liver over the country to interminable doubts; and to
make the constitution not a written system of govern-
ment, but a false and delusive text, upon which every
successive age of speculatists and statesmen might
build any system, suited to their own views and opin-
ions. But if it be added to this, that the constitution
gives the power in the most unlimited terms, and
neither assigns motives, nor objects for its exercise; but
leaves these wholly to the discretion of the legislature,
acting for the common good, and the general interests;
the argument in its favour becomes as absolutely irresis-
tible, as any demonstration of a moral or political na-
ture ever can be. Without such a power,
the govern-
ment would be absolutely worthless, and made merely
subservient to the policy of foreign nations, incapable
of self-protection or self-support; with it, the coun-
try will have a right to assert its equality, and dignity, ? ?
and sovereignty among the other nations of the earth.2

§ 1089. In regard to the rejection of the proposition
in the convention "to establish institutions, rewards,
and immunities for the promotion of agriculture, com-
merce, trades, and manufactures," it is manifest, that it
has no bearing on the question. It was a power much

14 Jefferson's Correspondence, 280, 281; 1 Pitkin's Hist. ch. 3, p. 93 to 106.

2 The foregoing summary has been principally abstracted from the Letter of Mr. Madison to Mr. Cabell, 18th Sept. 1828; 4 Elliot's Deb. 345; Mr. Grimké's Speech in Dec. 1828, in the South Carolina senate; Mr. Huger's Speech in the South Carolina legislature, in Dec. 1830; Address of the New York Convention of the Friends of Domestic Industry, in Oct. 1831; Mr. Verplanck's Letter to Col. Drayton, in 1831; Mr. Clay's Speech in the senate, in Feb. 1832; Mr. Edward Everett's Address to the American Institute, in Oct. 1831; Mr. Hamilton's Report on Manufactures, in 1791; Mr. Jefferson's Report on the Fisheries, in 1791. See, also, 4 Jefferson's Correspondence, 280, 281.

Bluster

more broad in its extent and objects, than the power to encourage manufactures by the exercise of another granted power. It might be contended with quite as much plausibility, that the rejection was an implied rejection of the right to encourage commerce, for that was equally within the scope of the proposition. In truth, it involved a direct power to establish institutions, rewards, and immunities for all the great interests of society, and was, on that account, deemed too broad and sweeping. It would establish a general, and not a limited power of government.

§ 1090. Such is a summary (necessarily imperfect) of the reasoning on each side of this contested doctrine. The reader will draw his own conclusions; and these Commentaries have no further aim, than to put him in possession of the materials for a proper exercise of his judgment.

§ 1091. When the subject of the regulation of commerce was before the convention, the first draft of the constitution contained an article, that "no navigation "act shall be passed, without the assent of two thirds "of the members present in each house." This article was afterwards recommended in a report of a committee to be stricken out. In the second revised draft it was left out; and a motion, to insert such a restriction to have effect until the year 1808, was negatived by the vote of seven states against three. Another proposition, that no act, regulating the commerce of the United States with foreign powers, should be passed without the assent of two thirds of the mem

1 Journal of Convention, p. 222.

2 Journal of Convention, 222, 285, 286, 293, 358, 387. See, also, 3 American Museum, 62, 419, 420; 2 American Museum, 553; 2 Pitkin's Hist. 261.

bers of each house, was rejected by the vote of seven states against four.' The rejection was, probably, occasioned by two leading reasons. First, the general impropriety of allowing the minority in a government to control, and in effect to govern all the legislative powers of the majority. Secondly, the especial inconvenience of such a power in regard to regulations of commerce, where the proper remedy for grievances of the worst sort might be withheld from the navigating and commercial states by a very small minority of the other states. A similar proposition was made, after the adoption of the constitution, by some of the states but it was never acted upon.3

2

s;

§ 1092. The power of congress also extends to regulate commerce with the Indian tribes. This power was not contained in the first draft of the constitution. It was afterwards referred to the committee on the constitution (among other propositions) to consider the propriety of giving to congress the power "to regulate affairs with the Indians, as well within, as without the limits of the United States." And, in the revised draft, the committee reported the clause, “and with the Indian Tribes," as it now stands.1

§ 1093. Under the confederation, the continental congress were invested with the sole and exclusive right and power "of regulating the trade and managing all affairs with the Indians, not members of any of the states, provided, that the legislative right of any state within its own limits be not infringed or violated." 5

1 Journal of Convention, 306.

2 See The Federalist, No. 22; 1 Tucker's Black. Comm. App. 253, 375.

3 1 Tucker's Black. Comm. App. 253, 375.

4 Journal of Convention, 220, 260, 356.

Art. 9.

§ 1094. Antecedently to the American Revolution the authority to regulate trade and intercourse with the Indian tribes, whether they were within, or without the boundaries of the colonies, was understood to belong to the prerogative of the British crown. And after the American Revolution, the like power would naturally fall to the federal government, with a view to the general peace and interests of all the states. Two restrictions, however, upon the power were, by the above article, incorporated into the confederation, which occasioned endless embarrassments and doubts. The power of congress was restrained to Indians, not members of any of the states; and was not to be exercised, so as to violate or infringe the legislative right of any state within its own limits. What description of Indians were to be deemed members of a state was never settled under the confederation; and was a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a state, yet residing within its legislative jurisdiction, was to be regulated by an external authority, without so far intruding on the internal rights of legislation, was absolutely incomprehensible. In this case, as in some other cases, the articles of confederation inconsiderately endeavoured to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the states; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. The constitution has wisely disembarrassed the

1 Worcester v. State of Georgia, 6 Peters's R. 515; Johnson v. McIntosh, 8 Wheat. R. 543; Journal of Congress, 3 August, 1787, 12th vol. p. 81 to 86.

2 Ibid.

3 The Federalist, No. 42; 1 Tuck. Black. Comm. App. 253; 12 Jour. of Congress, 3 August, 1787, p. 81 to 84.

power of these two limitations; and has thus given to congress, as the only safe and proper depositary, the exclusive power, which belonged to the crown in the ante-revolutionary times; a power indispensable to the peace of the states, and to the just preservation of the rights and territory of the Indians.' In the former illustrations of this subject, it was stated, that the Indians, from the first settlement of the country, were always treated, as distinct, though in some sort, as dependent nations. Their territorial rights and sovereignty were respected. They were deemed incapable of carrying on trade or intercourse with any foreign nations, or of ceding their territories to them. But their right of self-government was admitted; and they were allowed a national existence, under the protection of the parent country, which exempted them from the ordinary operations of the legislative power of the colonies. During the revolution and afterwards they were secured in the like enjoyment of their rights and property, as separate communities. The government of the United States, since the constitution, have always recognised the same attributes of dependent sovereignty, as belonging to them, and claimed the same right of exclusive regulation of trade and intercourse with them, and the same authority to protect and guarantee their territorial possessions, immunities, and jurisdiction.3

2

1 Worcester v. The State of Georgia, 6 Peters's R. 515; 12 Journ. of Congress, 3 August, 1787, p. 81 to 84.

2 Johnson v. M'Intosh, 8 Wheat. R. 543; Fletcher v. Peck, 6 Cranch, 146, 147, per Johnson J.; The Cherokee Nation v. Georgia, 5 Peters's R. 1; Worcester v. The State of Georgia, 6 Peters's R. 515; Jackson v. Goodell, 20 Johnson's R. 193; 3 Kent's Comm. Lect. 50, p. 303 to 318.

3 Worcester v. State of Georgia, 6 Peters's R. 515; Journ. of Congress, 3 August, 1787, vol. 12, p. 81 to 84.-Mr. Blunt, in his valuable Historical Sketch of the Formation of the Confederacy, &c. has given a very full