1472. CONFEDERATION, Commerce and.—
Congress, by the Confederation, have
no original and inherent power over the commerce
of the States. But, by the 9th article,
we are authorized to enter into treaties of
commerce. The moment these treaties are
concluded, the jurisdiction of Congress over
the commerce of the States springs into exisence,
and that of the particular States is
superseded so far as the articles of the treaty
may have taken up the subject. There are
two restrictions only, on the exercise of the
power of treaty by Congress. 1st. That they
shall not, by such treaty, restrain the legislatures
of the States from imposing such duties
on foreigners as their own people are subject
to; nor, 2ndly, from prohibiting the exportation
or importation of any particular species of
goods. Leaving these two points free, Congress
may, by treaty, establish any system of
commerce they please; but, as I before observed,
it is by treaty alone they can do it.
Though they may exercise their other powers
by resolution or ordinance, those over commerce
can only be exercised by forming a
treaty, and this probably by an accidental
wording of our Confederation.—
To James Monroe. Washington ed. i, 349.
Ford ed., iv, 54.
(P.
1785)
See Treaties.
