to possess the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.

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The experience of the country under the Confederation had led the men who afterwards controlled the Constitutional Convention to the conclusion, that the Articles must be so modified as to vest in the central government powers throughout the nation, and with respect to national objects, co-extensive with those which the State possessed over local objects, within their respective limits. Washington had formulated this principle in a letter to Jay, of August 1, 1786, previously quoted, as follows:

"I do not conceive we can exist long as a nation, without having lodged somewhere a power which will pervade the whole Union in as energetic a manner as the authority of the State governments extends over the several States.

Before the assembling of the convention, and during its deliberations, the men who procured the framing of the Constitution worked toward the

'Meigs, Growth of Constitution in Federal Convention of 1787, p. 334 (Phila., 1900).

2 Ford's Writings of Geo. Washington, vol. xi., pp. 53, 54.

accomplishment of the end proposed by Washington, and all parties seem to have favored the vesting in the central government of powers adequate to the exigencies of the Union. The report of the Annapolis commissioners, the Congressional call for the meeting of the Constitutional Convention, the Virginia and the New Jersey plans, the proposals of Roger Sherman, and the Connecticut plan, and, finally, Bedford's amendment to the sixth resolution of the Virginia planall contemplated that the central authority should have powers adequate to the needs of the body politic. The resolution became the source out of which the Committee of Detail drew its enumeration of the specific powers of Congress, and the necessary and proper" clause enlarging those powers. Such a history shows that the convention intended to enlarge each enumerated power up to such scope as would enable Congress to legislate upon all subjects within the range of that power, which promoted the welfare of the country in respect to such subjects, and were beyond the powers of the individual States. With respect, for example, to the power of Congress over commerce, this history shows that the convention intended to vest Congress with power over the several divisions of commerce, to which the clause relates, adequate to the passage of all measures properly falling under any of those divisions,

and appropriate to promoting the general welfare of the country.1

In his "Political Observations," written in 1795, when he was a strict constructionist, Madison stated this principle as follows: "From this convention proceeded the present Federal Constitution, which gives to the general will the means of providing in the several necessary cases for the general welfare, and particularly in the case of regulating our commerce in such manner as may be required by the regulations of other countries." Works of Madison, vol. iv., 487. (Ed. 1865.)

CHAPTER VIII

THE COMMERCE CLAUSE IN THE CONVENTIONTHE SCOPE ASSIGNED TO THE COMMERCIAL POWER OF CONGRESS

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HE sixth resolution of the Virginia plan, broadened by Bedford, was referred to the Committee of Detail, consisting of Randolph, Rutledge, Gorham, Ellsworth, and Wilson. On August 6, 1787, this committee reported to the convention a draft of a constitution embodying the principles of the several resolutions which had been referred to them, and vesting Congress with the power:

"To regulate commerce with foreign nations, and among the several States.

The terms of this clause make no distinction between the scope of the power to regulate commerce with foreign nations and among the several States. The convention included among its members the ablest lawyers of the day in America; it contained men who were peculiarly capable in the use of language to express legal concepts— men whom the events of the preceding eight or

Doc. Hist. of the Const., iii., p. 449; Elliot, v., p. 378.

nine years had compelled to much reflection upon the relation of the regulation of commerce in all its branches to the powers of the States and the central government. The commercial proposals in Congress, the measures of various State legislatures, municipal and other public bodies, from 1778 to 1787, indicate that the committee understood very well what they wished to accomplish. The conjecture, that, although they expressed the power of Congress over foreign and over interstate commerce in similar terms, yet they really intended to vest that body with a complete and positive power over foreign, but with only a limited and chiefly negative power over interstate trade, is without warrant in the history of those times, or in the terms of the committee's report, which indicate rather an intention to vest Congress with power over interstate commerce, not more, but less restricted than that over foreign commerce; for the report prohibited the laying of a tax or duty on articles exported from any State, the enactment of laws preventing the migration or importation of such persons as the several States should think proper to admit, and the imposition of taxes or duties on such persons. It also provided that no navigation act should be passed without the assent of two thirds of the members present in each house. But all of these restrictions related exclusively 1 Doc. Hist. Const. iii., p. 450; Elliot, v., p. 379.

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