A Compilation of the Messages and Papers of the Presidents
by
James D. Richardson
Part 5 out of 9
effect to those of the General Government. The Government of the United
States relies on its own means for the execution of its powers, as the
State governments do for the execution of theirs, both governments
having a common origin or sovereign, the people--the State governments
the people of each State, the National Government the people of every
State--and being amenable to the power which created it. It is by
executing its functions as a Government thus originating and thus acting
that the Constitution of the United States holds the States together and
performs the office of a league. It is owing to the nature of its powers
and the high source from whence they are derived--the people--that it
performs that office better than the Confederation or any league which
ever existed, being a compact which the State governments did not form,
to which they are not parties, and which executes its own powers
independently of them.
There were two separate and independent governments established over
our Union, one for local purposes over each State by the people of
the State, the other for national purposes over all the States by
the people of the United States. The whole power of the people, on the
representative principle, is divided between them. The State governments
are independent of each other, and to the extent of their powers are
complete sovereignties. The National Government begins where the State
governments terminate, except in some instances where there is a
concurrent jurisdiction between them. This Government is also, according
to the extent of its powers, a complete sovereignty. I speak here, as
repeatedly mentioned before, altogether of representative sovereignties,
for the real sovereignty is in the people alone.
The history of the world affords no such example of two separate and
independent governments established over the same people, nor can it
exist except in governments founded on the sovereignty of the people.
In monarchies and other governments not representative there can be no
such division of power. The government is inherent in the possessor;
it is his, and can not be taken from him without a revolution. In such
governments alliances and leagues alone are practicable. But with us
individuals count for nothing in the offices which they hold; that
is, they have no right to them. They hold them as representatives, by
appointment from the people, in whom the sovereignty is exclusively
vested. It is impossible to speak too highly of this system taken
in its twofold character and in all its great principles of two
governments, completely distinct from and independent of each other,
each constitutional, founded by and acting directly on the people, each
competent to all its purposes, administering all the blessings for which
it was instituted, without even the most remote danger of exercising
any of its powers in a way to oppress the people. A system capable
of expansion over a vast territory not only without weakening either
government, but enjoying the peculiar advantage of adding thereby new
strength and vigor to the faculties of both; possessing also this
additional advantage, that while the several States enjoy all the rights
reserved to them of separate and independent governments, and each is
secured by the nature of the Federal Government, which acts directly on
the people, against the failure of the others to bear their equal share
of the public burdens, and thereby enjoys in a more perfect degree all
the advantages of a league, it holds them together by a bond altogether
different and much stronger than the late Confederation or any league
that was ever known before--a bond beyond their control, and which can
not even be amended except in the mode prescribed by it. So great an
effort in favor of human happiness was never made before; but it became
those who made it. Established in the new hemisphere, descended from the
same ancestors, speaking the same language, having the same religion and
universal toleration, born equal and educated in the same principles of
free government, made independent by a common struggle and menaced by
the same dangers, ties existed between them which never applied before
to separate communities. They had every motive to bind them together
which could operate on the interests and affections of a generous,
enlightened, and virtuous people, and it affords inexpressible
consolation to find that these motives had their merited influence.
In thus tracing our institutions to their origin and pursuing them
in their progress and modifications down to the adoption of this
Constitution two important facts have been disclosed, on which it may
not be improper in this stage to make a few observations. The first is
that in wresting the power, or what is called the sovereignty, from
the Crown it passed directly to the people. The second, that it passed
directly to the people of each colony and not to the people of all the
colonies in the aggregate; to thirteen distinct communities and not
to one. To these two facts, each contributing its equal proportion,
I am inclined to think that we are in an eminent degree indebted for
the success of our Revolution. By passing to the people it vested in
a community every individual of which had equal rights and a common
interest. There was no family dethroned among us, no banished pretender
in a foreign country looking back to his connections and adherents here
in the hope of a recall; no order of nobility whose hereditary rights in
the Government had been violated; no hierarchy which had been degraded
and oppressed. There was but one order, that of the people, by whom
everything was gained by the change. I mention it also as a circumstance
of peculiar felicity that the great body of the people had been born
and educated under these equal and original institutions. Their habits,
their principles, and their prejudices were therefore all on the side
of the Revolution and of free republican government.
Had distinct orders existed, our fortune might and probably would have
been different. It would scarcely have been possible to have united so
completely the whole force of the country against a common enemy. A
contest would probably have arisen in the outset between the orders for
the control. Had the aristocracy prevailed, the people would have been
heartless. Had the people prevailed, the nobility would probably have
left the country, or, remaining behind, internal divisions would have
taken place in every State and a civil war broken out more destructive
even than the foreign, which might have defeated the whole movement.
Ancient and modern history is replete with examples proceeding from
conflicts between distinct orders, of revolutions attempted which proved
abortive, of republics which have terminated in despotism. It is owing
to the simplicity of the elements of which our system is composed that
the attraction of all the parts has been to a common center, that every
change has tended to cement the union, and, in short, that we have been
blessed with such glorious and happy success.
And that the power wrested from the British Crown passed to the people
of each colony the whole history of our political movement from the
emigration of our ancestors to the present day clearly demonstrates.
What produced the Revolution? The violation of our rights. What rights?
Our chartered rights. To whom were the charters granted, to the people
of each colony or to the people of all the colonies as a single
community? We know that no such community as the aggregate existed,
and of course that no such rights could be violated. It may be added
that the nature of the powers which were given to the delegates by
each colony and the manner in which they were executed show that the
sovereignty was in the people of each and not in the aggregate. They
respectively presented credentials such as are usual between ministers
of separate powers, which were examined and approved before they entered
on the discharge of the important duties committed to them. They voted
also by colonies and not individually, all the members from one colony
being entitled to one vote only. This fact alone, the first of our
political association and at the period of our greatest peril, fixes
beyond all controversy the source from whence the power which has
directed and secured success to all our measures has proceeded.
Had the sovereignty passed to the aggregate, consequences might have
ensued, admitting the success of our Revolution, which might even yet
seriously affect our system. By passing to the people of each colony
the opposition to Great Britain, the prosecution of the war, the
Declaration of Independence, the adoption of the Confederation and
of this Constitution are all imputable to them. Had it passed to the
aggregate, every measure would be traced to that source; even the State
governments might be said to have emanated from it, and amendments of
their constitutions on that principle be proposed by the same authority.
In short it is not easy to perceive all the consequences into which such
a doctrine might lead. It is obvious that the people in mass would have
had much less agency in all the great measures of the Revolution and in
those which followed than they actually had, and proportionably less
credit for their patriotism and services than they are now entitled to
and enjoy. By passing to the people of each colony the whole body in
each were kept in constant and active deliberation on subjects of the
highest national importance and in the supervision of the conduct of all
the public servants in the discharge of their respective duties. Thus
the most effectual guards were provided against abuses and dangers of
every kind which human ingenuity could devise, and the whole people
rendered more competent to the self-government which by an heroic
exertion they had acquired.
I will now proceed to examine the powers of the General Government,
which, like the governments of the several States, is divided into three
branches--a legislative, executive, and judiciary--each having its
appropriate share. Of these the legislative, from the nature of its
powers, all laws proceeding from it, and the manner of its appointment,
its members being elected immediately by the people, is by far the most
important. The whole system of the National Government may be said to
rest essentially on the powers granted to this branch. They mark the
limit within which, with few exceptions, all the branches must move
in the discharge of their respective functions. It will be proper,
therefore, to take a full and correct view of the powers granted to it.
By the eighth section of the first article of the Constitution it is
declared that Congress shall have power--
First. To lay and collect taxes, duties, imposts, and excises, to pay
the debts, and provide for the common defense and general welfare of the
United States;
Second. To borrow money;
Third. To regulate commerce with foreign nations, and among the several
States, and with the Indian tribes;
Fourth. To establish an uniform rule of naturalization and uniform laws
respecting bankruptcies;
Fifth. To coin money, regulate the value thereof and of foreign coin,
and fix the standard of weights and measures;
Sixth. To provide for the punishment of counterfeiting the securities
and current coin of the United States;
Seventh. To establish post offices and post-roads;
Eighth. To promote the progress of science and useful arts by securing
for limited times to authors and inventors the exclusive right to their
respective writings and discoveries;
Ninth. To constitute tribunals inferior to the Supreme Court, to define
and punish piracies and felonies committed on the high seas, and
offenses against the laws of nations;
Tenth. To declare war, grant letters of marque and reprisal, and make
rules concerning captures on land and water;
Eleventh. To raise and support armies;
Twelfth. To provide and maintain a navy;
Thirteenth. To make rules for the government of the land and naval
forces;
Fourteenth. To provide for calling forth the militia to execute the laws
of the Union, suppress insurrections, and repel invasions;
Fifteenth. To provide for organizing, arming, and disciplining the
militia, and for governing such part of them as may be in the service
of the United States, reserving to the States the appointment of the
officers and the authority of training the militia according to the
discipline prescribed by Congress;
Sixteenth. To exercise exclusive legislation in all cases whatever over
such district (not exceeding 10 miles square) as may, by the cession of
particular States and the acceptance of by Congress, become the seat of
Government of the United States; and to exercise like authority over all
places purchased, by the consent of the legislature of the State in
which the same may be, for the erection of forts, magazines, arsenals,
dockyards, and other needful buildings;
Seventeenth. And to make all laws which shall be necessary and proper
for carrying into execution the foregoing powers, and all other powers
vested by this Constitution in the Government of the United States or
in any department or officer thereof.
To the other branches of the Government the powers properly belonging to
each are granted. The President, in whom the executive power is vested,
is made commander in chief of the Army and Navy, and militia when called
into the service of the United States. He is authorized, with the advice
and consent of the Senate, two-thirds of the members present concurring,
to form treaties, to nominate and, with the advice and consent of the
Senate, to appoint ambassadors, other public ministers, and consuls,
judges of the Supreme Court, and all other officers whose appointments
are not otherwise provided for by law. He has power to grant reprieves
and pardons for offenses against the United States, except in cases
of impeachment. It is made his duty to give to Congress from time to
time information of the state of the Union, to recommend to their
consideration such measures as he may judge necessary and expedient, to
convene both Houses on extraordinary occasions, to receive ambassadors,
and to take care that the laws be faithfully executed.
The judicial power is vested in one Supreme Court and in such inferior
courts as Congress may establish; and it is made to extend to all cases
in law and equity arising under the Constitution, the laws of the
United States, and treaties made under their authority. Cases affecting
ambassadors and other public characters, cases of admiralty and maritime
jurisdiction, causes in which the United States are a party, between two
or more States, between citizens of different States, between citizens
of the same State claiming grants of land under different States,
between a State or the citizens thereof and foreign States, are
specially assigned to these tribunals.
Other powers have been granted in other parts of the Constitution which,
although they relate to specific objects, unconnected with the ordinary
administration, yet, as they form important features in the Government
and may shed useful light on the construction which ought to be given
to the powers above enumerated, it is proper to bring into view.
By Article I, section 9, clause 1, it is provided that the migration
or importation of such persons as any of the States now existing shall
think proper to admit shall not be prohibited by Congress prior to the
year 1808, but a tax or duty may be imposed on such importation not
exceeding $10 for each person.
By Article III, section 3, clause 1, new States may be admitted by
Congress into the Union, but that no new State shall be formed within
the jurisdiction of another State, nor any State be formed by the
junction of two or more States or parts of States without the consent of
the legislature of the States concerned as well as of the United States.
And by the next clause of the same article and section power is vested
in Congress to dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the United.
States, with a proviso that nothing in the Constitution shall be so
construed as to prejudice any claims of the United States or of any
particular State.
By Article IV, section 4, the United States guarantee to every State a
republican form of government and engage to protect each of them against
invasion; and on application of the legislature, or of the executive
when the legislature can not be convened, against domestic violence.
Of the other parts of the Constitution relating to power, some form
restraints on the exercise of the powers granted to Congress and others
on the exercise of the powers remaining to the States. The object in
both instances is to draw more completely the line between the two
governments and also to prevent abuses by either. Other parts operate
like conventional stipulations between the States, abolishing between
them all distinctions applicable to foreign powers and securing to the
inhabitants of each State all the rights and immunities of citizens in
the several States.
By the fifth article it is provided that Congress, whenever two-thirds
of both Houses shall deem it necessary, shall propose amendments, or, on
the application of the legislatures of two-thirds of the several States,
shall call a convention for proposing amendments, which in either case
shall be valid as a part of the Constitution when ratified by the
legislatures of three-fourths of the several States, or by conventions
in three-fourths thereof, as the one or the other mode may be proposed
by Congress: _Provided_, That no State, without its consent, shall be
deprived of its equal vote in the Senate, and that no amendment which
may be made prior to the year 1808 shall affect the first and fourth
clauses in the ninth section of the first article.
By the second section of the sixth article it is declared that the
Constitution, and laws of the United States which shall be made in
pursuance thereof, and all treaties made under the authority of the
United States, shall be the supreme law of the land, and that the judges
in every State shall be bound thereby, anything in the constitution or
laws of any State to the contrary notwithstanding. This right in the
National Government to execute its powers was indispensable to its
existence. If the State governments had not been restrained from
encroaching on the powers vested in the National Government, the
Constitution, like the Confederation, would soon have been set at
naught; and it was not within the limit of the human mind to devise
any plan for the accomplishment of the object other than by making a
national constitution which should be to the extent of its powers the
supreme law of the land. This right in the National Government would
have existed under the Constitution to the full extent provided for by
this declaration had it not been made. To prevent the possibility of
a doubt, however, on so important a subject it was proper to make the
declaration.
Having presented above a full view of all the powers granted to the
United States, it will be proper to look to those remaining to the
States. It is by fixing the great powers which are admitted to belong
to each government that we may hope to come to a right conclusion
respecting those in controversy between them. In regard to the National
Government, this task was easy because its powers were to be found in
specific grants in the Constitution; but it is more difficult to give a
detail of the powers of the State governments, as their constitutions,
containing all powers granted by the people not specifically taken
from them by grants to the United States, can not well be enumerated.
Fortunately, a precise detail of all the powers remaining to the State
governments is not necessary in the present instance. A knowledge of
their great powers only will answer every purpose contemplated, and
respecting these there can be no diversity in opinion. They are
sufficiently recognized and established by the Constitution of the
United States itself. In designating the important powers of the
State governments it is proper to observe, first, that the territory
contemplated by the Constitution belongs to each State in its separate
character and not to the United States in their aggregate character.
Bach State holds territory according to its original charter, except in
cases where cessions have been made to the United States by individual
States. The United States had none when the Constitution was adopted
which had not been thus ceded to them and which they held on the
conditions on which such cession had been made. Within the individual
States it is believed that they held not a single acre; but if they did
it was as citizens held it, merely as private property. The territory
acquired by cession lying without the individual States rests on a
different principle, and is provided for by a separate and distinct part
of the Constitution. It is the territory within the individual States to
which the Constitution in its great principles applies, and it applies
to such territory as the territory of a State and not as that of the
United States. The next circumstance to be attended to is that the
people composing this Union are the people of the several States, and
not of the United States in the full sense of a consolidated government.
The militia are the militia of the several States; lands are held under
the laws of the States; descents, contracts, and all the concerns of
private property, the administration of justice, and the whole criminal
code, except in the cases of breaches of the laws of the United States
made under and in conformity with the powers vested in Congress and of
the laws of nations, are regulated by State laws. This enumeration shows
the great extent of the powers of the State governments. The territory
and the people form the basis on which all governments are founded.
The militia constitutes their effective force. The regulation and
protection of property and of personal liberty are also among the
highest attributes of sovereignty. This, without other evidence, is
sufficient to show that the great office of the Constitution of the
United States is to unite the States together under a Government
endowed with powers adequate to the purposes of its institution,
relating, directly or indirectly, to foreign concerns, to the discharge
of which a National Government thus formed alone could be competent.
This view of the exclusive jurisdiction of the several States over the
territory within their respective limits, except in cases otherwise
specially provided for, is supported by the obvious intent of the
several powers granted to Congress, to which a more particular attention
is now due. Of these the right to declare war is perhaps the most
important, as well by the consequences attending war as by the other
powers granted in aid of it. The right to lay taxes, duties, imposts,
and excises, though necessary for the support of the civil government,
is equally necessary to sustain the charges of war; the right to raise
and support armies and a navy and to call forth and govern the militia
when in the service of the United States are altogether of the latter
kind. They are granted in aid of the power to make war and intended to
give effect to it. These several powers are of great force and extent,
and operate more directly within the limits and upon the resources of
the States than any of the other powers. But still they are means only
for given ends. War is declared and must be maintained, an army and a
navy must be raised, fortifications must be erected for the common
defense, debts must be paid, For these purposes duties, imposts, and
excises are levied, taxes are laid, the lands, merchandise, and other
property of the citizens are liable for them; if the money is not paid,
seizures are made and the lands are sold. The transaction is terminated;
the lands pass into other hands, who hold them, as the former
proprietors did, under the laws of the individual States. They were
means only to certain ends; the United States have nothing further to
do with them. The same view is applicable to the power of the General
Government over persons. The militia is called into the service of the
United States; the service is performed; the corps returns to the State
to which it belongs; it is the militia of such State, and not of the
United States. Soldiers are required for the Army, who may be obtained
by voluntary enlistment or by some other process founded in the
principles of equality. In either case the citizen after the tour of
duty is performed is restored to his former station in society, with his
equal share in the common sovereignty of the nation. In all these cases,
which are the strongest which can be given, we see that the right of
the General Government is nothing more than what it is called in the
Constitution, a power to perform certain acts, and that the subject on
which it operates is a means only to that end; that it was both before
and after that act under the protection and subject to the laws of the
individual State within which it was.
To the other powers of the General Government the same remarks are
applicable and with greater force. The right to regulate commerce with
foreign powers was necessary as well to enable Congress to lay and
collect duties and imposts as to support the rights of the nation in
the intercourse with foreign powers. It is executed at the ports of
the several States and operates almost altogether externally. The right
to borrow and coin money and to fix its value and that of foreign
coin are important to the establishment of a National Government, and
particularly necessary in support of the right to declare war, as,
indeed, may be considered the right to punish piracy and felonies on
the high seas and offenses against the laws of nations. The right to
establish an uniform rule of naturalization and uniform laws respecting
bankruptcies seems to be essentially connected with the right to
regulate commerce. The first branch of it relates to foreigners entering
the country; the second to merchants who have failed. The right to
promote the progress of useful arts and sciences may be executed without
touching any of the individual States. It is accomplished by granting
patents to inventors and preserving models, which may be done
exclusively within the Federal district. The right to constitute courts
inferior to the Supreme Court was a necessary consequence of the
judiciary existing as a separate branch of the General Government.
Without such inferior court in every State it would be difficult and
might even be impossible to carry into effect the laws of the General
Government. The right to establish post-offices and post-roads is
essentially of the same character. For political, commercial, and social
purposes it was important that it should be vested in the General
Government. As a mere matter of regulation, and nothing more, I presume,
was intended by it, it is a power easily executed and involving little
authority within the States individually. The right to exercise
exclusive legislation in all cases whatsoever over the Federal district
and over forts, magazines, arsenals, dockyards, and other needful
buildings with the consent of the State within which the same may be is
a power of a peculiar character, and is sufficient in itself to confirm
what has been said of all the other powers of the General Government.
Of this particular grant further notice will hereafter be taken.
I shall conclude my remarks on this part of the subject by observing
that the view which has been presented of the powers and character of
the two Governments is supported by the marked difference which is
observable in the manner of their endowment. The State governments
are divided into three branches--a legislative, executive, and
judiciary--and the appropriate duties of each assigned to it without
any limitation of power except such as is-necessary to guard against
abuse, in the form of bills of right. But in instituting the National
Government an entirely different principle was adopted and pursued. The
Government itself is organized, like the State governments, into three
branches, but its powers are enumerated and defined in the most precise
form. The subject has already been too fully explained to require
illustration by a general view of the whole Constitution, every part
of which affords proof of what is here advanced. It will be sufficient
to advert to the eighth section of the first article, being that more
particularly which defines the powers and fixes the character of the
Government of the United States. By this section it is declared that
Congress shall have power, first, to lay and collect taxes, duties,
imposts, and excises, etc.
Having shown the origin of the State governments and their endowments
when first formed; having also shown the origin of the National
Government and the powers vested in it, and having shown, lastly, the
powers which are admitted to have remained to the State governments
after those which were taken from them by the National Government,
I will now proceed to examine whether the power to adopt and execute
a system of internal improvement by roads and canals has been vested
in the United States.
Before we can determine whether this power has been granted to the
General Government it will be necessary to ascertain distinctly the
nature and extent of the power requisite to make such improvements.
When that is done we shall be able to decide whether such power is
vested in the National Government.
If the power existed it would, it is presumed, be executed by a board of
skillful engineers, on a view of the whole Union, on a plan which would
secure complete effect to all the great purposes of our Constitution.
It is not my intention, however, to take up the subject here on this
scale. I shall state a case for the purpose of illustration only. Let
it be supposed that Congress intended to run a road from the city of
Washington to Baltimore and to connect the Chesapeake Bay with the
Delaware and the Delaware with the Raritan by a canal, what must be
done to carry the project into effect? I make here no question of the
existing power. I speak only of the power necessary for the purpose.
Commissioners would be appointed to trace a route in the most direct
line, paying due regard to heights, water courses, and other obstacles,
and to acquire the right to the ground over which the road and canal
would pass, with sufficient breadth for each. This must be done by
voluntary grants, or by purchases from individuals, or, in case they
would not sell or should ask an exorbitant price, by condemning the
property and fixing its value by a jury of the vicinage. The next object
to be attended to after the road and canal are laid out and made is to
keep them in repair. We know that there are people in every community
capable of committing voluntary injuries, of pulling down walls that are
made to sustain the road, of breaking the bridges over water courses,
and breaking the road itself. Some living near it might be disappointed
that it did not pass through their lands and commit these acts of
violence and waste from revenge or in the hope of giving it that
direction, though for a short time. Injuries of this kind have been
committed and are still complained of on the road from Cumberland to the
Ohio. To accomplish this object Congress should have a right to pass
laws to punish offenders wherever they may be found. Jurisdiction over
the road would not be sufficient, though it were exclusive. It would
seldom happen that the parties would be detected in the act. They would
generally commit it in the night and fly far off before the sun
appeared. The power to punish these culprits must therefore reach them
wherever they go. They must also be amenable to competent tribunals,
Federal or State. The power must likewise extend to another object not
less essential or important than those already mentioned. Experience
has shown that the establishment of turnpikes, with gates and tolls and
persons to collect the tolls, is the best expedient that can be adopted
to defray the expense of these improvements and the repairs which they
necessarily require. Congress must therefore have power to make such
an establishment and to support it by such regulations, with fines and
penalties in the case of injuries, as may be competent to the purpose.
The right must extend to all those objects, or it will be utterly
incompetent. It is possessed and exercised by the States individually,
and it must be possessed by the United States or the pretension must be
abandoned.
Let it be further supposed that Congress, believing that they do
possess the power, have passed an act for those purposes, under which
commissioners have been appointed, who have begun the work. They are met
at the first farm on which they enter by the owner, who forbids them
to trespass on his land. They offer to buy it at a fair price or at
twice or thrice its value. He persists in his refusal. Can they, on the
principle recognized and acted on by all the State governments that in
cases of this kind the obstinacy and perverseness of an individual must
yield to the public welfare, summon a jury of upright and discreet men
to condemn the land, value it, and compel the owner to receive the
amount and to deliver it up to them? I believe that very few would
concur in the opinion that such a power exists.
The next object is to preserve these improvements from injury. The locks
of the canal are broken, the walls which sustained the road are pulled
down, the bridges are broken, the road itself is plowed up, toll is
refused to be paid, the gates of the canal or turnpike are forced.
The offenders are pursued, caught, and brought to trial. Can they
be punished? The question of right must be decided on principle. The
culprits will avail themselves of every barrier that may serve to screen
them from punishment. They will plead that the law under which they
stand arraigned is unconstitutional, and that question must be decided
by the court, whether Federal or State, on a fair investigation of the
powers vested in the General Government by the Constitution. If the
judges find that these powers have not been granted to Congress, the
prisoners must be acquitted, and by their acquittal all claim to the
right to establish such a system is at an end.
I have supposed an opposition to be made to the right in Congress by the
owner of the land and other individuals charged with breaches of laws
made to protect the works from injury, because it is the mildest form in
which it can present itself. It is not, however, the only one. A State,
also, may contest the right, and then the controversy assumes another
character. Government might contend against government, for to a certain
extent both the Governments are sovereign and independent of each other,
and in that form it is possible, though not probable, that opposition
might be made. To each limitations are prescribed, and should a contest
rise between them respecting their rights and the people sustain it with
anything like an equal division of numbers the worst consequences might
ensue.
It may be urged that the opposition suggested by the owner of the
land or by the States individually may be avoided by a satisfactory
arrangement with the parties. But a suppression of opposition in that
way is no proof of a right in Congress, nor could it, if confined to
that limit, remove all the impediments to the exercise of the power.
It is not sufficient that Congress may by the command and application
of the public revenue purchase the soil, and thus silence that class of
individuals, or by the accommodation afforded to individual States put
down opposition on their part. Congress must be able rightfully to
control all opposition or they can not carry the system into effect.
Cases would inevitably occur to put the right to the test. The work must
be preserved from injury, tolls must be collected, offenders must be
punished. With these culprits no bargain can be made. When brought
to trial they must deny the validity of the law, and that plea being
sustained all claim to the right ceases.
If the United States possess this power, it must be either because it
has been specifically granted or that it is incidental and necessary
to carry into effect some specific grant. The advocates for the power
derive it from the following sources: First, the right to establish
post-offices and post-roads; second, to declare war; third, to regulate
commerce among the several States; fourth, from the power to pay the
debts and provide for the common defense and general welfare of the
United States; fifth, from the power to make all laws necessary and
proper for carrying into execution all the powers vested by the
Constitution in the Government of the United States or in any department
or officer thereof; sixth and lastly, from the power to dispose of and
make all needful rules and regulations respecting the territory and
other property of the United States. It is to be observed that there
is but little accord among the advocates for this power as to the
particular source from whence it is derived. They all agree, however,
in ascribing it to some one or more of those above mentioned. I will
examine the ground of the claim in each instance.
The first of these grants is in the following words: "Congress shall
have power to establish post-offices and post-roads." What is the just
import of these words and the extent of the grant? The word "establish"
is the ruling term; "post-offices and post-roads" are the subjects on
which it acts. The question therefore is, What power is granted by that
word? The sense in which words are commonly used is that in which they
are to be understood in all transactions between public bodies and
individuals. The intention of the parties is to prevail, and there is
no better way of ascertaining it than by giving to the terms used their
ordinary import. If we were to ask any number of our most enlightened
citizens, who had no connection with public affairs and whose minds were
unprejudiced, what was the import of the word "establish" and the extent
of the grant which it controls, we do not think there would be any
difference of opinion among them. We are satisfied that all of them
would answer that a power was thereby given to Congress to fix on the
towns, court-houses, and other places throughout our Union at which
there should be post-offices, the routes by which the mails should be
carried from one post-office to another, so as to diffuse intelligence
as extensively and to make the institution as useful as possible, to
fix the postage to be paid on every letter and packet thus carried, to
support the establishment, and to protect the post-office and mails from
robbery by punishing those who should commit the offense. The idea of a
right to lay off the roads of the United States on a general scale of
improvement, to take the soil from the proprietor by force, to establish
turnpikes and tolls, and to punish offenders in the manner stated above
would never occur to any such person. The use of the existing road by
the stage, mail carrier, or postboy in passing over it as others do is
all that would be thought of, the jurisdiction and soil remaining to the
State, with a right in the State or those authorized by its legislature
to change the road at pleasure.
The intention of the parties is supported by other proof, which ought
to place it beyond all doubt. In the former act of Government, the
Confederation, we find a grant for the same purpose expressed in the
following words: "The United States in Congress assembled shall have
the sole and exclusive right and power of establishing and regulating
post-offices from one State to another throughout all the United States,
and exacting such postage on the papers passing through the same as
may be requisite to defray the expenses of the said office." The term
"establish" was likewise the ruling one in that instrument, and was
evidently intended and understood to give a power simply and solely to
fix where there should be post-offices. By transferring this term from
the Confederation into the Constitution it was doubtless intended that
it should be understood in the same sense in the latter that it was
in the former instrument, and to be applied alike to post-offices and
post-roads. In whatever sense it is applied to post-offices it must
be applied in the same sense to post-roads. But it may be asked, If
such was the intention, why were not all the other terms of the grant
transferred with it? The reason is obvious. The Confederation being a
bond of union between independent States, it was necessary in granting
the powers which were to be exercised over them to be very explicit
and minute in defining the powers granted. But the Constitution to the
extent of its powers having incorporated the States into one Government
like the government of the States individually, fewer words in defining
the powers granted by it were not only adequate, but perhaps better
adapted to the purpose. We find that brevity is a characteristic of the
instrument. Had it been intended to convey a more enlarged power in the
Constitution than had been granted in the Confederation, surely the same
controlling term would not have been used, or other words would have
been added, to show such intention and to mark the extent to which the
power should be carried. It is a liberal construction of the powers
granted in the Constitution by this term to include in it all the powers
that were granted in the Confederation by terms which specifically
defined and, as was supposed, extended their limits. It would be absurd
to say that by omitting from the Constitution any portion of the
phraseology which was deemed important in the Confederation the import
of that term was enlarged, and with it the powers of the Constitution,
in a proportional degree, beyond what they were in the Confederation.
The right to exact postage and to protect the post-offices and mails
from robbery by punishing the offenders may fairly be considered as
incidents to the grant, since without it the object of the grant might
be defeated. Whatever is absolutely necessary to the accomplishment of
the object of the grant, though not specified, may fairly be considered
as included in it. Beyond this the doctrine of incidental power can not
be carried.
If we go back to the origin of our settlements and institutions and
trace their progress down to the Revolution, we shall see that it was in
this sense, and in none other, that the power was exercised by all our
colonial governments. Post-offices were made for the country, and not
the country for them. They are the offspring of improvement; they never
go before it. Settlements are first made, after which the progress is
uniform and simple, extending to objects in regular order most necessary
to the comfort of man--schools, places of public worship, court-houses,
and markets; post-offices follow. Roads may, indeed, be said to be
coeval with settlements; they lead to all the places mentioned, and
to every other which the various and complicated interests of society
require.
It is believed that not one example can be given, from the first
settlement of our country to the adoption of this Constitution,
of a post-office being established without a view to existing roads or
of a single road having been made by pavement, turnpike, etc., for the
sole purpose of accommodating a post-office. Such, too, is the uniform
progress of all societies. In granting, then, this power to the United
States it was undoubtedly intended by the framers and ratifiers of the
Constitution to convey it in the sense and extent only in which it had
been understood and exercised by the previous authorities of the
country.
This conclusion is confirmed by the object of the grant and the
manner of its execution. The object is the transportation of the mail
throughout the United States, which may be done on horseback, and was
so done until lately, since the establishment of stages. Between the
great towns and in other places where the population is dense stages are
preferred because they afford an additional opportunity to make a profit
from passengers; but where the population is sparse and on crossroads it
is generally carried on horseback. Unconnected with passengers and other
objects, it can not be doubted that the mail itself may be carried in
every part of our Union with nearly as much economy and greater dispatch
on horseback than in a stage, and in many parts with much greater. In
every part of the Union in which stages can be preferred the roads are
sufficiently good provided those which serve for every other purpose
will accommodate them. In every other part where horses alone are used
if other people pass them on horseback surely the mail carrier can. For
an object so simple and so easy in its execution it would doubtless
excite surprise if it should be thought proper to appoint commissioners
to lay off the country on a great scheme of improvement, with the
power to shorten distances, reduce heights, level mountains, and pave
surfaces.
If the United States possessed the power contended for under this grant,
might they not in adopting the roads of the individual States for the
carriage of the mail, as has been done, assume jurisdiction over them
and preclude a right to interfere with or alter them? Might they not
establish turnpikes and exercise all the other acts of sovereignty
above stated over such roads necessary to protect them from injury and
defray the expense of repairing them? Surely if the right exists these
consequences necessarily followed as soon as the road was established.
The absurdity of such a pretension must be apparent to all who examine
it. In this way a large portion of the territory of every State might be
taken from it, for there is scarcely a road in any State which will not
be used for the transportation of the mail. A new field for legislation
and internal government would thus be opened.
From this view of the subject I think we may fairly conclude that the
right to adopt and execute a system of internal improvement, or any part
of it, has not been granted to Congress under the power to establish
post-offices and post-roads; that the common roads of the country only
were contemplated by that grant and are fully competent to all its
purposes.
The next object of inquiry is whether the right to declare war
includes the right to adopt and execute this system of improvement.
The objections to it are, I presume, not less conclusive than those
which are applicable to the grant which we have just examined.
Under the last-mentioned grant a claim has been set up to as much of
that system as relates to roads. Under this it extends alike to roads
and canals.
We must examine this grant by the same rules of construction that
were applied to the preceding one. The object was to take this power
from the individual States and to vest it in the General Government.
This has been done in clear and explicit terms, first by granting the
power to Congress, and secondly by prohibiting the exercise of it by
the States. "Congress shall have a right to declare war." This is the
language of the grant. If the right to adopt and execute this system
of improvement is included in it, it must be by way of incident only,
since there is nothing in the grant itself which bears any relation to
roads and canals. The following considerations, it is presumed, prove
incontestably that this power has not been granted in that or any other
manner.
The United States are exposed to invasion through the whole extent of
their Atlantic coast by any European power with whom we might be engaged
in war--on the northern and northwestern frontier on the side of Canada
by Great Britain, and on the southern by Spain or any power in alliance
with her. If internal improvements are to be carried to the full extent
to which they may be useful for military purposes, the power as it
exists must apply to all the roads of the Union, there being no
limitation to it. Wherever such improvements may facilitate the march
of troops, the transportation of cannon, or otherwise aid the operations
or mitigate the calamities of war along the coast or in any part of the
interior they would be useful for military purposes, and might therefore
be made. The power following as an incident to another power can be
measured as to its extent by reference only to the obvious extent of the
power to which it is incidental. So great a scope was, it is believed,
never given to incidental power.
If it had been intended that the right to declare war should include
all the powers necessary to maintain war, it would follow that nothing
would have been done to impair the right or to restrain Congress from
the exercise of any power which the exigencies of war might require.
The nature and extent of this exigency would mark the extent of the
power granted, which should always be construed liberally, so as to be
adequate to the end. A right to raise money by taxes, duties, excises,
and by loan, to raise and support armies and a navy, to provide for
calling forth, arming, disciplining, and governing the militia when
in the service of the United States, establishing fortifications and
governing the troops stationed in them independently of the State
authorities, and to perform many other acts is indispensable to the
maintenance of war--no war with any great power can be prosecuted with
success without the command of the resources of the Union in all these
respects. These powers, then, would of necessity and by common consent
have fallen within the right to declare war had it been intended to
convey by way of incident to that right the necessary powers to maintain
war. But these powers have all been granted specifically with many
others, in great detail, which experience had shown were necessary for
the purposes of war. By specifically granting, then, these powers it
is manifest that every power was thus granted which it was intended
to grant for military purposes, and that it was also intended that no
important power should be included in this grant by way of incident,
however useful it might be for some of the purposes of the grant.
By the sixteenth of the enumerated powers, Article I, section 8,
Congress are authorized to exercise exclusive legislation in all cases
whatever over such district as may by cession of particular States and
the acceptance of Congress, not exceeding 10 miles square, become the
seat of the Government of the United States, and to exercise like
authority over all places purchased by the consent of the legislature
of the State in which the same shall be, for the erection of forts,
magazines, arsenals, dockyards, and other useful buildings. If any doubt
existed on a view of other parts of the Constitution respecting the
decision which ought to be formed on the question under consideration,
I should suppose that this clause would completely remove it. It has been
shown after the most liberal construction of all the enumerated powers
of the General Government that the territory within the limits of the
respective States belonged to them; that the United States had no right
under the powers granted to them, with the exception specified in this
grant, to any the smallest portion of territory within a State, all
those powers operating on a different principle and having their full
effect without impairing in the slightest degree this right in the
States; that those powers were in every instance means to ends, which
being accomplished left the subject--that is, the property, in which
light only land could be regarded--where it was before, under the
jurisdiction and subject to the laws of the State governments.
The second number of the clause, which is applicable to military
and naval purposes alone, claims particular attention here. It fully
confirms the view taken of the other enumerated powers, for had it been
intended to include in the right to declare war, by way of incident,
any right of jurisdiction or legislation over territory within a State,
it would have been done as to fortifications, magazines, arsenals,
dockyards, and other needful buildings. By specifically granting the
right as to such small portions of territory as might be necessary for
these purposes and on certain conditions, minutely and well defined,
it is manifest that it was not intended to grant it as to any other
portion on any condition for any purpose or in any manner whatsoever.
It may be said that although the authority to exercise exclusive
legislation in certain cases within the States with their consent may
be considered as a prohibition to Congress to exercise like exclusive
legislation in any other case, although their consent should be granted,
it does not prohibit the exercise of such jurisdiction or power within
a State as would be competent to all the purposes of internal
improvement. I can conceive no ground on which the idea of such a power
over any part of the territory of a State can be inferred from the power
to declare war. There never can be an occasion for jurisdiction for
military purposes except in fortifications, dockyards, and the like
places. If the soldiers are in the field or are quartered in garrisons
without the fortifications, the civil authority must prevail where they
are. The government of the troops by martial law is not affected by it.
In war, when the forces are increased and the movement is on a greater
scale, consequences follow which are inseparable from the exigencies
of the state. More freedom of action and a wider range of power in the
military commanders, to be exercised on their own responsibility, may
be necessary to the public safety; but even here the civil authority
of the State never ceases to operate. It is also exclusive for all
civil purposes.
Whether any power short of that stated would be adequate to the purposes
of internal improvement is denied. In the case of territory one
government must prevail for all the purposes intended by the grant.
The jurisdiction of the United States might be modified in such manner
as to admit that of the State in all cases and for all purposes not
necessary to the execution of the proposed power; but the right of the
General Government must be complete for all the purposes above stated.
It must extend to the seizure and condemnation of the property, if
necessary; to the punishment of offenders for injuries to the roads and
canals; to the establishment and enforcement of tolls, etc. It must be
a complete right to the extent above stated or it will be of no avail.
That right does not exist.
The reasons which operate in favor of the right of exclusive legislation
in forts, dockyards, etc., do not apply to any other places. The safety
of such works and of the cities which they are intended to defend, and
even of whole communities, may sometimes depend on it. If spies are
admitted within them in time of war, they might communicate intelligence
to the enemy which might be fatal. All nations surround such works
with high walls and keep their gates shut. Even here, however, three
important conditions are indispensable to such exclusive legislation:
First, the ground must be requisite for and be applied to those
purposes; second, it must be purchased; third, it must be purchased by
the consent of the State in which it may be. When we find that so much
care has been taken to protect the sovereignty of the States over the
territory within their respective limits, admitting that of the United
States over such small portions and for such special and important
purposes only, the conclusion is irresistible not only that the power
necessary for internal improvements has not been granted, but that it
has been clearly prohibited.
I come next to the right to regulate commerce, the third source from
whence the right to make internal improvements is claimed. It is
expressed in the following words: "Congress shall have power to regulate
commerce with foreign nations and among the several States and with the
Indian tribes." The reasoning applicable to the preceding claims is
equally so to this. The mischief complained of was that this power could
not be exercised with advantage by the individual States, and the object
was to transfer it to the United States. The sense in which the power
was understood and exercised by the States was doubtless that in which
it was transferred to the United States. The policy was the same
as to three branches of this grant, and it is scarcely possible to
separate the two first from each other in any view which may be taken
of the subject. The last, relating to the Indian tribes, is of a
nature distinct from the others for reasons too well known to require
explanation. Commerce between independent powers or communities is
universally regulated by duties and imposts. It was so regulated by the
States before the adoption of this Constitution equally in respect to
each other and to foreign powers. The goods and vessels employed in the
trade are the only subjects of regulation. It can act on none other.
A power, then, to impose such duties and imposts in regard to foreign
nations and to prevent any on the trade between the States was the only
power granted.
If we recur to the causes which produced the adoption of this
Constitution, we shall find that injuries resulting from the regulation
of trade by the States respectively and the advantages anticipated from
the transfer of the power to Congress were among those which had the
most weight. Instead of acting as a nation in regard to foreign powers,
the States individually had commenced a system of restraint on each
other whereby the interests of foreign powers were promoted at their
expense. If one State imposed high duties on the goods or vessels of
a foreign power to countervail the regulations of such power, the next
adjoining States imposed lighter duties to invite those articles into
their ports, that they might be transferred thence into the other
States, securing the duties to themselves. This contracted policy in
some of the States was soon counteracted by others. Restraints were
immediately laid on such commerce by the suffering States, and thus had
grown up a state of affairs disorderly and unnatural, the tendency of
which was to destroy the Union itself and with it all hope of realizing
those blessings which we had anticipated from the glorious Revolution
which had been so recently achieved. From this deplorable dilemma, or,
rather, certain ruin, we were happily rescued by the adoption of the
Constitution.
Among the first and most important effects of this great Revolution
was the complete abolition of this pernicious policy. The States were
brought together by the Constitution as to commerce into one community
equally in regard to foreign nations and each other. The regulations
that were adopted regarded us in both respects as one people. The duties
and imposts that were laid on the vessels and merchandise of foreign
nations were all uniform throughout the United States, and in the
intercourse between the States themselves no duties of any kind were
imposed other than between different ports and counties within the
same State.
This view is supported by a series of measures, all of a marked
character, preceding the adoption of the Constitution. As early as
the year 1781 Congress recommended it to the States to vest in the
United States a power to levy a duty of 5 per cent on all goods imported
from foreign countries into the United States for the term of fifteen
years. In 1783 this recommendation, with alterations as to the kind of
duties and an extension of this term to twenty-five years, was repeated
and more earnestly urged. In 1784 it was recommended to the States
to authorize Congress to prohibit, under certain modifications, the
importation of goods from foreign powers into the United States for
fifteen years. In 1785 the consideration of the subject was resumed,
and a proposition presented in a new form, with an address to the
States, explaining fully the principles on which a grant of the power
to regulate trade was deemed indispensable. In 1786 a meeting took place
at Annapolis of delegates from several of the States on this subject,
and on their report a convention was formed at Philadelphia the ensuing
year from all the States, to whose deliberations we are indebted for
the present Constitution.
In none of these measures was the subject of internal improvement
mentioned or even glanced at. Those of 1784, 1785, 1786, and 1787,
leading step by step to the adoption of the Constitution, had in view
only the obtaining of a power to enable Congress to regulate trade with
foreign powers. It is manifest that the regulation of trade with the
several States was altogether a secondary object, suggested by and
adopted in connection with the other. If the power necessary to this
system of improvement is included under either branch of this grant,
I should suppose that it was the first rather than the second. The
pretension to it, however, under that branch has never been set up.
In support of the claim under the second no reason has been assigned
which appears to have the least weight.
The fourth claim is founded on the right of Congress to "pay the debts
and provide for the common defense and general welfare" of the United
States. This claim has less reason on its side than either of those
which we have already examined. The power of which this forms a part
is expressed in the following words: "Congress shall have power to lay
and collect taxes, duties, imposts, and excises; to pay the debts and
provide for the common defense and general welfare of the United States;
but all duties, imposts, and excises shall be uniform throughout the
United States." That the second part of this grant gives a right to
appropriate the public money, and nothing more, is evident from the
following considerations: First. If the right of appropriation is not
given by this clause, it is not given at all, there being no other grant
in the Constitution which gives it directly or which has any bearing
on the subject, even by implication, except the two following: First,
the prohibition, which is contained in the eleventh of the enumerated
powers, not to appropriate money for the support of armies for a longer
term than two years; and, second, the declaration of the sixth member
or clause of the ninth section of the first article that no money shall
be drawn from the Treasury but in consequence of appropriations made by
law. Second. This part of the grant has none of the characteristics of
a distinct and original power. It is manifestly incidental to the great
objects of the first part of the grant, which authorizes Congress to lay
and collect taxes, duties, imposts, and excises, a power of vast extent,
not granted by the Confederation, the grant of which formed one of the
principal inducements to the adoption of this Constitution. If both
parts of the grant are taken together (as they must be, for the one
follows immediately after the other in the same sentence), it seems
to be impossible to give to the latter any other construction than
that contended for. Congress shall have power to lay and collect taxes,
duties, imposts, and excises. For what purpose? To pay the debts and
provide for the common defense and general welfare of the United States,
an arrangement and phraseology which clearly show that the latter part
of the clause was intended to enumerate the purposes to which the money
thus raised might be appropriated. Third. If this is not the real object
and fair construction of the second part of this grant, it follows
either that it has no import or operation whatever or one of much
greater extent than the first part. This presumption is evidently
groundless in both instances. In the first because no part of the
Constitution can be considered useless; no sentence or clause in it
without a meaning. In the second because such a construction as made the
second part of the clause an original grant, embracing the same object
with the first, but with much greater power than it, would be in the
highest degree absurd. The order generally observed in grants, an order
founded in common sense, since it promotes a clear understanding of
their import, is to grant the power intended to be conveyed in the
most full and explicit manner, and then to explain or qualify it, if
explanation or qualification should be necessary. This order has, it
is believed, been invariably observed in all the grants contained in
the Constitution. In the second because if the clause in question is
not construed merely as an authority to appropriate the public money,
it must be obvious that it conveys a power of indefinite and unlimited
extent; that there would have been no use for the special powers to
raise and support armies and a navy, to regulate commerce, to call forth
the militia, or even to lay and collect taxes, duties, imposts, and
excises. An unqualified power to pay the debts and provide for the
common defense and general welfare, as the second part of this clause
would be if considered as a distinct and separate grant, would extend to
every object in which the public could be interested. A power to provide
for the common defense would give to Congress the command of the whole
force and of all the resources of the Union; but a right to provide for
the general welfare would go much further. It would, in effect, break
down all the barriers between the States and the General Government and
consolidate the whole under the latter.
The powers specifically granted to Congress are what are called the
enumerated powers, and are numbered in the order in which they stand,
among which that contained in the first clause holds the first place
in point of importance. If the power created by the latter part of the
clause is considered an original grant, unconnected with and independent
of the first, as in that case it must be, then the first part is
entirely done away, as are all the other grants in the Constitution,
being completely absorbed in the transcendent power granted in the
latter part; but if the clause be construed in the sense contended for,
then every part has an important meaning and effect; not a line, a word,
in it is superfluous. A power to lay and collect taxes, duties, imposts,
and excises subjects to the call of Congress every branch of the public
revenue, internal and external, and the addition to pay the debts and
provide for the common defense and general welfare gives the right of
applying the money raised--that is, of appropriating it to the purposes
specified according to a proper construction of the terms. Hence it
follows that it is the first part of the clause only which gives a power
which affects in any manner the power remaining to the States, as the
power to raise money from the people, whether it be by taxes, duties,
imposts, or excises, though concurrent in the States as to taxes and
excises must necessarily do. But the use or application of the money
after it is raised is a power altogether of a different character.
It imposes no burden on the people, nor can it act on them in a sense
to take power from the States or in any sense in which power can be
controverted, or become a question between the two Governments. The
application of money raised under a lawful power is a right or grant
which may be abused. It may be applied partially among the States, or
to improper purposes in our foreign and domestic concerns; but still
it is a power not felt in the sense of other power, since the only
complaint which any State can make of such partiality and abuse is
that some other State or States have obtained greater benefit from the
application than by a just rule of apportionment they were entitled to.
The right of appropriation is therefore from its nature secondary and
incidental to the right of raising money, and it was proper to place
it in the same grant and same clause with that right. By rinding them,
then, in that order we see a new proof of the sense in which the grant
was made, corresponding with the view herein taken of it.
The last part of this grant, which provides that all duties, imposts,
and excises shall be uniform throughout the United States, furnishes
another strong proof that it was not intended that the second part
should constitute a distinct grant in the sense above stated, or
convey any other right than that of appropriation. This provision
operates exclusively on the power granted in the first part of the
clause. It recites three branches of that power--duties, imposts, and
excises--those only on which it could operate, the rule by which the
fourth--that is, taxes--should be laid being already provided for in
another part of the Constitution. The object of this provision is to
secure a just equality among the States in the exercise of that power
by Congress. By placing it after both the grants--that is, after that
to raise and that to appropriate the public money--and making it apply
to the first only it shows that it was not intended that the power
granted in the second should be paramount to and destroy that granted in
the first. It shows also that no such formidable power as that suggested
had been granted in the second, or any power against the abuse of which
it was thought necessary specially to provide. Surely if it was deemed
proper to guard a specific power of limited extent and well-known
import against injustice and abuse, it would have been much more so
to have guarded against the abuse of a power of such vast extent and so
indefinite as would have been granted by the second part of the clause
if considered as a distinct and original grant.
With this construction all the other enumerated grants, and, indeed,
all the grants of power contained in the Constitution, have their full
operation and effect. They all stand well together, fulfilling the great
purposes intended by them. Under it we behold a great scheme, consistent
in all its parts, a Government instituted for national purposes, vested
with adequate powers for those purposes, commencing with the most
important of all, that of the revenue, and proceeding in regular order
to the others with which it was deemed proper to endow it, all, too,
drawn with the utmost circumspection and care. How much more consistent
is this construction with the great objects of the institution and with
the high character of the enlightened and patriotic citizens who framed
it, as well as of those who ratified it, than one which subverts every
sound principle and rule of construction and throws everything into
confusion.
I have dwelt thus long on this part of the subject from an earnest
desire to fix in a clear and satisfactory manner the import of the
second part of this grant, well knowing from the generality of the terms
used their tendency to lead into error. I indulge a strong hope that
the view herein presented will not be without effect, but will tend to
satisfy the unprejudiced and impartial that nothing more was granted by
that part than a power to _appropriate_ the public money raised under
the other part. To what extent that power may be carried will be the
next object of inquiry.
It is contended on the one side that as the National Government is
a government of limited powers it has no right to expend money except
in the performance of acts authorized by the other specific grants
according to a strict construction of their powers; that this grant
in neither of its branches gives to Congress discretionary power of
any kind, but is a mere instrument in its hands to carry into effect
the powers contained in the other grants. To this construction I was
inclined in the more early stage of our Government; but on further
reflection and observation my mind has undergone a change, for reasons
which I will frankly unfold.
The grant consists, as heretofore observed, of a twofold power--the
first to raise, the second to appropriate, the public money--and the
terms used in both instances are general and unqualified. Bach branch
was obviously drawn with a view to the other, and the import of each
tends to illustrate that of the other. The grant to raise money gives
a power over every subject from which revenue may be drawn, and is made
in the same manner with the grants to declare war, to raise and support
armies and a navy, to regulate commerce, to establish post-offices
and post-roads, and with all the other specific grants to the General
Government. In the discharge of the powers contained in any of these
grants there is no other check than that which is to be found in the
great principles of our system, the responsibility of the representative
to his constituents. If war, for example, is necessary, and Congress
declare it for good cause, their constituents will support them in it.
A like support will be given them for the faithful discharge of their
duties under any and every other power vested in the United States.
It affords to the friends of our free governments the most heartfelt
consolation to know--and from the best evidence, our own experience--that
in great emergencies the boldest measures, such as form the strongest
appeals to the virtue and patriotism of the people, are sure to obtain
the most decided approbation. But should the representative act
corruptly and betray his trust, or otherwise prove that he was unworthy
of the confidence of his constituents, he would be equally sure to lose
it and to be removed and otherwise censured, according to his deserts.
The power to raise money by taxes, duties, imposts, and excises is alike
unqualified, nor do I see any check on the exercise of it other than
that which applies to the other powers above recited, the responsibility
of the representative to his constituents. Congress know the extent of
the public engagements and the sums necessary to meet them; they know
how much may be derived from each branch of revenue without pressing
it too far; and, paying due regard to the interests of the people,
they likewise know which branch ought to be resorted to in the first
instance. From the commencement of the Government two branches of this
power, duties and imposts, have been in constant operation, the revenue
from which has supported the Government in its various branches and met
its other ordinary engagements. In great emergencies the other two,
taxes and excises, have likewise been resorted to, and neither was the
right or the policy ever called in question.
If we look to the second branch of this power, that which authorizes the
appropriation of the money thus raised, we find that it is not less
general and unqualified than the power to raise it. More comprehensive
terms than to "pay the debts and provide for the common defense and
general welfare" could not have been used. So intimately connected with
and dependent on each other are these two branches of power that had
either been limited the limitation would have had the like effect on
the other. Had the power to raise money been conditional or restricted
to special purposes, the appropriation must have corresponded with it,
for none but the money raised could be appropriated, nor could it be
appropriated to other purposes than those which were permitted. On the
other hand, if the right of appropriation had been restricted to certain
purposes, it would be useless and improper to raise more than would be
adequate to those purposes. It may fairly be inferred these restraints
or checks have been carefully and intentionally avoided. The power in
each branch is alike broad and unqualified, and each is drawn with
peculiar fitness to the other, the latter requiring terms of great
extent and force to accommodate the former, which have been adopted,
and both placed in the same clause and sentence.
Can it be presumed that all these circumstances were so nicely adjusted
by mere accident? Is it not more just to conclude that they were the
result of due deliberation and design? Had it been intended that
Congress should be restricted in the appropriation of the public money
to such expenditures as were authorized by a rigid construction of the
other specific grants, how easy would it have been to have provided for
it by a declaration to that effect. The omission of such declaration is
therefore an additional proof that it was not intended that the grant
should be so construed.
It was evidently impossible to have subjected this grant in either
branch to such restriction without exposing the Government to very
serious embarrassment. How carry it into effect? If the grant had been
made in any degree dependent upon the States, the Government would have
experienced the fate of the Confederation. Like it, it would have
withered and soon perished. Had the Supreme Court been authorized, or
should any other tribunal distinct from the Government be authorized,
to impose its veto, and to say that more money had been raised under
either branch of this power--that is, by taxes, duties, imposts, or
excises--than was necessary, that such a tax or duty was useless, that
the appropriation to this or that purpose was unconstitutional, the
movement might have been suspended and the whole system disorganized.
It was impossible to have created a power within the Government or
any other power distinct from Congress and the Executive which should
control the movement of the Government in this respect and not destroy
it. Had it been declared by a clause in the Constitution that the
expenditures under this grant should be restricted to the construction
which might be given of the other grants, such restraint, though the
most innocent, could not have failed to have had an injurious effect on
the vital principles of the Government and often on its most important
measures. Those who might wish to defeat a measure proposed might
construe the power relied on in support of it in a narrow and contracted
manner, and in that way fix a precedent inconsistent with the true
import of the grant. At other times those who favored a measure might
give to the power relied on a forced or strained construction, and,
succeeding in the object, fix a precedent in the opposite extreme.
Thus it is manifest that if the right of appropriation be confined
to that limit, measures may oftentimes be carried or defeated by
considerations and motives altogether independent of and unconnected
with their merits, and the several powers of Congress receive
constructions equally inconsistent with their true import. No such
declaration, however, has been made, and from the fair import of the
grant, and, indeed, its positive terms, the inference that such was
intended seems to be precluded.
Many considerations of great weight operate in favor of this
construction, while I do not perceive any serious objections to it.
If it be established, it follows that the words "to provide for the
common defense and general welfare" have a definite, safe, and useful
meaning. The idea of their forming an original grant, with unlimited
power, superseding every other grant, is abandoned. They will be
considered simply as conveying a right of appropriation, a right
indispensable to that of raising a revenue and necessary to expenditures
under every grant. By it, as already observed, no new power will be
taken from the States, the money to be appropriated being raised under
a power already granted to Congress. By it, too, the motive for giving
a forced or strained construction to any of the other specific grants
will in most instances be diminished and in many utterly destroyed.
The importance of this consideration can not be too highly estimated,
since, in addition to the examples already given, it ought particularly
to be recollected that to whatever extent any specified power may be
carried the right of jurisdiction goes with it, pursuing it through
all its incidents. The very important agency which this grant has in
carrying into effect every other grant is a wrong argument in favor of
the construction contended for. All the other grants are limited by
the nature of the offices which they have severally to perform, each
conveying a power to do a certain thing, and that only, whereas this is
coextensive with the great scheme of the Government itself. It is the
lever which raises and puts the whole machinery in motion and continues
the movement. Should either of the other grants fail in consequence of
any condition or limitation attached to it or misconstruction of its
powers, much injury might follow, but still it would be the failure of
one branch of power, of one item in the system only. All the others
might move on. But should the right to raise and appropriate the public
money be improperly restricted, the whole system might be sensibly
affected, if not disorganized. Each of the other grants is limited by
the nature of the grant itself; this, by the nature of the Government
only. Hence it became necessary that, like the power to declare war,
this power should be commensurate with the great scheme of the
Government and with all its purposes.
If, then, the right to raise and appropriate the public money is not
restricted to the expenditures under the other specific grants according
to a strict construction of their powers, respectively, is there no
limitation to it? Have Congress a right to raise and appropriate the
money to any and to every purpose according to their will and pleasure?
They certainly have not. The Government of the United States is a
limited Government, instituted for great national purposes, and for
those only. Other interests are committed to the States, whose duty
it is to provide for them. Each government should look to the great
and essential purposes for which it was instituted and confine itself
to those purposes. A State government will rarely if ever apply money to
national purposes without making it a charge to the nation. The people
of the State would not permit it. Nor will Congress be apt to apply
money in aid of the State administrations for purposes strictly local
in which the nation at large has no interest, although the State should
desire it. The people of the other States would condemn it. They would
declare that Congress had no right to tax them for such a purpose, and
dismiss at the next election such of their representatives as had voted
for the measure, especially if it should be severely felt. I do not
think that in offices of this kind there is much danger of the two
Governments mistaking their interests or their duties. I rather expect
that they would soon have a clear and distinct understanding of them
and move on in great harmony.
Good roads and canals will promote many very important national
purposes. They will facilitate the operations of war, the movements of
troops, the transportation of cannon, of provisions, and every warlike
store, much to our advantage and to the disadvantage of the enemy in
time of war. Good roads will facilitate the transportation of the mail,
and thereby promote the purposes of commerce and political intelligence
among the people. They will by being properly directed to these objects
enhance the value of our vacant lands, a treasure of vast resource to
the nation. To the appropriation of the public money to improvements
having these objects in view and carried to a certain extent I do not
see any well-founded constitutional objection.
In regard to our foreign concerns, provided they are managed with
integrity and ability, great liberality is allowable in the application
of the public money. In the management of these concerns no State
interests can be affected, no State rights violated. The complete and
exclusive control over them is vested in Congress. The power to form
treaties of alliance and commerce with foreign powers, to regulate by
law our commerce with them, to determine on peace or war, to raise
armies and a navy, to call forth the militia and direct their operations
belongs to the General Government. These great powers, embracing the
whole scope of our foreign relations, being granted, on what principle
can it be said that the minor are withheld? Are not the latter clearly
and evidently comprised in the former? Nations are sometimes called upon
to perform to each other acts of humanity and kindness, of which we see
so many illustrious examples between individuals in private life. Great
calamities make appeals to the benevolence of mankind which ought not
to be resisted. Good offices in such emergencies exalt the character
of the party rendering them. By exciting grateful feelings they soften
the intercourse between nations and tend to prevent war. Surely if the
United States have a right to make war they have a right to prevent it.
How was it possible to grant to Congress a power for such minor purposes
other than in general terms, comprising it within the scope and policy
of that which conveyed it for the greater?
The right of appropriation is nothing more than a right to apply the
public money to this or that purpose. It has no incidental power, nor
does it draw after it any consequences of that kind. All that Congress
could do under it in the case of internal improvements would be to
appropriate the money necessary to make them. For every act requiring
legislative sanction or support the State authority must be relied on.
The condemnation of the land, if the proprietors should refuse to sell
it, the establishment of turnpikes and tolls, and the protection of the
work when finished must be done by the State. To these purposes the
powers of the General Government are believed to be utterly incompetent.
To the objection that the United States have no power in any instance
which is not complete to all the purposes to which it may be made
instrumental, and in consequence that they have no right to appropriate
any portion of the public money to internal improvements because they
have not the right of sovereignty and jurisdiction over them when made,
a full answer has, it is presumed, been already given. It may, however,
be proper to add that if this objection was well founded it would not
be confined to the simple case of internal improvements, but would
apply to others of high importance. Congress have a right to regulate
commerce. To give effect to this power it becomes necessary to establish
custom-houses in every State along the coast and in many parts of
the interior. The vast amount of goods imported and the duties to be
performed to accommodate the merchants and secure the revenue make it
necessary that spacious buildings should be erected, especially in the
great towns, for their reception. This, it is manifest, could best be
performed under the direction of the General Government. Have Congress
the right to seize the property of individuals if they should refuse
to sell it, in quarters best adapted to the purpose, to have it valued,
and to take it at the valuation? Have they a right to exercise
jurisdiction within those buildings? Neither of these claims has ever
been set up, nor could it, as is presumed, be sustained. They have
invariably either rented houses where such as were suitable could be
obtained, or, where they could not, purchased the ground of individuals,
erected the buildings, and held them under the laws of the State. Under
the power to establish post-offices and post-roads houses are also
requisite for the reception of the mails and the transaction of the
business of the several offices. These have always been rented or
purchased and held under the laws of the State in the same manner as
if they had been taken by a citizen. The United States have a right to
establish tribunals inferior to the Supreme Court, and such have been
established in every State of the Union. It is believed that the houses
for these inferior courts have invariably been rented. No right of
jurisdiction in them has ever been claimed, nor other right than that of
privilege, and that only while the court is in session. A still stronger
case may be urged. Should Congress be compelled by invasion or other
cause to remove the Government to some town within one of the States,
would they have a right of jurisdiction over such town, or hold even the
house in which they held their session under other authority than the
laws of such State? It is believed that they would not. If they have
a right to appropriate money for any of these purposes, to be laid out
under the protection of the laws of the State, surely they have an equal
right to do it for the purposes of internal improvements.
It is believed that there is not a corporation in the Union which does
not exercise great discretion in the application of the money raised
by it to the purposes of its institution. It would be strange if the
Government of the United States, which was instituted for such important
purposes and endowed with such extensive powers, should not be allowed
at least equal discretion and authority. The evil to be particularly
avoided is the violation of State rights. Shunning that, it seems to be
reasonable and proper that the powers of Congress should be so construed
as that the General Government in its intercourse with other nations and
in our internal concerns should be able to adopt all such measures lying
within the fair scope and intended to facilitate the direct objects of
its powers as the public welfare may require and a sound and provident
policy dictate.
The measures of Congress have been in strict accord with the view taken
of the right of appropriation both as to its extent and limitation, as
will be shown by a reference to the laws, commencing at a very early
period. Many roads have been opened, of which the following are the
principal: The first from Cumberland, at the head waters of the Potomac,
in the State of Maryland, through Pennsylvania and Virginia, to the
State of Ohio (March 29, 1806; see vol. 4, p. 13, of the late edition
of the laws). The second from the frontiers of Georgia, on the route
from Athens to New Orleans, to its intersection with the thirty-first
degree of north latitude (April 31, 1806, p. 58). The third from the
Mississippi at a point and by a route described to the Ohio (same act).
The fourth from Nashville, in Tennessee, to Natchez (same act). The
fifth from the thirty-first degree of north latitude, on the route
from Athens to New Orleans, under such regulations as might be agreed
on between the Executive and the Spanish Government (March 3, 1807,
p. 117). The sixth from the foot of the rapids of the river Miami,
of Lake Erie, to the western line of the Connecticut Reserve (December
12, 1811, p. 364). The seventh from the Lower Sandusky to the boundary
line established by the treaty of Greenville (same act). The eighth from
a point where the United States road leading from Vincennes to the
Indian boundary line, established by the treaty of Greenville, strikes
the said line, to the North Bend, in the State of Ohio (January 8, 1812,
p. 367). The ninth for repairing and keeping in repair the road between
Columbia, on Duck River, in Tennessee, and Madisonville, in Louisiana,
and also the road between Fort Hawkins, in Georgia, and Fort Stoddard
(April 27, 1816, p. 104 of the acts of that year). The tenth from the
Shawneetown, on the Ohio River, to the Sabine, and to Kaskaskias,
in Illinois (April 27, 1816, p. 112). The eleventh from Reynoldsburg,
on Tennessee River, in the State of Tennessee, through the Chickasaw
Nation, to intersect the Natchez road near the Chickasaw old town (March
3, 1817, p. 252). The twelfth: By this act authority was given to the
President to appoint three commissioners for the purpose of examining
the country and laying out a road from the termination of the Cumberland
road, at Wheeling, on the Ohio, through the States of Ohio, Indiana,
and Illinois, to a point to be chosen by them, on the left bank of the
Mississippi, between St. Louis and the mouth of the Illinois River, and
to report an accurate plan of the said road, with an estimate of the
expense of making it. It is, however, declared by the act that nothing
was thereby intended to imply an obligation on the part of the United
States to make or defray the expense of making the said road or any part
thereof.
In the late war two other roads were made by the troops for military
purposes--one from the Upper Sandusky, in the State of Ohio, through
the Black Swamp, toward Detroit, and another from Plattsburg, on Lake
Champlain, through the Chatauga woods toward Sacketts Harbor, which have
since been repaired and improved by the troops. Of these latter there
is no notice in the laws. The extra pay to the soldiers for repairing
and improving those roads was advanced in the first instance from the
appropriation to the Quartermaster's Department and afterwards provided
for by a specific appropriation by Congress. The necessity of keeping
those roads open and in good repair, being on the frontier, to
facilitate a communication between our posts, is apparent.
All of these roads except the first were formed merely by cutting down
the trees and throwing logs across, so as to make causeways over such
parts as were otherwise impassable. The execution was of the coarsest
kind. The Cumberland road is the only regular work which has been
undertaken by the General Government or which could give rise to any
question between the two Governments respecting its powers. It is a
great work, over the highest mountains in our Union, connecting from
the seat of the General Government the Eastern with the Western waters,
and more intimately the Atlantic with the Western States, in the
formation of which $1,800,000 have been expended. The measures pursued
in this case require to be particularly noticed as fixing the opinion
of the parties, and particularly of Congress, on the important question
of the right. Passing through Maryland, Pennsylvania, and Virginia,
it was thought necessary and proper to bring the subject before their
respective legislatures to obtain their sanction, which was granted by
each State by a legislative act, approving the route and providing for
the purchase and condemnation of the land. This road was founded on an
article of compact between the United States and the State of Ohio,
under which that State came into the Union, and by which the expense
attending it was to be defrayed by the application of a certain portion
of the money arising from the sale of the public lands within that
State. In this instance, which is by far the strongest in respect to
the expense, extent, and nature of the work done, the United States have
exercised no act of jurisdiction or sovereignty within either of the
States by taking the land from the proprietors by force, by passing acts
for the protection of the road, or to raise a revenue from it by the
establishment of turnpikes and tolls, or any other act founded on the
principle of jurisdiction or right. Whatever they have done has, on the
contrary, been founded on the opposite principle, on the voluntary and
unqualified admission that the sovereignty belonged to the State and not
to the United States, and that they could perform no act which should
tend to weaken the power of the State or to assume any to themselves.
All that they have done has been to appropriate the public money to
the construction of this road and to cause it to be constructed, for
I presume that no distinction can be taken between the appropriation
of money raised by the sale of the public lands and of that which
arises from taxes, duties, imposts, and excises; nor can I believe that
the power to appropriate derives any sanction from a provision to that
effect having been made by an article of compact between the United
States and the people of the then Territory of Ohio. This point may,
however, be placed in a clearer light by a more particular notice of
the article itself.
By an act of April 30, 1802, entitled "An act to enable the people of
the eastern division of the territory northwest of the river Ohio to
form a constitution and State government, and for the admission of such
State into the Union on an equal footing with the original States, and
for other purposes," after describing the limits of the proposed new
State and authorizing the people thereof to elect a convention to
form a constitution, the three following propositions were made to the
convention, to be obligatory on the United States if accepted by it:
First, that section No. 16 of every township, or, where such section
had been sold, other lands equivalent thereto, should be granted to the
inhabitants of such township for the use of free schools. Second, that
the 6 miles' reservation, including the salt springs commonly called
the Sciota Salt Springs, the salt springs near the Muskingum River and
in the military tract, with the sections which include the same, should
be granted to the said State for the use of the people thereof, under
such regulations as the legislature of the State should prescribe:
_Provided_, That it should never sell or lease the same for more than
ten years. Third, that one twentieth part of the proceeds of the public
lands lying within the said State which might be sold by Congress from
and after the 30th June ensuing should be applied to the laying out and
making public roads from the navigable waters emptying into the
Atlantic, to the Ohio, and through the State of Ohio, such roads to be
laid out under the authority of Congress, with the consent of the
several States through which they should pass.
These three propositions were made on the condition that the convention
of the State should provide by an ordinance, irrevocable without the
consent of the United States, that every tract of land sold by Congress
after the 30th of June ensuing should remain for the term of five years
after sale exempt from every species of tax whatsoever.
It is impossible to read the ordinance of the 23d of April, 1784, or
the provisions of the act of April 30, 1802, which are founded on it,
without being profoundly impressed with the enlightened and magnanimous
policy which dictated them. Anticipating that the new States would be
settled by the inhabitants of the original States and their offspring,
no narrow or contracted jealousy was entertained of their admission
into the Union in equal participation in the national sovereignty with
the original States. It was foreseen at the early period at which that
ordinance passed that the expansion of our Union to the Lakes and to
the Mississippi and all its waters would not only make us a greater
power, but cement the Union itself. These three propositions were well
calculated to promote these great results. A grant of land to each
township for free schools, and of the salt springs to the State, which
were within its limits, for the use of its citizens, with 5 per cent of
the money to be raised from the sale of lands within the State for the
construction of roads between the original States and the new State, and
of other roads within the State, indicated a spirit not to be mistaken,
nor could it fail to produce a corresponding effect in the bosoms of
those to whom it was addressed. For these considerations the sole return
required of the convention was that the new State should not tax the
public lands which might be sold by the United States within it for the
term of five years after they should be sold. As the value of these
lands would be enhanced by this exemption from taxes for that term, and
from which the new State would derive its proportionable benefit, and
as it would also promote the rapid sale of those lands, and with it
the augmentation of its own population, it can not be doubted, had this
exemption been suggested unaccompanied by any propositions of particular
advantage, that the convention would, in consideration of the relation
which had before existed between the parties, and was about to be so
much improved, most willingly have acceded to it and without regarding
it as an onerous condition.
Since, then, it appears that the whole of the money to be employed in
making this road was to be raised from the sale of the public lands, and
which would still belong to the United States, although no mention had
been made of them in the compact, it follows that the application of the
money to that purpose stands upon the same ground as if such compact had
not been made, and in consequence that the example in favor of the right
of appropriation is in no manner affected by it.
The same rule of construction of the right of appropriation has been
observed and the same liberal policy pursued toward the other new
States, with certain modifications adapted to the situation of each,
which were adopted with the State of Ohio. As, however, the reasoning
which is applicable to the compact with Ohio in relation to the right
of appropriation, in which light only I have adverted to it, is equally
applicable to the several compacts with the other new States, I deem it
unnecessary to take a particular notice of them.
It is proper to observe that the money which was employed in the
construction of all the other roads was taken directly from the
Treasury. This fact affords an additional proof that in the
contemplation of Congress no difference existed in the application of
money to those roads between that which was raised by the sale of lands
and that which was derived from taxes, duties, imposts, and excises.
So far I have confined my remarks to the acts of Congress respecting the
right of appropriation to such measures only as operate internally and
affect the territory of the individual States. In adverting to those
which operate externally and relate to foreign powers I find only two
which appear to merit particular attention. These were gratuitous grants
of money for the relief of foreigners in distress--the first in 1794
to the inhabitants of St. Domingo, who sought an asylum on our coast
from the convulsions and calamities of the island; the second in 1812
to the people of Caracas, reduced to misery by an earthquake. The
considerations which were applicable to these grants have already
been noticed and need not be repeated.
In this examination of the right of appropriation I thought it proper
to present to view also the practice of the Government under it, and to
explore the ground on which each example rested, that the precise nature
and extent of the construction thereby given of the right might be
clearly understood. The right to raise money would have given, as is
presumed, the right to use it, although nothing had been said to that
effect in the Constitution; and where the right to raise it is granted
without special limitation, we must look for such limitation to other
causes. Our attention is first drawn to the right to appropriate, and
not finding it there we must then look to the general powers of the
Government as designated by the specific grants and to the purposes
contemplated by them, allowing to this (the right to raise money), the
first and most important of the enumerated powers, a scope which will
be competent to those purposes. The practice of the Government, as
illustrated by numerous and strong examples directly applicable, ought
surely to have great weight in fixing the construction of each grant.
It ought, I presume, to settle it, especially where it is acquiesced
in by the nation and produces a manifest and positive good. A practical
construction, thus supported, shows that it has reason on its side and
is called for by the interests of the Union. Hence, too, the presumption
that it will be persevered in. It will surely be better to admit that
the construction given by these examples has been just arid proper than
to deny that construction and still to practice on it--to say one thing
and to do another.
Wherein consists the danger of giving a liberal construction to the
right of Congress to raise and appropriate the public money? It has
been shown that its obvious effect is to secure the rights of the
States from encroachment and greater harmony in the political movement
between the two governments, while it enlarges to a certain extent
in the most harmless way the useful agency of the General Government
for all the purposes of its institution. Is not the responsibility of
the representative to his constituent in every branch of the General
Government equally strong and as sensibly felt as in the State
governments, and is not the security against abuse as effectual in the
one as in the other government? The history of the General Government
in all its measures fully demonstrates that Congress will never venture
to impose unnecessary burdens on the people or any that can be avoided.
Duties and imposts have always been light, not greater, perhaps, than
would have been imposed for the encouragement of our manufactures had
there been no occasion for the revenue arising from them; and taxes and
excises have never been laid except in cases of necessity, and repealed
as soon as the necessity ceased. Under this mild process and the sale
of some hundreds of millions of acres of good land the Government will
be possessed of money, which may be applied with great advantage to
national purposes. Within the States only will it be applied, and,
of course, for their benefit, it not being presumable that such appeals
as were made to the benevolence of the country in the instances of
the inhabitants of St. Domingo and Caracas will often occur. How,
then, shall this revenue be applied? Should it be idle in the Treasury?
That our resources will be equal to such useful purposes I have no
doubt, especially if by completing our fortifications and raising and
maintaining our Navy at the point provided for immediately after the
war we sustain our present altitude and preserve by means thereof for
any length of time the peace of the Union.
When we hear charges raised against other governments of breaches
of their constitutions, or, rather, of their charters, we always
anticipate the most serious consequences--communities deprived of
privileges which they have long enjoyed, or individuals oppressed and
punished in violation of the ordinary forms and guards of trial to
which they were accustomed and entitled. How different is the situation
of the United States! Nor can anything mark more strongly the great
characteristics of that difference than the grounds on which like
charges are raised against this Government. It is not alleged that any
portion of the community or any individual has been oppressed or that
money has been raised under a doubtful title. The principal charges are
that a work of great utility to the Union and affecting immediately
and with like advantage many of the States has been constructed; that
pensions to the surviving patriots of our Revolution, to patriots who
fought the battles and promoted the independence of their country, have
been granted, by money, too, raised not only without oppression, but
almost without being felt, and under an acknowledged constitutional
power.
From this view of the right to appropriate and of the practice under
it I think that I am authorized to conclude that the right to make
internal improvements has not been granted by the power "to pay the
debts and provide for the common defense and general welfare," included
in the first of the enumerated powers; that that grant conveys nothing
more than a right to appropriate the public money, and stands on the
same ground with the right to lay and collect taxes, duties, imposts,
and excises, conveyed by the first branch of that power; that the
Government itself being limited, both branches of the power to raise
and appropriate the public money are also limited, the extent of the
Government as designated by the specific grants marking the extent
of the power in both branches, extending, however, to every object
embraced by the fair scope of those grants and not confined to a strict
construction of their respective powers, it being safer to aid the
purposes of those grants by the appropriation of money than to extend
by a forced construction the grant itself; that although the right to
appropriate the public money to such improvements affords a resource
indispensably necessary to such a scheme, it is nevertheless deficient
as a power in the great characteristics on which its execution depends.
The substance of what has been urged on this subject may be expressed in
a few words. My idea is that Congress have an unlimited power to raise
money, and that in its appropriation they have a discretionary power,
restricted only by the duty to appropriate it to purposes of common
defense and of general, not local, national, not State, benefit.
I will now proceed to the fifth source from which the power is said to
be derived, viz, the power to make all laws which shall be necessary
and proper for carrying into execution all the powers vested by the
Constitution in the Government of the United States or in any department
or officer thereof. This is the seventeenth and last of the enumerated
powers granted to Congress.
I have always considered this power as having been granted on a
principle of greater caution to secure the complete execution of all
the powers which had been vested in the General Government. It contains
no distinct and specific power, as every other grant does, such as to
lay and collect taxes, to declare war, to regulate commerce, and the
like. Looking to the whole scheme of the General Government, it gives
to Congress authority to make all laws which should be deemed necessary
and proper for carrying all its powers into effect. My impression has
been invariably that this power would have existed substantially if this
grant had not been made; for why is any power granted unless it be to be
executed when required, and how can it be executed under our Government
unless it be by laws necessary and proper for the purpose--that is, well
adapted to the end? It is a principle universally admitted that a grant
of a power conveys as a necessary consequence or incident to it the
means of carrying it into effect by a fair construction of its import.
In the formation, however, of the Constitution, which was to act
directly upon the people and be paramount to the extent of its powers
to the constitutions of the States, it was wise in its framers to leave
nothing to implication which might be reduced to certainty. It is known
that all power which rests solely on that ground has been systematically
and zealously opposed under all governments with which we have any
acquaintance; and it was reasonable to presume that under our system,
where there was a division of the sovereignty between the two
independent governments, the measures of the General Government would
excite equal jealousy and produce an opposition not less systematic,
though, perhaps, less violent. Hence the policy by the framers of our
Government of securing by a fundamental declaration in the Constitution
a principle which in all other governments had been left to implication
only. The terms "necessary" and "proper" secure to the powers of all
the grants to which the authority given in this is applicable a fair
and sound construction, which is equally binding as a rule on both
Governments and on all their departments.
In examining the right of the General Government to adopt and execute
under this grant a system of internal improvement the sole question
to be decided is whether the power has been granted under any of the
other grants. If it has, this power is applicable to it to the extent
stated. If it has not, it does not exist at all, for it has not been
hereby granted. I have already examined all the other grants (one only
excepted, which will next claim attention) and shown, as I presume, on
the most liberal construction of their powers that the right has not
been granted by any of them; hence it follows that in regard to them
it has not been granted by this.
I come now to the last source from which this power is said to be
derived, viz, the power to dispose of and make all needful rules and
regulations respecting the territory or other property of the United
States, which is contained in the second clause of the third section
of the fourth article of the Constitution.
To form a just opinion of the nature and extent of this power it will
be necessary to bring into view the provisions contained in the first
clause of the section of the article referred to, which makes an
essential part of the policy in question. By this it is declared that
new States shall be admitted into the Union, but that no new States
shall be formed or erected within the jurisdiction of any other State,
nor any States be formed by the junction of two or more States or parts
of States, without the consent of the legislatures of the States
concerned as well as of the United States.
If we recur to the condition of our country at the commencement of
the Revolution, we shall see the origin and cause of these provisions.
By the charters of the several colonies limits by latitude and other
descriptions were assigned to each. In commencing the Revolution the
colonies, as has already been observed, claimed by those limits,
although their population extended in many instances to a small portion
of the territory lying within them. It was contended by some of the
States after the declaration of independence that the vacant lands lying
within any of the States should become the property of the Union, as by
a common exertion they would be acquired. This claim was resisted by the
others on the principle that all the States entered into the contest in
the full extent of their chartered rights, and that they ought to have
the full benefit of those rights in the event of success. Happily this
controversy was settled, as all interfering claims and pretensions
between the members of our Union and between the General Government and
any of these members have been, in the most amicable manner and to the
satisfaction of all parties. On the recommendation of Congress the
individual States having such territory within their chartered limits
ceded large portions thereof to the United States on condition that it
should be laid off into districts of proper dimensions, the lands to
be sold for the benefit of the United States, and that the districts
be admitted into the Union when they should obtain such a population
as it might be thought proper and reasonable to prescribe. This is the
territory and this the property referred to in the second clause of the
fourth article of the Constitution.
All the States which had made cessions of vacant territory except
Georgia had made them before the adoption of the Constitution, and
that State had made a proposition to Congress to that effect which
was under consideration at the time the Constitution was adopted. The
cession was completed after the adoption of the Constitution. It was
made on the same principle and on similar conditions with those which
had been already made by the other States. As differences might arise
respecting the right or the policy in Congress to admit new States
into the Union under the new Government, or to make regulations for the
government of the territory ceded in the intermediate state, or for the
improvement and sale of the public lands, or to accept other cessions,
it was thought proper to make special provisions for these objects,
which was accordingly done by the above-recited clause in the
Constitution.
Thus the power of Congress over the ceded territory was not only
limited to these special objects, but was also temporary. As soon as
the territory became a State the jurisdiction over it as it had before
existed ceased. It extended afterwards only to the unsold lands, and
as soon as the whole were sold it ceased in that sense also altogether.
From that moment the United States have no jurisdiction or power in the
new States other than in the old, nor can it be obtained except by an
amendment of the Constitution.
Since, then, it is manifest that the power granted to Congress to
dispose of and make all needful regulations respecting the territory
and other property of the United States relates solely to the territory
and property which had been ceded by individual States, and which after
such cession lay without their respective limits, and for which special
provision was deemed necessary, the main power of the Constitution
operating internally, not being applicable or adequate thereto, it
follows that this power gives no authority, and has even no bearing on
the question of internal improvement. The authority to admit new States
and to dispose of the property and regulate the territory is not among
the enumerated powers granted to Congress, because the duties to be
performed under it are not among the ordinary duties of that body, like
the imposition of taxes, the regulation of commerce, and the like. They
are objects in their nature special, and for which special provision was
more suitable and proper.
Having now examined all the powers of Congress under which the right
to adopt and execute a system of internal improvement is claimed and
the reasons in support of it in each instance, I think that it may
fairly be concluded that such a right has not been granted. It appears
and is admitted that much may be done in aid of such a system by the
right which is derived from several of the existing grants, and more
especially from that to appropriate the public money. But still it is
manifest that as a system for the United States it can never be carried
into effect under that grant nor under all of them united, the great
and essential power being deficient, consisting of a right to take up
the subject on principle; to cause our Union to be examined by men of
science, with a view to such improvements; to authorize commissioners to
lay off the roads and canals in all proper directions; to take the land
at a valuation if necessary, and to construct the works; to pass laws
with suitable penalties for their protection; and to raise a revenue
from them, to keep them in repair, and make further improvement by the
establishment of turnpikes and tolls, with gates to be placed at the
proper distances.
It need scarcely be remarked that this power will operate, like many
others now existing, without affecting the sovereignty of the States
except in the particular offices to be performed. The jurisdiction of
the several States may still exist over the roads and canals within
their respective limits, extending alike to persons and property, as if
the right to make and protect such improvements had not been vested in
Congress. The right, being made commensurate simply with the purposes
indispensable to the system, may be strictly confined to them. The
right of Congress to protect the works by laws imposing penalties would
operate on the same principles as the right to protect the mail. The act
being punishable only, a jurisdiction over the place would be altogether
unnecessary and even absurd.
In the preceding inquiry little has been said of the advantages which
would attend the exercise of such a power by the General Government.
I have made the inquiry under a deep conviction that they are almost
incalculable, and that there was a general concurrence of opinion among
our fellow-citizens to that effect. Still, it may not be improper for
me to state the grounds upon which my own impression is founded. If it
sheds no additional light on this interesting part of the subject, it
will at least show that I have had more than one powerful motive for
making the inquiry. A general idea is all that I shall attempt.
The advantages of such a system must depend upon the interests to be
affected by it and the extent to which they may be affected, and those
must depend on the capacity of our country for improvement and the means
at its command applicable to that object.
I think that I may venture to affirm that there is no part of our globe
comprehending so many degrees of latitude on the main ocean and so
many degrees of longitude into the interior that admits of such great
improvement and at so little expense. The Atlantic on the one side, and
the Lakes, forming almost inland seas, on the other, separated by high
mountains, which rise in the valley of the St. Lawrence and determine
in that of the Mississippi, traversing from north to south almost the
whole interior, with innumerable rivers on every side of those mountains,
some of vast extent, many of which take their sources near to each other,
give the great outline. The details are to be seen on the valuable maps
of our country.
It appears by the light already before the public that it is practicable
and easy to connect by canals the whole coast from its southern to its
northern extremity in one continued inland navigation, and to connect in
like manner in many parts the Western lakes and rivers with each other.
It is equally practicable and easy to facilitate the intercourse between
the Atlantic and the Western country by improving the navigation of
many of the rivers which have their sources near to each other in the
mountains on each side, and by good roads across the mountains between
the highest navigable points of those rivers. In addition to the example
of the Cumberland road, already noticed, another of this kind is now in
train from the head waters of the river James to those of the Kanawha;
and in like manner may the Savannah be connected with the Tennessee. In
some instances it is understood that the Eastern and Western waters may
be connected together directly by canals. One great work of this kind is
now in its progress and far advanced in the State of New York, and there
is good reason to believe that two others may be formed, one at each
extremity of the high mountains above mentioned, connecting in the one
instance the waters of the St. Lawrence with Lake Champlain, and in
the other some of the most important of the Western rivers with those
emptying into the Gulf of Mexico, the advantage of which will be seen
at the first glance by an enlightened observer.
Great improvements may also be made by good roads in proper directions
through the interior of the country. As these roads would be laid out
on principle on a full view of the country, its mountains, rivers, etc.,
it would be useless, if I had the knowledge, to go into detail respecting
them. Much has been done by some of the States, but yet much remains to
be done with a view to the Union.
Under the colonial governments improvements of this kind were not
thought of. There was, it is believed, not one canal and little
communication from colony to colony. It was their policy to encourage
the intercourse between each colony and the parent country only. The
roads which were attended to were those which led from the interior of
each colony to its principal towns on the navigable waters. By those
routes the produce of the country was carried to the coast, and shipped
thence to the mercantile houses in London, Liverpool, Glasgow, or other
towns to which the trade was carried on. It is believed that there was
but one connected route from North to South at the commencement of the
Revolution, and that a very imperfect one. The existence and principle
of our Union point out the necessity of a very different policy.
The advantages which would be derived from such improvements are
incalculable. The facility which would thereby be afforded to the
transportation of the whole of the rich productions of our country
to market would alone more than amply compensate for all the labor
and expense attending them. Great, however, as is that advantage, it
is one only of many and by no means the most important, Every power of
the General Government and of the State governments connected with the
strength and resources of the country would be made more efficient
for the purposes intended by them. In war they would facilitate the
transportation of men, ordnance, and provisions, and munitions of war of
every kind to every part of our extensive coast and interior on which an
attack might be made or threatened. Those who have any knowledge of the
occurrences of the late war must know the good effect which would result
in the event of another war from the command of an interior navigation
alone along the coast for all the purposes of war as well as of commerce
between the different parts of our Union. The impediments to all
military operations which proceeded from the want of such a navigation
and the reliance which was placed, notwithstanding those impediments,
on such a commerce can not be forgotten. In every other line their
good effect would be most sensibly felt. Intelligence by means of the
Post-Office Department would be more easily, extensively, and rapidly
diffused. Parts the most remote from each other would be brought more
closely together. Distant lands would be made more valuable, and the
industry of our fellow-citizens on every portion of our soil be better
rewarded.
It is natural in so great a variety of climate that there should be
a corresponding difference in the produce of the soil; that one part
should raise what the other might want. It is equally natural that the
pursuits of industry should vary in like manner; that labor should be
cheaper and manufactures succeed better in one part than in another;
that were the climate the most severe and the soil less productive,
navigation, the fisheries, and commerce should be most relied on.
Hence the motive for an exchange for mutual accommodation and active
intercourse between them. Each part would thus find for the surplus
of its labor, in whatever article it consisted, an extensive market
at home, which would be the most profitable because free from duty.
There is another view in which these improvements are of still more
vital importance. The effect which they would have on the bond of union
itself affords an inducement for them more powerful than any which have
been urged or than all of them united. The only danger to which our
system is exposed arises from its expansion over a vast territory.
Our union is not held together by standing armies or by any ties other
than the positive interests and powerful attractions of its parts toward
each other. Ambitious men may hereafter grow up among us who may promise
to themselves advancement from a change, and by practicing upon the
sectional interests, feelings, and prejudices endeavor under various
pretexts to promote it. The history of the world is replete with
examples of this kind--of military commanders and demagogues becoming
usurpers and tyrants, and of their fellow-citizens becoming their
instruments and slaves. I have little fear of this danger, knowing well
how strong the bond which holds us together is and who the people are
who are thus held together; but still, it is proper to look at and to
provide against it, and it is not within the compass of human wisdom
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