Joseph Story: Power to Borrow Money and Regulate Commerce

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* NOW - Buy this resource online! Click here * Power to Borrow Money and Regulate CommerceSec. 1050.Sec. 1051.Sec. 1052.Sec. 1053.Sec. 1054.Sec. 1055.Sec. 1056.Sec. 1057.Sec. 1058.Sec. 1059.Sec. 1060.Sec. 1061.Sec. 1062.Sec. 1063.Sec. 1064.Sec. 1065.Sec. 1066.Sec.1067.Sec. 1068.Sec. 1069.Sec. 1070.Sec. 1071.Sec. 1072.Sec. 1073.Sec. 1074.Sec. 1075.Sec. 1076.Sec. 1077.Sec. 1078.Sec. 1079.Sec. 1080.Sec. 1081.Sec. 1082.Sec. 1083.Sec. 1084.Sec. 1085.Sec. 1086.Sec. 1087.Sec. 1088.Sec. 1089.Sec. 1089.Sec. 1090.Sec. 1091.Sec. 1092.Sec. 1093.Sec. 1094.Sec. 1095.Sec. 1096. FOOTNOTES
   1. Article 9.
   2. 1 Tuck. Black. Comm. App. 245, 246; The Federalist, No. 41.
   3. Weston v. City Council of Charleston, 2 Peters's R. 449, 468.
   4. Gibbons v. Ogden, 9 Wheat. R. 1, 225, Johnson J.'s Opinion; Brown v. Maryland, 12 Wheat. R. 445, 446.
   5. The Federalist, No. 4, 7, 11, 22, 37.
   6. Brown v. State of Maryland, 12 Wheat. R. 419, 445, 446; 1 Tucker's 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.
   7. The Federalist, No. 7. 11, 12, 22, 41, 42.
   8. Journal of Convention, 220, 257, 260, 356, 378.
   9. Gibbons v. Ogden, 9 Wheat. R. 189.
   10. 9 Wheat. R. 196.
   11. Gibbons v. Ogden, 9 Wheat. 189, 190; Id. 229, 230.
   12. 9 Wheat. R. 190, 191; Id. 215, 216, 217; Id. 229, 230; 1 Tucker's Black. Comm. App. 249 to 252.
   13. 12 Wheat. R. 446.
   14. 1 Tucker's Black. Comm. App. 247, 248, 249.
   15. 9 Wheat. R. 191.
   16. 9 Wheat. R. 191, 215, 216; North River Steamboat Company v. Livingston, 3 Cowen's R. 713.
   17. 9 Wheat. 193; 1 Kent's Comm. Lect. 19, p. 404, 405; The Brigantine William, 2 Hall's Law Journal, 265; Sergeant on Const. ch. 28, p. 290, 86.
   18. 9 Wheat. 193, 215, 216, 217; Id. 226; 12 Wheat. R. 446, 447; North River Steamboat Company v. Livingston, 3 Cowen's R. 713.
   19. Gibbons v. Ogden, 9 Wheaton's R. 1, 201; Ib. 224; Ib. 225 to 228. See Mr. Verplank's letter to Col. Drayton in 1831; Resolves of Congress, 14th Oct. 1774, (1 Journal of Congress, 27); 2 Marshall's Life of Washington, (in five volumes,) p. 77, 81; Dr. Franklin's Examination, before the house of commons, in 1766; Dickerson's Farmer's Letters, No. 2, 1767; 1 Jefferson's Corresp. 7; Burke's Speech on American Taxation, 1774.
   20. Gibbons v. Ogden, 9 Wheaton's R. 194.
   21. Gibbons v. Ogden, 9 Wheaton's R. 194, 195, 196; Brown v. Maryland, 12 Wheaton, 446, 447.
   22. See the Federalist, No. 6, 7, 11, 12, 22, 41, 42; N. R. Steamboat Company v. Livingston, 3 Cowen's R. 713.
   23. 12 Wheaton's R. 448, 449; 9 Wheaton, 199 to 204.
   24. The Federalist, No. 42; 1 Tuck. Black. Comm. App. 247 to 252.
   25. See President Monroe's Exposition and Message, 4 May, 1822, p. 31, 32.
   26. The Federalist, No. 42, 22.
   27. The Federalist, No. 42.
   28. The Federalist, No. 11, 12.
   29. See the opinion of Mr. Justice Johnson, 9 Wheaton's R. 224 to 228.
   30. In the convention, it was moved to amend the article, so as to give to congress "the sole and exclusive" power; but the proposition was rejected by the vote of six states against five. ^a
   a. Journal of Convention, 220, 270.
   31. Gibbons v. Ogden, 9 Wheaton's R. 1; Brown v. Maryland, 12 Wheaton's R. 419, 445. 446; 1 Tucker's Black. Comm. App, 180, 309; N. R. Steam Boat Company v. Livingston, 3 Cowen's R. 713.
   32. 9 Wheaton's R. 196, 198, 209; Id. 227, 228.
   33. Wheaton's R. 199, 200.
   34. 9 Wheaton's R. 201, 202; 1 Jefferson's Corresp. 7; The Federalist, No. 56; 12 Wheaton's R. 446, 447.
   35. 9 Wheaton's R. 201, 202.
   36. See Corfield v. Cargill, 4 Wash. Cir. R. 371, 379, etc.
   37. 9 Wheaton's R. 203 to 207, 209.
   38. 9 Wheaton's R. 207, 208, 209.
   39. 1 Kent's Comm. Lect 19, p. 404, 410, 411. See also Rawle on the Constitution, ch. 9, p. 81 to 84; Sergeant on Const. ch. 98, p. 291, 292.
— There is a very able and candid review of the whole subject by Mr. Chancellor Kent in his excellent commentaries. (1 Kent's Comm. Lect. 19, p. 404.) I gladly avail myself of this, as well as of all other occasions, to recommend his learned labours to those, who seek to study the law, or the constitution, with a liberal and enlightened spirit.
   40. 9 Wheaton's R. 197 to 204.
   41. Brown v. State of Maryland, 12 Wheaton's R. 419, 445 to 447; 9 Wheaton's R. 197. etc. — Mr. Justice Thompson dissented from this doctrine, as will be seen in his opinion in 12 Wheaton's R. 449, etc.
   42. Wilson v. Blackbird Creek Company, 2 Peters's R. 245.
   43. Gibbons v. Ogden, 9 Wheat. R. 189 to 198; Id. 211 to 215; 1 Tuck. Black. Comm. App. 247 to 249; Id. 250.
   44. 1 Tuck. Black. Comm. App. 252.
   45. 9 Wheat. R. 203, 204, 205, 206, 207, 208; 1 Tuck. Black Comm. App. 251, 252.
   46. 9 Wheat. R. 214, 915 to 221.
   47. 9 Wheat. R. 191, 192; 1 Kent's Comm. Lect. 19, p. 404, 405.
   48. 1 Tuck. Black. Comm. App. 249, 251; 9 Wheat. R. 208, 209.
   49. Mr. Hamilton, in his celebrated argument on the national bank, (23d Feb. 1791,) enumerates the following as within the power to regulate commerce, viz. the regulation of policies of insurance, of salvage upon goods found at sea, and the disposition of such goods; the regulation of pilots; and the regulation of bills of exchange drawn by one merchant upon a merchant of another state; and, of course, the regulation of foreign bills of exchange.^b
   b. 1 Hamilton's Work's, 134.
   50. Sergeant on Const. Law ch. 28, (ch. 30, 2d edit.)
   51. See 1 Elliot's Debates, 144.
   52. See Address of the Philadelphia Free Trade Convention, in September and October 1831.
   53. A proposition was referred to the committee of Details and Revision "to establish public institutions, rewards, and immunities, for the promotion of agriculture, commerce, trade, and manufactures." The committee never reported on it. Journ. of Convention, p. 261.
   54. The above arguments and reasoning have been gathered, as far as could be, from documents admitted to be of high authority by those, who maintain the restrictive doctrine. See the Exposition and Protest of the South Carolina legislature, in Dec. 1828, attributed to Mr. Vice President Calhoun; the Address of the Free Trade Convention at Philadelphia, in Oct. 1831, attributed to Mr. Attorney General Berrien; the Oration of the Hon. Mr. Drayton, on the 4th of July, 1831; and the Speech of Mr. Senator Hayne, 9th of Jan. 1832 — See also 4 Jefferson's Corresp. 421.
   55. See Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828; Mr. Verplanck's Letter to Col. Drayton, in 183 1; Address of the New-York Convention in favour of Domestic Industry, November, 1831, p. 12, 13, 14 9 Wheat. K. 202; 1 Pitk. Hist. ch. 3, p. 93 to 106.
   56. 1 American Museum, 16.
   57. 1 Elliot's Debates, 74, 75, 76, 77, 115; 3 Elliot's Debates, 31, 32, 33; 2 Amer. Museum, 371, 372, 373; 3 Amer. Museum, 62, 554, 556, 557; The Federalist, No. 12, 41; 1 Tuck. Black. Comm. App. 237, 238; 1 American Museum, 16, 282, 289, 429, 432; Id. 434, 436; Hamilton's Report on Manufactures, in 1791; 4 Elliot's Debates, App. 351 to 354.
   58. See Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828; 4 Elliot's Debates, App. 345.
   59. Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828; 4 Elliot's Debates, App. 345.
   60. See the Federalist, No. 11, 12.
   61. See Mr. Jefferson's Report on the Fisheries, 1st Feb. 1791, 10 Amer. Mus. App. 1, etc., 8, etc.
   62. See Mr. Williamson's Speech in Congress, 8 Amer. Mus. 140.
   63. See 1 Lloyd's Deb. 17, 19, 22, 23, 24, 26, 27, 28, 31, 34, 39, 43, 46, 47, 50, 51, 52, 55, 64 to 69, 71, 72, 74 to 83, 94, 95, 97. 109, 116, 145, 160, 161, 211, 212, 243, 244, 254; Id. 144, 183, 194, 206, 207. See also 5 Marshall's Wash. ch. 3, p. 189, 190.
   64. See 1 Lloyd's Deb. 24, 160, 161, 243, 244; 4 Elliot's Deb. App. 351, 351.
   65. See Grimke's Speech, in Dec. 1828, p. 58, 59, 63.
   66. Act. of 4th July, 1789.
   67. It is not a little remarkable, that the culture of cotton was just then beginning in South Carolina; and her statesmen then thought a protecting duty to aid agriculture was in all respects proper, and constitutional. 1 Lloyd's Deb. 79; Id. 210, 211, 212, 244.
   68. Hamilton's Report on Manufacturers, in 1791.
   69. The Federalist, No. 10, 35, 41.
   70. See 4 Elliot's Debates, App. 353, 354.
   71. 4 Jefferson's Correspondence, 280, 281; 1 Pitkin's Hist. ch. 3, p. 93 to 106.
   72. 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. Grimke's Speech in Dec. 1898, 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. 1839; 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.
   73. Journal of Convention, p. 961.
   74. Journal of Convention, p. 222.
   75. 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.
   76. Journal of Convention, 306.
   77. See The Federalist, No. 22; 1 Tucker's Black. Comm. App. 253, 375.
   78. 1 Tucker's Black. Comm. App. 253, 375.
   79. Journal of Convention, 220, 260, 356.
   80. Art. 9.
   81. 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.
   82. Ibid.
   83. The Federalist, No. 42; 1 Tuck. Black. Comm. App. 253; 12 Jour. of Congress, 3 August, 1787, p. 81 to 84.
   84. Worcester v. The State of Georgia, 6 Peters's R. 515; 12 Journ. of Congress, 3 August, 1787, p. 81 to 84.
   85. Johnson v. McIntosh, 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.
   86. 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, etc. has given a very full view of the ante-revolutionary, as well as post-revolutionary authority exercised in regard to the Indian tribes. See Blunt's Historical Sketch, etc. (New-York, 1825.) Mr. Jefferson's opinion was, that the United States had no more than a right of pre-emption of the Indian lands, not amounting to any dominion, or jurisdiction, or permanent authority whatever; and that the Indians possessed a full, undivided, and. independent sovereignty. 4 Jefferson's Corresp. 478.
   87. Rawle on the Constitution, ch. 9, p. 84. See also 1 Tuck. Black. Comm. App. 254; 1 Kent's Comm. Lect. 50, p. 508 to 318.
   88. The Cherokee Nation v. Georgia, 5 Peters's R. 1, 16, 17; Jackson v. Goodell, 20 John. R. 193; 3 Kent's Comm. Lect. 50. p. 308 to 318. In the first volume of Bioren & Duane's edition of the laws of the United States, there will be found a history of our Indian Treaties and Laws regulating Intercourse and Trade with the Indians. 1 United States Laws, 597 to 620.
   89. While this sheet was passing through the press, President Jackson's Proclamation of the 10th of December, 1832, concerning the recent Ordinance of South Carolina on the subject of the tariff, appeared. That document contains a most elaborate view of several questions, which have been discussed in this and the preceding volume, especially respecting the supremacy of the laws of the Union; the right of the judiciary to decide upon the constitutionality of those laws; and the total repugnancy to the constitution of the modern doctrine of nullification asserted in that ordinance. As a state paper it is entitled to very high praise for the clearness, force, and eloquence, with which it has defended the rights and powers of the national government. I gladly copy into these pages some of its important passages, as among the ablest commentaries ever offered upon the constitution.

"Whereas, a convention assembled in the state of South Carolina have passed an ordinance, by which they declare, 'That the several acts and parts of acts of the congress of time United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities, and now having actual operation and effect within the United States, and more especially,' two acts for the same purpose passed on the 29th of May, 1828, and on the 14th of July, 1832, are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof, and are null and void, and no law,' nor binding on the citizens of that state or its officers: and by the said ordinance, it is further declared to be unlawful for any of the constituted authorities of the state, or of the United States, to enforce the payment of the duties imposed by the said acts within the same state, and that it is the duty of the legislature to pass such laws, as may be necessary to give full effect to the said ordinance:
"And whereas, by the said ordinance, it is further ordained, that in no ease of law or equity, decided in the courts of said state, wherein shall be drawn in question the validity of the said ordinance, or of the acts of the legislature, that may be passed to give it effect, or of the said laws of the United States, no appeal shall be allowed to the Supreme Court of the United States, nor shall any copy of the record be permitted or allowed for that purpose, and that any person attempting to take such appeal shall be punished as for a contempt of court: "And, finally, the said ordinance declares, that the people of South Carolina will maintain the said ordinance at every hazard; and that they will consider the passage of any act by congress, abolishing or closing the ports of the said state, or otherwise obstructing the tree ingress or egress of vessels to and from the said ports, or any other act of the federal government to coerce the state, shut up her ports, destroy or harass her commerce, or to enforce the said acts otherwise, than through the civil tribunals of the country, as inconsistent with the longer continuance of South Carolina in the Union; and that the people of the said state will thenceforth hold themselves absolved from all further obligation to maintain or preserve their political connexion with the people of the other states, and will forthwith proceed to organize a separate government, and do all ether acts and things, which sovereign and independent states may of right do:
"And whereas, the said ordinance prescribes to the people of South Carolina a course of conduct, in direct violation of their duty, as citizens of the United States, contrary to the laws of their country, subversive of its constitution, and having for its object the destruction of the Union, — that Union, which, coeval with our political existence, led our fathers, without any other ties to unite them, than those of patriotism and a common cause, through a sanguinary struggle to a glorious independence, — that sacred Union, hitherto inviolate, which, perfected by our happy constitution, has brought us, by the favour of Heaven, to a state of prosperity at home, and high consideration abroad, rarely, if ever, equalled in the history of nations. To preserve this bond of our political existence from destruction, to maintain inviolate this state of national honour and prosperity, and to justify the confidence my fellow-citizens have reposed in me, I, Andrew Jackson, President of the United States, have thought proper to issue this my Proclamation, stating my views of the constitution and laws, applicable to the measures adopted by the convention of South Carolina, and to the reasons they have put forth to sustain them, declaring the course, which duty will require me to pursue, and, appealing to the understanding end patriotism of the people, warn them of the consequences, that must inevitably result from an observance of the dictates of the convention.
"Strict duty would require of me nothing more, than the exercise of those powers, with which I am now, or may hereafter be, invested, for preserving the peace of the Union, and for the execution of the laws. But the imposing aspect, which opposition has assumed in this case, by clothing itself with state authority, and the deep interest, which the people of the United States must all feel in preventing a resort to stronger measures, while there is a hope, that any thine, will be yielded to reasoning and remonstrance, perhaps demand, and will certainly justify, a full exposition to South Carolina end the nation of the views I entertain of this important question, as well as a distinct enunciation of the course, which my sense of duty will require me to pursue.
"The ordinance is founded, not on the indefeasible right of resisting acts, which are plainly unconstitutional and too oppressive to be endured; but on the strange position, that any one state may not only declare an act of congress void, but prohibit its execution, — that they may do this consistently with the constitution, — that the true construction of that instrument permits a state to retain its place in the Union, and yet be bound by no other of its laws, than those it may choose to consider as constitutional. It is true, they add, that to justify this abrogation of a law, it must be palpably contrary to the constitution; but it is evident, that to give the right of resisting laws of that description, coupled with the uncontrolled right to decide, what laws deserve that character, is to give the power of resisting all laws. For, as by the theory there is no appeal, the reasons alleged by the state, good or bad, must prevail. If it should be said, that public opinion is a sufficient check against the abuse of this power, it may be asked, why it is not deemed a sufficient guard against the passage of an unconstitutional act by congress. There is, however, a restraint in this last case, which makes the assumed power of a state more indefensible, and which does not exist in the other. There are two appeals from an unconstitutional act passed by congress, — one to the