The Madisonian. [volume], February 02, 1839, Image 2

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ment should be permitted to have any influence on the
disposition ol Congress to legislate on this interesting
subject For, if the consthutio ;al majority of the
* two houses should differ with the Executive department,
the opinion o/?he latter, however respectable,
must yield to sucb an expression of their will. On
the other hand, II from delerence to an opinion promulgated
in an executive communication, Congress
should retrain from entering upon the consideration
of a question involving constitutional doctrine, it
might nappeo that the opinion of the President would
prevent the enac ion of a law, even though there
should be the constitutional majority of two-thirds of
both houses in its tavor. Thus, by the introduction
of such a practice, the Presidential veto would acquire
a force unknown to the constitution, and the
Legislative body would be shorn of its powers from
a want of confidence in its strength, ortrom indisposition
to exert it. Whilst your committee are perI
fectlv aware that nothing like this is contemplated by
the Executive branch or the government, tney presume
the House of Representatives will scrupulously
avoid a course, which may be construed into a dereliction
of their privileges. They deem it, therefore,
not improper to offer some considerations upon the
question of the consti utional powers of the general
government to pass laws for the improvement and
construction of roads and canals, with the consent of
the states.
As it is obvious, however, that these several subjects
ol legislation do not rest upon the same foundations,
and that one of these maybe within the sphere
of the constitutional powers of Congress, whilst the
others may belong exclusively to the states, it is proposed
to treat them separately, and the subject or the
improvement and construction of public roads, which
appears to your committee most clearly to be reducible
to the powers vested in the general government,
will be first taken into consideration.
J\n accurate attention to the real points of difference
on this subject will greatly contribute tolreethe
controversy from unimportant and irrelevant considerations.
To attain this, we have only to compare
what is manifestly ndmitted ?q,* th%. one hand, with
what is claimed and contended*$r*on the other.
The laws of antecedent Congresw*, approved by
successive Executive magistrates, and the acts of the
Executive m gisirates themselves, will be resorted to,
as affording evidence of what may be regarded as
cooceded to be within the powers of the general government.
The commendable jealousy which they
have manifested ol all encroachments on state power,
and their scrupulous adherence to the most rigid
principles ol construction, in the interpretation of the
constitution, affords a sure guarantee, that more has
not been admitted than may be fairly assumed to be
within the provisions of that instrument. Taking,
then, the acts of both of the Legislative and Executive
branches o*" the government for our guide, we
shall find it clearly admitted that th re are some cases
at least, in which the general government possesses
the constitutional privilege of constructing and improving
roads through the several states.
Thus, by the act of the 29th of March, 1806, confirmed,
amended and enlarged by subsequent acts, a
road was directed to be laid out and constructed from
Cumberland, in the state of Maryland, to the slate of
Ohio, upon obtaining the consent of the states through
which it should pass. The fund provided for this
noble undertaking, was to consist of the proceeds of
the sales of certain lands, the property of the United
Stales, in the state ol Ohio, so that this act furnishes
the double admission, that " roads may be laid out
by Congress through the several states, with their
I consent," and that the expenses of constructing such
roads may constitutionally be defrayed out of the
funds of the United States. The act was approved
by the President in office, in 1806, and other acts
confirming, amending, and enlarging it, were passed
by subsequent legislatures, in the years 1810, 1811,
and 1815, and approved by the President, in office,
at those periods: nay, more, the three last acts contained
appropriations to the amount of 210,000 dollars,
payable out of any moneys in the Treasury, but
reimbursable out of the Ohio fund?a fund which
might or might not prove adequate, and which, in
point of fact, is believed hitherto to have been insufficient.
Similar to this act in some of its nrovisions. and
1 analogous in principle, are the acts of April 21st,
1806, and olthe 3d of March, 1817, authorizing roads
to be opened from Nashville and Reynoldaburg, in
the state of Tennessee, to different points in the Mississippi
territory. But these acts go still further than
the former, in omitting to require the previous consent
of the state of Tennessee, through whose territories a
part of the roads was to pass, and in directing the
expenses of making them to be defrayed out of the
nuLlic treasury of the United States, Without providmi
for Us reimbursement,in any manner whatsoever
But lest the influence lobe derived from these admimione
should be deemed to be weakened by the
nnmtiilsratinn thai the collision of opinion on the
constitutional question has arisen since the passage
of those laws, your committee will beg leave to refet
to the date of the last act above-mentioned, and tc
certain transactions of a date subsequent to the iraCtant
and well remembered difference of opinion
ween the Executive and Legislature, at the last
session of Congress. Since that period, they have
satisfactory information that a road has been directed
by the Executive of the United States to be improved,
at the expense of the general government, and
i doubtless for military purposes: This road is laid
1 out from Plattsburg, or its vicinity, in the state of N
York, to Sackett's Harbor, in the same state.
It is presumed, that it is to be constructed at the
expense of the general government, and it is understemd
that the previous assent of the state has not been
S procured.
From this act, therefore, of the Executive branch
of the government, emanating from that source at a
late date, it would seem fair to inter, that the constitution
is admitted to have conferred upon the general
government a power, in some cases, to make roads,
I and to defray the expense of their cons! ruction outof
the funds of the United States. And as the power
is not denied in all cases your committee will attempt
to show that Congress has the power,
1. To lay out, construct, and improve post roads
through the, several states, with the assent of the respective
states. And,
2. To open, construct, and improve military roads,
through the several states, with the assent of the respective
states.
3. To cut canals through the several states, with
their assent, for promoting and giving security to internal
commerce, and for the more safe and econo
mical transportation of military stores, die. in time of
war; leaving, in all these cases, the jurisdictional
right over the soil in the respective stales.
In examining the soundness of these positions,your
committee will not find it necessary to resort to what
is called a liberal construction of the constitution.?
They might, indeed, contend, that as the powers here
attributed to the United States are not in derogation
of state rights, (since they can only be exercised by
their assent) there is less reason for adhering to exj
treme rigor of construction. Where the authority
claimed by the general government*!* oppressive in
its character, or dangerous in its tendencies; where
it is asserted without deference to state assent, and in
derogation of state power: where it is calculated to
aggrandise the union, and to depress its members,
I there may be so tic reason for holding the represenI
tatives of the nation to the ' letter of their authority.'
I But where the poweis ought to be exercised isbenefiI
cent in its effects, and only felt in the blessing it conI
fers: where it is not proposed to act except with the
I assent of the party which is to be affected : where the
I measure is more calculated to increase the opulence
I and the power of the state, than to aggrandize the
I union at its expense, it might fairly be contended thai
I a less rigorous construction of the constitution would
I be justifiable. It is neither unprecedented or itnproI
per to censtrne the same instrumetat, lib rally, when
I the interests of the contracting parties Viltye therebj
I promoted, and to adhere to a greater syrfttness when
fc. injury may arise to either by an interpretation tot
Ky latitudinous. That the powers in question are neithei
HT dangerous in their tendencies, or calculated to prove
" injurious to the states, would seem fairly inferable
R from the recommendation to amend the constitution
and from the importance so ju>lly attached to these
objects on all hands.
W But your committee, nevertheless, do not conceive
I it necessary to call to their aid the liberal principle:
I flfconstruct inn which Ih? nn/-?ln>
n m.vm?imv-wvvacivu- uiigiu juoni j
I They disavow any use of the general phrase in the
K constitution to provide for the common defence and
general welfare, as applicable to the enumeration ol
I powers, or as extending the power of Congress beI
yond the speeiAed powers; and they admit that to
I snpport their positions, it mast appear that the powers
I contended for are expressly granted, or that they arc
I both " necessary and proper" for carrying into exeI
cation some other express power.
I That Congress, with the assent of the states, reI
gpectively. may construct and improve their post
roads, under the poweT " to establish post offices and
post roads," seems to be manifest both ftom the naI
tare of things, and from analogous constructions of
I the constitution. It has been contended, indeed, that
A the word establish, in this clause of the instrument,
comprehends nothing more than a mere designation
W of post roads. Bat if this be true, the important
I powers conferred on the general government, in reI
lation to the post office, might be rendered in a great
I measure inefficient and impracticable. In some
I states a power is vested in the inferior tribunals or
A aounty courts, to discontinue roads at their discre
tion: a post road designated by Caagress might thus
be discontinued, to the great embarrassment of the
W "T" 'l" ' 1 1J "
V
post office establishment. If the power to establish d
confers only the authority to designate, Congress ft
can have no right either to keep a ferry over a deep w
and rapid river, for the transportation of the mails, r<
or to compel the owners of a ferry to perform that si
service ; and yetour laws contain an act,acquiesced p
in for more than twenty years, imposing penalties on t<
ferrymen for detaining the mail and on other per- si
sons for retarding or obstructing its passage. It n
would be difficult to discover how this power of im- t)
posing penalties can be supported, either as an origi- c<
nal or accessary power except upon principles of p
more liberal construction than those now advanced, cj
There are, therefore, not a few who believe that, d
under the authority to " establish" post roads, Con- ci
gre.su have express power to lay out, construct, and c<
improve roads for the transportation of the mails. pj
But, however this may be. the authority which is ol
conferred by the constitution to make all laws which
shall be "necessary and proper" for carrying into pi
execution the enumerated powers, is believed to vest to
in the general government all the means, which are T
essential to the complete enjoyment of the privilege hi
of " establishing post offices and post roads." Even to
without this clause of the constitution the same prin- p
eiple would have applied to its construction, since, is
according to common understanding the grant of a bt
power implies a grant of whatever is necessary to its at
enjoyment. d<
Taking these principles for our guide, it may be p<
asked if under the narrow rules ol construction con- to
tended for, the right of transporting the mails would m
not be held entirely at the will of the states respec- th
lively; on the other hand, if the United States have rc
the privilege of establishing post roads, and ate under
the corresponding obligation of transporting the C
mails, is it not essential to the performance of this ci
duty and to the enjoyment of this power, that they w
should have the right (with the assent of the respec- of
live states) to throw bridges over deep and rapid dt
stream*, to remove embarrassing and dangerous ob- of
structions in the roads which they have the privi- tii
lege of using, to level mountains which impede the pr
velocity of transportation, and to render passable the tit
morasses which intersect the roads through various
parts of the union 1 Can it be supposed, that the ui
convention, in conferring the power and imposing of
the duty of transporting the mails, (in its nature a th
mat'er of national concern) intended to vest in Con- ta
grew the mere authority to designate the roads over de
which it should be carried 7 Can it be denied, that ar
the right to render a road passable is " necessary" to is
the enjoyment of the privilege of transporting the re
mails; or can it be denied that such improvement, ex
with the assent of the states, is " proper 1 And, if be
" necessary and proper," is it not justified as an in- ex
cidental power 7 it,
It is indeed from the operation of these word3, pc
" necessary and proper," in the clause of the consti- aj
tution, which grants necessary powers, that the " as- w
sent of the respective states" is. conceived to be a prerequisite
to the improvement even of post roads.? w
For, however " necessary" such improvement might aj
be, it might be questioned how far an interference fii
with the state jurisdiction over its soil, against its gi
wiW, might be "proper." Nor is this instance of an r?
imperfect right in the general government without
an analogy in the constitution?tne power of exercis- st
ing jurisdiction over forts, magazines, arsenals, and p
dock yards depending upon a previous purchase by a
the United States, with the consent of the slate. p
Admitting, then, that the constitution confers only P
a right of %cay, and that the rights of soil and juris- ?
diction remain exclusively with the states respec- s
lively, yet there seems no sound objection to 'he im- c
provement of roads icith their assent. For, if by the "
10th amendment, this right is reserved to the states, ?
it is within the power of the state to grant it, c
unless the United States are incapable of receiving a
such a privilege. But by various acts of the government,
w^ose validity has never been questioned, it
appears to possess not merely the power of receiving
so unimportant a privilege as this, but of acquiring
territory ad libitum. The acquisition of Louisiana,
one of the happiest events of our political history,
evinces the power of this government to acquire territoiy
by treaty from foreign nations. The cession
of the northwest territory by Virginia, shows that,
under the strict principles of the old confederation,
which had so few features of nationality, the United
States were deemed to have the power of acquiring
lands even from the states of the confederacy. The
Georgia cession, completed about the year 1802, is
finally decisive of the practical and undisputed exercise
of a power in the general government to receive
a cession of terri'cry from any member in the
confederacy, under the present constitution. But if
the general government have the power to aggrandize
itself by the acquisition of territories, can the inferior
privilege be denied (hem of receiving from a
slate tne right of making or repairing the roads
over which they are compelled to transport the mails* ,
through the union 7
Moreover, it seems to be admitted that the United
States have, since the Georgia cession, a constitutional
right to make ana repair roads in the
ceded territory. It then, by the transfer of the territory.
Georgia could give, and the United States receive,
the right to make roads within it, H is difficult
to imagine a substantial objection to the validity
of a grant to make a road, without a transfer oi the
territory.
2. Your cdmmittee conceive that the general go1
vernment has the power of making and opening
I military roads with the assent of the respective states,
with a view to the common defence of the nation.
The power of opening a road during actual hoss
tilities, for the purpose of transporting military stores,
and marching troops to points that are menaced, has
never yet been called in question. In truth, with- r
out such a power the United States must fall a prey t
to foreign enemies : so it seems fair to assume, that.
whenever a military road becomes necessary for t
the national safety, it is in the power of the general t
government to construct it. Of this necessity, that r
government can be the only judge: and if the power t
of judging of this necessity be in them, the constitutional
power to act must of course be conceded. In
the exercise of this disyetion, a very general senti- t
ment at present prevails in lavor of preparations ^
during peace for a state of war. And if the power
of 'judging when it is necessary be admitted, the con- _
stitutional right to do it at any time must be al- j
lowed. t
It is not proposed to enter upon the delicate inquiry
whether this right can be exercised by-the general ^
government without the assent of the respective |^ates
through whose territories a road is constructed, in
time of peace, with a view to military operations in r
any future wars. Leaving this question for discus- ^
sion whenever the occasion may call it forth, your r
committee are content, in this report, to assert the t
right to exercise this " necessary" power with the
ass'nt of the states.
Having taken this cursory view of the principles '
of the constitution, in relation to the construction of '
roads by the United Slates, it may not be unimpor- 1
tant to examine what has been the practice under its 1
provisions. The laws of the union and the acts of 1
the executive branch of the government, though they 8
cannot be relied on to support acknowledged error, 8
may safely be referred to in aid of our inquiries as J"
to the proper construction of the constitution.
Amongst the most conspicuous of the analogies
afforded by the acts of Congress in the establishment P
of the Cumberland road already mentioned. This
road has been constructed under the authority of the 8
United States, with their funds, and through several P
of the states, with their assent. It has received the r
sanction of several distinct representative bodies, v
and of two presidents of the United States. In P
short, if precedent alone were wanting, this act 11
would furnish it. ? c
Passing over the road from Nashville to Natchez,
[ and the road from Reynoldsburg to a part of the late c
territory of Mississippi, directed by an act of the last ti
, session of Congress, both of which afford precedents tl
f no less strong, we come to the military road lately *
. directed by the executive authority to be constructed, ?
, from Pittsburgh or its vicinity to Sacketl's Harbor. J
c This road is not to be constructed with any express c
, assent of the state, through which it passes, nor by the >
s authority of Congress, but the president has deemed 1
it necessary as a military road, and has ordered it to 1
! be made accordinirlv: a measure, the aHvanta<re? 1
of which arc understood to be so palpable, as to have
girfen great satisfaction in the country where the
, road is made. Hence, however, the question results,
whether the exercise of this power by the president
, is not an express admission of the right of the gene[
ral government to open military roads even in time
[ of profound peace, when they are believed to be necessary;
and, it the power of judging of this necesi
sity is possessed by the executive, it cannot, It-is presumed,
be denied to the yet more important organ of
the nation's will?the legislature of the nation.
3. As to canals. It will not be necessary to recapitulate
(be arguments already used on the subject of
roads, some of which will be found strongly applicable
to canals. It may suffice to add, that the power
to make canals and roads, for the promotion and
safety of internal commerce between the several
states, may justly be considered as not less incidental
to the regulation of internal commerce thap many
of the powers exercised under the authority to regulate
foreign commerce are accessary to that power.
The embarrassments of the nation during war, from
the want of good roads and canals, both in relation
to trade and the transportation of cannon and militai
ry stores, have been too recently and sensibly felt to
he forgotten. Vested with the power of making war,
the constitution could never have intended the genai
ral government should make it under such disad van1
tageN. If there be any part of that instrument which |l
emands a liberal construction, it to that which Conors
on the federal government the power of making
ar, and the duty <d protecting the union from tosign
hostility. With a navy yet insufficient to enire
the safe conveyance, coastwise, of troops, of imlemenls
of war, and military stores, and destined
> conleod with an enemy whose command of the
?a, enables them to assail, in rapid succession, the
tost distant positions, we have been compelled, from
ie want of an internal water communication, to enuunter
the most wasteful extravagance in the transortatiou
of the means of defence. From the same
au.se, the internal trade between the slates has been,
uring war, trammelled and embarrassed, and even
at off; and the productions of one portion oi the
immunity have rotted on their bauds, while distant
arts of the United States were suffering for the want
[ them.
It is true that the wants of the union cannot confer
iwer under the constitution; but they iriay justly be
niched upon as affording aid in its construction.?
'bey must have been clearly foreseen, and must
ave been supposed to be provided for. If the power
r carry on war implies the " necessary and pro;r"
means of conducting it to a safe and prosperous
sue, and if without the use of these means, the
lrdens, and the privations, and the miseries of war,
re to be indefinitely increased,and its issue (always
mbifui) rendered yet more precarious and unprosirous.are
we not justified in presuming these means
have been contemplated as being vested in the ge ral
government? are we not justified in asserting
ijs "necessary"power?the power of constructing
>ads and canals at least with the assent of the states.
If your committee have not erred in attributing to
ongress a constitutional power to make roads and
mals either as an original or accessary power, it
ould?eem that no doubt could remain of the right
' applying our revenues to those purposes. If in ed
the power wasdeni d to the genera' government
'constructing roads and canals themselves, a quesjn
might still arise, whether it had not power to apopriate
part of the revenue " to aid in theconstrucjn
of roads and canals by the states."
There is perhaps no pait of the constitution more
llimited than that which relates to the nnnlirntinn
' the revenues which are to be raised unaer its auoriiy.
The power is given "to lay and collect
xes, to pay the debts and provide for the common
ifence and general welfare of the United States,"
id though it be readily admitted that this clause
only intended to designate the objects for which
venue is'to be raised, it cannot be construed to
;tend the specified powers of Congress, yet it would
i difficult to reconcile either the generality of the
:pression,or the course of administration under
with the idev that Congress has not a discretionary
>wer over its expenditures, limited only by their
iplication "to the common defence and general
Clfare."
A few of the very great variety of instances, in
hich the revenues of the United States have been
Dplied to the objects not falling within the specied
powers of Congress, or those which may be rearded
as incidental to them, will best illustrate this
unark.
Thus, it can scarcely be conceived, that, if conrued
with rigor, the constitution has conferred the
ower to purchase a library, either specifically, or as
"necessary" incident to legislation. Still less,
erhaps, can the pious services of a chaplain, or the
urchase of expensive paintings, for ornamenting
he hall of session, or various other expenditures of
imilar character, be considered as " necessary" inidents
to the power of making laws. Yet, to these
nd to similar objects have the funds of the United
States been freely applied, at'every successive session
it Congress,without a question as to the constitutiondity
of the application.
It would be yet more difficult to reduce under the
ipecific or accessary powers of Congress, the liberal
lonation to the wretched sufferers of Venezuela, or the
imployment of our revenues in the useful and interestngenterprise
to the Pacific.
The bounties allowed for the encouragement of the
isheries form another expenditure, that does not fall
inder any of the powers granted by the constitution.
Vor could it be fairly considered ss inferrable from
he powers granted upon the strict principles sometimes
ontended for. The same objections would apply to
ctuak Aunties, paid to manufacturers for their encouagement
and to the indirect encouragement given to
hem, and which operates as a bounty to one class of the
ommunity, and as a tax upon the rest. These and a
ariety of other appropriations can only be justified upon
he principle, that the general clause in question has
estcd in Congress a discretionary power to use for
hft 41 opnprnl wrlfarn" thfi fnnrlt whirh thnv nrn nnthn
izcd to raise.
Nor is there any danger that such a power will be
tbused, while the vigor of representative responsibility
e ma ins unimpaired. It is on this principle that the
earners of the constitution mainly relied for the pro tecion
of the public purse. It was a safe reliance. It
vas manifest that there was no other subject on which
epresentative responsibility would be so great. On the
ither hand, while this principle was calculated to present
abuses of the appropriations of public money,it was
squally necessary to give it extensive discretion to the
ogislative body in the disposition of the revenues, since
10 human foresight could discern, nor human industry
mumerate, the infinite variety of purposes to which the
lublic money might advantageously and legitimately be
ipplied. The attempt would have been to legislate,
lot to frame a constitution, to foresee and provide ape:ifically
for the wants of future generations, not to frame
i rule of conduct for the legislative body. Hence pro:eeds
the use of this general phrase in relation to the
lurposes to which the revenues may be applied ; whilst
heframersof the instrument, in the clause which condudes
the enumeration of powers, scrupulously avoid
he uso of so comprehensive an expression, and confine
hemselves to the grant of such incidental power as
night be both " necessary and proper" to the exercise
>f the specified powers.
Nor is it conceived, that this construction of the
:onstitution is calculated to give that unlimited exent
to the powers of the federal government, which
>y some seems to have been appropriated.?
l'here is a distinction between the power to approbate
money for a purpose, and a power todothe act
or which it is appropriated: and if so, the authority
o appropriate money "for the general welfare" does
lot Dy fair construction extend the specified or inciIonta
1 nnwpr<j nf irnvpmmpnf ThiK In thp mcp nn_
ler consideration, if the power to make a road or dig
i canal is not given, tne power ol appropriating
noney cannot confer it, however generally it may
>e expressed. If there were no other limitation, the
ights of the respective States, over their soil and
erritory, .would operate as a restriction.
While this appears to be a safe as well as fair conduction
of the constitution, it is also that which
ias been practically given to it since the origin of
he government. Of this, the instances already menioned,
furnish some evidence, and it is apprehended
hat, upon the rigid principles of construction,
issertea both in regard to the enumeration of powers
md the appropriation of revenue, the acts of the fedeal
government, including all its branches, will exlibil
a continued series of violations ol the constiution,
from the first session after its adoption, to the
iresent day.
It would behove us to turn over the statute book
nd deliberately examine, how, upon these princiles,
the laws giving bounties to fishermen, encouaging
manufactures, establishing trading houses
rith tne Indians, erecting and constructing beacons^
iers, and light-houses, purchasing libraries, adornng
with paintings the cnamber of Congress, giving
har'ty to suffering foreigners, constructing roads
tirough the different States, and establishing banks,
an be reconciled to the provisions of the constituion.
If as has been remarked by high authority,
he constitutional question can be '"precluded by
epeated recognitions, under varied circumstances
if the validity" of the exercise of the power by Confess,
" in acts of the legislative, executive and judicial
branches of the government, accompanied by
ndications, in different modes, of a concurrence of
he general will of the nation," the advocates for
hese powers in the general government can find
ittle difficulty in supporting the pretension.
From all these considerations, your commitee
submit as their opinion, that Congress has
he constitutional power to construct roads and
:anals through the several States, with the assent of
he States, on such terms as may be agreed on, leaving
the jurisdictional rights in the Slates respectively,
ro these and other national improvements, which
nay be iound to be within the constitutional powers
if the government, they think it adviscable that the
interest of the government in the Bank of the U. S.
ihould be appropriated. They forbear to give greater
length to this report, by enlarging on the important
idvantages to be derived from these internal improvements.
They also forbear at this time to offer
the details ol any plan upon the subject, presuming
it most pro ler to obtain the sense of thg House of
Representatives, in the first instance, on the general
proposition. For this purpose they respectfully submit
the following resolution:
" Resolved, That in order to promote and give se:urity
to the internal commerce among the several
States; to facilitate the safe and expeditious transportation
of the mails, bv the improvement of post
roads, with the assent of the respective States, to
render more easy and less expensive, the means and
provisions necessary, tor the common defence, by
he construction of military roads, with the like aslent
of the respective States, and for such other intertal
improvements as may be within the constitutionII
- A
I al powerrsof the general geveronaeut.H is expedient ]
' that tbe sum to be paid to the United Stales, by the i
90th section of the act to incorporate the subscribers i
to tbe Bank of tbe United States and the dividends !
which shall arise froui their share* in its capital i
stock, be constituted as a lund for internal improve- l
jr.eut. i
* The message of the president, in 1814, returning i
the bank bill of that year. <
MH. MADISON'S VETO.
To Ike House of Representatives of the United States:
Having considered the bill this day presented to
me, entitled "an act to set apart and pledge certain
funds for internal improvements;" and which sets
apart and pledges funds, " for constructing roads
and canals, and improving the navigation of water
courses, in order to facilitate, promote aryl give security
to internal commerce among tqMMauatales,
and to render more easy and lesd IkvHjntbe
means and provisions for the com moo defence,"I pm
constrained, by the insuperable difficulty | feel in
reconciling the bill with the constitution of the United
States, to return it, with that objection, to the
House of Representatives, in which it oifginaled.
The Legislative powers, vested in Congress, are
specified and enumerated in the 8lh section of the
first article of the Constitution; and it does not apfear
that the power, proposed to be exerefsed by the
ill, is among tbe enumerated powers:; or that it
falls, by any just interpretation, within tnie power to
make laws necessary and proper for carrying tnto
execution those or other powers vested by the Constitution
in the government of the United States.
" The power to regulate commerce atnong the several
stales," cannot include a power to construct
roads and canals, and to improve the navigation of
water courses, in order to facilitate, promote and secure,
such a commerce, without a latitude of con
struction, departing trom me ordinary irnpori 01 me
terms, strengthened by the known inconveniences
which, doubtless, led to the grant of this remedial
poorer to Congress. -To refer the power, in question,
to the clause, "to provide for the common defence
and general welfare," would be'contrary to the
established and consistent rules of interpretation; as
rendering the special and careful enumeration of
powers, which follow the clause, nugatory and improper.
Such a view of the Constitution would
nave the effect of giving to Congress a general
power of Legislation, instead of the defined and limited
one hitherto understood to belong to them : the
terms "common defence and general welfare," embracing
every object and act within the purview of a
Legislative trust. It would have the effect of subjecting,
both the Constitution and laws of the several
states, in all cases not specifically exempted, to be
superseded by laws of Congress; it being expressly
declared; " that the Constitution of the United
States, and laws made in pursuance thereof shall be
the supreme law of the land, and the judges of every
state snail be bound thereby, any thing in the Constitution
or laws of any state to the contrary notwithstanding."
Such a view of the Constitution, finally,
would have the effect of excluding the Judical authority
of the United States from its participation in
guarding the boundary between toe Legislative
powers of the general and of the state governments ;
inasmuch as questions relating to the general welfare,
being questions of policy and expediency, are
unsusceptible of Judical cognizance and decision.
A restriction of the power " to provide for the
common defence and general welfare," to cases which
are to be provided lor by the expenditure of money,
would still leave within the Legislative power of
Congress all the great and most important measures
of government; money being the qrdinary and necessary
means of carrying them into execution.
If a general power to construct roads and canals,
and to improve the navigation of water courses,
with the train of powers incident thereto, be not possessed
by Congress, the assent of the slates, in the
mode provided by the bill, cannot confer the power.
The only cases in which the consent and cession of
particular states can extend the power of Congress
are those specified and provided for in the constitution.
I am not unaware of the great importance of roads
and canals, and the improved navigation of water
courses; and that a power in the National Legislature
to provide for them; might be exercised with
signal advantage to the general prosperity. But seeing
that such a power is not expressly given by the
Constitution; and believing it canndt be deduced
from any part of it, without an inadmissable latitude
of construction, and a reliance on insufficient precedents:
believing, also, that the permanent success
of the Constitution depends on a definite partition of
powers between the general and the state govern
men is, and that no adomate landmarks would bejgft
by the constructive Extension of the powers of Oih'
grtss, as proposed in the bill, I have no option but to
withhold my signature from it: cherishing the hope,
tbat its beneficial objects may be attained, by a resort
for the necessary powers, to the same wisdom
and virtue in the nation, which established the Constitution
in its actual form, and providently marked
put, in the instrument itself, a safe and practicable
mode of improving it, as experience mignt suggest.
JAMES MADISON.
March 3,1817.
TWENTY-FIFTH CONGRESS.
THIRD SESSION.
HOUSE OF REPRESENTATIVES.
Tuesday, Jan. 23, 1839.
On motion of Mr. FLETCHER, of Mass., the bill
for the relief of Winslow Lewis was taken up, read
a third time and passed.
On leave given, Mr. BR1GGS offered the following
resolution:
Resolved, That the Postmaster General be directed
to communicate to this House, on the earliest
convenient day of the next session, the distance of
mail routes established by law in the whole United
States, and the distance in each State and Territory,
the number of miles the mails may have been transported
in the United States, and in each of said
States and Territories, during the current year, the
average cost per mile, and the aggregate cost on the
same; the amount received for postage in each Slate
and Territory, and the whole amount paid to postmasters
for their services during the same period.
That he be also directed to report the whole number
of letters carried in the mail during said period
charged with postage, designating the number under
each denomination of postage, and the amount of
postage on each class, the amount charged on newspapers,
pamphlets, and periodicals, and the number
of free letters carried during said period.
That said Postmaster General be farther directed
to state what, in his opinion, would be the effect upon
the resources of the Department of establishing the
following tariff of postages on letters, viz:
On letters carried 80 miles and under, 5 cents;
over 80, and not exceeding 200 miles, 10 cents; over
200, and not exceeding 400 miles, 15 cents; over.
400 miles, 20 cents. And to state whatever other
tariff fixing the rates in federal money, having in
view the greatest reduction consistent with the nen/icoi
nr manno nf I h a Donn rtmanl if" onv nrnn 1A in
bis opinion, be more just tbhn the above.
- That he also state what alteration, if any, may be
, made in the present rates of postage on newspapers,
pamphlets, and periodicals, so as to promote the circulation
of information without detriment to the revenue
of the Department.
That he report ajplan for putting up and regulating
boxes in post offices in large towns.
And that he also be directed to submit a plan for
regulating the transmission of letters between this
and foreign count) ies.
Which resolution, after some conversation between
Mr. CONNOR and Mr. BRIGGS, was agreed
to.
REPORTS OP COMMITTEE8.
Mr. CAMBRELENG, from the Committee of
Ways and Means, reported a bill making appropriations
for preventing and suppressing Indian hostilities
for the year 1839.
Also, a bill to repeal the proviso to the second
section of an act, approved March 3, 1837, which
authorized the Secretary of the Treasury to compromise
the claims of the United States against certain
banks. ,
Also, Senate bill, supplementary to the act entitled
"An act to establish branches of the Mint of the
United States," approved March 3, 1835, with
amendments.
Mr. EVERETT, from the Committee on Indian
Affairs, reported a bill to provide for the location
and temporary support of the Seminole Indians removed
from Flprkla.
Mr. CAMBKEJjKInu-, irom me committee ot
Ways and Means, moved to correct an error in the
report heretofore made from that committee on the
state of the Treasury.
Mr. MERCER moved to lay the motion on the
table, but, alter some desultory consultation, withdrew
that motion.
Mr. EVERETT, of Vermont, said that he did not
consider the subject ol much consequence to himself.
He wished, however, to stand right before the country.
The statement, proposed to be stricken out, was
incorrect in two respects: 1st. It implied that he submitted
a motion to the consideration of the House
lor an appropriation. On a previous day he laid on
tha table an amendment containing an appropriation
which he gave notice of an intention to offer; but
which he did not offer in committee or in the House.
ur t '
U was not. therefore, correct to say that any proposj:ion
was not adopted. In the second place, h is amendment
was not for an appropriation in addition to the
#1,147,000; that sum was subsequtnUy reported to
ihe Committee on Indian Affaire. He had assented
to it, and after it was reported he neither made nor
advocated any additional appropriation.
Mr. BIDDLE moved to recommit the motic? to
correct the said report, together with the report itself,
to the said Committee of Wavs and Means,
with instructions to correct errors which may exist
in the said report.
A debate followed, in which Messrs. BIDDLE
CAMBRELENG, and PICKENS participated ?
When, the hour having elapsed, the Chair announced
the Orders of the Day.
APPROPRIATION BILLS.
On motion of Mr. CAMBRELENG, the House
resolved itself into Committee of the Whole on the
state ot the Union, (Mr. Banks, of Virginia, in the
Chair,) on the appropriation bills generally.
The committee took up the bill making appropriations
for the payment of revolutionary and other pensioners
of the United States for the year 1839.
And no amendment having been offered, the bill
was laid aside to be reported.
The committee then look up the bill making appropriations
for the protection of the Northern frontier
of the United Slates.
Mr. BELL did not rise to make any objection, but
simply to inquire of the chairman of the Committee
of Ways and Means how much money had heretofore
been appropriated for this purpose.
Mr. .CAMBRELENG was understood to say
somethicg over six hundred and twenty-nine thousand
dollars.
Mr. C. presented a letter from the Secretary of
War in reference to this appropriation, and explained
its contents to the House.
And, subsequently, on motion of Mr. BRONSON,
the letter was read.
Mr. FILLMORE inquired of the Chairman of the
Committee of Ways and Means (Mr. Caiubreleng)
by whom the appropriation in th's bill, for secretservice
money, as it was commonly called, was to
be expended 1 Who was to have the disposal
of ill
Mr. CAMBRELENG said it would be expended
under the direction of the President and Secretary
of War. Gen. Scott, he presumed, was the officer
to whom the disbursement would be intrusted.
Mr. FILLMORE said, it it was to be intrusted to
any subordinate officer, he should oppose it.
Mr. CAMBRELENG said that nothing of the kind
was pnnlPmnlfttPfl
Mr. R. GARLAND inquired whether the amount
intended to be appropriated in this bill was to be
found in the estimates furnished by the Secretary of
the Treasury at the opening of the session 1
Mr. CAhlBRELENG replied in the negative.
Mr. R. GARLAND said he had made this inquiry
with a view to call the attention of the House
to the manner in which appropriations were got up
in this House.
Mr. G. then alluded to certain remarks contained
in the Message of the President and in the report o 1
the Secretary of the Treasury, in relation to the excess
of appropriations orer the estimates, and to the
attempt which was made to draw a justification from
that fact for the extravagance of the appropriations.
Appropriations (Mr. G. said) were got up by means
of letters addressed from the various Departments to
the chairman of the Committee of Ways and Means;
and then, when the appropriations were made, the
House of Representatives was reproached for having
appropriated the public money to an amount exceeding
the estimates. In this manner the Administration
endeavored to shift from its own shoulders
the charges of extravagance which were made
against it.
Mr. CAMBRELENG explained that the estimates
furnished at the commencement of the session
were made out in pursuance of existing laws; but
that the estimates for extraordinary service (as in
the present instance) were "Hot then prepared, because
the Department had not received the information
necessary to their preparation; and thus it was
that they were not included in the ordinary estimates.
Mr. C. hoped the gentleman was not opposed tc
appropriations for the suppression of Indian hostilities
in Florida, for the prevention of a war with
Great Britain, or for the fulfilment of Indian treaties.
Mr. R. GARLAND said the chairman of the
Committee of Ways and Means had fallen into his
old plan of justifying the expenditures of the Administration.
He expresses a hope (continued Mr
G.) that I do not intend to oppose appropriations for
the several objects he has mentioned. I never have
done so, and I never expect to do so, and the gentleman
very well know* that I have never done so.?
But that is his coarse of policy. So soon m a member
attempts to show that the Administration is trying
to shift the responsibility of the extravagant expenditures
of the Government on this House, then
the gentleman rises and tells us of the necessity oi
the appropriation, and endeavors to cast upon all
those who dare to question the infallibility and the
economy of the Administration the odium of being
opposed to necessary and proper appropiations.?
But this will not excuse him and the Administration,
whose organ' he is.
I make no opposition to this particular appropria
LT tksnlr if na/iacoAvw and nrn.
fiuu. V/U IUC LlflUll ai J ) * Hilun IV uvvvooui j buu j/i w
per, and shall vote for it. I only wished to call the
attention of the House to the manner in which appropriations
are got up in this House.
And the bill was then laid aside to be reported.
INDIAN APPROPRIATION BILL.
The committee took up the bill making appropriations
for the current and contingent expenses oi the
Indian Deoartment, and for luliiiling treaty stipulations
with the various Indian tribes, for the year
1839.
Some conversation ensued between Messrs. ME
NEFLE and CAMBRELENG as to whether any
discrepancy existed between the estimates and the
actual amounts appropriated in the bill.
Mr. CAMBRELENG was understood to say that
he had not the report of the Secretary of the Treasury
before him, but that the amounts were nearly
the same.
Mr. MENEFEE expressed his determination hereafter
to see that the responsibility which belonged
properly to the Executive in relation to appropriations
should be duly insisted upon, and that the
amounts appropriated should correspond with the
estimates.
Mr. CAMBRELENG moved sundry additional
items of appropriation: which, after some conversation
between that gentleman and Mr. FILLMORE
were agreed to.
On motion of Mr. EVERETT, the bill was amended,
by striking out the item of $10,000 appropriated
for the survey of lands assigned to the Chocktaw
and Creek Indians we.-t of the Mississippi, (Mr. E
having explained that the Committee on Indian Affairs
had reported a bill on that subject.
Mr. GARLAND moved to strike out the follow
ing items:
" For the salary of one clerk in the office of the Governor
of Wisconsin Territory, who is ex-officio snper
intendent of Indian affairs, eight hundred dollars ;
" For the salary of one clerk in the office of the act
ing superintendent of the Western Territory, one thousand
dollara."
The motion was sustained by Messrs. POPE
BRONSON.and CAMBRELENG.
And, the question having been taken, the amend
ment was agreed to.
And the bill was then laid aside to be reported.
Pfir MA VAT. APPRftPBlATIftM HIT.I.
Next came op, and, on motion of Mr. CAMBRE
LENG, was amended by increasing the appropria
tion for miscellaneous items from $360,000 to $460,
000. The bill was then laid aside, and the commit
tee proceeded to consider the
ARMY APPROPRIATION BILL.
Several small amendments were proposed ant
agreed to; when
Mr. CALHOUN, of Massachusetts, inquired o
the Chairman of the Committee of Ways and Mean!
why the item " for the national armories," had beer
reduced to $300,000, inst'ead of being kept at $360,
000, as heretofore 1
Mr. CAMBRELENG replied that reductions hat
been made in every item not fixed by law, to roee
the exigencies of the Treasury, and this among thi
rest. If, however, the gentleman from Massachu
setts would consent to make a corresponding rednc
tion in the permanent annual appropriation of $200,
000 for arming the militia, he had no objection u
restoring the amount for arsenals to what it had beer
heretofore.
Mr. CALHOUN said he had found, on inquiry
at th^Department,that the arms for the imilitia were
all manufactured under private contracts. If any
reduction was to be made in this appropriation, il
must be effected in a separate bill; for a permanent
law could not be repealed by an appropriation bill.
The armories were now well supplied with skilful
hands, long trained to the business, and who had acquired
great skill in their employment. The reduction
proposed by the committee would cut off onesixth
of their number, and turn them and their /amilies
on the world. It was the worst and most shortsighted
jwl icy to throw away a mass of trained skill
in a difficult branch of art to meet a merely temporary
pressure on the Treasury. He forbore to make
any specific motion, hoping the Chairman would
himself see the propriety of keeping up tha appropriation
to its former standard.
m
Mi. CAMBRELENG not siguifyiug assent to this
suggestion.
Mr. MASON, of Virginia, moved to amend the H
item by adding fikiO.OOO. He supported the motion H
by a speech, in which, after urging similar reasons fl
lo those stated by the gentleman from Massachusetts,
he quoted a letter from the Secretary of War, in
which that officer said, that if any reduction should
be made in the appropriation for armories, it would
curtail the operations of those institutions, and greatly I
retard the supply of necessary arms, Ac. He also 1
suggested that the skill thus banished from our own I
establishments might seek employment abroad. I
Mr. LINCOLN warmly protested against the 9
idea of reducing the appropriation for the arming
of the militia. He stated that the militia wertrbot, as
matters now stood, one-twentieth part supplied with
necessary arms, and the amount ought rather to be i
augmented than diminished. The arming of the i
militia was a trust confided by the Constitution e*- 1
clusively to Congress. And though the arms were 9
fnim nrlvata fnftnriPK that WM DO rmOB "
lUIinoiitu i . .?v.? ,
it would be politic to reduce the appropriation, for
skill in those establishments was as valuable to the *
country at large as if it existed in the public armories.
All the mechanics of the country acquainted
with this branch of woik could not, incase of au
emergency, supply the militia with arms for a sin- J
gle month.
Mr. PETRIKEN opposed the amendment, but his
remarks were not heard by the reporter.
Mr. PRATT was understood to advocate it, but
he was still more imperfectly heard.
Mr. W. C. JOHNSON advocated the amendment, {
dwell on the flourishing state of the public armories,
' the unequalled excellence of the arms they furnished,
the system pursued, the admission by foreigners
that our muskets were the best in the world, dfcc.,
and expressed his regret at the idea of turning off
workmen who had been taught and trained in these
institutions from theit boyhood.
Mr. WILLIAMS, 01 North Carolina, strongly
opposed the amendment, and was glad the committee
thought it proper to retrenoh in any department
of the public expenditure. Their good intentions <
ought to be met, and not thwarted. 1
* Mr. MERCER adverted to the origin oi the pro- I
vision for arming the militia by the General Gov- J
ernment as having first been contained in a bill in- V
troductd by Mr. Randolph, of Virginia. He re
ferred to the great want of arms in the last war, and I
to the fact that a detachment of 4,000 Virginia troops <
were forced to march without any muskets. He
scouted the idea of reducing, in this" branch of expenditure.
The appropriation, instead of standing at ]
two hundred thousand dollars annually, ought rath- j
er to be augmented to a million. No nation in the
world was so niggardly on the subject of famishing '
arms for the national defence.
Mr. CALHOUN briefly replied: when the question
being put on the amendment, the ayes were 55,
the noes 42 ; and, on repeated trials, the committee
was found to be without a quorum.
They thereupon rose and reported that fact to the - |
House, which, aAer an ineffectual motion lor a call,
adjourned. > I
IN SENATE,
Wednesday, Jan. 30. J
Mr. BENTON'S resolution!, calling for information
as to the deficit there would have been in the Treasury,
Erovided Mr. Clay's land bill had passed, at the time the
ill was vetoed by General Jackson. The yeas and nays >
were ordered upon the resolution, and the result was : 1
Ayes 29, noes 1, as follows :
. YEAS?'Allen, Benton, Buchanan, Clay, of Ala., .
Clayton, Davis, Fulton, Hubbard, King, Knight, Linn, I
Lumpkin, Lyon, Merrick, Morris, Nicholas, Ndes, Nor- ?
veil, Pierce, Rives, Roane, Robbina, Robinson, Rug- 9
Sles, Sevier, Smith, of Conn., Southard, Spence, I
trange, Swift, Talliradge, Tipton, Webster, White, m
Williams, of Me., Williams, of Mi., Wright, Young? I
NAY?Smith, of Indiana?1. ?
Mr. BENTON submitted an account of the number ??
of lives lost in the military service of Florida. The fl
papers were ordered to be printed. j
The Senate went into Executive aeaaion during the 1
morning hour. The session was short, and the business
was resumed after a few moments. I
At one o'clock, the Senate having considered some 1
private business, took up the bill for repealing the duties I
on salt, and for abolishing the fishing bounties. 1
Mr. RUGGLES, of Maine, spoke at some length J
upon the merits of the Bill, and in reply to Mr. Ben- I
ton. He thought that the Senator from Missouri had I
some secret motive in pressing forward this Bill, at A
this late period of the session. He considered the
time ill-timed, and the object bad. ^A
Mr. RUGGLES woke for an boar or more, wheft . -kJM
Mr. SOUTHARD spoke in opposition tothe Bill, ,
and carefully went into the merits of the question. jS
} HOUSE OF REPRESENTATIVES. fl
I Wednesday, Jan. 30.
i The SPEAKER laid before the House the fol- ?
> lowing letter, which was laid on the table and ordered
to be printed. S
House of Representatives, h
January 30, 1839. 9
Dear Sir : I have this day forwarded to the Go- 9
venor of Pennsylvania, my resignation as one of the fl
Representatives from that State in the present Con- n
gress of the United Slates, which I respectfully re
quest you to communicate to the House.
I have the honor to remain, q
With great respect, j
Your obe'nt ser'vt, fl
EDW. B. HUBLEY. 1
To the Honorable James K. Polk,
Speaker of the House of Representatives.
On motion of Mr. HAYNES, the House resolved
itself into a Committee of the Whole on the state of
the Union, and resumed the consideration of the
1 President's Annual Message. The question pending,
was on the resolution of Mr. Haynes; referring
the various topics in the message, to appropriate Committees.
The subject immediately before the committee,
was that part of the message which relates tothe decision
of the Supreme Court in the case of Stockton
and Stokes, versus the Postmaster General.
Mr. CRARY, being entitled to the floor, resumed
1 his remarks, in reply to the speeches of Messrs. Ma1
son and Bell, on a former day.
Mr. CLARK, of N. Y., replied, and in the course
1 of his remarks, made some very severe allusions to
the slanders uttered by the Administration party
i against the Conservatives.
IN SENATE,
Thursday, Jan. 31.
Mr. SMITH, of Indiana, presented a petition,
numerously sigifed by citizens of Evansville, Indi- 4
ana nravinc Congress to establish a hospital at that |
place. I
The petition shows the fitness of Evansville as a 1
point for a hospital, for the benefit of the commerce i
of the States of Illinois and Indiana, in a striking
light. It states that over 20,000 persons annually -I
land at that point, from the Ohio river, who reside
in those States; that at least 2,000 flat-beats go ont of
the Wabash and While rivers, laden with produce
for the lower markets, annually: that the number
, is rapidly increasing; that two-thirds of the hands
from these boats land, on their return, at ivat place,
many of them bringing diseases from (New Orleans,
and other places, which render them unable
to proceed to their homes. W
Mr. S. said, on his motion, Evansville had been in- i
serted in the resolution of inquiry on this subject.?
He was well satisfied of the necessity of a hospital
at that point. He asked that the petition might be
referred to the committee to whicn that resolution
was directed. The petition was so referred.
Mr. Smith also presented a joint resolution of the
General Assembly of Indiana, praying aid in the
1 construction qf the New Albany and Mount Carmel
Railroad ; which, on his motion, was ordered to be
f printed.
g Memorials and petitions wore further presented,
l viz.:
By Mr. SEVIER: Resolutions of the Legislature
of Arkansas, in relatioh to the establishment of the
1 line between Texas and our Government. Also, for
t an appropriation for completing the improvement of
s the river Arkansas. Also, for completing the road
from Memphis to Little Rock, in saia State.
By Mr. STRANGE: From citizena of Wilmington,
North Carolina, asking a light-house be)
tween Cape Fear and Campbell island,
i By Mr. MERRICK: From the Friendship Fire
Company of Alexandria, asking Congress to furnish
r apparatus for the use of said company.
Bv Mr PRESTON : From William Stalker.
3 _ . ? ,, irr.'li: O A ,lnm. anA
' By Mr DAVI3: f rum n mmm v. ??*
t others, citizens of Marblehead, Mass., asking for the
' ^Bv Mr? C^LAY: From Doctor E. Theller.
I ' Mr. CLAY, having briefly stated the import of
the petition, remarked, in effect, that he wonld not
now call in question the right of Great Britain to
condemn and punish for treason any individual
, found in rebellion against her authority within her
territory ; but this petitioner stated that he had been
condemned on the express ground that he was only
a naturalixcd citizen of the United States, and was
a native ot the British dominions; and he further
staled that he would hava been executed under this
sentence, if he had not escaped from his prison in
Qnebec.