nected with it, even though they were substantive and distinct interests? It is scarcely possible to imagine any scientific or lucrative pursuit of human industry, which is not more or less connected with commerce. To avoid this general absorption into the federal vortex, we must construe the powers of Congress. rationally, and restrict their operation to what was intended by the creators of the Constitution, conformably with the words which they have used to convey their meaning. Their intention was, that the powers which they gave should be definite and specific: the power to regulate commerce is definitely and specifically given: whatever comes within the regulation of commerce, Congress can regulate: to encourage manufactures, is not a regulation of commerce, therefore under that power Congress can enact no law for the encouragement of manufactures. We do not contend, as some do, that Congress, under a power to regulate commerce, cannot lay duties upon imports, otherwise than for revenue. We admit, for such is our conviction, that in the exercise of the power to raise revenue, it may lay countervailing or retaliatory duties upon imported manufactures or other articles, to neutralize or procure the repeal of foreign laws conceived to be injurious to our commerce, although the consequence should be a diminution of the revenue; but these duties to be constitutional, must be laid for the regulation of commerce, not for the encouragement of manufactures or of agriculture. A power to regulate commerce has been confided to Congress, but not to regulate manufactures or agriculture. It can with no more propriety interfere with them than it can with our systems of education or our poor laws. Congress, it has been said, is empowered "to lay and collect taxes, &c." to execute any of the powers contained in the Constitution: this is incontrovertible; but the law of which we complain was not passed by the authority of this power, the arguments of its advocates and its contents prove the reverse: it was intended to reduce the revenue for the benefit of the manufacturer. Had it been introduced as an act for revenue, it would have been rejected. The state of the nation did not require an augmentation of its finances: a majority of Congress would not have taxed the people, when the public income was adequate to all the public exigencies. If revenue had been the object, the duties would have been diminished, not increased; for the increase of duties, in some cases diminished, and in others excluded importations, so as to render the amount to be collected from the customs, less than it would have been, under the laws previously in force. We view the law according to its declared intent and meaning, and aver, that it is unconstitutional, upon the very ground upon which it was proposed and

carried. The circumstance of our not being able to substanti→ ate this assertion before a court of justice does not affect the principle upon which we rely. Congress being authorized to levy and to fix the rate of duties upon imports, a Court cannot receive evidence to identify the power under which duties are imposed. But our argument is, there is no power in the Constitution which the law is a means to carry into execution. The eighth clause of the first Article of the Constitution, declares, "that Congress shall have power to promote the progress of science and the useful arts, by securing for limited times to authors and inventors, the exclusive right to their respective writings and discoveries." Should a law be passed, reciting totidem verbis, that, exclusively, under this power, books, instruments and machinery imported by authors and inventors should be exempt from duties, could it be doubted, that it would, if brought before the Judiciary, be set aside as inconsistent with and contradicting the power upon which it was expressed to be founded? and yet Congress can, constitutionally, exempt imported books, instruments and machinery from the payment of duties.

To resume the thread of our argument. If a mean to execute a power must be plain, and adapted to the end, can a power to extinguish the Indian title to lands within a State, be a mean to execute a power to declare war? If this power be claimed it must be upon the ground, that such negociations between the States and the Indians would have a tendency to excite hostilities. It is difficult to conceive the extent of this pretention. With as much propriety could it be said, that when Great Britain was engaged in a maritime war, Congress might interdict our merchants from navigating the ocean, because our sailors would be pressed into her service; and, that the United States, in that event, would declare war for the protection of her citizens. Are not the inhabitants of a State as much interested in preserving peace with the Indians as the Federal Government is? In a contest with them, would not the State, in which they live, be peculiarly exposed to the horrors of their savage warfare? Is a State to be supposed more likely than the United States to commit infractions of moral right? An oppressive commercial intercourse between the Indians and the citizens of a State, it would seem, from the Constitution, was to be apprehended: improper attempts by a State to obtain possession of the soil of the Indians were not apprehended. An irregular commerce with Indian tribes in a State, would be the act of individuals: the extinguishment of Indian title could only be effected by the State in its sovereign capacity. To guard against abuse in the one case, a direct power was given to Congress: in the other,

abuse not being contemplated, no provision was made against it. The restrictions which the Constitution has laid upon States to prevent them from hazarding the peace of the Union, are specified: they are, that "no State shall grant letters of marque and reprisal;" or "without the consent of Congress, keep troops or ships of war, in time of peace; enter into any agreement or compact with a foreign power; or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.' Expressio unius exclusio est alterius. The enumeration of these acts from which the States are interdicted, as having a tendency to occasion war, excludes the inference that any others are comprehended which are not enumerated. Congress is authorized to suppress insurrections. If, under the power to declare war, it can prevent a State from legislating upon the subject of Indian occupancy, might it not prohibit the States in which slavery exists, from passing laws against emancipation, or any other laws which might be deemed harsh, as they would have a tendency to stir up insurrections? The master, it might be said, has an absolute property in his slave, with which Congress could not intermeddle. We have, we trust, established, that a State has the fee-simple in, and the jurisdiction over Indian lands within its boundaries, an interference therefore so as to destroy or impair its full enjoyment of these rights, would be as much an invasion of the rights of property, as to prohibit a State from passing such laws concerning its slaves, as it might consider to be expedient. The Articles of Confederation gave to Congress the sole power to declare war, and yet no instance can be cited in which the Congress of the Confederation entered into any treaty or compact to extinguish the Indian occupancy in the States, or attempted to prevent the States from exercising over it their jurisdiction.

An argument, adverse to the rights of Georgia, appears in the following passages of the Report, to be founded upon the conduct of that State, and the declarations of her citizens in official situations:

"It is not known to the committee, that until recently, either Georgia, or any other State, has, since the adoption of the Constitution, exercised or claimed the right to treat with independent tribes of Indians, except by authority and consent of the United States, or has exercised any act of legislation over them, or claimed to do any act or thing forbidden by the law of 1802. The committee believe that the State of Georgia has not only acquiesced, until lately, in this course of legislation; but, that her intelligent and prominent citizens have given it their express sanction. In the talk of Messrs. Meriwether and Campbell to VOL. II.-No. 4. 72

the Cherokees in 1823, these gentlemen say 'the sovereignty of the country which you occupy' (a considerable portion of which was in the State of Georgia) 'is in the United States alone, no State or foreign power can enter into a treaty or compact with you. These privileges have passed away, and your intercourse is restricted exclusively to the United States. "In a letter dated March 10, 1824, addressed by the Georgia delegation of Senators and Representatives to the Secretary of War, the committee understand the delegation to say, that the Cherokees are 'to be received as other Indians, as persons suffered to reside within the territorial limits of the United States, and subject to every restraint, which the policy and power of the General Government require to be imposed on them, for the interest of the Union, the interest of a particular State, and their own preservation.' "From these considerations, the committee are brought to the conclusion, that the property in, and the jurisdiction over the lands occupied by the Creeks in the State of Georgia, are not exclusively possessed by that State, but are subject to the rights guaranteed to the Creeks, or reserved to the United States, by the Constitution of the United States; by the compact of 1802; by the provisions of law, or by treaty.”

We

We do not propose in this article to discuss the merits of the controversy between the United States and Georgia, under what has been called "the treaty of the Indian Springs," concluded between the United States and the Creeks, on the 12th February, 1825. That the State of Georgia, and the States generally, have, for some time past, acquiesced in the claim of the United States to extinguish the Indian occupancy, whether of lands within or without the limits of a State, we admit. also admit, that this general acquiescence furnishes a strong presumption of its correctness, although, by no means, establishing the principle. From the year 1798, until the trial in 1824, of the case of Gibbons and Ogden, the States of NewYork, of Jersey, of Connecticut, and probably all the States, believed that the State of New-York had the right (and if she had the right it was common to all the States) to grant to individuals, for a term of years, the exclusive navigation of the waters within the jurisdiction of that State, with boats impelled by fire or steam; and yet the grant to the assignees of Messrs. Fulton and Livingston, has been set aside by the Supreme Court. The State of Georgia, as we learn from the highest official documents, now asserts the right to extinguish the Indian title within her limits, which she formerly supposed to be in the United States; and the question to be solved, is, not what may have been the opinion of Georgia, and of the several States, but whether the power he vested in the United States. There is no statute of limitations against the rights of a State: they cannot be barred by non user or by acquiescence: they remain un

impaired, and not only may, but ought to be resumed, if, whenever they are established by more ample inquiry, Georgia be entitled to them. If Georgia have the exclusive right to extinguish Indian occupancy, within her territories, could she delegate it without infringing her own Constitution? Could she delegate it, the United States could not accept it; because they can exercise no power which is not granted to them in the Constitution; and the Constitution does not authorize them to exercise a power conferred upon them by a State. Whether this right be in the United States, or in Georgia, has never been directly determined, either by the Supreme Court or by Congress it is, therefore, open for discussion, and is in principle, as untrammelled, as if an instance had never existed of its having been acted upon by the United States.

The Report of the Committee, without being considered, was laid upon the table, together with a substitute, at variance with its reasonings and conclusions, offered by a dissenting member of the committee. It is to be regretted that this course (arising from want of time) was pursued, as the report and substitute presented an occasion for obtaining the decision of Congress upon several important and novel questions, which, doubtless, would have had a powerful influence in terminating an embarrassing difference between a sister State and the Federal Gov

ernment.

The inquiry remaining for our consideration is, in what manner is the question now pending between the United States and Georgia, to be decided? No American, who has at heart the peace and the happiness of his country, however he may be under the influence of pride, or prejudice, or passion, can contemplate without painful solicitude the progress of this controversy; or forbear most fervently to desire, that it may eventuate in calming the excitement which agitates a neighbouring State, and contributing to the stability of our free institutions. We are ourselves, neither the advocates of state rights, or of federal powers, as these terms are usually understood, in opposition to each other. Our wishes are, that both may be maintained unimpaired. We conceive that the permanence of the federation, and the prosperity of the States, depend upon the preservation of both, according to the intentions of the people, as expressed in the Constitution. The republic is equally endangered by the usurpation of power on the part of the States, as of the United States. If powers which properly belong to the Union, be assumed by the States, the Federal Government will be rendered incompetent to effect the purposes for which it was created. If the United States should assume powers belonging to the