Mr. TOOMBS. The honorable Senator from Michigan will allow me to correct him. I did not say that General Jackson's practice was uniform; but he did veto river bills on the express ground of unconstitutionality. He vetoed the Wabash improvement bill and others. I admit his practice 1 was not uniform; he did violate the principle. Mr. CASS. I do not recollect the facts of that case, and I shall not go into it because I have not time. I am sure that, when he vetoed that bill, he did it on the ground that the work was not a national one-not that there was no power in the General Government to improve rivers and harbors, but that the Wabash was not one of the class of streams, proper for the exercise of the power. truth is always desirable, I was glad to see that, in the recent Opposition political convention at Philadelphia, a resolution was passed embodying the true constitutional doctrine upon this subject, and which declared "That appropriations by Congress for the improvement of rivers and harbors of a national character, required for the accommodation and security of an existing commerce, are authorized by the Constitution, and justified by the obligation of Government to protect the lives and property of its citizens." I repeat, sir, and this brief review renders it more apparent, that the President is unfortunate in dwelling, in each of his messages, upon a gigantic scheme of internal improvement, as though the power and practice were the question presented to him, when the subject was in the form of a very modified application of expenditures for purposes to serve as "aids of navigation." Has Congress power, by the Constitution, to provide these aids? That is the question, which must be met, and satisfactorily answered, before the power can be exercised. Certainly-as has been said by the Senators from Virginia and Georgia-the grant must be an express one, or an implied one, necessary to the execution of the former, or Congress must repudiate the authority to exercise it. The President, in like manner, in his veto message of 1854, recognizes the difference between the adoption of a system of internal improvements, and the construction of a class of works "national in their character." This distinction is found in his veto message of December 4, 1854, in which he says that "the bill belongs to that class of measures, which are commonly known as internal improvements by the General Government,' and he returns it without his signature. But he goes on to add: "I recognize in it certain provisions, material in their character, and which, if they In the consideration of this subject I dismiss stood alone, it would be compatible with my con- the general-welfare clause, and its kindred provictions of public duty to assent to," notwith-visions of more general import; believing, with standing they were internal improvements. the President, and with Mr. Calhoun, that these phrases contain no integral grants of power, and that the objects indicated by them are only to be attained by means of the specifically enumerated powers of Congress. Now, sir, I trust that these opinions of General Jackson, of Mr. Calhoun, and of General Pierce, will redeem those of us against whom it was pre- || ferred from a charge of inconsistency, made some years since by the honorable Senator from South Carolina, [Mr. BUTLER,] and renewed by him || the other day. The charge was, that, while professing allegiance to that part of the Baltimore platform, which repudiated the establishment of a great system of internal improvements, we advocated and voted for the removal of obstructions in rivers and harbors of a national character. The former power was denounced by that representative body of the Democratic party, the latter was left unquestioned; and among the most steadthe most steadfast of the friends of these river and harbor improvements was that pure patriot, Silas Wright, who had an important agency in the adoption of the Baltimore resolution. The difference is essential, both in its character and operation. While the general system opens the way to dangerous consequences, both in legislation and in administration, the specific power to provide aids for navigation," as President Pierce aptly denomin-regulate commerce among the States." ates it-and much more aptly than when he elsewhere classes it with the objects of internal improvement-is restricted within safe and recognized limits. It concerns navigation alone, and can only be used for purposes, as Mr. Monroe said, "of general, not local-national, not State benefit." And, according to Mr. Calhoun, it is confined to the "commerce among the States, to the external commerce with each other as States, &c. And this latter view, respecting the commerce of the States, is in conformity with the opinion of the Supreme Court, pronounced by Chief Justice Marshall. And as the progress of And I dismiss, too, the inquiry into the jurisdiction over public works arising out of the purposes of war, and its corollary, the means of defense, whether applied to the Army or Navy, not because I have any doubt as to the authority of the Federal Legislature to make all proper and necessary arrangements for these elements of national security, but because the authority is not questioned, and the present investigation is therefore confined to the great purpose of the business and intercourse of the country, affected by the removal of obstructions from its harbors and rivers. I repeat, has Congress the constitutional power to remove them? I believe it has; and, in the words of Mr. Calhoun, I believe that "the power is to be found in the authority" "to regulate commerce with foreign nations, and among the several States;" and more especially in that "to And I desire here to say that, while there is much in Mr. Calhoun's Memphis report with which I fully concur, and marked, as it is, with his characteristic clearness and sagacity, yet there are two points from which I dissent; one is, the limitation of the power of Congress, to remove obstructions from rivers, to those which run through or by three or more States; and the other is a similar limitation of the power to remove harbor obstructions to harbors of refuge. I shall not discuss these points, contenting myself with the expression of my dissent. The first inquiry is into the meaning of the after all, to borrow the language of one of our ablest jurists, those constructions are the safest which have their "origin in common sense;" and, as the Supreme Court said, the extent of powers "should be determined by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.” I need not pursue this investigation; but apply ing the principles thus developed to the power to regulate commerce, we shall be better enabled to ascertain the extent of congressional authority, which that grant conveys. phrase "power to regulate commerce;" and before considering it, it seems proper to advert to the phraseology of the Constitution, as connected with delegated powers. It has been well remarked by the Supreme Court of the United States, hat that great instrument is one of enumeration, and not of definitions. It must necessarily be so, and the meaning of the terms it employs must be found in their received acceptation, as applicable to the purposes obviously sought to be obtained. || A rigid construction-that is, a construction rigid- || ly excluding all tendency to loose interpretation, and to the exercise of powers not fairly applicable, necessary indeed to the specified purposes- If I understand correctly a remark of the Senis at once the dictate of wisdom and of safety. ator from Georgia, [Mr. TоOMBS,] he considered But a construction which, in the language of this power to regulate commerce a clear and defJudge Marshall, would "contract every power inite one. But it was not so considered in the within the narrowest possible compass, " and convention, for when this clause was under diswould limit such power to the narrowest exer- || cussion, Mr. Madison remarked, "These terms cise, compatible with the words employed, would are vague. And the uncertainty consists, not render our frame of Government utterly unfit to only in the extent of the power to be exercised, perform its functions-would make it, indeed, a but in the objects they embrace. And this was subject of ridicule, instead of patriotic respect. also the opinion of Mr. Calhoun, who observes, in Congress, says the Constitution, shall have his Memphis report, that the word "commerce power "to establish post offices and post roads." here employed is not free from ambiguity, and Upon this apparently circumscribed foundation that there are few words in the language more has been built up the extensive fabric of the Post || vague than the words "to regulate," and certainly Office Department, with its heavy receipts and experience has shown that this criticism upon expenditures-its fines, penalties, and punish- them is correct. Commerce, strictly speaking, is ments-its hosts of employes-and a system of traffic, the interchange of commodities. The administration penetrating the Union, and ex- mode of its operation, by the force of the term, tending its operations to the uttermost parts of makes no part of its definition. Navigation is the earth. The laconic phrase, "Congress shall transit by water, one of the means-the principal have power to declare war," conveys to that body one, indeed, of carrying it on. The Constitution || authority to place our country in a hostile atti- contains no grant of power over navigation in tude towards the other Powers of the earth, but those words, but it has been generally, I may if the right to act stops with the words, we should say universally, conceded, that this subject is in exhibit a strange spectacle of national improvi- our system of government a branch of commerce, dence and imbecility. But nobody has had the and that the right to regulate the one carries the folly thus to restrict the terms of the grant, and right to regulate the other. Such has been the to cripple-emasculate, indeed, the strength of practical view of the legislative, the executive, the Republic. But the words, though few, are and the judicial departments, since the adoption mighty in their extent and operation. And the of the Constitution. Such has been the doctrine specific powers "to raise and support armies,' of the Supreme Court, which pronounced that a and "to provide and maintain a Navy," have power to regulate navigation is as expressly been exercised, and necessarily so, upon objects granted as if that term had been added to the word not embraced in the actual language employed, commerce"-as if the general power were to but indispensable to the attainment of the consti- regulate navigation; and that the "mind can tutional purposes in view. And the direction of scarcely conceive a system for regulating comthe use and employment of these arms of national merce between nations, which shall exclude all strength have been assumed and exercised by idea concerning navigation," &c. And this conCongress without opposition, though that power struction has been fortified by the language of the of supervision is not deducible from the bare Constitution in other respects, as Judge Marshall words themselves. remarks, by its reference to the exemption of vessels bound to or from one State from entering, clearing, or paying duties in another, as well as to other provisions. And if this were not the true interpretation of the Constitution, then there is no point of union for this great branch of national power and prosperity, nor any common administration over it. The control will remain with the States, and one of the principal objects sought to be attained by the change of a confederated to a constitutional Government has failed in the It being obvious, then, that the least possible modicum of power, consistent with the most limited construction of the language employed, would furnish a very erroneous rule for its interpretation, it has been an object with the judicial tribunals and with commentators to investigate and determine the true principles of interpretation in all cases of doubtful phraseology. These inquiries now make part of our constitutional history, and are well worth the careful. study of every man, who desires to become familiar with || accomplishment. The Supreme Court has still the various questions, which, adjusted or open, || further extended the operation of the word "comare embodied in that history, and which, from merce, by deciding that it includes "intertime to time, have divided the country. But, || course," the reciprocal intercommunication of beyond the evil. And hence the restriction which limits the power to regulate commerce to the external relations of the States with foreign nations, and with each other, to the exclusion of their internal commerce as the evil to be remedied, resulted wholly from the one, and not at all from the other." This historical exposition of the commercial relations of the States, showing the necessity of one general directing power, is confirmed by all other accounts, cotemporaneous or traditional. The resolutions of the Legislature of Virginia, of 1784, among the predisposing causes which led to the convention, declared such a measure indispensable in order to prevent "animosities, which cannot fail to arise among the several States from the interference of partial and separate regulation," &c. And Judge Marshall remarks, when speaking of this subject, that "the power over commerce, including navigation, was one of the primary objects for which the people of America accepted their frame of government, and must have been contemplated in forming it." Judge Johnson, of the Supreme Court, described the course of legislation that took place as leading to "iniquitous laws and impolitic measures. persons, which takes place between us and the other nations of the world; and their decision has been fortified by the course of our legislation. Recurring to the question-what is the extent of the power to regulate commerce-the first inquiry is into the operation of the word "regulate,' in this connection. Is it confined, agreeably to its narrowest construction, to a simple power to prescribe rules by which a thing shall be done; or does it reach other objects essential to carrying into effect the purposes of this power over commerce? I have already adverted to the well known fact, that the want of jurisdiction over this subject of commerce was one of the great objections to the Articles of Confederation; and to remedy the evils already existing, and daily growing more alarming, was one of the most powerful motives for calling the constitutional convention. The revolutionary Government was almost powerless in relation to this matter, and the States were beginning a war of restrictions and prohibitions, which would have soon severed the weak bond of the Union. And with regard to other nations the subject was equally embarrassing, for Congress could not enforce commercial treaties, nor preserve the public faith. All this, together with the discussions and excitement it produced, makes part of our history during that dark period, which intervened, between the recognition of independence and the commencement of the new Government. It is a most instructive chapter in the annals of our national experience, and should be carefully studied by every one, who seeks to know through what a perilous crisis we passed before the glorious consummation of that "more perfect Union," and of that security of the "blessings of libertying from the mere power of prescribing rules to to ourselves and to our posterity," which took the place of doubt, of division, and of political imbecility. Mr. Calhoun well says, in his remarks upon this subject, written with his accustomed force and accuracy, that "the present Constitution was adopted to remedy the defects of the old Articles of Confederation. Among these none were found more embarrassing, or having a stronger tendency to weaken the Union in its foreign relations, or to alienate the attachment of the States from each other, and bring them into collision, than the power they possessed under the Confederation of regu lating commerce, "' &c. "The embarrassments, Passing from this historical summary, I return. to the clause embracing the subject, with a view to its true interpretation. Ihave already said, that the word "commerce" is far from being a definite term, and still further from that characteristic is the word "regulate. Mr. Calhoun says of it, that "there are few words in the language, when thus used, more vague than the word to 'regulate.' It has, as commonly used, all the shades of mean that of having absolute and unlimited control distraction, and hazard of collisions, growing out There is no doubt, as was well remarked by of the power reserved to the States respectively Mr. Calhoun, that the preexisting state of things to regulate their commerce with foreign nations in the colonial times had its effect upon the grants and with each other, were so great and alarming of power in the Constitution, and upon the conas to cause the reflecting and patriotic to demand struction, which has been given to their exercise. a speedy and effectual remedy; and contributed, The words conveying them were used in that more than any other cause, to the calling of the signification to which the country was accusconvention which formed the Constitution, as is tomed, and some of them were extended or rewell known. Care was accordingly taken to strained by that circumstance; and they were apply effectual remedies, as might be expected, also controlled by the inconveniences arising out by delegating to the newly-formed Government of the former system. And this tendency has the exclusive power of regulating the commerce not escaped the observation of Judge Story, who, of the States with foreign nations, and with one in his Commentaries, refers to the natural transfer another; and prohibiting, without qualification, of a power to the Federal Government, because the States from entering into alliances or confed-it had been previously exercised by the Crown. erations, as has been stated. But equal care was, Thus, under the royal Government, the power to at the same time, taken not to extend the remedy || regulate commerce was in the Crown, and it earried with it the "regulation" of light-houses and other "aids to navigation in the navigable waters. And this led the more readily to the general acquiescence in the possession of the same powers by the Federal Government; or, in other words, in the construction which extended commerce to navigation, and the power of regulation to material aids, to render it "safe and easy. The colonies not being possessed of those powers when subjected to British supremacy, and the cotemporaneous and unquestioned construction of this phrase, at the organization of the Gov-mode in which it shall be carried on, but that it ernment, show, as do also its continuance to this days that the power to regulate is a power not merely to direct, but to aid commerce, or rather navigation, the affiliated branch of it. twenty-eight-the whole number-and nine members of the House, out of ninety-three-the whole number-who had held their seats in the constitutional convention; and that, of all the members of both branches, amounting to a hundred and twenty-one, fifty-four had been delegates to the old Congress. Their names are all given, and some of them are as familiar to us as household words. That act of August 7, 1789, recognized the principle that the regulation of commerce is not a mere declaratory power as to the includes also the means of "facilitating and securing it;" for that is the authority thus historically claimed. But, besides these objects, there are others, depending on the same princiThe ninth statute in the statute-book of the ple, which have since, by universal assent, been United States is, "An act for the establishment provided for by Congress-such as hospitals for oflight-houses, beacons, buoys, and public piers;" seamen when sick or disabled, their support and it makes provision for their "support, main- when indigent in foreign countries, and their tenance, and repair," for the purpose of render- return to the United States; surveys, not for the ing the navigation easy and safe," for such is Navy, but for the commercial marine; reconthe declared object. The President, in his veto noissances" like that for such parts of Behring's message of January 3, 1855, in reviewing this straits and the China seas "as are frequented by class of legislation, remarks that, "The practice American whale ships and by trading vessels;' under all my predecessors in office, the expresslife-boats; the dispatch of vessels for relief in admission of some of them, and absence of all hazardous seasons; and other objects, which I denial by any, sufficiently manifest their belief have not time to seek. that the power to erect light-houses, beacons, buoys, and piers, is possessed by the General Government." Then, sir, the power to regulate commerce includes the power to aid navigation; and among And he adds that, "In accord-other means, by rendering it more easy and ance with long-established legislative usage, Con- safe." And we have also the authority of Gengress may construct light-houses and beacons,|| eral Jackson and of Mr. Polk to the same point. and provide, as it does, other means to prevent The former said, in his Maysville veto message, shipwrecks on the coasts of the United States." that the exercise of the power to render" naviHere, then, we have the admission of the Presi- gation safe and easy," by light-houses, beacons, dent, of his predecessors, of Congress, of the buoys, and piers, is coeval with the Constitution; country, indeed, from the initiation of the Gov-and the latter, in his message of August 8, 1846, ernment to the present day, with the exception of the Senator from Georgia, [Mr. TooMBS,] who, I believe, has been the first to deny the power of the Federal Legislature to establish this class of works, and particularly light-houses, that there is a constitutional power to construct and maintain them. Whether the Senator so restricts the interpretation of the word "commerce" as to exclude navigation from its operation, he has not told us. If he does not, his construction is not as strict as it might be; and if he does, and is right, our proceedings upon this subject form a remarkable example of false legislation, which has gone on unquestioned for almost seventy years. The act of Congress of August 7, 1789, which enumerates these objects-" aids to navigation" —and to which the President refers, was signed by Washington, and approved, so far as we know, by many of the eminent men, who had been members of the convention that framed the Constitution, and had seats in the First Congress, that convened under its authority. I have requested Colonel Hickey, who is not only our able and faithful Clerk, but is intimately acquainted with the history of Congress, to ascertain how many members of the First Congress had been members of the convention; and he has prepared an interesting list, that I hold in my hand, and which shows that there were, in that Congress, eight members of the Senate, out of that Congress has exercised this power coeval with the Constitution, "for the purpose of rendering navigation safe and easy, and of affording protection and shelter for our Navy and other shipping. And we have thus reached the principle of jurisdiction, and are brought to the practical question of the extent to which it may be applied. And we have reached also that debatable ground in our Government, where the possibility of the abuse of a power is so often urged as a reason against its constitutional existence. It is a branch of the subject I feel no disposition to press upon the attention of the Senate. A tendency to the abuse of power, by the excessive application of it, is common to all Governmentsto our own as well as to others. Such is the imperfection of language, that it is impossible to confer a power, which, in legislation or in administration, may not be liable to abuse, honestly or dishonestly. But still, powers must be vested somewhere; and that political system is the wisest, which grants, not the least, but the least that is compatible with the just objects of Government, and provides the surest means for its proper use, and the safest checks against its abuse. There are objects, which, from their very nature, carry with them more temptation or liability to misgovernment; and it is here that most caution should be exercised, both in the grant of power and in its administration. But it would be a waste of time to refute the proposition, that where there may be vicious legislation, there no power to legislate exists. I have said, that the gentleman from Georgia and others like him-if there are any such-who deny the power of the General Government to construct light-houses, or to provide any other "aids" to navigation, are free from the embarrassment to which the President and those who think with him are exposed in seeking a tangible boundary, after once admitting the jurisdiction of Congress over the subject. In this, as in many other cases, it is the first step, which creates the difficulty. Though there are certain principles -constitutional limitations rather-to which I have already alluded, and shall again advert, that restrict the power of Congress over this subject within far narrower limits than would be occupied by a general system of internal improvements, yet, even with this restriction, much is left to legislative discretion, as there must be in all cases of public expenditures. The language of the President above quoted is not very definite; nor, indeed, does the subject admit absolute precision. It is conceded, that some of the river and harbor improvements are || within the competence of Congress, while it is contended, that others are not; but we are left without any explanation of the difference in the "nature" and "degree" of those works, which vest some of them with a constitutional character, and divest others of any such pretension. The Chief Magistrate suggests to Congress no praetical guide for its inquiries in that direction. The President says, that, in accordance with longestablished legislative usage, Congress may construct certain works. I suppose that "long-established legislative usage" is not here assumed as that|lished the foundation of the power, but as a practical interprétation of the Constitution, entitled to great weight. That interpretation establishes the principle of jurisdiction, and its extent must then be measured by the nature of the subject, as in all other cases, where a specified boundary is not prescribed to the action of Congress. The suggested limitations referred to by the President are said to be those of constitutionality and expediency both. As the former, if they exist, render an inquiry into the latter unnecessary, I shall confine my observations upon this branch of the subject to the power, without touching the discretion of Congress. There is a constitutional power, admits the President, to provide "aids to navigation." The First Congress and subsequent acquiescence established the principle by the exercise of the power. The President assumes that the extent of this exercise, and not the extent of the principle itself, is the test of the power, and that it becomes a constitutional limitation, which Congress cannot "overstep," to borrow a phrase from Mr. Madison. The President, while conceding "that, beyond the purposes of national defense and maintenance of a navy, there is authority in the Constitution to construct certain works in aid of navigation," contends that the conclusions in favor of the power deduced from cotemporaneous construction and long-continued acquiescence are themselves suggestive of limitations of constitutionality, as well as expediency, regarding the nature and the description of these aids to navigation, which Congress may provide, as incident to the revenue power; for at this point the controversy begins, not so much as to the principle, as to its application." That is, if I comprehend the President's meaning, the constitutional action of Congress is conceded, but its application, or, in other words, the exercise of the legislative dis- || cretion, under an acknowledged grant of power, becomes the matter in controversy. I do not see,|| if the power exists, wherein it differs in its op- But this position is erroneous as a constitueration from other grants, or how its application || tional test, and inapplicable as a practical one. can test the authority of Congress any more than It is not to be denied, that the power to render the extent of the exercise of other powers can be navigation "easy and safe" by public works is tested by a similar process. Nor do I compre-established as a constitutional one, both by the hend what are the nature and description of those aids, which suggest constitutional and expedient limitations to the action of Congress, nor how they operate to produce that effect. In explanation and confirmation of his position, the President says that, "in accordance with long-established legislative usage, Congress may construct light-houses and beacons, and provide, as it does, other means to prevent shipwrecks on the coasts of the States. But the General Government cannot go beyond this, and make improvements of rivers, of the value and to the degree of all the provisions of the bill of the last session of Congress." Judge Story, in adopting the principle, carries it to its legitimate consequences. He says, in his Commentaries, that "the power to regulate commerce extends to the construction of light-houses, the placing of buoys and beacons, the removal of obstructions to navigation in creeks, rivers, sounds, and bays, and the establishment of securities to navigation against the invasions of the ocean." * express declaration and by the legislative action of the First Congress, so far as its cotemporaneous opinion can have weight in the decision of the question. The mode of thus making it “ easy and safe" was not pronounced, but certain provisions for that purpose were enacted, which yet make part of our system of administration. Now, if I am fortunate enough to apprehend the views of the President, he assumes this action of the First Congress, not only as an authoritative exposition of the Constitution with respect to the power, but also with respect to the extent of its application, and that what was then done may now be done, and as and because it was done then. I hold in high estimation the public men of that day, and review their labors with favor and respect. And I accord great weight to their practical interpretations of the Constitution, itself their work, and the early legislative proceedings, the commentary upon it, of many of the very men who, after laboring for the adoption of the new government, accepted seats in its first Legis |