being subsequent to the Constitution, becomes the masterkey to all that the Constitution permits; the pitch-note, and all constructions, must harmonize with it, and be controlled by it; hence every expression in the Constitution which would seem to confer unlimited powers, like “providing for the general welfare," becomes unmeaning, except as the general welfare can be promoted by the powers that are expressly delegated.

Public improvements can be made by Congress only as a means to execute some granted power.

We may proceed now without difficulty, in deciding, theoretically, the extent to which public improvements can be constitutionally prosecuted by Congress. The power is nowhere granted expressly; hence it exists in only the power "to make all laws which shall be necessary and proper for carrying into execution all powers vested by the Constitution in the Government of the United States, or in any department or office thereof." The war power may render "necessary and proper," that ships of war which are in Lake Erie shall be locked down into Lake Ontario ; and any other public improvement or work will be constitutional, that shall become necessary and proper, to the execution of the war power. The power to "provide and maintain a navy," "to collect duties and imposts," &c., may render "necessary and proper" the erection of docks. and light-houses; the construction of harbors and piers; the improvement of channels and rivers; and the placing of buoys and beacons. The works that may become constitutional are, therefore, as illimitable and various as the means which shall become "necessary and proper" to execute any of the granted powers; and without reference to whether the works are on a lake, inland river, or sea; ex

cept that the location must result from the necessity and propriety for which the works are undertaken.

Public improvements can be made only when the granted power to whose execution they are necessary, is sought to be enforced.

After finding as above, that harbors may be constructed and rivers deepened, when the improvements are necessary to the collection of duties, the improvements can be authorized thereby, only when the motive is, in good faith, the collection of duties. To make the collection of duties a mere pretext for the improvements, would constitute a fraud on the Constitution. A United States Bank may be necessary and proper "to collect taxes, duties, and imposts;" but this will not render such a bank constitutional, unless Congress establish it for the purpose of such collections. The Constitution tolerates the bank as a means, and in no other way, just as the law tolerates homicide in self-defence; but if, for the purpose of perpetrating a homicide, we concoct a case of self defence, we shall no longer be within the protection of the laws, but become murderers,

No discretion of Congress, nor long acquiescence by the States and people, nor Judicial decisions, are authoritative against the Constitution.

On Congress devolves the discretion of deciding what means are necessary and proper for executing the powers granted by the Constitution; but the discretion, how honestly soever exercised, will not make a bank constitutional, if such an agent is not necessary and proper in the premises; or the limits of the Constitution would exist in con gressional discretion. The Supreme Court of the United States can always review the discretion, and control it. But this is not final; nor is any continued acquiescence

final of the States or people in any given discretion, nor any concurrence therein of former Presidents, or other eminent statesmen. These may lead a man to believe, that the discretion must have been constitutionally exercised, and will measurably influence every man; still, they cannot work an enlargement of the Constitution. Precedents can palliate subsequent errors, but not transmute them into rights, any more than the continued circulation of a spurious dollar can transmute it into a genuine dollar. Precedents are properly authoritative in courts of law, for they prevent a vacillation in judicial decisions, which, if erroneous, can be corrected by new legislation; but, if our National Legislature (Congress and President) shall deem itself bound by legislative precedents, no mode exists for correcting errors ; "the salt will, indeed, have lost its savor, and wherewith shall it be salted?" and written constitutions, the American great improvement in government, will lose its quality of rendering principles immutable.

No construction must enlarge a granted power, or it will produce a compound enlargement of the Constitution.

The power to regulate commerce with foreign nations, and among the several States, will not authorize the improvement of rivers, lakes, and inland harbors, unless we enlarge the granted power by deeming it synonymous with a power to increase, create, and facilitate commerce among the several States. This enlarged meaning is accordingly given to the power "to regulate commerce among the several States," by persons who favor public improvements, and who thus bring within the power of Congress many river and lake improvements, which otherwise Congress would have no pretence for undertaking. We see, therefore, that to enlarge a granted power, effects a direct en

largement of the Constitution, and an indirect one, founded on the direct. We need not, however, insist that the granted power" to regulate commerce," will never require, in its execution, the construction of any public improvement. It can, like every other granted power, be executed by every means that are "necessary and proper;" but we insist, that the "power to regulate" must be strictly construed, so that the public improvements, if any, which alone can be founded thereon, must be such as shall be necessary to execute the regulations.

A granted power which possesses a definite meaning, should be construed to mean what is definite, or the Constitution becomes indefinitely extensible.

The power "to regulate commerce among the several States," possesses a practical meaning, without resolving the word "regulate" into any word of a larger or different import. The State of New-York attempted to give Robert Fulton and others a monopoly in steam navigation of the Hudson River; but the monopoly was adjudged to be unconstitutional, to the extent that it excluded steam vessels under a coasting license of the General Government. The power "to regulate commerce among the several States," found here a useful exercise, and we know historically, that the power was granted by the Constitution for just such purposes. Indeed, nothing but this regulating power of Congress prevents any State from instituting a species of the English navigation laws, and thereby to monopolize the carrying trade within its State limits, and to prohibit, except in its own vessels, the entry into its ports of any productions of other States,-just as each State restricts to its own citizens its State offices, excluding new comers till after a residence of some years. Besides, if to regulate is

deemed equivalent to create, increase, and facilitate, and we apply the construction to the whole constitutional clause, namely, "to the commerce with foreign nations, and among the several States, and with the Indian tribes," Congress will obtain the power, not merely to improve inland rivers, and create lake harbors, but the power to create roads and canals 'everywhere, and nearly every other power. Startled at such a result, some statesmen limit the claimed power to rivers and lakes that connect two or more States-forgetting that you can scarcely travel a highway that will not lead from one State into an adjoining one, and over which highway commerce, between the two States, is rolling its wagons, and would beneficially glide its cars, if a railroad could be substituted by the General Government in place of the existing earth road. But the numerous arbitrary limitations that the advocates of such a construction adopt, to render limitable the power which they claim, shows that the assumed construction is untenable.

Our Confederacy derives no powers from its nationality, not granted specifically to it by the Constitution.

*

At the Chicago Harbor and River Convention, in 1847, eighteen States were represented. The Committee on Resolutions reported through a statesman of national renown, who embodied in his remarks the views of the Committee. He said, "A stranger unacquainted with the disputes which have arisen, would be surprised at the existence of a doubt, whether any human government could be so badly constituted, as to be incapable of applying the means at its disposal, to the protection and maintenance of any essential interests of the community, for whose benefit

J. C. Calhoun.