Congress, and by the United States under the Confederation. It recognized the Indian tribes as nations, but as nations peculiarly situated, inasmuch as their intercourse and their power to dispose of their landed possessions were restricted to the first discoverers of their territory. This peculiar condition drew after it two consequences; first, that, as they were distinct nations, they could not be treated as part of the subjects of any one of the States, or of the United States; and secondly, that, as their intercourse and trade were subjected to restraint, that restraint would be most appropriately exercised by the federal power. So general was the acquiescence in these necessities imposed by the principle of public law which defined the condition of the Indian tribes, that during the whole of the thirteen years which elapsed from the commencement of the Revolution to the adoption of the Constitution, the regulation of intercourse with those tribes was left to the federal authority. It was tacitly assumed by the Revolutionary Congress, and it was expressly conferred by the Articles of Confederation.

The provision of the Confederation on this subject gave to the United States the 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." The exception of such Indians as were members of any State, referred to those broken

members of tribes who had lost their nationality, and had become absorbed as individuals into the political community of the whites. With all other Indians, remaining as distinct and self-governing communities, trade and intercourse were subject to the regulation of Congress; while at the same time each State retained to itself the regulation of its commerce with all other nations. The broad distinction thus early established, and thus perpetuated in the Confederation, between commerce with the Indian tribes, and commerce with "foreign nations," explains the origin and introduction of a special provision for the former, as distinguished from the latter, in the Constitution of the United States.

For although there might have been some reason to contend that commerce with "foreign nations". if the grant of the commercial power had not expressly embraced the Indian tribes-would have extended to those tribes, as nations foreign to the United States, yet the entire history of the country, and the peculiarity of the intercourse needful for their security, made it eminently expedient that there should be a distinct recognition of the Indian communities, in order that the power of Congress to regulate all commerce with them might not only be as ample as that relating to foreign nations, but might stand upon a distinct assertion of their condition as tribes. Accordingly, Mr. Madison introduced the separate proposition "to regulate affairs. with the Indians, as well within as without the

1

limits of the United States"; and the committee to whom it was referred gave effect to it, by adding the words," and with the Indian tribes," to the end of the clause containing the grant of the commercial power.

2

The remaining powers of Congress may be considered in the order in which they were acted upon by the Convention. The powers to establish a uniform rule of naturalization, to coin money and regulate the value thereof and of foreign coin, and fix the standard of weights and measures, were adopted without discussion and with entire unanimity, as they had been proposed in the draft prepared by the committee of detail. The power to establish post-offices was extended to embrace post-roads.3

These were succeeded by the subject of borrowing money and emitting bills on the credit of the United States; a power that was proposed to be given by the committee of detail, while they at the same time proposed to restrain the States from emitting bills of credit. I have not been able to discover upon what ground it was supposed to be proper or expedient to confer a power of emitting bills of credit on the United States, and to prohibit the States from doing the same thing. That the same thing was in contemplation in the two, provisions reported by the committee, sufficiently appears from the debates and from the history of the times. The object of the

Elliot, V. 439. 2 Ibid. 506, 507.

3 Ibid. 434. Journal, Elliot, I. 245.

prohibition on the States was to prevent the issue and circulation of paper money; the object of the proposed grant of power to the United States was to enable the government to employ a paper currency, when it should have occasion to do so. But the records of the discussions that have come down to us do not disclose the reasons which may have led to the supposition that a paper currency could be used by the United States with any more propriety or safety than by a State. One of the principal causes which had led to the experiment of making a national government with power to prevent such abuses, had been the frauds and injustice perpetrated by the States in their issues of paper money; and there was at this very time a loud and general outcry against the conduct of the people of Rhode Island, who had kept themselves aloof from the national Convention, for the express purpose, among others, of retaining to themselves the power to issue such a currency.

It is possible that the phrase "emit bills on the credit of the United States" might have been left in the Constitution, without any other danger than the hazards of a doubtful construction, which would have confined its meaning to the issuing of certificates of debt under the power to "borrow money." But this was not the sense in which the term "bills of credit" was generally received throughout the country, nor the sense intended to be given to it in the clause which contained the prohibition on the States. The well-understood meaning of the term had reference

to paper issues, intended to circulate as currency, and bearing the public promise to pay a sum of money at a future time, whether made or not made a legal tender in payment of debts. It would have been of no avail, therefore, to have added a prohibition against making such bills a legal tender. If a power to issue them should once be seen in the Constitution, or should be suspected by the people to be there, wrapt in the power of borrowing money, the instrument would array against itself a formidable and probably a fatal opposition. It was deemed wiser, therefore, even if unforeseen emergencies might in some cases make the exercise of such a power useful, to withhold it altogether. It was accordingly stricken out, by a vote of nine States against two, and the authority of Congress was thus confined to borrowing money on the credit of the United States, which appears to have been intended to include the issuing of government notes not transferable as currency.1

The clauses which authorize Congress to constitute tribunals inferior to the Supreme Court, and to make rules as to captures on land and water,3 — the latter comprehending the grant of the entire prize jurisdiction, -were assented to without discussion. Then came the consideration of the criminal jurisdiction in admiralty, and that over offences

1 See the debate, and Mr. Madison's explanation of his vote, Elliot, V. 434, 435, and the note on the latter page.

9.

2 Constitution, Art. I. § 8, clause

3 Ibid., clause 11.

4 Elliot, V. 436.