The Great Speeches and Orations of Daniel Webster / With an Essay on Daniel Webster as a Master of English Style

by Daniel Webster; Edwin Percy Whipple

In the history of the times, it is accordingly found, that the great topic, urged on all occasions, as showing the necessity of a new and different government, was the state of trade and commerce. To benefit and improve these was a great object in itself; and it became greater when it was regarded as the only means of enabling the country to pay the public debt, and to do justice to those who had most effectually labored for its independence. The leading state papers of the time are full of this topic. The New Jersey resolutions[1] complain that the regulation of trade was in the power of the several States, within their separate jurisdiction, to such a degree as to involve many difficulties and embarrassments; and they express an earnest opinion, that the sole and exclusive power of regulating trade with foreign states ought to be in Congress. Mr. Witherspoon's motion in Congress, in 1781, is of the same general character; and the report of a committee of that body, in 1785, is still more emphatic. It declares that Congress ought to possess the sole and exclusive power of regulating trade, as well with foreign nations as between the States.[2] The resolutions of Virginia, in January, 1786, which were the immediate cause of the Convention, put forth this same great object. Indeed, it is the only object stated in those resolutions. There is not another idea in the whole document. The sole purpose for which the delegates assembled at Annapolis was to devise means for the uniform regulation of trade. They found no means but in a general government; and they recommended a convention to accomplish that purpose. Over whatever other interests of the country this government may diffuse its benefits and its blessings, it will always be true, as matter of historical fact, that it had its immediate origin in the necessities of commerce; and for its immediate object, the relief of those necessities, by removing their causes, and by establishing a uniform and steady system. It will be easy to show, by reference to the discussions in the several State conventions, the prevalence of the same general topics; and if any one would look to the proceedings of several of the States, especially to those of Massachusetts and New York, he would see very plainly, by the recorded lists of votes, that wherever this commercial necessity was most strongly felt, there the proposed new Constitution had most friends. In the New York convention, the argument arising from this consideration was strongly pressed, by the distinguished person[3] whose name is connected with the present question.

We do not find, in the history of the formation and adoption of the Constitution, that any man speaks of a general concurrent power, in the regulation of foreign and domestic trade, as still residing in the States. The very object intended, more than any other, was to take away such power. If it had not so provided, the Constitution would not have been worth accepting.

I contend, therefore, that the people intended, in establishing the Constitution, to transfer from the several States to a general government those high and important powers over commerce, which, in their exercise, were to maintain a uniform and general system. From the very nature of the case, these powers must be exclusive; that is, the higher branches of commercial regulation must be exclusively committed to a single hand. What is it that is to be regulated? Not the commerce of the several States, respectively, but the commerce of the United States. Henceforth, the commerce of the States was to be a unit, and the system by which it was to exist and be governed must necessarily be complete, entire, and uniform. Its character was to be described in the flag which waved over it, E PLURIBUS UNUM. Now, how could individual States assert a right of concurrent legislation, in a case of this sort, without manifest encroachment and confusion? It should be repeated, that the words used in the Constitution, "to regulate commerce," are so very general and extensive, that they may be construed to cover a vast field of legislation, part of which has always been occupied by State laws; and therefore the words must have a reasonable construction, and the power should be considered as exclusively vested in Congress so far, and so far only, as the nature of the power requires. And I insist, that the nature of the case, and of the power, did imperiously require, that such important authority as that of granting monopolies of trade and navigation should not be considered as still retained by the States.

It is apparent from the prohibitions on the power of the States, that the general concurrent power was not supposed to be left with them. And the exception out of these prohibitions of the inspection laws proves this still more clearly. Which most concerns the commerce of this country, that New York and Virginia should have an uncontrolled power to establish their inspection of flour and tobacco, or that they should have an uncontrolled power of granting either a monopoly of trade in their own ports, or a monopoly of navigation over all the waters leading to those ports? Yet the argument on the other side must be, that, although the Constitution has sedulously guarded and limited the first of these powers, it has left the last wholly unlimited and uncontrolled.

But although much has been said, in the discussion on former occasions, about this supposed concurrent power in the States, I find great difficulty in understanding what is meant by it. It is generally qualified by saying, that it is a power by which the States could pass laws on subjects of commercial regulation, which would be valid until Congress should pass other laws controlling them, or inconsistent with them, and that then the State laws must yield. What sort of concurrent powers are these, which cannot exist together? Indeed, the very reading of the clause in the Constitution must put to flight this notion of a general concurrent power. The Constitution was formed for all the States; and Congress was to have power to regulate commerce. Now, what is the import of this, but that Congress is to give the rule, to establish the system, to exercise the control over the subject? And can more than one power, in cases of this sort, give the rule, establish the system, or exercise the control? As it is not contended that the power of Congress is to be exercised by a supervision of State legislation, and as it is clear that Congress is to give the general rule, I contend that this power of giving the general rule is transferred, by the Constitution, from the States to Congress, to be exercised as that body may see fit; and consequently, that all those high exercises of power, which might be considered as giving the rule, or establishing the system, in regard to great commercial interests, are necessarily left with Congress alone. Of this character I consider monopolies of trade or navigation; embargoes; the system of navigation laws; the countervailing laws, as against foreign states; and other important enactments respecting our connection with such states. It appears to me a most reasonable construction to say, that in these respects the power of Congress is exclusive, from the nature of the power. If it be not so, where is the limit, or who shall fix a boundary for the exercise of the power of the States? Can a State grant a monopoly of trade? Can New York shut her ports to all but her own citizens? Can she refuse admission to ships of particular nations? The argument on the other side is, and must be, that she might do all these things, until Congress should revoke her enactments. And this is called concurrent legislation! What confusion such notions lead to is obvious enough. A power in the States to do any thing, and every thing, in regard to commerce, till Congress shall undo it, would suppose a state of things at least as bad as that which existed before the present Constitution. It is the true wisdom of these governments to keep their action as distinct as possible. The general government should not seek to operate where the States can operate with more advantage to the community; nor should the States encroach on ground which the public good, as well as the Constitution, refers to the exclusive control of Congress.

If the present state of things, these laws of New York, the laws of Connecticut, and the laws of New Jersey, had been all presented, in the convention of New York, to the eminent person whose name is on this record, and who acted on that occasion so important a part; if he had been told, that, after all he had said in favor of the new government, and of its salutary effects on commercial regulations, the time would yet come when the North River would be shut up by a monopoly from New York, the Sound interdicted by a penal law of Connecticut, reprisals authorized by New Jersey against citizens of New York, and when one could not cross a ferry without transshipment, does any one suppose he would have admitted all this as compatible with the government which he was recommending?

This doctrine of a general concurrent power in the States is insidious and dangerous. If it be admitted, no one can say where it will stop. The States may legislate, it is said, wherever Congress has not made a plenary exercise of its power. But who is to judge whether Congress has made this plenary exercise of power? Congress has acted on this power; it has done all that it deemed wise; and are the States now to do whatever Congress has left undone? Congress makes such rules as, in its judgment, the case requires; and those rules, whatever they are, constitute the system.

All useful regulation does not consist in restraint; and that which Congress sees fit to leave free is a part of its regulation, as much as the rest.

The practice under the Constitution sufficiently evinces, that this portion of the commercial power is exclusive in Congress. When, before this instance, have the States granted monopolies? When, until now, have they interfered with the navigation of the country? The pilot laws, the health laws, or quarantine laws, and various regulations of that class, which have been recognized by Congress, are no arguments to prove, even if they are to be called commercial regulations (which they are not), that other regulations, more directly and strictly commercial, are not solely within the power of Congress. There is a singular fallacy, as I venture to think, in the argument of very learned and most respectable persons on this subject. That argument alleges, that the States have a concurrent power with Congress of regulating commerce; and the proof of this position is, that the States have, without any question of their right, passed acts respecting turnpike roads, toll-bridges, and ferries. These are declared to be acts of commercial regulation, affecting not only the interior commerce of the State itself, but also commerce between different States. Therefore, as all these are commercial regulations, and are yet acknowledged to be rightfully established by the States, it follows, as is supposed, that the States must have a concurrent power to regulate commerce.

Now, what is the inevitable consequence of this mode of reasoning? Does it not admit the power of Congress, at once, upon all these minor objects of legislation? If all these be regulations of commerce, within the meaning of the Constitution, then certainly Congress, having a concurrent power to regulate commerce, may establish ferries, turnpike-roads, and bridges, and provide for all this detail of interior legislation. To sustain the interference of the State in a high concern of maritime commerce, the argument adopts a principle which acknowledges the right of Congress over a vast scope of internal legislation, which no one has heretofore supposed to be within its powers. But this is not all; for it is admitted that, when Congress and the States have power to legislate over the same subject, the power of Congress, when exercised, controls or extinguishes the State power; and therefore the consequence would seem to follow, from the argument, that all State legislation over such subjects as have been mentioned is, at all times, liable to the superior power of Congress; a consequence which no one would admit for a moment. The truth is, in my judgment, that all these things are, in their general character, rather regulations of police than of commerce, in the constitutional understanding of that term. A road, indeed, may be a matter of great commercial concern. In many cases it is so; and when it is so, there is no doubt of the power of Congress to make it. But, generally speaking, roads, and bridges, and ferries, though of course they affect commerce and intercourse, do not possess such importance and elevation as to be deemed commercial regulations. A reasonable construction must be given to the Constitution; and such construction is as necessary to the just power of the States, as to the authority of Congress. Quarantine laws, for example, may be considered as affecting commerce; yet they are, in their nature, health laws. In England, we speak of the power of regulating commerce as in Parliament, or the king, as arbiter of commerce; yet the city of London enacts health laws. Would any one infer from that circumstance, that the city of London had concurrent power with Parliament or the crown to regulate commerce? or that it might grant a monopoly of the navigation of the Thames? While a health law is reasonable, it is a health law; but if, under color of it, enactments should be made for other purposes, such enactments might be void.