose whatever. But notwithstanding the generality of these expressions, I suppose the qualification is understood, that the debts which the Government may contract are debts for the purpose of executing its specified powers. In the same way, I suppose, a qualification is understood to the rest of the sentence, and that the general welfare which the Government may provide for is also in the execution of the specified powers.
If the language of the sentence leave the interpretation un
decided, very different is the scope of the whole instrument. The design and character of this at once decide it. In the first place, the whole design of the Constitution was to create a Federal Government for certain purposes, and to give it a revenue adequate to those purposes. The ends to be promoted by the Government were few. The taxing power was given as a means to those ends. No one thought of creating a Government for the purpose of taxing, but for other purposes, to accomplish which taxation was necessary. The means, then, would be naturally, and in the intention of the framers, necessarily proportioned to the ends, coextensive with them, not proceeding beyond them. There could be no motive for giving a revenue power broader than the objects for which the Government was instituted. It could not, therefore, be the design of the Constitution to give the Government revenues for other purposes than those for which it had created it.
In the second place, in its character, this is a Government of limited and strictly defined powers. Such was the intention of the framers of the Constitution; such was the understanding of the people who adopted it. And to guard against all possibility of misunderstanding on that head, one of the first amendments made was this: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Now, any other meaning than that which I have given, makes this Government, practically, undefined and unlimited. That power which can raise and appropriate money to any purposes whatever, which it may choose to think will promote the general welfare, has no check and no bounds but its own discretion. It can take at will from the minority of the States, for the benefit of the rest, and it can control by its expenditures those which it does not oppress by its burdens. Almost every purpose of any government can be accomplished by money. Give that without stint and without control, and what need would there be of more? The careful enumeration of other powers was a mere ceremony. Therefore the argument for such a construction of the power in question is inadmissible, since it proves too much.
Let us come now to the second of these provisions, that relating to commerce. Congress has power to "regulate commerce with foreign nations, and among the several States." Recollect the power is given to regulate, not to create. There is a wide
difference between the two. What is the meaning of the expression "regulate commerce"? To regulate is to make rules forto adjust by rule. We have the definition of this very power given by our greatest judge, in language as concise and comprehensive as it is possible to express, upon an occasion of unusual importance and deliberation, when, in delivering the judgment of the Supreme Court, he said of it: "It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed." This is quite a different thing from making or improving harbors or avenues for commerce! To begin or to open channels of trade is one thing; to regulate that trade another. It is the latter, not the former, which is submitted to the control of Congress. If confirmation of this view were needed, it might be found in the fifth subdivision of the ninth section, which declares that "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another." Is it not thus manifest that the regulations of commerce intended by the Constitution are impartial, and, so far as possible, general laws? Could it have entered the minds of the framers of the Constitution that, notwithstanding their precautions, Congress was still at liberty to prefer one port to another, by digging a harbor here and omitting it there, lavishing its wealth on the river of this State, and leaving that of another to flow on in the channel which Nature gave it?
Where, then, it will be asked, is the power to set up lighthouses and beacons? The doing so is no more a regulation of commerce than it is a regulation of the finances. How does Congress get the power? It is because light-houses and beacons are indispensable to the execution of the regulations of commerce. This is the source of the power, and the whole of it.
I have already repeated the provision respecting incidental powers. Congress may make all laws "necessary and proper for carrying into execution" any of the powers of the Government. Whatever measure, therefore, is "necessary and proper for carrying into execution" the regulation of commerce is confided to the power of Congress, and for the same reason everything that is not "necessary and proper" is beyond its power.
What measures, then, are "necessary and proper to carry into effect the regulation of commerce-that is, to carry into effect the rules which Congress has prescribed for the government of commerce? Surely, nothing more than those without which the