Washington sentinel. [volume] (Washington [D.C.]) 1853-1855, 1853-12-03


such consent, where absolutely necessary for
executing its inspection laws Il.
The question is this Does the fact, that the
consent of Congress to State duties on tonnage
is requisite, make that power, when requisite,
dericatire one in them, from Compressor does
it involve the existence of the power for like
purposes IN Congress- The Ltellgencer as
sumes the alternatives we the negative.
In the various checks to be found in our
system, it frequently occurs, that the consent OF
one part or branch OF it is requisite to the
validity of the action Of another, when the part
whose consent is required has not as much
power-in the matter as that other. The one is
ncgatise-the other is positice. The one may
prevent, what it can never do--the other can
always do, unless it be prevented.
Thus Congress can never, by mere majority
vote pass any law without the consent Of the
President. Surely the necessity of his consent
cannot imply that the Legislative po,cer Of Con-
g1'ess is deyrired from the President? Nor can
it imply the existence of any legislative power
in him! He can forbid-what he can never
do. Congress can always do, unless forbid by
his dissent.
The same reasoning applies 10 an analogy
drawn from the power of the President, by and
with the advice and consent of the Senate, to
make treaties. It's consent does not make
his power derivative from it-nor imply the
existence of the complete power in it, irrespec-
tive of him.
1t is therefore obvious, that the requisition
by the clause in question, of the consent Of
Congress to the State duties, does not involve,
as a logical necessity, the existence Of the
power in Congress, which it may use, either by
the agency of the States, or of its own motion.
So far from it, as we have already intimated,
it indicates pre-existent power, absolute in
the States, which, under this clause, is limited,
by requiring the consent of Congress and this
for a reason which we shall presently explain.
But SO far is the hatelligencer wrong in its
inference of the power in Congress, from the
requisition, of its consent to State duties, that
the conclusion to which it thus comes, is ex-
pressly denied by the Constitution ITSELF
If the capacity of giving or Withholding its
consent to it from the States, imperatively gives
to Congress the power in question, then the
power to lay duties on imports and exports ex-
istent in the States under this clause, subject
to the consent of Congress, must likewise be
possessed by it! And if the States, in exercis-
ing this power, are agents used By Congress
Gin tie execution Of the duty" as the h,tezli-
gencer says, then it is clear, Congress being the
principal, may, of its own will, exercise it /!
And get the Constitution prohibits Congress
from laying any "tar or duty ON articles err
ported from any State" Thus while Congress
has no power to lay duties on exports for any
purpose, the States have, even withoutthe consent
of Congress, as we have shown-but with the
consent of Congress, to any extent; showing
thus, ineontestably, that the requisition of the
consent Of Congress neither makes the power,
derivative to the States from it, nor demands
an inference of the possession of it by Con-
gress.
But there is one other position, which re-
quires a moments attention. 1t is that already
cited in respect to the nett produce of the duties
being payable into the treasury, from which
they can only be withdrawn by law
If our readers will recur to the clause already
quoted, it will be seen, that this provision APP
plies only to duties on imports and exports. 1t
does not apply at all to duties on TONNAGE !;
which are never required to be paid into the
United States treasury, but are collected and
disbursed by the States for their own purposes.
Thus, in no sense, can internal improvements,
carried on by the proceeds of tonnage duties,
laid by the States under this clause, be consid-
cred in any other light than as State improve
ments, made by State money, and conducted
under the guidance of State policy. Federal
power is neither exerted, nor the federal treas.
ury depleted to initiate or consummate them.
The States, under the Constitution have re.
| tanned a sufficient power, and have done SO ex-
pressly for the purposes Of river and harbor i'm
provements, as we shall now show.
Two days before the adjournment of the fed
eral convention, the clause of the Constitution
stood as it now does, substantially excepting
the provision as to tonnage duties, which was
not then in it The provision as to duties laid
by the States on imports and exports, originated
from their supposed necessity for inspection
purposes, &C.; and the nett produce was paw.
able into the federal treasury as check upon
the temptation to the excessive use of the power
by the States, which would have resulted so in
juriously to the free commerce between them.
When the clause as it then stood, came up
for consideration, the following proposal was
made:
"Mr. McHenry and Mr.. Carroll" MARYLAND.
ers) "moved that no State shall be restrained
from laying duties of tonnage for tie purpose
Of clearing harbors and erecting lighthouses"
Colonel Mason, in support of this, explained
and urged the situation of the Chesapeake,
which peculiarly required expenses of this sort y
The proposition passed--sir States in the
! Affirmative and four in the neoative-one no.