the question then involved would be one of expediency or utility, and if that is not to be solved by the Legislature, it would cease to be a Legislature, it could be stripped of its essential and characteristic attributes. If the Judiciary would decide upon the degree of discretion, which Congress can exercise in its means to carry an enumerated power into execution, the Judiciary, not Congress, would be the Legislature; and is it advisable that this power should be exercised by the Judiciary rather than by the Representatives of the people? To sustain our position, we will advert to the grounds upon which some acts of Congress have been judicially declared to be, and upon which others never brought before the Judiciary, are believed to be unconstitutional. In the Judiciary act of 1789, authority was given to the Supreme Court to issue writs of mandamus to public officers. That tribunal pronounced this part of the law to be unconstitutional, because it conveyed original jurisdiction to the Supreme Court, in a case, where, by the Constitution, it could only exercise appellate jurisdiction. In 1792, an act was passed "to regulate," among other things, "the claims of invalid pensioners," and imposing certain duties upon the Federal Courts: the act, so far as related to those duties, was declared to be unconstitutional, as they formed no part of any power, vested by the Constitution in the Courts of the United States. The President was authorized, under an act passed on the 22d of June, 1798, to appoint officers to such volunteer corps as should be raised in pursuance of an act passed on the 28th of May, preceding. The services of a corps of volunteers are appropriate means to carry on a war-being a military body, it must be organized-officers are necessary for its organization, they must therefore be appointed. According to the strictest construction, such a corps was a means to a lawful end: we think, nevertheless, that the power vested in the President was unconstitutional. The Constitution recognizes but two species of military force, the troops of the United States and the militia of the States: these volunteer corps were not troops of the United States, they were consequently militia; and under the Constitution, the power of appointing the officers of their militia, is reserved to the States. What has been usually termed the Alien Law, passed in 1798, empowered the President to order all such aliens (even alien friends) as he should judge dangerous to the peace and safety of the Union, to depart from its limits within a certain time; and in case of their disobedience, they were liable on conviction, to be imprisoned for any term not exceeding three years. The general voice of the nation has pronounced this law to be unconstitutional, because it was not founded upon any power delegated to the Federal Government. The Sedition Law,

passed in 1798, is regarded by the great majority of the people to have been a violation of the Constitution, not because it was an improper mean to accomplish its object, but because it was repugnant to the first article of the amendments to the Constitution.

A law has recently been passed, imposing duties on imports, which is also believed by no inconsiderable portion of the community to be unconstitutional. By those who advocated it, and by whose votes it became a law, it was alleged to be authorized by the power "to regulate commerce with foreign nations and among the several States." As a measure of revenue, it neither was nor could have been supported, its purpose being to exclude foreign imports, upon which duties are paid, for the encouragement of American manufactures, upon which duties are not paid. In judging then of the validity of this law, the question is, whether a power to regulate commerce, sanctions the passing of an act imposing duties to exclude foreign imports for the encouragement of American manufactures? or, in other words, whether a law, exclusively for the regulation of manufactures is a law for the regulation of commerce? The statement of this question would seem to involve its answer. Can a power intended for one object, authorized by the Constitution, be applied to another which it has not authorized? If it can, the Constitution is unlimited in its action, and our citizens live under a despotism, not the more grateful for having been created by themselves. Are not commerce and manufactures as distinct as navigation and agriculture? Being so, is it not absurd to claim the power of regulating manufactures under a power to regulate commerce? If the power can be sustained, where is the control of enumerated powers? What has been said in Congress may be repeated, that the connexion between commerce and manufactures is so intimate that it cannot be severed; and, that by legislating for the one we advance the prosperity of the other. Granted; but has power been given to Congress to regulate what is not committed to it, in order to execute that which is? If this reasoning is to prevail, how are we to save from its grasp the exercise of universal legislation? Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the facility of purchasing real property, the punctual performance of contracts, the preservation of internal order, the diffusion of knowledge, the manner in which the industry of individuals is conducted, the arts and the sciences, are all intimately connected with commerce: could Congress then, having the power to regulate commerce, embrace all these subjects within it? It unquestionably could, if having a power for one purpose it could extend that power to whatever might be intimately con

nected with it, even though they were substantive and distinct interests? It is scarcely possible to imagine any scientific or lucrative pursuit of human industry, which is not more or less connected with commerce. To avoid this general absorption into the federal vortex, we must construe the powers of Congress rationally, and restrict their operation to what was intended by the creators of the Constitution, conformably with the words which they have used to convey their meaning. Their intention was, that the powers which they gave should be definite and specific: the power to regulate commerce is definitely and specifically given: whatever comes within the regulation of commerce, Congress can regulate: to encourage manufactures, is not a regulation of commerce, therefore under that power Congress can enact .. no law for the encouragement of manufactures. We do not contend, as some do, that Congress, under a power to regulate commerce, cannot lay duties upon imports, otherwise than for revenue. We admit, for such is our conviction, that in the exercise of the power to raise revenue, it may lay countervailing or retaliatory duties upon imported manufactures or other articles, to neutralize or procure the repeal of foreign laws conceived to be injurious to our commerce, although the consequence should be a diminution of the revenue; but these duties to be constitutional, must be laid for the regulation of commerce, not for the encouragement of manufactures or of agriculture. A power to regulate commerce has been confided to Congress, but not to regulate manufactures or agriculture. It can with no more propriety interfere with them than it can with our systems of education or our poor laws. Congress, it has been said, is empowered "to lay and collect taxes, &c." to execute any of the powers contained in the Constitution: this is incontrovertible; but the law of which we complain was not passed by the authority of this power, the arguments of its advocates and its contents prove the reverse: it was intended to reduce the revenue for the benefit of the manufacturer. Had it been introduced as an act for revenue, it would have been rejected. The state of the nation did not require an augmentation of its finances: a majority of Congress would not have taxed the people, when the public income was adequate to all the public exigencies. If revenue had been the object, the duties would have been diminished, not increased; for the increase of duties, in some cases diminished, and in others excluded importations, so as to render the amount to be collected from the customs, less than it would have been, under the laws previously in force. We view the law according to its declared intent and meaning, and aver, that it is unconstitutional, upon the very ground upon which it was proposed and

carried. The circumstance of our not being able to substantiate this assertion before a court of justice does not affect the principle upon which we rely. Congress being authorized to levy and to fix the rate of duties upon imports, a Court cannot receive evidence to identify the power under which duties are imposed. But our argument is, there is no power in the Constitution which the law is a means to carry into execution. The eighth clause of the first Article of the Constitution, declares, "that Congress shall have power to promote the progress of science and the useful arts, by securing for limited times to authors and inventors, the exclusive right to their respective writings and discoveries." Should a law be passed, reciting totidem verbis, that, exclusively, under this power, books, instruments and machinery imported by authors and inventors should be exempt from duties, could it be doubted, that it would, if brought before the Judiciary, be set aside as inconsistent with and contradicting the power upon which it was expressed to be founded? and yet Congress can, constitutionally, exempt imported books, instruments and machinery from the payment of duties.

To resume the thread of our argument. If a mean to execute a power must be plain, and adapted to the end, can a power to extinguish the Indian title to lands within a State, be a mean to execute a power to declare war? If this power be claimed it must be upon the ground, that such negociations between the States and the Indians would have a tendency to excite hostilities. It is difficult to conceive the extent of this pretention. With as much propriety could it be said, that when Great Britain was engaged in a maritime war, Congress might interdict our merchants from navigating the ocean, because our sailors would be pressed into her service; and, that the United States, in that event, would declare war for the protection of her citizens. Are not the inhabitants of a State as much interested in preserving peace with the Indians as the Federal Government is? In a contest with them, would not the State, in which they live, be peculiarly exposed to the horrors of their savage warfare? Is a State to be supposed more likely than the United States to commit infractions of moral right? An oppressive commercial intercourse between the Indians and the citizens of a State, it would seem, from the Constitution, was to be apprehended: improper attempts by a State to obtain possession of the soil of the Indians were not apprehended. An irregular commerce with Indian tribes in a State, would be the act of individuals: the extinguishment of Indian title could only be effected by the State in its sovereign capacity. To guard against abuse in the one case, a direct power was given to Congress: in the other,

abuse not being contemplated, no provision was made against it. The restrictions which the Constitution has laid upon States to prevent them from hazarding the peace of the Union, are specified: they are, that "no State shall grant letters of marque and reprisal;" or "without the consent of Congress, keep troops or ships of war, in time of peace; enter into any agreement or compact with a foreign power; or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." Expressio unius exclusio est alterius. The enumeration of these acts from which the States are interdicted, as having a tendency to occasion war, excludes the inference that any others are comprehended which are not enumerated. Congress is authorized to suppress insurrections. If, under the power to declare war, it can prevent a State from legislating upon the subject of Indian occupancy, might it not prohibit the States in which slavery exists, from passing laws against emancipation, or any other laws which might be deemed harsh, as they would have a tendency to stir up insurrections? The master, it might be said, has an absolute property in his slave, with which Congress could not intermeddle. We have, we trust, established, that a State has the fee-simple in, and the jurisdiction over Indian lands within its boundaries, an interference therefore so as to destroy or impair its full enjoyment of these rights, would be as much an invasion of the rights of property, as to prohibit a State from passing such laws concerning its slaves, as it might consider to be expedient. The Articles of Confederation gave to Congress the sole power to declare war, and yet no instance can be cited in which the Congress of the Confederation entered into any treaty or compact to extinguish the Indian occupancy in the States, or attempted to prevent the States from exercising over it their jurisdiction.

An argument, adverse to the rights of Georgia, appears in the following passages of the Report, to be founded upon the conduct of that State, and the declarations of her citizens in official situations:

"It is not known to the committee, that until recently, either Georgia, or any other State, has, since the adoption of the Constitution, exercised or claimed the right to treat with independent tribes of Indians, except by authority and consent of the United States, or has exercised any act of legislation over them, or claimed to do any act or thing forbidden by the law of 1802. The committee believe that the State of Georgia has not only acquiesced, until lately, in this course of legisla tion; but, that her intelligent and prominent citizens have given it their express sanction. In the talk of Messrs. Meriwether and Campbell to VOL. II.-No. 4. 72