In the early part of the Nineteenth Congress (December, 1825), Mr. Bailey of Massachusetts presented a very explicit amendment to the Constitution, which besides giving Congress power to appropriate money for constructing roads and canals, further provided that it might "construct roads and canals for urgent purposes, of military, commercial, or mail communication, etc."i Nothing further is heard of a constitutional amendment until Jackson's Administration. May 27, 1830, President Jackson vetoed the Maysville road bill, the first of a series of vetoes of internal-improvement bills. The new test of the constitutionality of such bills as laid down by him was: "The general principle that the works which might be thus aided should be of a general, not local; national, not State, character." Jackson, like his predecessors, Madison and Monroe, in similar cases recommended the adoption of an amendment. In his annual message of two years later (1832), and,again in 1834, he urges Congress "to refrain from the exercise of internal improvements" except of a national character, unless they first procure from the States such an amendment of the Constitution as will define its character and prescribe its bounds." In his message of 1834 he still further defines what national improvements were, and desired that an amendment embodying the definition should be adopted. But such an amendment was not only impossible, but undesirable. About this time Mr. Archer of Virginia' suggested the expediency of amending the Constitution so as to give Congress the power to appropriate the revenue accruing from the sales of the public lands "in aid of the construction of such works of the appropriation of money by Congress for internal improvement within the State to be unconstitutional. At the same time they pronounced the protective tariff laws unconsti tutional. The legislature of Tennessee, in 1821, passed resolutions declaring that the power over internal improvements had been "exercised to an unwarrantable extent.” See Niles' Register, vol. XXIX, p. 293; vol. xxx, p. 38; vol. xxxII, pp.135–139; vol. XXXIII, pp. 325-328; vol. XXXV, pp. 309-310. This led to counter replies from other States. See Niles' Register, vol. xxx11, p. 169; vol. XXXIII, pp. 275, 321, 347, 387, 391; vol. XXXIV, pp. 300-302; vol. XXXVI, p. 55. 3 Am. An. Reg., 131, 136, 136–137, 137–138, 147. Jour. of Senate of Pennsylvania (1827-28), pp. 593-623, Ibid. (1828-29), pp. 372-381; Ibid. (1831–32), vol. 11, pp. 454-455. App., No. 543. ,, * Mason's Veto Power, App. A, Nos. 10, 11, 12, 13, 18. The legislature of Tennessee expressed its approval of "the views and sentiments of President Jackson as expressed in this veto. Jour. of Senate of Pennsylvania (1831-32) vol. 11, pp. 454-455. 3 Mason, pp. 96–97. App., Nos. 611. House Journal, Twenty-third Congress, second session, pp. 28-32. internal improvements as may be authorized, commenced, or patronized by the States respectively within which the same are to be executed."1 The legislature of Georgia, in its series of proposed amendments to the Constitution, in 1833, suggested that the practice of appropriating money for works of internal improvement should be either sanctioned by an express delegation of power or restrained by express inhibition.2 No further proposal to amend the Constitution was made until 1847, when President Polk, in a special message containing his reasons for vetoing a river and harbor bill, suggested that the State be allowed to pay tonnage duties for internal improvements, but should it be impossible to secure such by this means, "it is safer and wiser to apply to the States, in the mode prescribed by the Constitution, for an amendment whereby the power of the General Government may be enlarged." 3 Although several internal-improvement bills have since been vetoed, this is the last time an amendment to the Constitution has been advocated. The question of the constitutionality of such a bill is no longer considered by Congres, which now habitually exercises this once doubted power; but the President is left to decide each particular case as it comes before him, whether the expenditure is national or local in its character. 157. NAVIGATION LAWS AND EMBARGOES. Another subject which pertains both to the financial and commercial powers of the Government is that of the passage of laws regulating or taxing navigation. The first suggestion of an amendment on the question is found in the proposition of the North Carolina convention, in 1788. This provides for a slight alteration in the last part of the sixth paragraph of the ninth section of the first article, so that it should read: "Nor shall vessels bound to a particular State be obliged to enter, clear, or pay duties in another;" thus striking out the restriction in regard to vessels bound from a State. App., No. 609a. See also ante sec. 115. "App., No. 620. 3 Statesman's Manual, p. 1725. 'Mason's Veto Power, App. A, No. 33; also p. 101. App., No. 101. Far more significant were the propositions made by the ratifying conventions of Virginia and North Carolina. The convention of 1787, by a well-understood compromise had inserted no clause prohibiting the slave trade prior to 1808 in consideration that the power to tax and regulate commerce should be left free from any limitation as to navigation laws. The two States returned to the subject by urging an article prohibiting the passage of any law "regulating commerce," without the consent of two-thirds of the members present in both Houses.1 A motion made in the Senate during the First Congress to add a similar proposition to the series about to be submitted to the States was defeated.? The embargo of 1808-09, led the legislature of Massachusetts3 to present to Congress an amendment limiting the duration of an act laying an embargo within the United States. This proposition called out during the year 1809-10 resolutions of approval from Connecticut and disapproval from Vermont, New Hampshire, Pennsylvania, Maryland, New Jersey, Delaware, North Carolina, and Tennessee. The New England Federalists in the Hartford convention suggested the next and last amendment to limit the power of Congress over commerce. The proposals were presented to Congress in February, 1815, together with the others of the same series, by members from Connecticut and Massachusetts, as the resolutions of their respective State legislatures. The first of these limited the powers of Congress to lay an embargo for more than sixty days; the second provided that the concurrence of two-thirds of both Houses should be required "to interdict the commercial intercourse between the United States and any foreign nation."5 App., Nos. 33, 85. The States of Maryland, Virginia, and Georgia had supported a somewhat similar proviso, which should be in force to 1808, in the Federal Convention. Elliot, I, 317. 2 App., No. 278. The act of 1807 was in its time unlimited in duration and could be removed only by a subsequent act of Congress. The constitutionality of this act was most seriously questioned, and its constitutionality denied in the New England States. See Story, II. pp. 170-171. Adams, U. S. IV, pp. 416, 417. App., Nos. 397a, 397b. House Journal, Eleventh Congress, second session, pp.580,626; Annals of Congress, pp. 666, 1679, 1944. House Journal. Eleventh Congress, third session, p. 17; Annals of Congress, p. 383. House Journal, Twelfth Congress, first session, p. 161. Am. Reg., 1809, p. 181. Massachusetts Archives, Misc., 6662, 6663, 6665, 6816, 6823. Text of the Massachusetts proposition: To "thirty days after the commencement of the session of Congress next succeeding that session in which said law shall have been enacted." Resolves of Massachusetts, Vol. XII, pp. 476-477. Journal of Senate of Pennsylvania (1809-10), pp. 88-89, 166-169; Ibid. (1810-11), pp. 37-41; Ibid. (1811-12), pp. 95–96. App., Nos. 427, 428, 435, 436, 443, 444. This series of resolutions also called out counter resolutions from the legislatures of several of the other States.' The proposition to submit the power over commerce to a special limitation by requiring the concurrence of two-thirds of both Houses has never since found an advocate in Congress. Any such unusual and partial restriction seems unwise. 158. BANKRUPTCY LAWS. The express power given to Congress to regulate bankruptcy has been exercised only at two different periods during the first century of the Constitution's life," and only two amendments have been proposed upon the subject. 3 The first was proposed by the New York ratifying convention. It contemplated restricting the power given to Congress by the Constitution to the passage of bankruptcy laws which should extend only "to merchants and other traders," the States being allowed to pass laws for the relief of other insolvent debtors. The amendment was not, however, considered by the First Congress. The other amendment emanated from a Representative from New York. Mr. Walworth, in 1832, presented an amendment providing that the States may enact bankrupt or insolvent laws until Congress shall establish uniform laws on the subject. Although no similar amendment has been passed, the States, whenever the Federal Government has refrained from legislating upon the subject, have exercised this power themselves, and such State laws have been held constitutional until Congress shall see fit to supersede them by a general law.5 159. PROTECTION OF TRADE-MARKS. At the time the Constitution was adopted no distinction seems to have existed in the minds of the framers between 1 House Journal, Fourteenth Congress, first session, pp. 278, 297, 672. See ante, par. 22. The New York reply declared that "the effect of these, if adopted, would be to create dis sensions among the different members of the Union, to enfeeble the National Government, and to tempt all nations to encroach upon our rights." Niles', VIII, p. 100. Pennsylvania and New Jersey replied in nearly similar words. See, also, Niles', Vol. VII, Sup., pp. 49–53. J. Q. Adams said that, if adopted, they would not have left enough of that instrument remaining to call it a ruin." Adams, New England Federalism, pp. 315-317 Holmes of Massachusetts showed that one-third of the Senate might be less than one-fifth of the nation, and more than one-third of the House, be the Representatives of three States ont of the eighteen." Niles' Register, Vol. VII, pp. 49-53. 2 In 1841 and in 1867 laws were passed. The last law was repealed in 1878. 3 App., No. 64. App., No. 508. Sturges v. Crowingshield, 4 Wheaton, 122. Ogden r. Saunders, 12 Wheaton, 213. copyright or patents and trade-marks. Congress passed an act protecting trade-marks, but in 1879 the Supreme Court held that a trade-mark was not within the meaning of the clause in the Constitution which was intended to protect authors and inventors, but could be referred only to the commerce clause. Legislation, therefore, must be limited to the use of trade-marks in commerce "with foreign nations, among the several States, and the Indian tribes." The law passed by Congress was not so limited, but it embraced all commerce, therefore it was declared void for want of constitutional authority.2 Upon the reassembling of Congress in December of this year, Mr. McCoid of Iowa, in consequence of this decision, proposed an amendment conferring upon Congress the power to grant, protect, and regulate the exclusive right to adopt and use trade-marks. This resolution was first referred to the Committee on Manufactures, reported, and recommitted to the same committee; later, referred to the Committee on the Judiciary, and twice recommitted to the same. In the next Congress it was again introduced, but this time no important action was taken.4 Although no amendment has been secured, Congress has gone to the limit of its power as indicated by the court. On the 3d of March, 1881, a law was passed applying to trademarks in connection with commerce between States, foreign nations, and the Indian tribes.5 160. THE STATUS OF COMMERCIAL POWERS. On the whole, the Constitution confers upon Congress more sweeping power over commerce than over any other subject. The exercise of this power has in the past caused the most friction, and it is the most likely to lead to collisions with the States in the future. Hence it is remarkable that so few amendments have been offered on the essentials of this power. No proposition whatever has been made to amend the Constitution in regard to foreign or interstate commerce. The great power of chartering corporations, banks, and kindred institutions, notwithstanding frequent remonstrance, has been successfully asserted. The legal-tender notes, although 'Const., Art. I, sec. 8, cl. 8. * Trade- Mark Cases, 100 U. S., 82 (1879). 4App., No. 1539. 521 Stat. L., 502. |