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The Madisonian. [volume] (Washington City [D.C.]) 1837-1845, February 02, 1839, Image 1

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I December 16, 1837.
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jan 1 3mdlmc EDWIN R. YALE.
X Education in the "Hall of Representatives" at
j> v > Washington, held Dec. 13, the following resolution was
^ adopted:
Resolved, That this meeting consider the School Book,
called " Town's Spelling Book," an original work of
great importance, as it teaches the child the meaning of
words, and at the same time their spelling is learned, and
that we do strongly recommend its use in all our schools,
dec 15-d&c3m
On the Bill for obtaining the necessary Surveys
on the subject of Roads and Canals.
,j FeBRUARY 3, 1824.
I Mr. RIVES said, if the importance of any question
can give it a claim to attention, none is more worthy of
profound consideration, than the one now under discussion.
It is, in the first place, a question of constitutional
right, involving the true interpretation of that
instrument, from which we derive our existence as an
independent member of the government, and to which
we are bound, by the highest obligations, to conform
our legislative conduct. But this, although the most
important aspect which any subject can assume, under
a limited constitution, is not the only interest which be4
longs to the present question. Its decision must have
a pervading influence upon the future policy of the
country.. If that decision should be in favor of the
y.f power contended for by the advocates of the bill, it will
Bt become the foundation of a system of legislation which
I^i * u^aiu wviici v*iod mail as iiiauspitiuus iu lliu
1 liberties ana dangerous to the beat interests of the naI
tion. Under these impressions, incompetent as I am
I to do justice to the subject, or in any degree to match
I the ability which has been so conspicuously exhibited in
| its discussion, I am yet urged by a sense of duty, to
I contribute the small mite of my humble exertions in defence
of what I deem the cause of the constitution, and
the principles of sound policy. I am aware, Mr. Chairman,
that, in investigations of this sort, general reasonings
from the spirit of the constitution are not absolutely
conclusive. The ultimate inquiry must be, what
the framers of the constitution have done, as evidenced
9 " "" Vf ihe instrument itself, emther thwrwlmikn intended
to do. But if we can ascertain what was the leading
intention by which they were guided, in organizing the
I- powers of the Government, a strong presumption arises
that they have done nothing inconsistent with that intention.
What, then, permit me to ask, was the cardinal
principle, which directed the convention in the
execution of their great work 1 It was this : to transfer
to the care of the General Government those objects
only in which all the States have a common interest,
leaving those in which the States have separate
and peculiar interests to be provided for by their own
domestic governments ; and this rule applies alike to
r* - every species of federal power, whether it be external or
municipal. In pursuance of this principle, the General
i Government was charged with the question of peace or
war, the regulation of commerce, the conduct of negotiations,
ana the various other objects connected with
our foreign relations. In these, all the States have but
one interest, and that, emphatically, a national interest.
So, likewise, with regard to that class of powers granted
to Congress, which operate internally, such as the
powers to establish uniform laws on the subject of
bankruptcy, to organize a federal judiciary, to establish
a common standard of weights and measures, and to
regulate the national currency. All the States stand
precisely in the same relation to these powers, and are
! affected in the same manner, by the exercise of them,
in their social and civil transactions. But this is not,
and cannot be the case with internal improvements.?
They affect parts, and not the whole, of the confederacy.
They are, from a physical necessity, local in their situation,
and local in their influence and their benefits.?
Take the most extended object of internal improvement,
the projected road, for example, from Maine to
New Orleans, or, if yon please, the navigation of the
waters of the Mississippi, in which the honorable Speaker
has said twelve States and two Territories are interested,
still, comprehensive and important as these
schemes of improvement undoubtedly are, they are
limited, in their advantages, to particular States, and
5 the rest of the Union has no interest in them. They
are, therefore, not such objects of common interest to
I \ all the Slates, as tho constitution intended to transfer
to the General Government.
But, here we are met by the argument of the honorable
Speaker, Mr. Clay, that there is an intermediate
class of objects, affecting more than one State, and yet
not extending to all the States, which require the united
" means of a confederacy to execute them, and the only
I confederacy which can now legitimately exist for such a
purpose, is that of the Union ; because the constitution
prohibits one State from entering into compacts or
agreements with another State. Tne honorable gentleman
will excuso me for saying that this argument is
founded on a mistake of the actual provisions of tho
constitution. The constitution does not^rohibit comf
pacts between the States, but merely restrains the States
t from entering into such compacts, without the consent of
Congress. The consent of Congress is required, as a
necessary check to prevent the States from forming
combinations hostile to the Union, or dangerous to its
peace and safety ; but, where any number of the States
desire to enter into arrangements with each other, for
the accomplishment 01 some beneficial object, in wmcn
thqy have a common interest, it never could have been
supposed or intended, that the consent of Congress
would be withheld. The States, in such cases, are still
left at liberty to unite their resources, by entering into
compacts with each other, subject only to the reasonable
control of Congress; and this privilege was no
doubt reserved to thein with an express view to the very
i class of objects now in question, which concern two or
I more members of the confederacy, but yet do not possess
such a character of universal national interest as to
bring them within the legitimate sphere of the govcrnl
> ment of the whole.
The honorable Speaker, in the course of his argument,
laid down a position, which he seemed to consider
entirely decisive of the present question. Adverting
to the distinction between the articles of confederation
and our present constitution, and remarking that,
under the former, the General Government, in its most
important functions, operated upon tho Slates, and,
under the latter, that it acts directly upon the individuals
who compose those States, ho deduced, as a general
principle, that the Government of tho Union, as now
organized, is wholly independent of the States for the
execution of any of its powers. So far is this from
being correct, in the broad extent assumed by the honorable
Speaker, that I have always supposed directly tho
contrary; that tho General Government is dependant
upon the States for the execution of all its powers, for it
cannot exist, without the concurrence of the States.?
Are not jrour Senators, who compose the other branch
of the legislative department of this Government, elected
by the Legislatures of the Stalest Is not your
Executive Magistrato chosen, also, by the agency, and
A under the direction, of the State legislatures I
. "
A. ^
\ *
? ?
[Heie Mr. Clay explained. He said he never contended
that, if a majority of the States withheld their
co-operation, the General Government might not be dissolved
; but, bis principle was, when the General Go
vernment is once organized, and moves, it moves by
its own inherent energy, and acts independently of State
Mr. Hives said, he had not the pleasure of hearing
the speech of the honorable gentleman. He had only
read the report of it given in the newspapers, and be
thought that the principle to which he had referred, as
stated in that report, required some qualification. But,
even as now qualified, by the explanations of the Speaker,
he was not prepared to give his assent to it. I understand
the honorable Speaker, said Mr. Rives, now to
say, that although the General Government does depend
upon the States for its existence, yet, in the ordinary
and regular exercise of its vested powers, it is wholly
independent of the aid and co-operation of the State
Governments. I have always entertained, said Mr. R., a
different opinion of our political system, and for that opinion
I supposed I had the sanction of high authority.
The authors of "The Federalist," in various passages of
their celebrated work, speak of the State Governments
as incorporated into the system of the General Government,
aa auxiliary to its operations, and indeed as indis
pensahle to its maintenance. In one passage, they say
emphatic ally, if the General Government should ever
arbitrarily abolish the State Governments, it would be
cbmpelled, by the principle of selffipreservation, to reinstate
them?implying, as it seems to me, in the strongest
manner, the dependence of the General Government
upon the aid and co-operation of the State Governments.
But let us examine this subject more minutely, in reference
to somo of the powers of the General Government.
In the exercise of its military power, which has
been so much talked of in the course of this discussion,
is there not a partial dependence, at least, of the General
Government upon the State Governments] The
Constitution gives to Congress the power to "provide
for organizing, arming, and disciplining the militia," and
" for calling them forth to execute the laws of the
Union, to suppress insurrections, and to repel invasions
but, expressly reserves to the States " the appointment
of the officers, and the authority of training
the militia according to the discipline prescribed by
Congress." Here, then, we find the General Government
made dependent upon the States for the efficient
exercise of a vital power, connected with the peace and
safety of the nation ; for, what is your militia without
.officers and without training] So, likewise, in relation
to another power of Congress, which has been the subject
of much commentary, in the course of this debate
?I allude to the subject of fortifications, arsenals, &c.
Amid the various constructions which have been put
upon the clause of the Constitution relating to this subject,
all have agreed that the exclusive jurisdiction it
gives over the sites of these works, cannot be exercised
without the consent of the Legislatures of the States in
which they are located. Here, then, we have another
example of the dependence of the General Government
upon the State Governments, in a point belonging to one
of its highest trusts, the care of tho "common defence."
Whether, therefore, I look to tho general aim and scope
of the Constitution, or to its particular provisions, I cannot
acquiesce in the principle assumed by the honorable
Speaker. The application of this principle to the subject
of the present discussion, has not been clearly developed,
hut I presume it is this. If roads and canals
are necessary to the legitimate operations of the General
Government, that Government, being wholly independent
of any intrinsic aid in the prosecution of its lawful
objects, may make roads and canals for itself, whenever,
and wherever it chooses. I shall hereafter endeavor to
show, that,although roads and canals may be essential to
some of the purposes of the General Government, yet,
they arc such facilities as would naturally arise in the
progress of society, under the care of the State Governments,
and that there was, therefore, no necessity to invest
the General Government with authority to create
them. Any construction which loses sight of the existence
of the State Governments, and of the important
purpose* thoy were intended to fulfil, in .reference to
the affair* of the Union, as well as the interests of
the respective States, is incompatible wtth tlx) nature
of our political system, and necessarily leads us into
There were some other general principles laid down
in the course of this discussion, the bearing and application
of which, to the question under consideration, I
could not verv distinctly discern. I notice them, there
Tore, only for the purpose of entering my protest against
them. An honorable gentleman from New York, (Mr.
Storrs) asserted that the General Government was a municipal,
or in other words a National Government, as contradistinguished
from a Federal Government. I would
ask that gentleman who were the parties to the formation
of this Government 1 Were they the people of the
United States, as composing one entire nation, or as divided
into distinct political communities 1 Unquestionably
the latter. It required too, for its establishment,
not the consent of a majority of the people, merely, but
the unanimous ratification of all the States who became
parties to it. In the mode provided for its amendment,
also, the concurrence of three-fourths of the States is
necessary to any alteration of its principles, without
regard to individual members. These circumstances
unequivocally characterize it as a Federal Government.
In another important relation, the only one involved
in this discussion?the extent of its powers?it is decidedly
Federal and not National. The authority to which
the honorable gentleman has appealed, on another
branch of the subject, (the Federalist) says, it is of the
essence of a National Government to possess a supreme
indefinite power over all persons and things, so far as
they are the objects of lawful government. But the
power of this Government is, by unversal acknowledgment,
defined, and limited to special objects. By
what process, then, has such a Government, distinguished
by so many Federal features, been converted
into a National Government 1 By a series of refined
deductions, which, considering the gentleman's aversion
to political metaphysics, does infinite credit to his genius
and perspicuity.
Having disposed of these preliminary topics, I come
now to consider the particular sources in the Constitution
from which the alleged power of Congress to make
roads and canals have been deduced. The first of these
sources is that clause of the Constitution which gives to
Congress the power " to establish post offices and post
roads," which, it is contended, is an express grant of the
power to make post roads. Whatever contempt, therefore,
gentleman may have for philological disquisitions,
or however little they may seem to befit the dignity of
legislative discussion, we are necessarily driven to in
quire into the true meaning of the word establish. The
Hon. Speaker has defined it thus, " to make firm, to fix,
to build." I agree with that gentleman in the first part
of his definition, hut I am unable to follow him in the
bound by which he has skipped from " to make firm, to
fix," to the last interpretation " to build," which seems
to me to depart very widely from the other meanings
ascribed to the word. The Original and literal import of
the word is, unquestionably, to render stable, or "make
firmand by an easy transition in its application to new
objects, it has come to signify generally to fix, to settle,
to ascertain. Let us apply it in this sense, which is sanctioned
by the Speaker's definition, to the subject of post
roads. There exists in the country a great variety of
roads, passing in different directions, and communicating
with different points. It is impossible, in the nature
of things, that all of them should be used as post roads.
The Constitution, therefore, gives to Congress the power
to establish, or, according to the terms of the foregoing
definition, to fix, to settle, to ascertain,which of thein
should be used as post roads, and to give them a legal
character aa such. But the honorable Speaker contends,
thar the word "establish" implies something more
and is used in a creative sense ; for examples of which
he refers to the expressions "establish justice," and
" ordain and establish this Constitution," used in the
preamble of that instrument. These examples do not
appear to me to be very apposite to the purpose for
which they are cited. It has been very properly said,
that the preamble of the Constitution, in stating it to be
one of the objects of the new government " to establish
justice," could not have meant that justice was to he
created by it. Such an use of the term would be little
less than sacrilegious. Justice is an abstract principle,
an emanation of the divine mind, always and everywhere
existing. All that the Constitution could accomplilh,
was to embody it, to organize tribunals and prescribe
forms for its administration, and thus establish, or fix it,
on sure and permanent foundations.
The honorablo Speaker, however, contends that in one
sense, we do create justice?We create, he says, the
criminal justice of the country, because we create the
crimes, which are prohibited and punished by our laws.
But in what sense do we create a'crime 1 We do not
create the fact which constitutes the crime, we only
create the legal character which ia imposed upon that
[Here Mr. CtAY explained. He said there was a dis->
tinclion between acts which are mala in se, and those
which are maltg prohibit a. As to the latter, they are
wrong, only because the legislature has made them so,
and in relation to them, therefore, the law creates the
Mr. Rives said, this view of the subject was not affected
by the explanation of the honorable gentleman. As
to that class of public wrongs which are called malaprohibita,
it is true they are in themselves indifferent, and
become crirtes only because tho legislature makes them
so. But what does this prove 1 It proves only that the
legislature creates the legal character or denomination of
the fact prohibited, by making that unlawful which was
before lawful; but the legislature does not creste the
fact itself, to which this new character or denomination
is given. That exists independently, and jrf spite of the
law. This is not only consistent with, but corroborates
our explanation of the word " establish," as applied to
post roads. Congress,by establishing a post roads, gives
a new character, a legal attribute to the subject, by
making that a post road which was before not a post
road ; but, in the legitimate exercise of this authority, it
can no more create the physical, material road, to which
the new character is given, than in tho case of a crime
it creates the external fact to which a penalty is annexed.
The same explanation ia equally applicable to
the expression, " We the people, in order, &c. do ordain
and establish this Constitution." The people certainly
did not create the Constitution, in the sense in which it is
contended that the word " establish" gives to Congress
authority to create post roads. The instrument already
existed. It had come from the hands of the convention
perfect in all its dimensions, and was submitted to the
people for ratification. All that the people did was to
establish it, by giving U the sanction of their approbation,
and investing it with a legal and binding character,
The same kind of authority ia rnnoedpd to f^onareaa
without hesitation in regard to the establishment of post
But, we are told, triumphantly, that the word establish
must mean the same thing, in relation to post roads,
that it does in relation to post offices, and that, as to
post offices, it certainly means to create, because Congress,
in establishing a post office, at a particular place,
makes a post office which did 'not exist before. But
what is the nature of this creation 1 Congress declares
that a post office shall be kept at a place where there
was no post office before. In doing so, it certainly
does not create the place at which the-post office is established,
but gives to that place a privilege and accomodation
which it did not possess before. So Congress,
in establishing a post road, according to what
we deem the true interpretation of this power, makes
that a post road which was not a post road before, or,
in other words, give to a pre-existing road a charter and
attribute which did not previously belong to it. The
post road is as much created, if gentlemen will insist
upon this divine prerogative in the one case, as the post
office in the other, and the creation, I will add, no more
extends to the road itself, which is the channel of the
post route, in the one case, than it does to the place
which is the scene of the post office, in the other.
The examples relied upon to support the interpretation
which gentlemen have given of the word " establish,"
seems to me, therefore, to fall very far short of
their object. On the contrary, they are not only consistent
with, but furnish apt illustrations of, the sense in
which we contend it is properly to be understood. The
word, in its primitive and most simple sense, means, to
render stable, or make firm, and is strictly applicable to>
natural objects. But it is now more generally applied
to intellectual objects, and when so applied, is, of course,
used in a figurative sense. Natural objects are established
are made firm by means of external support; and,
by an obvious analogy, matters of civil and political regulation
are said to be established or made firm when
we give to them the support and sanction of law. In
this sense, the word is uniformly used in the constitution,
and all similar instruments, with such modifications
"jfrjri 1 r':'j -~t- f-?i UMMMturo of the subject^
which it is applied. If it was intended, as gentlemen
allege, to give to Congress the power to make poet
roads, why was not that power granted in terms which
every person would have understood, and about which
there could be no controversy 1 Was the poverty of the
language so great, or were the framers of the Constitution
so deficient in their knoweldge of it, as to have supplied
no other word fitted to convey the ideal When
we speak of the erection of a house, we do not say that
such an one has established a house, but that he has
built it. If it had been intended to give to Congress
the power now claimed for it, why did not the framers
of the constitution say, in so many words, that Congress
shall have power to make and construct post roads
These words were at hand, and were well adapted to
the purpose of conveying such a power. That they,
or other words of plainly equivalent meaning, were not
used, is evidence that the power they import was not intended
to be oiven.
It was not necessary to the nature and object of this
grant that Congress should possess the power to make
post roads. The object of the grant was the conveyance
of the mail, and the transmission of intelligence
through the country. It never could have been contemplated
that intelligence should be transmitted to an
unsettled country, where there were ne persons to receive
it. But, as soon as a country becomes, settled,
roads necessarily exist. The great interests of society,
the operations of commerce, and the convenience of
private intercourse, necessarily gives rise to them ; and
as the population and demands for intelligence increase?the
facilities of communication iocrease also.
The same roads which answer the ordinary purposes
of society, would certainly suffice for the simple
object of transporting the mail. It never could have
been intended, in reference to such an object, to confer
upon Congress the disproportionate power of opening
and constructing roads through the territories of the
states. Whether, therefore, I look to the language of
the constitution, or to the policy of its provisions, in
relation to this subject, I am alike constrained to discard
the construction which claims for congress the power
in question, under the clause we have been considering.
The next source which the advocates of the bill have
appealed to for the authority to execute a system of internal
improvements, is, the military power of the government.
The authority claimed under this part of the
constitution extends to canals as well as roads. It is
not, however, like the authority asserted in relation to j
post roads, claimed as an express power, but only as an
incidental power, or means of carrying another power
into effect. The first inquiry which presents itself,
therefore, is, as to the true nature and extent of incidental
powers. It must never be forgotten that this government
is one of limited and defined powers. However
ready gentlemen are to admit this proposition,
when their assent is distinctly challenged to it, they
seem habitually to lose sight of it in their reasoning
upon constitutional questions. All the powers granted
to the government are enumerated in the constitution ;
but, as it was impossible to foresee every individual act
of legislation which might become necessary to carry
these powers into effect, Congress is in general authorized
to do anv act which shall be " necessary and proper"
for carrying the granted powers into execution,
hut none other. If we depart from this limit, we at
once change the character of the government, as possessing
special and defined powers only, and convert it
into one of general discretionary authority. Whenever
any measure is proposed, therefore, the first question to
be asked is, Is tne authority to adopt it expressly grant
ed in the constitution! If it he not, the next question
is, Is it a necessary and proper means of carrying into
execution any, power which is expressly granted ? If it
is not pretended that the authority to make roads and
canals for military purposes is expressly granted to Congress,
is it, then, a necessary and proper means for carrying
into execution the military powers which are
granted t I will not deny that roads and canals aro
useful, or, if you please, necessary, to the military operations
of the government. But this is not the true
question. The real point of inquiry is, Is it necessary
to the military operations of the government that Congress
should possess the power to make them ? Roads
and canals would exist from the influence of other
causes, without invoking the agency of Congress.?
They are, as already suggested, the natural and invariable
accompaniments of population, in every country
The wants and enterprise of individuals, the common
interests of society, and the paternal care of the. Stale
governments, which are more particularly chargod with
the domestic police of the country, would bring them
into existence. The same causes would ensure their
multiplication and improvement. As the country improved
in wealth and population, the means of communication
would improve with it. The members of the
Convention, as men ordinarily conversant, at least, with
human affairs, must have foreseen this natural course of
things, and could not have deemed it necessary to give
to Congress the power of creating channels of communication,
which would certainly giow out of the wants
of society and the beneficent superintendence of the
State governments. All that was necessary, was to
give to the general government the right of using these
highways, in prosecuting its military and other lawful
operations, and this right is conceded to it in the fullest
extent. Will any gentleman deny that food and clothing
arc as necessary for the subsistence of the soldier as
roads for him to march upon 1 And yet, it will not be
contended that Congress lias authority to condemn and
occupy large portions of the territory of the States for
farme to produce the one, or factories to supply the
other. Why 1 Because the natural wants of society
furnish the best security that these articles will be produced,
and render it necessary to invest the government
with any authority for the purpose. But it is said
that, in the defence of the country, and the military operations
connected with it, other and better channels of
commuuication would be required than those already existing
under the authority of the States. Let us pause,
J - A. . A I I XtT
una aue tu wnm uxiriu mis iuea vvuuiu carry us. uc
have an extensive frontier, and are-exposed to attack on
I every side of it. On the Atlantic coast we are exposed
f to the hostilities of any European power, and, through
the whole extent of our inland frontier, we are liable to
the incursions of our British, Spanish, and Indian neighbors.
If we undertake a system of roads and canals
with a view to facilitate the operations of war, as it is
uncertain in what quarter we shall be assailed, we must
extend them to every point of our frontier. The whole
face of our territory would thus be covered with military
roads and canals. Is not this a solecism in legislation ! j
Military roads and canals, which would be used for
civil and commercial purposes more than a thousand j
times for once that they would be applied to military (
purposes! Whether they would ever be used, indeed, ,
for military purposes, would depend upon remote and j
dubious contingencies, the occurrence of which no man ,
could foresee. 4 j
But leaving this view of (he subject, and returning .
to the principles first laid down, as to the just extent
of the incidental powers of the government, I ask, |
if it be possible to justifiy the measure proposed, by ,
the application of these principles. A national sys- ]
tern ot roads and canals, under the exclusive patron- j
age of Congress, cannot, in any sense of the term, ,
be said to be necessary to the making and prosecut- .
ing of war. Wars have been made and prosecuted, ,
and successfully prosecuted, without any such sys- |
tern. All that can be said of it is, that it might have
a tendency to give greater effect and increased energy ?(
to the exertion of the national force, in time of .
war. But, if the power to declare war authorizes ,
Congress to" do every thing which may have a ten- i
dency to add to the strength and resources of the na- ,
tion, in a military point of view, then, there is ,
notbingconnected with the " general welfaie," which ,
Congress may not do; for, whatever advances the
interests of learning, of manufactures, of agricul- ,
ture, of commerce, or, in any manner promotes the ,
internal prosperity of the country, certainly has a j
tendency to increase its strength, in a conflict with a (
foreign country. A principle of construction, lead- |
ing to such consequences, cannot be maintained.? |
The honorable Speaker expressed his acquiescence
in the principles asserted by Virginia, in '98. Those
principles were embalmed and immortalized in the
celebrated report of Mr. Madison, which has been
mentioned in the course ot this debate. The principles
contained in that report, do not derive their
sanction from the ureal name alone with whWl^they
are associated. They received a still higher sanction?that
of the American people. For, it was the
potent influence of these very principles, which
wrought, by the voice of the people, that change of
men and measures, in the administration of the government,
which has been emphatically styled, The
civil revolution of 1801. If any writings, therefore,
can be fairly appealed to, as authority, in constitutional
discussion, it is this report. [Here, Mr. Rives
read extracts from " Madison's report."] The simple
criterion, then, is this?the measure sought to be
adopted, as incidental to an express power, must
have an " immediate and appropriate relation to that
power, as a means necessary and proper for carrying
it into execution. "A tendency merelv, in the
?n M.MM,tin an .iKim.t inp UfKinh O/inorpst;
uicaouic IV/ jrr irrrwix* nu ivi *? uiv.ii v. ^
is authorized to provide," does not justify its adop- j
tion. Now, does not all that has been said, and can
be said", in favor of a national system of roads and
canals, amount to this?that they would have a tendency
to promote or facilitate the operations of war? j
not that they have an immediate and appropriate relation
to the power of making war?as means, necessary
and proper, for carryingthat power into execution.
One of mv colleagues (Mr. J. S. Barbour,)
adverted to this rule for the deduction of incidental
powers, and seemed to think it too rigid, because, he
said, it excludes a choice of means. Sir, it does not
exclude a choice of means; it only limits that choice.
And permit me to say, that, in order to preserve the
true character of this government, it is as necessary
to limit the means of executing its powers, as to
limit the powers themselves ; for in the language of
the distinguished authority which I have just quoted,
" it is wholly immaterial whether unlimited powers
be exercised in the riame of unlimited powers, or in
the name of unlimited means of carrying limited
powers into execution."
But, we have been gravely told, that roads and canals
are fortifications. Why, sir, a lively imagination,
and an ardent zeal, may convert any thing into
fortifications. It may be said, with as much justice,
and as little violence of metaphor, that the hearts of
our people are fortifications: for, after all, the moral
energies of a nation are as important to its defence,
as physical works of any sort. As a part, then, of
this system of military defence, we must establish
schools and colleges, to imbue the minds of our
youth with the love of liberty, a knowledge of the
principles of our free institutions, and a loyal and
-3conntrv I In 1 i L'p mnnnpr
| jidil iuiiu UCVUUU14 lu men vuuinij i ?
the granaries of the farmer are fortifications? the
workshops of the mechanic are fortifications?for
they furnish the indispensable means of subsistence
to the troops who are to defend you. Thus,
by the magic influence of language, Congress, in the
exercise of its military functions, may invest itself
with a general and unlimited patronage of all the
great interests of society?its education, its agriculture,
iis industry.
It has been triumphantly asked, if Congress can
erect forts and dock-yards, may they not make roads
to go into them? Unquestionably, the right to erect
these works, necessarily implies the right of way,
by which a communication is to be had with them.
If there be no road leading to them, the government
may render its right of way effectual, by opening
a road for the purpose of communication. But
what is the road, in tniscasc? It is strictly an appurtenance
to the fort or dock-yard, and is confined
to the purpose of communication with it. It is a
thing wholly distinct from a system of internal improvements,
having no actual connection with any
military work, nor bearing any peculiar and appropriate
relation to military operations. There can
be no doubt thait the General Government has a right
of passage through the territory of the states for any
of its lawful purposes, and it may, therefore, in time
of war, open a military road, when it is necessary to
the accomplishment of any particular military movement.
In such a case, it has a right to a passage ; and
there can be no passage without a road. But the
road is then made, and used pro hac vice only, and
as soon as the passage is effected, all property in, or
jurisdiction over it, ceases and dies. The right
strictly commences, and terminates with the occasion
of its exercise. This case, therefore, affords no
countenance to a claim of a general power to execute
and maintain a permanent system of internal improvements,
in reference to future and remote contingencies,
which may never occur. In the view
which I have taken of this subject, I have not found
it material to inquire into the right which has been
claimed by the general government of possessing
itself of the soil of the states, when it is necessary to
[ the execution of any of its powers. It is admitted
Ktr all that if pannnf .In en 0rre*\L iri racpc wKprA -it
is necessary to the execution of some of its powers.
In each particular case, therefore, the question recurs,
Is the proposed occupation of the soil ol the
states necessary to the execut ion o( any of the powers
of the government! My object has been, to show
that the occupation of it, for the purpose of making
roads and canals, is not necessary to the execution of
the military power of the government, and cannot be
justified by any sound doctrines of constitutional
The only remaining ground, worthy of particular
consideration, upon which the authority of thiasgovernmcnt,
to make roads and canals has been asserted,
is that portion of the Constitution which gives
to Congress the power " to regulate commerce
among the several States." The honorable gentle
CAN. ..
9. WHOLE NO. 60.
man from Delaware, (Mr. McLane,) seemed to
treat this as a question of incidental power, but it is
strictly and exclusively a question ol express power.
The whole controversy depends upon the true import
of the word " regulate." II to " regulate,"
means to " promote" or to " facilitate," then the
power to make roads and canals, as an ordinary and
natural mode ol" facilitating or promoting commerce,
seems to be clearly comprehended in the terms of
the grant. If, however, to regulate, means to tnake
rules, as it certainly does, in the plain and common
use of the word, then it gives to Congress no other
power than that of making the rules, or prescribing
the terms, upon which commerce among the 8tales
shall bejj conducted?that is, the power of making
commercial regulations, as applicable to the reciptocal
trade of the Slates. But, would any person call
roads and canals commercial regulations? The
whole question, then, might be salely left to an unsophisticated
common sense interpretation of the language
of the Constitution ; but, as the argument of
the gentleman from Delaware was certainly an originaland
ingeniousone, I beg leave to analyse and examine
it more particularly. The out(ine of the argument
was this: that the object of granting to Congress
the power of regulating commerce among the
States was not, as had been supposed, to prevent one
State from laying burthens on the productions of
another State, passing through its jurisdiction, (that
object being adequately provided for by another,
clause of the Constitution,) but to prevent a greater
mischief, absolute prohibitions of the passage, which
if they snould occur, it would be competent for Congress,
under this power to remove; that, if Congress
can remove legal restraints upon the trade of
(he States, it car. remove physical obstructions; and,
if it can remove physical obstructions to the trade of
the States, it can create new channels for it. However
nicely concatenated this chain of deductions
^eems to be, I shall endeavor to show that some oi its
links are too feebly connected to sustain the conclusion
which depends upon it. The gentleman's first
position is, that the power to regulate commerce
among the States, was not given to Congress to prevent
one State lrom imposing duties on the productions
of another, passing through its jurisdiction, because,
if this were the only object, the power would
be nugatory, another clause of the Constitution having
expressly restrained the States from laying
iuties on imports or exports. In relation to this position,
I will only remark, that the honorable gentleman
seems to have mistaken the purpose for which
the passage in the Federalist upon this subject was
read, by my able colleague, (P. P. Barbour,) who
apened this discussion. That purpose was not to
show, nor does the authority cited import, that the
inly object of the power in question was to prevent
he States from imposing duties on the productions
af each other, passing through their respective jurisdictions.
It was mentioned merely as one of the
abjects of the power. A farther object, undoubtedly,
was, as the gentleman himself has satisfactorily
shown, to prevent arbitrary interruptions of the trade
af the States, arising from acts ot positive prohibition
and other similar impediments. But the genleman
is not satisfied even with this extension of
:he power. He says that a power of such apparent
magnitude could not have Deen intended to be pasrive?a
monument oj its own insignificance?and that,
if it extends to removing no other obstacles than
such as may be interposed by adverse and unfriendly
legislation of the States, it becomes utterly passive.
Why, sir, it is, in this respect, like many other
powers granted by the Constitution. The powers to
" repel invasions" and to " suppress insurrections,"
are passive, until the proper occasions occur to bring
them into action. And the honorable gentleman
will permit me to remind him that this very horror
of passive authority, acting upon one of the powers
just mentioned, was ths parent of the sedition law,
The reasoning was this?the powers to " suppress
insurrections" implies the power to prevent them
and the power to prevent them, implies the power t<
punish whatever may tend or lead to them?libel:
upon the government tend or lead to insurrections
therefore, Congress may pass a sedition law lor ih<
punishment of libels.
Ihe-system of reasoning now employed to justify th
exercise of power contemplated by this bill, is equal!
and, indeed, to my mind, much more forced and arbi
trary, in its chain of inferences. What is it! Th
power to regulate commerce among the states authori
zes Congress to remove legislative restraints, impose:
by one state upon the trade of another, passing ihroug
its jurisdiction. The power to remove legislative re
straints, implies the power to remove natural obstruc
tions, and the power to remove natural obstructions
implies a power to give artificial facilities ; or, in othe
words, to make roads and canals. But, it is true, tha
the powei to remove legislative restraints implies thi
power to remove natural obstructions, and to give arti
ficial facilities! The one aims only to protect com
merce in its actual channels : the other seeks to oper
additional channels for commerce. The object of tlx
former is merely to secure the free use of existing high
ways; the effort of the latter, is to create and construe,
new highways. These things are, in their natures, sc
essentially distinct, that an inference from one to the
other, is wholly arbitrary and inudmissible. But thr
honorable gentleman from Delaware need not be afraid
that this power will remain passive, unless it is exerted
in giving artificial facilities to trade. It has already
been exerted, and copiously exerted, in the various and
minute regulations connected with tne coasting traue,
and this was probably the chief, if not the only, employment
of it, contemplated by the framers of the
The gentleman read a passage from Vattel, for the
purpose of proving the connection between good roads
and canals, and the welfare of trade. But nothing is
gained by this positidn, which is very readily admitted,
until it is also proved'that Congress has a general power
to promote the welfare of trade. The application of
this authority, therefore, proceeds upon an assumption
of the very point in dispute. A similar defect exists in
the argument which claims for the general government
the same authority to make roads and canals between
the states, that the government of each state has to
make roads and canals within its own limits. The state
governments have, undoubtedly, the right to make roads
and canals ictlhin their respective limits ; but from what
does this right result 1 From the general discretionary
power which the state governments possess, to provide
for the public welfare. Before the argument can be
sustained, then, it must be shown that the general government
possesses a like discretionary power, to provide
for the public welfare. The state governments do
not make roads and canals by virtue of a specific power
to regulate commerce among the several portions of the
same state. If they possessed no other power than
this, it would not be competent for them to make roads
and canals.
Much reliance has been placed, by the gentleman
from Delaware, as well as other gentlemen who have
participated in this discussion, upon what is said to have
been the practical construction of the power to "regulate
foreign commerce." It is contended that Congress
possesses the same power in relation to "commerce
among the several states," that it docs in relation
to " foreign commerce :" and that, as, under the
power of regulating foreign commerce, it has erected
light houses, beacons, buoys, &c. with a view to givt
safety and facility to that commerce, it may, under the
power of " regulating commerce among the states,'
construct roads and canals, to give safety and facility tc
the internal trade of the country, I beg leave to asl
those gentlemen, by what authority they refer the crec
tion of the light houses, beacons, dec. to the power t<
regulate foreign commerce I There is no evidenci
upon me face oi tne laws themselves, wnicn were passet
for their erection, that Congress legislated under th<
idea that they derived the right to erect them from thi
power to regulate foreign commerce. There is collat
eral evidence, however, that they legislated with refer
erice to another clause of the Constitution. It wa
mentioned by my colleague, who opened this discussion
(Mr. P. P. Barbour,) that the statute book conlained i
list of cessions rpade by the several slates, of the sitei
of these buildings. The only cases in which the Con
slitution requires the previous consent of the states tc
the alienation of territory, are those relating to the seal
of government, and all such places as may be acquired
for the "erection of forts, dock yards, &c. and other
needful buildings." It would seem, therefore, from the
formal cessions made by the states, of the sites for
light-houses, tVc. that Congress legislated with reference
to this part of the Constitution. Another explanation
has been suggested, by an honorable gentleman
from New York, (Mr. Wood,) who refers the erection
of these buildings to the power to lay and collect duties.
The duties laid, accrue only upon the arrival in our ports
of the goods and vessels charged with them. Whatever,
therefore, gives security and facility to an entrance into
our ports, nas an immediate relation to this branch of
JoT^' *^8
the public revenue. I have mentioned theae explanations
only for the purpose of showing that the ereetion .
of light-houses, beacons, Jrc. can be accounted for, and
have been accounted for, plausibly at least, without referring
them to the power of regulating foreign commerce.
It is not necessary for me to decide under
what clauao of the Constitution these buildings were
erected. I will only say, that both of the explanations
just mentioned are as satisfactory to my mind, as
the one which refers them to the power of regulating
foreign commerce. Gentlemen have taken it for granted,
without offering to prove, that they were erected under
(Ilia clause nl the Constitution, for the aake, I presume,
of the precedent it would afford them, in the interpretation
of the power to regulate commerce among the states.
I beg leave, however, to say, that, whatever may
have been the construction of the constitution under ?
which these lighthouses were built, or any other act
that has been done by preceding Congresses, I cannot
regard such construction as legitimate and conclusive
evidence of the true meaning of the constitution,
and binding upon ourselves and our successors.
The gentleman from Delaware said it was a great
error to consider the authority to make roads and
canals as a distinct, instead of a subsidiary power
If any power, from its magnitude and extent, ought
to be regarded as a distinct and independent power,
it is this. The constitution has granted, by distinct
clauses, several other powers which might, with
much more propriety, have been regarded as subsidiary
powers, and left to implication. What would
seem more naturally to appertain to the regulation
of commerce among the States than the power of
coining money, the very instrument of commerce, of
fixing its value, of establishing a common standard
of weights and measures, uniform laws on the subject
oi bankruptcy, and post offices and post roads 1
Yet, all these powers are the subjects of express and
distinct grants! What could more properly be considered
as incidental to the power of declaring war
than to raise and support armies, provide and maintain
a navy, make rules for the government of the
land and naval forcou? And yet it was thought
necessary to give ihvso'and other similar powers by
direct and explicit.declarations in the constitution!
It will not be said that roads and canals bear a
more direct and immediate relation to the military
and commercial powers of the Government, or are
of less dignity and importance in their character,
than many of the powers just enumerated. Why,
then, I will ask the gentleman from Delaware, if the
power to make them was intended to be given, was
it not, in like manner, distinctly granted I
In inquiries of this sort, Mr. Chairman, the opinions
of no man, however illustrious by his virtue or his wisdom,
ought to preclude the exercise of our own deliberare
judgments. There is, however, a degree of respect
which all acknowledge to be due to the opinions
-r ,i__ j:_.: : l_.i 1 :.u_. ,1,. |
ui but; uiaiinguiauru iiiuu nuu cuuci pnmui|??sM .*?w
formation of our government, or have since borne a con- I
apicuous part in ita administration. It is known to the I
committee that three successive Presidents of the Uni- I
ted States have felt it their duty to announce to Con- J
gress, in the most solemn form, their settled conviction I
that this government does not possess the power now in I
question. I will not, however, insist upon their testi- I
mony, because they are Virginians, end we have abun- 1
dant evidence that Virginia politics have gone out of I
favor. Thero is an authority, however, wbich I will I
quote, and the weight of which I feel myself entitled to I
press upon this committee. It is that of Alexander J J
Hamilton. His opinions upon this subject are of pecu- 11
liar value, not only because he was a member of the m fl
convention weich framed the constitution, and one / H
of the authors of the celebrated commentary up- / I
on its principles, but because he isknown to have ' H
indulged a strong bias in favor of the powers of , H
the general government, and to have adopted the I H
most liberal doctrines in their interpretation. Yet, I
even Mr. Hamilton, with all his leaning towards federal I
authority, could find no warrant in the constitution for f
the po-ver to make roads and canals. Iu bis Report on
Manufactures, after speaking of the importance of roade
and canals to the prosperity of mannfactures, and men- I
tioning several reasons why it is desirable that the gene- r_
ral government should possess the authority to make \
them, he concludes by saying, these circumstances
" render it a icish of patriotism" that the general government
" were at liberty to pursue and promote the
general interest" by adopting a national system of internal
improvements. Here, then, we have an unequivocal
admission that the general government is not now
" at liberty" to adopt this system?an admission the
; more precious, because it is evidently made with great
J In answer to a remark made by one of my colleagues,
s (Mr. Archer) that, at the time of the adoption of the
Constitution, no allusion was made to the existence of
B such a power as is now claimed, a gent leman from New
York (Mr. Starrm) mmlioncd art emen'lmoiH to the Conatitution'wTiidlrwas
proposed by a Mr. Jones in the convention
of that State, the substance of which was, that
. the power to establish post roads should not be cone
strued to extend to the making, laying out, and repairing
of roads, in the several States, without their consent,
j This amendment cannot be fairly considered even as
^ evidence of Mr. Jones' opinion, that Congress possessed
the power to make roads under the clause of the Constituiion
referred to. All that it proves is, that Mr.
( Jones appehended that this clause might hereafter be
j construed lo give to Congress the power to make roads,
t and that he wished, in such an event, to render its exere
cise as innocent as possible, by requiring the previous
consent of the States in which the roads should be laid
out. The very first of the actual amendments to the
( Constitution declares that "Congress shall make no law
3 restraining the free exercise of religion, abridging the
freedom of speech, or of the press, or the right of peti(
tioning." Is it to be inferred from this amendment that,
( without it. Congress could lawfully have done the
( things inhibited by it 1 I presume not. The truth is,
| that this and several other amendments arose from a
j spirit of jealous caution, and an apprehension of future
I encroachment from the General Government, and furnish
no evidence of the opinions entertained of the real
extent of the powers granted.
But, whatever may have been the opinion of Mr.
Jones, I may be permitted to oppose to it the authority
of Patrick Henry, who, in the debates of the
Virginia convention, after depicting in the most
glowing colors what he deemed the vast powers of
the General Government, and the dangers of consolidation,
concluded by saying, "all that is left to
the States is, to take care of the poor, make and repair
highways, erect bridges," &c. Even this jealous
guardian of State rights, who descried the remotest
dangers which threatened the safety of our republican
institutions, and "snuffed the approach of tyranny
in every tainted breeze," even he, while he
believed that every other power was swallowed up
by the General Government, was satisfied that this
portion of sovereignty, at least, was left entire to the
Slates. And, if he could have foreseen the attempt
which is now made to appropriate to the General
Government this portion of State sovereignty, none
would have alarmed him more, for none is more
directly calculated to lead to consolidation. It is a
power which comes home to the business and bosoms
of the people; it approaches their firesides, and
touches their most intimate domestic interests. If
the inhabitants of the States, instead of looking to
their governments at home, are to look to the general
government, (as they certainly will, if thi<= system
should be adopted,) for the ordinary facilities of
travelling and transportation, then the" State governments
become useless machines, and are not worth
the expense of maintaining. You supersede them in
the exercise of their most appropriate functions, and
dissolve the strongest tie which connects them with
the people of the States. What, then, becomes of
the boasted equilibrium of our system, which has always
been regarded as the best preservative of our
liberties'? li i.sgone: it is dovbly gone. You destroy
it, not tfnl^'.Dy taking away, in effect, an im>
portant powef Tepm the Slate governments, but by
I delivering th^sftme power, with an increased mass i
t of patronage and qf influence, into the hands of the I
! General Government. ,
1 Report, in part, of the Committee of the House of Re- H
presenlalires of the United States, on so much oj the 1
> President's Message, as relates to roads, canals, and
3 seminaries of learning.
December 15, 1817.
8 Read and committed to a committee of the whole
f house on Friday next.
Thp committee to whom were referred so much of
? the President's message as relates to roads, canals,
and seminaries of learning, respectfully report, in
' part, that they have taken into consideration the subject
referred to them, and bestowed on it that atten|
tion to which, by its importance, it is so eminently
entitled. Involving, as u is supposea, a great cunsu1
tutional question on the one hand, ana intimately
connected, on the other, with the improvement, the
prosperity, the union, and the happiness of the United
Stales, it presents the fairest claims to candid and
diligent investigation. Nor is it without additional A
interest Irorn the division of opinion to which it has i
heretofore given rise between the Executive and Le- ',
gislative branches of the government; a difference,
which in the indulgence of the rights oi free opinion,
will be still found to exist between the sentiments pro- I
mulgnted in the message of the President, and those
which will be advanced by your committee in this
report; nor do they conceive, that the expression in 4A
the message of the President of an opinion nnfavora- " M
ble to the constitutional powers of the general govern?
. ?

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