regulations would fail of their proper effect. If the regulations would become inoperative wholly or partly, but for certain other measures incidental to them, then those other measures are within the competency of Congress; if not, not. In other words, it appears to me that the whole duty and the whole right of Congress may be expressed in the word protection. Congress must protect the commerce which it regulates, because protection is indispensable to the effect of the regulations. And this protection may reach any impediments supervening to destroy or obstruct the commerce which is regulated.

Hence I maintain that Congress may erect light-houses and beacons to guide the mariner and warn him of danger, that it may build piers or breakwaters for shelter on dangerous coasts, and that it may remove obstructions on navigable streams, whether placed there by man or washed down by the waters. All these it may do, because they are "necessary and proper" to carry into execution the regulation of the commerce itself.

Conformable to this view has been the practice of the Government almost from its institution. At the first session of the First Congress an act was passed directing the expense of keeping up the light-houses, beacons, buoys, and public piers then existing in any bay, inlet, harbor, or port of the United States, to be defrayed out of the Treasury of the United States, and making it the duty of the Secretary of the Treasury to provide, by contract, for rebuilding them, keeping them in good repair, and furnishing them with supplies. This practice has never been interrupted or disputed by any Congress or any administration.

The incident is, of course, no broader than the principle. The commerce which Congress is to regulate is foreign commerce and commerce among the States, not the internal commerce of a State; therefore, those waters which bear only such internal commerce are not subject to supervision or improvement by Congress. Take, for example, the lakes lying wholly within the State of New York, as Cayuga or Seneca. There is some commerce carried on between their shores; and yet, I apprehend, Congress has nothing to do with it, nor with the convenience or safety of the navigation.

Thus it appears to me that, from the natural and fair import of the language of the Constitution, from the uniform practice under it, and from the reason of the thing itself, we have this rule, plain and indisputable, that on all navigable waters, where

the sev

is carried on a commerce with foreign nations, or among eral States, Congress may, as an incident to its direct power over the commerce, afford it also protection, by the establishment of light-houses, beacons, and piers, and by keeping open and free the natural channel through which it flows. So far, I think, we occupy, all or nearly all of us, common ground.

Can we go further? Can the Government open new avenues for commerce? Can it enter upon the soil of the States and dig canals, build railways, and scoop harbors out of the unindented coast for new marts of trade? For one I deny that it has any such power. I deny that it can go one step beyond the rule I have given. The reason is obvious, and to my mind unanswerable, that the creation of the canals, railways, or harbors can not be "necessary and proper" to carry into execution a mere regulation of commerce. I say it can not be so; for I can not conceive of any law, made in good faith as a regulation of commerce, which requires this creative process. If there be any such, I beg it may be pointed out.

Men of lively imaginations may discern relations where more sober persons can see none. They may perceive, or think they perceive, the necessity of a particular measure to the execution of a regulation of commerce, while practical men can perceive in it no necessity or propriety whatever. Now, I apprehend we are to interpret and to execute the Constitution as practical men. We are not to pronounce a measure necessary, as incidental to another, unless that necessity is reasonably evident. Any other practice would enlarge the Constitution into an instrument of allcomprehensive power, and subvert the authority of the States.

It is in dealing with the incidental powers that we perceive the difference between one who construes the Constitution strictly and another who construes it loosely. The former requires the necessity of the incidental measure to the execution of the principal to be made manifest before he feels it safe to adopt it; the latter is satisfied with almost any relation between the two; if the one is affected even remotely by the other, it is enough. The latter sometimes substitutes the incident for the principal, or adopts the principal for the sake of the incident; the former looks at the principal for its own sake alone, and refers to that which is incidental merely as an indispensable means of executing the other. So, in respect to this question of regulating commerce, some persons may possibly think it constitutional for the Government to

become itself a purchaser of products, for the purpose of affecting commercial exchanges. There is no doubt that by large purchases of grain it might now affect prices and control the markets, influencing in the greatest degree the commerce of our merchants. But will any one here assert that the Federal Government, if it were never so much inclined, has constitutional power to make such purchases, or to engage in any way in trade, as incidental to the regulation of commerce? This is an extreme case; but it will serve the purpose of illustration.

Let us look a little at the consequence of so enlarging the incidental powers of Congress, as to allow the right to open new avenues of commerce through the territories of the States. In our desire for the accomplishment of a useful object, we are apt to overlook the consequences of calling in a foreign agency to effect it. Let us not forget that the States are nearest to the people, and the fittest depositories of power for all the purposes to which they are competent. Let us consider, moreover, that whatever power Congress may have over the subject is paramount to that of the States, and theirs must give way for it. If Congress may dig a canal around the Falls of the Ohio, it may do so against the will and despite the force of either Indiana or Kentucky. It must then be able to exercise jurisdiction over it, to the exclusion of the State, for the purpose of controlling its navigation, keeping it in repair, and exacting tolls. If it can make this canal of three miles, it can make another of thirty around the Falls of Niagara. Nay, more, it could make one of three hundred miles, from Lake Erie to the Hudson; and, if it could have made the Erie Canal, it can now take it from the State of New York, paying, of course, its value, with the view of enlarging its dimensions, so as to make them commensurate with the swelling tide of Western commerce, in its utmost amplitude, for many generations. However extravagant this may seem, the power to do it is necessarily asserted by those who maintain the power of the Government to make a canal for the purpose of facilitating commerce. What would New York say if it were attempted to take her great work from her hands? How would she bear the introduction of Federal officers along its line? Would she content herself with remonstrance against the injustice and the impolicy of the proceeding? Or would she not rather deny its legality, and treat it as a bald usurpation ?

It is impossible to believe that the clear-sighted men who

framed the Constitution of the Union, who, solicitous themselves to preserve the just balance of Federal and State authority, were watched by others, jealous partisans of the States, still more solicitous for their authority-it is, I say, impossible to believe that these men should have contemplated the giving of so vast and undefined an authority to the Federal Government, under cover of an incident to the regulation of commerce. The Constitution had its origin chiefly in the want of uniform commercial regulations for all the States. The conflicting rules of the different States made necessary a more perfect union. Till then the regulations of commerce, the marts of commerce, the avenues of commerce, all navigable waters, ports, and harbors, remained under the undisputed control of the States, notwithstanding the Confederation. Is it conceivable that, of all these subjects, the makers of the Constitution should have expressed but one, while they intended all? Is it not rather most probable, nay, certain, that they expressed what they intended, and therefore that they intended the making of new avenues of commerce within the States to remain, as before, under the exclusive control of the States themselves?

Should Congress be deemed vested with the power to improve rivers dividing two or more States, because the States are prohibited from making, without the consent of Congress, an agreement to improve them? That argument may apply to the Mississippi. But arguments, from inconvenience, are at best weak and unsafe on constitutional questions. The provision for amendment was made for that case. The inconvenience, however, is nothing more than that of getting the States most concerned in the improvement to agree upon making it. Congress will consent, of course, as readily as it will make the improvement. But were the inconvenience ten times greater, what would it prove? Two States can not agree upon the boundary between them, without the consent of Congress. Does that prove that Congress may establish the boundary?

Holding these opinions upon the constitutional question, touching internal improvements by authority of the General Government, I have expressed them without reserve; for though I would not willingly have obtruded them upon you, perceiving that they are not such as are held by a majority of this convention, yet, having been called upon, I can do no less than speak what I think. But I believe, moreover, that these opinions are

such as are held by a majority of our countrymen, notwithstanding the disfavor with which they are received here.

We believe that a strict construction of the Constitution is not more a true rule of interpretation than a great rule of policy. Every power given to the Union is so much taken from the States and from the people. When the convention assembled in Philadelphia, with the Father of his Country at the head, to bind the States together by a Constitution at once limited and supreme, it set down in clear and precise terms the powers which it proposed to confer upon the national Government. With these in their view, the people adopted the Constitution. They did not agree to enormous powers, latent behind these or wrapped up in them as incidents, to be brought out by construction and used at the discretion of Congress.

The tendency of power is ever toward accumulation and extension. Give it scope for construction, and let it construe for itself, it will carry on the process of absorption till it obtains all that it covets. Is not such a government practically one without limitation, since its powers are bounded only by its desires? Its advances are gradual, and under the sign of beneficence. When it approaches internal improvements, the first step will be the execution of a useful work, at the request or with the consent of the States concerned. The act of to-day becomes the precedent of to-morrow, and the next day begins an undertaking against the will of the State where it is begun, at the instance and for the benefit of others. What was a small thing at first, apparently useful, becomes at last a formidable instrument in the hands of majorities, against the use of which minorities may protest in vain.

We have been warned that the inhabitants of the Mississippi Valley are to be the future rulers of the republic; that what we do not grant they will be able to take, and will take, and we have even hints at retaliation. We know, indeed, that the Federal scepter is passing from us, who have swayed it so long in peace and in war-with what success history shall tell-to you who, counted now by millions, will soon be counted by scores of millions. But we have not the least apprehension on that account, so long as our great charter stands unimpaired. You will have the power of numbers, but the Constitution is your only warrant for its exercise; and for the maintenance of that, in its obligations and its limitations, we rely both upon your good faith