man, Chief Justice Marshall, and pronounced in one of the most elaborately argued and reported cases which was ever decided by the Supreme Court, and one which has probably been cited as an authority as often, if not oftener, than any other decision of that Court.1

§ 478. Gibbons vs. Ogden; Chief Justice Marshall's views on constitutional construction.-In Gibbons vs. Ogden in which the claim of the State of New York to grant exclusive licenses for steamboat navigation within its own waters was overthrown, and the supremacy of the Federal Government sustained-the Chief Justice used these words in opening his opinion: "This instrument [the Constitution] contains an enumeration of powers expressly granted by the people to their government. It has been said, that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress is authorized to make all laws which shall be necessary and proper' for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the Constitution, which has been pointed out by the gentlemen of the Bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it."

The Chief Justice then continues: "What do gentlemen mean, by a strict construction? If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects.

§ 477.

1 Gibbons vs. Ogden, U. S. Sup. Ct. 1824, 9 Wheaton, 1,-(the opin

ion commences on p. 186. See pp. 187 et seq.), MARSHALL, Ch. J.

of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the constitution is to be expounded. As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor, if retained by himself, or which can enure solely to the benefit of the granteee; but is an investment of power for the general advantage, in the hands of agents selected for that purpose; which power can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant. We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred."

We

$479. Justice Story's views on constitutional construction. Mr. Justice Story in his Commentaries on the Constitution cited the words just quoted, and fully endorsed them as containing the proper rule of construction for the Constitution. He also cited one of his own opinions and replied to the argument of strict construction as follows: "A power, given in general terms, is not to be restricted to particular

$479.

1 Commentaries on the Constitution of the United States, by Joseph Story, vol. I, § 425, p. 324.

2 Martin vs. Hunter, U. S. Sup. Ct. 1816, 1 Wheaton, 304, STORY, J., and see § 331, p. 13, ante, for other opinions of Justice STORY.

cases merely because it may be susceptible to abuse, and if abused may lead to mischievous consequences. This argument is often used in popular debate, and in its common aspect addresses itself so much to popular fears and prejudices that it insensibly acquires a weight in the public mind to which it is in no wise entitled. The argument ab inconvi enti is sufficiently open to question from the laxity of application as well as the opinion principle to which it leads. But the argument from a possible abuse of a power against its existence or use is in its nature not only perilous, but in respect to governments would shake their very foundation. Every power, however limited, as well as broad, is in its own nature susceptible of abuse. No Constitution. can provide perfect guards against it. Confidence must be reposed somewhere, and in free governments the ordinary securities against abuse are found in the responsibility of rulers to the people, and in the just exercise of their elective franchise, and ultimately in the sovereign power of change belonging to them in cases requiring extraordinary remedies."

$480. John Randolph Tucker's views on the limitation of the treaty-making power.-Views have, however, been expressed sustaining a narrower construction of the Constitution, and closer limitations on the treaty-making power. The author quotes, but does not endorse them. Some of John Randolph Tucker's views on the limitations of the treaty-making power have already been quoted;1 one further quotation from his recently published work on the Constitution will be given at this point. He declares a great question has arisen whether the exclusive power of treatymaking vested in the President and Senate is unlimited in its operation upon all the objects for which a treaty may provide. Continuing he says: "Can a treaty by compact with a foreign nation bind all of the departments of our own government as to matters fully confided to them; can it surrender or by agreement nullify the securities for personal liberty engrafted upon the Constitution itself; can it § 480. the United States, vol. II, § 354, pp. 723 et seq.

1 See § 16, p. 32, Vol. I.

2 Tucker on the Constitution of

cede to a foreign power a State of the Union or any part of its territory without its consent; can it regulate commerce with foreign nations in spite of the power of Congress to regulate commerce with them; can it provide for the rates of duty to be imposed upon certain articles imported from foreign nations, or admit them free of duty, in the face of the power given to Congress to lay and collect taxes and duties; can a treaty appropriate money from the public treasury and withdraw it without the action of Congress; can a treaty dispose of any part of the territory of the United States, or any of their property, without the consent of Congress, which alone has power to dispose of and make rules and regulations concerning the territory and other property of the United States? These important questions have several times arisen for discussion in our history, and upon them authoritative decisions have been made by other departments of the government, which are based upon solid reason and sound principles of constitutional construction.

"It cannot be denied that very many of these questions must be answered in the negative, or the consequence would be that, under the treaty-making power, the President and Senate might absorb all the powers of the government. In favor of the extreme claim of power for the President and Senate, it has been urged that a contract between the United States and a foreign nation must be conclusive against all departments of the government, because it is a contract; but the answer to this contention is obvious and conclusive. It involves the petitio principii, by assuming that the contract is complete though it trenches upon the power of the other departments of the government, without their consent. And if it be further urged that foreign nations know no party in the contract on the part of the United States except the President and Senate, the answer is equally conclusive that if our Constitution requires the consent of the departments to a treaty of the nature referred to, the foreign nation is bound to take notice of that fact, and cannot claim a completed obligation, in the absence of the consent of the other departments. The maxim upon this subject is familiar: qui cum alia contrahit vel est, vel debet esse, non ignarus conditionis ejus. And if it be further urged that this is too refined

a doctrine to regulate our delicate relations with foreign powers, the answer is that the treaty-making power of the Crown of Great Britain, where it involves a concession of the clear and absolute power of Parliament, has never been recognized as valid by the English Government, and has never been enforced. The Queen may make a treaty to pay ten millions of dollars to the French government, but unless Parliament appropriates the money the treaty will be ineffectual. It is from the fundamental laws of each State that we must learn where resides the authority that is capable of contracting with validity in the name of a State.'1

"A treaty, therefore, cannot take away essential liberties secured by the Constitution to the people. A treaty cannot bind the United States to do what their Constitution forbids them to do. We may suggest a further limitation: a treaty cannot compel any department of the government to do what the Constitution submits to its exclusive and absolute will."

§ 481. John C. Calhoun's views on the treaty-making power, and his forced admission of nationality of Central Government. Mr. Tucker's views were largely based on the views held and expressed by his distinguished ancestors and by Mr. John C. Calhoun, the acknowledged eminent leader of the State's Rights School and of the narrow constructionists of the Constitution during the ante-bellum period. In his Discourse on the Constitution and Government of the United States, Mr. Calhoun says, in regard to Article VI of the Constitution making laws and treaties of the United States the supreme law of the land, that while the clause was declaratory it vested no new powers whatever in the Government or in any one of its departments; that without that clause the Constitution and the laws made in pursuance of it, and the treaties made under its authority, would have been the supreme law of the land as fully as they now are, and the judges in every State would have been bound thereby, anything in the Constitution or the laws of the State to the contrary notwithstanding. He bases the su8 Citing Wharton's Int. Law Di- 4 * Citing Vattel, Bk. II, S. 154. gest, 457, also 1 Mahon's History

of England, p. 20.