COMMENTARIES.

CHAPTER XV.

POWER TO BORROW MONEY AND REGULATE COMMERCE.

§ 1054. HAVING finished this examination of the power of taxation, and of the accompanying restrictions and prohibitions, the other powers of Congress will be now examined in the order in which they stand in the eighth section.

§ 1055. The next is the power of Congress "to borrow money on the credit of the United States." This power seems indispensable to the sovereignty and existence of a national government. Even under the confederation this power was expressly delegated. The remark is unquestionably just, that it is a power inseparably connected with that of raising a revenue, and with the duty of protection, which that power imposes upon the general government. Though in times of profound peace it may not be ordinarily necessary to anticipate the revenues of a State; yet the experience of all nations must convince us, that the burden and expenses of one year, in time of war, may more than equal the ordinary revenue of ten years. Hence, a debt is almost unavoidable, when a nation is plunged into a state of war. The least burdensome mode of contracting a debt is by a loan. Indeed, this recourse becomes the more necessary, because the ordinary duties upon importations are subject to great diminution and fluctuations in times of war; and a resort to direct taxes for the whole supply would, under such circumstances, become oppressive and ruinous to the agricultural interests of the country.2 Even in times of peace exigencies may occur, which render a loan the most facile,

VOL. II.

1 Article 9.

2 1 Tuck. Black. Comm. App. 245, 246; The Federalist, No. 41.

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economical, and ready means of supply, either to meet expenses, or to avert calamities, or to save the country from an undue depression of its staple productions. The government of the United States has, on several occasions in times of profound peace, obtained large loans, among which a striking illustration of the economy and convenience of such arrangements will be found in the creation of stock on the purchase of Louisiana. The power to borrow money by the United States cannot (as has been already seen) in any way be controlled, or interfered with by the States. The granting of the power is incompatible with any restraining or controlling power; and the declaration of supremacy in the Constitution is a declaration that no such restraining or controlling power shall be exercised.1

§ 1056. The next power of Congress is, " to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."

§ 1057. The want of this power (as has been already seen) was one of the leading defects of the confederation, and probably, as much as any one cause, conduced to the establishment of the Constitution. It is a power vital to the prosperity of the Union ; and without it the government would scarcely deserve the name of a national government, and would soon sink into discredit and

1 Weston v. City Council of Charleston, 2 Peters's R. 449, 468. [See also Bank of Commerce v. New York City, 2 Black, 620; Bank Tax Case, 2 Wall. 200; Van Allen v. Assessors, 3 Wall. 573; People v. Commissioners, 4 Wall. 244; Bradley v. People, Id. 459; The Banks v. The Mayor, 7 Wall. 16; Bank v. Supervisors, Id. 26.]

2 Gibbons v. Ogden, 9 Wheat. R. 1, 225, Johnson J.'s Opinion; Brown v. Maryland, 12 Wheat. R. 445, 446. [“This government," said Mr. John Randolph, "grew out of the necessity, indispensable and unavoidable, in the circumstances of this country, of some general power, capable of regulating foreign commerce." "The proximate as well as the remote cause of the existence of the federal government was the regulation of foreign commerce." "If the old Congress had possessed the power of laying a duty of ten per cent. ad valorem on imports, this Constitution would never have been called into existence." Speech on Internal Improvements, Garland's Life of Randolph, II. 205. "Maritime defence, commercial regulation, and national revenue were laid at the foundation of the national compact. They are its leading principles, and the cause of its existence. They were primary considerations, not only with the convention which framed the Constitution, but also with the people when they adopted it. They were the objects, and the only important objects, to which the States were confessedly incompetent. To effect these by the means of a national government was the constant, the prevalent, the exhaustless topic of those who favored the adoption of the Constitution." Webster, Life of, by Curtis, I. 103. See also Id. II. 601, 602; Webster's Works, II. 174; IV. 492, 494; Life, &c., of Sam. Adams, by Welles, III. 249.]

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imbecility. It would stand as a mere shadow of sovereignty, to mock our hopes, and involve us in a common ruin.

§ 1058. The oppressed and degraded state of commerce, previous to the adoption of the Constitution, can scarcely be forgotten. It was regulated by foreign nations with a single view to their own interests; and our disunited efforts to counteract their restrictions were rendered impotent by a want of combination. Congress, indeed, possessed the power of making treaties; but the inability of the federal government to enforce them had become so apparent, as to render that power in a great degree useless. Those who felt the injury arising from this state of things, and those who were capable of estimating the influence of commerce on the prosperity of nations, perceived the necessity of giving the control over this important subject to a single government. It is not, therefore, matter of surprise, that the grant should be as extensive as the mischief, and should comprehend all foreign commerce, and all commerce among the States.2

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§ 1059. But this subject has been already so much discussed, and the reasons for conferring the power so fully developed, that it seems unnecessary to dwell further upon its importance and necessity. In the convention there does not appear to have been any considerable (if, indeed, there was any) opposition to the grant of the power. It was reported in the first draft of the Constitution exactly as it now stands, except that the words, "and with the Indian tribes," were afterwards added; and it passed without a division.4

§ 1060. In considering this clause of the Constitution several important inquiries are presented. In the first place, what is the natural import of the terms; in the next place, how far the power is exclusive of that of the States; in the third place, to what purposes and for what objects the power may be constitutionally applied; and, in the fourth place, what are the true nature and extent of the power to regulate commerce with the Indian tribes.

I The Federalist, No. 4, 7, 11, 22, 37.

2 Brown v. State of Maryland, 12 Wheat. R. 419, 445, 446; 1 Tuck. Black. Comm. App. 248 to 252; 1 Amer. Museum, 8, 272, 273, 281, 282, 288; 2 Amer. Museum, 263 to 276; Id. 371, 372; The Federalist, No. 7, 11, 22; Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828; 5 Marshall's Life of Washington, ch. 2, p. 74 to 80 ; 2 Pitkin's Hist. 189, 192.

3 The Federalist, No. 7, 11, 12, 22, 41, 42.

4 Journal of Convention, 220, 257, 260, 356, 378.

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§ 1061. In the first place, then, what is the constitutional meaning of the words, "to regulate commerce; for the Constitution being (as has been aptly said) one of enumeration, and not of definition, it becomes necessary, in order to ascertain the extent of the power, to ascertain the meaning of the words.1 The power is to regulate; that is, to prescribe the rule by which commerce is to be governed.2 The subject to be regulated is commerce. Is that limited to traffic, to buying and selling, or the interchange of commodities? Or does it comprehend navigation and intercourse? If the former construction is adopted, then a general term applicable to many objects is restricted to one of its significations. If the latter, then a general term is retained in its general sense. To adopt the former, without some guiding grounds furnished by the context, or the nature of the power, would be improper. The words being general, the sense must be general also, and embrace all subjects comprehended under them, unless there be some obvious mischief or repugnance to other clauses to limit them. In the present case there is nothing to justify such a limitation. Commerce undoubtedly is traffic; but it is something more. It is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches; and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation; which shall be silent on the admission of the vessels of one nation into the ports of another; and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling, or barter.3

§ 1062. If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government; it has been exercised with the consent of all America; and it has been always understood to be a commercial regulation. The power over navigation, and over commercial intercourse, was one of the primary objects for which the people of America adopted their government; and it is impossible that the

1 Gibbons v. Ogden, 9 Wheat. R. 189.

3 Gibbons v. Ogden, 9 Wheat. 189, 190; Id. 229, 230.

2 9 Wheat. R. 196.

convention should not so have understood the word "commerce," as embracing it.1 Indeed, to construe the power, so as to impair its efficacy, would defeat the very object for which it was introduced into the Constitution; 2 for there cannot be a doubt, that to exclude navigation and intercourse from its scope would be to entail upon us all the prominent defects of the confederation, and subject the Union to the ill-adjusted systems of rival States, and the oppressive preferences of foreign nations in favor of their own navigation.3

§ 1063. The very exceptions found in the Constitution demonstrate this; for it would be absurd, as well as useless, to except from a granted power that which was not granted, or that which the words did not comprehend. There are plain exceptions in the Constitution from the power over navigation, and plain inhibitions to the exercise of that power in a particular way. Why should these be made, if the power itself was not understood to be granted? The clause already cited, that no preference shall be given by any regulation of commerce, or revenue to the ports of one State over those of another, is of this nature. This clause cannot be understood as applicable to those laws only which are passed for purposes of revenue, because it is expressly applied to commercial regulations; and the most obvious preference, which can be given to one port over another, relates to navigation. But the remaining part of the sentence directly points to navigation. "Nor shall vessels, bound to or from one State, be obliged to enter, clear, or pay duties in another." In short, our whole system for the encouragement of navigation in the coasting trade and fisheries is exclusively founded upon this supposition. Yet no one has ever been bold enough to question the constitutionality of the laws creating this system.5

§ 1064. Foreign and domestic intercourse has been universally understood to be within the reach of the power. How, other

19 Wheat. R. 190, 191; Id. 215, 216, 217; Id. 229, 230; 1 Tuck. Black. Comm. App. 249 to 252.

2 12 Wheat. R. 446.

49 Wheat. R. 191.

3 1 Tuck. Black. Comm. App. 247, 248, 249.

5 9 Wheat. R. 191, 215, 216; North River Steamboat Company v. Livingston, 3 Cowen's R. 713. [The views expressed in the text are fully supported by the recent cases of Pennsylvania v. Wheeling and Belmont Bridge Co., 13 How. 515; Gilman v. Philadelphia, 3 Wall. 713; and other cases referred to in the note to § 1072, post.]