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Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, February 13, 1824, Image 2

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who arc 1ri» ndly to this hill to answer and shew
sq here 1 tun wrong ; if this government can unit
in two eases acquire right ofvwV and juris l i< lion
a national view, what becomes of the power
now daimod to wake roads and caitals, and to
e\- * ise legislative, executive, and judicial au
thority, in their national, sovereign character.—
llc.i 'js, how would you execute this power a
gainst the consent of the state government*/
You would he compelled to condemn ilio land
and pay for it, or take it by force, and he a ju igo
iu your own case, of its value, contrary to eve
ry principle of justice and right. If you resort
to writs of ad quod damnum, the juries iu this
respective st it •$ would fix so high a value, as
to defeat the exercise of (he power. Hut, it is
Said, that all that is claimed, is a right to make
and preserve the road, and have u right of way ;
but, suppose the road is injured, bow is the
trespass to iu; punished. Tec slate will not do
it, the road is nut theirs, and was made contrary
to their consent. They can lot punish fora vi
olation ol Federal laws. Who is prosecute and
punish! The General Government. And for
tliis purpose you will be forced to send into the
states your judicial and ministerial officers, and
to plant on these oue hundred thousan I miles of
road, mdividuals who may set at nought all
etalc law’s and slate policy. iVor can the state
governments punish for the higher off mces—of
murder, or any other crime committed on a
road, over which the General (luverirncnt have
exclusive jurisdiction. Such now is the law, as
to forts, dock-yards, &c. and such, Mr. S. said,
must he the case, if the power now claimed can
be sustained. There were important reasons
why the Constitution so cautiously guarded a
gninst exclusive jurisdiction, even as to forts
and dock-yards. It was to protect the territo
rial rights of the state governments. Can it be
believed, that in such cases it would roquire the
assent of a state to give jurisdiction as to a mis
erable fort or dock yard, and yet leave them at
the mercy of this government, in relation to this
important and sweeping power? Mr. S. said
h • thought not. Again, would the authors of
■the Federalist have viewed this power to estab
lish roads as such a “ hannlcss one,” unworthy
of discussion, if they had suppose 1 that it con
veyed such powers as are now claimed under it.
>> ouia me aoie anti cnlig:iiene<l men who oppo
sed this Constitution in the respective state con
ventions, have permitted it to pass without ob
jection, when other powers, comparatively
small, were seized on, and widded with the most
gigantic power, against the adoption of the
Constitution. Do you imagine Mr. Chairman,
said Mr. S. that if the whole power of Internal
Improvement was intended to bo given to this
g n-'-mment, by this clause, that the acuteness
of such men as Patrick Floury and Ceorge .Ma
son, would not have detect ;d, and the thunder j
of their eloquence denounced it? Hut how]
was it considered ? In no other light than as a !
harmless and unimportant power. Is it then
fair Jo push the terms of a grant against the
plain intention of the parties to it ? I» it just?
Is it honest? Hut how was this power viewed
in the early stages of our government. Only as
a right to designate, adopt, and mark out, post
roads. When the first law passed, after the a
doption of the Constitution, what were its provi
sions ? That all the post routes which had been j
established by the Post nastcr, theretofore, !
should be confirmed. Had iie made, erected, or J
constructed, auv roads? Hal he power to do
so? No, he had only desig nled them, and the
word establish was used i t reference to roads ]
which had been designated and marked out as
post routes, [.lore .Mr. S. real parts of the!
old Post. OtTice law.]
Hook, said -Mr. S. to the pamplUets, essays,
and newspapers, of those time3; to the argu
ments and discussions at the time the Constitu
tion was under considerat ion; to the opinions
expre*?e.i by its friends and foes; an ! see if a
lent can be found, of such an interpretation as
is now attempted to lie given. No, sir, (save in
the convention of New York,) 1 think 1 may
say, with safety, that no such thing can lie found,
and even there the case was supposed as going
■jo shew the evils of construction which might be
resorted to under the eon,:itul'.on.
There was, Mr. S. said, another an 1 high au
thority against the co.iseq lenovs of this doctrine
of the gentleman from Kentucky, (.-Mr. Clay.)
and that was hi nstdf. Trie power to make
r rids and canals, gives, he says, incidentally,
the power to incur .urate, companies, to accom
plish that end. in other words, the incorpora
tion of companies may be resorted to as a mean
of executing the power to make roo ts and ca
nals. In PJi I, the Hon. Speaker was a mem
ber oi the Senate of the United States, and de
livered a very able argument against the bill to
re-charter the U. States Hank. .Mr. S. '.ad,he
would beg leave to read an extract fr >:n the
speech, which was then before him : “ ’The pow
er to eJi i.rfcr companies, is not specified in the
grant, an l J ro i'r vl is of a nature not transfer
ruble hy implication. It is one of the most rrd
le l attributes of sovereignty. In the exercise of
this power, we have seen an East Indi i Com
pany created, which has carried dismay, desola
tion. an! death, throughout one of the largest
portions of the world. Under the influence of
this power, we have seen arise a South Sea
Company and a Mississipi Company, that dis
tracted and convulsed all Europe, and menaced
a total overthrow of all credit a- ! t mfidence,
ami universal bankruptcy. Is it to be imagined
that a power so vast would have been left l>y
the wisdom of the constitution to doubtful in
ference. T" « All corporatians enjoy exclusive
privileges. That is, the corporators have privi
leges which no others possess, and if you create
fifty corporations, instead of one, vou have only
liny privileged bodies, instead of one. I con
ten 1, that the States have (tic exclusive power
to regulate contracts, to declare the capacities
snil incapacities to contract, and to provide as
to th-* extent of responsibility of debtors to their
-creditors. If Congress have the power to erect
sin artificial body, and siy it shall be endowed
with die attributes of an individual, if yon bes
tow on this object of your creation the ability to
contract, may you not also, in contravr atiun of
®b\tr rights, confer upon slaves, infants, and
Join-: c jverts, the ability to contract
Sir, sail . '7r. S. I claim the benefit of this
argument; and if, in 1311, tve bad no power to
fci'i i1 incorporations, have we such a power at
tim t: rie? If Ilian it was unconstitutional, is it
ji-u i > now > The imn-fitution cannot shift and
cba.ig - with circrustancjs and our notions of
expediency. What was unconstitutional on
yc.t will he sj to-lav, .tu-murrow, and
fl*iever, until the constitution is amended. J
confess. Sir, f am an iufidel to this ductrinc of
cons'itaH.o it* c..rp°rfiericy, l4rt ns not, said .Mr.
H. sup >lv, by implication, t.ut which the con
vention hired nut to express. f4rt us not, .Mr.
Chair nan, I he? van, ascertain the powers of
this Government, by our opinions of nrct-.nnUii & j
r/wirefon. -Let. us not ac* the part of «‘Cam-|
hvscsM i" ’ *,», v'io, when their approbation was J
demanded hy the Prince. to some illegal mm
sure, said, though there was a >crift*n law, yet
the Persian kings might follow their own will
and pleasure.” f>rt it not be said that, with a
wri't jn const it uti no. we luve the right to do
wh it to please, an 1 that th 1 legislative power '
of this Govern nent is extending, on everv occa-'
rion, the sphere of its activity, and drawing all
|/;>wc-3 int»its impetuous verb x.
. Mr, S. s.nd, that the Government had gone
on for t j years in exercising the power under
the F’.ist' 1 Tier clause beneficially au 1 salisfacto
rilv to tiie people, and in th » way it was into*!
e I r>y ; he wise ;n n who formed the constitution.
The great objects (which the .Speaker lias so
much at heart,) vf distributing civil, rommor
ciul, litery. and social intelligence, had been ac
complished, without the assertion or assumption
of the power which was n«*w claimed. And JWr.
8. said, that he saw no reason for abandoning a
sys'om which had, both in war and j>eace, been
producti ve of so much benefit to the people and
peace between the two Governments.
1 will now proceed, said .lfr. 8. to the argn
i moots urged on yesterday, by my friend train
I Delaware, (,Vr. JfeLane,) for whose judgment
j and opinions I entertain such high respect, that,
! when 1 differ with him upon any subject, 1 am
j induced to doubt the correctness of mv own
j opinion, and to evamine it with more than or
dinary care. He had done so in the present
case, and the result of his deliberate and best
; judgment had produced no change.
I The gentleman from Delaware considered
the power of making Internal Improvements, as
resulting from that clause in the constitution
which gives Congress authority to regulate
commerce with foreign nations, and among the
several States.
Jl/r. 8. said that he would attempt to show
that tliis clause gave no such power.
This power to regulate commerce, the gcntle
manfrom Delaware contends,gives, not only the
authority to cut canals and make roads, but to
do every thing which shall tend to facilitate and
advance the commerce of the country; ren ter
it effectual-and carry it on. The object of giv
ing this power to the General Government, he
j argued, was not, as had been supposed, to pre
I vent the imposition of duties, &c. by the State
1 Governments, because the constitution contain
ed a direct prohibition U|ion the States from lay
ing any imposts or duties on imports or experts.
He contended, therefore, that the right of regu
lating commerce must have been given for the
purposes which lie supposed, or the power would
be dormant and inoperative. This argument,
Mr. 8. said, was ingenious, but fallacious. It
was true that the constitution did contain the di
rect prohibition which the gent leinan had alluded
| to, )m< it did not prove that the main object in
giving the power to regulate commerce between
the States, was not to protect the States from the
impositions of duties, &c. by each other.
It would bo remarked, Mr. S. said, that the
power to regulate commerce was an a ffirmative
grant to the General Government, (among
many others,) in the fllh section of the 1st arti
cle oftlie^constitution. This power was not by
tlie express words of the grant, exclusive, and
therefore the States retain, for some purposes,
concurrent power, as to commerce, within their
own jurisdictions. To prevent, however, any
difficulty as to concurrent powers between the1
two Governments, on tiie subject of duties life. :
tlie prohibition upon tlie States, as to duties, kc. '
was, in abundant caution, inserted. This pro
hibition is found in the 10th section, whicn con
tains a general negation of powers as to both
Mr S. said, that this was the case with many
other powers—take, for iustanc .', that to “coin
money,” or grant “letters of marque and repri
sal.” These powers are given to Congress in the
8th section. Yet, the tenth section declares,
that “no state shall coin money, or grant lettesr
of marque and reprisal.” It was done to show
that there was no concurrent p.;wer remaining
with the Slates, as to these particular subjects.
There was nothing then, Mr. S. said,
in tlie constitution, which forbi 1 the idea, that
this power of regulating commerce was mainly
intended to prohibit the State fr mi laying duties
and lettering the commerce of the Union, by im
provident restrictions audstaie regulations. He
would endeavour to shew to the Committee,
he fore lie -at down, that this was the great mov
ing consideration, in giving the power to tlie
General Government to “regulate commerce be
tween the Slates.” In doing this, lie said it would
he : * ocssary to have recourse to the existing cir
cumstances under which the constitution was
formed, to the evils in ten tv,! to be guarded a
gaiust, and the good L) he obtained. Before the
adoption of the constitution, .Mr. 8. said, there
was a strong and deep impression of the 'incon
venienccs experienced under the confederation.
!n relation to our foreign and internal commerce,
innumerable obstructions were thrown in the
way by the State Governments. The want of
concert and clashing and dissimilar views in the
States, called loudly for some remedy. He beged
leave to refer the > omrniftce to the first proceed
ings of the Government which took place upon
this subject of regulating commerce. As early
as tlie year 1778, Now Jersey came forward and
made a strong representation to Congress, object
I itig to the 6th and 9th articles of the confedera
tion, which gave to the States the power of re
gulating commerce, and urging the reasons and
propriety of vesting in Congress the power of rc
gulaling the trade of the United States, This
proposition was considered and rejected by a
vote of Leo to one. In Feb. 1781, the subject
was renewed, and, again the proposition made
to invest Congress witli the right of regulating
commerce, duties, kc. and was again rejected,
fnthecominencementof the year 1783, acommit
teo, consisting of, Vr. .Vadison, >/r. Ellsworth,
and • Tr. Hamilton, were appointed to prepare
I nnadress to the states, pointing out the defects
in the Confederation, and urging the propriety
of giving to congress the regulation of commerce,
kc.—This was done, and a very able address
was presented, and adopted by Congress on the
26th April, 1783, [parts of which .Mr. S. read.]
From that period till January, 1785, the sub
ject was repeatedly before Congress, and the
state governments, but nothing definitive was
done. In July, 1785, n committee, consisting
of JVfessjs. Jl/onroe, Spaight, Houston, and King,
made a very able report in favor of giving Con
gress tlie power of regulating tlie commerce of
the United States, whicli was considered bvCon
press, hut not adopted, it being deemed
most advisable that all propositions for perfecting1
the articles o> Confederation should originate
with the states. On the 30th of November 1735,
Mr. .Vaditon brought forward, in the House of
Delegates of Virginia, a resolution, empowering
Congress to regulate trade, Sic. with a pream
ble stating the reasons why it ought to be done,
[extracts from which . Vr. S. read.] This pro
position was adopted ; but. the vote was after
j wards reconsidered, and the report laid on the
fable. In lieu of those resolutions, one was .1
dopted by Virginia, proposing a convention from
the different states, to consider of rneasu> s ne
cessary to enable Congress to regulate trade.
iN'ew York, New Jersey, Pennsylvania, Dela
ware, and Virginia, appointed commissioners,
and, on the 11 th of September, 1785, they met
nl Annapolis, in Maryland. A report upon the
subject of remedying the defects of the Confed
eration was made and adopted. I11 1787, Con
gress recommended -(convention toadopta Fed
eral Cof.'stilnlion; and, in Sept. 1787, it was
received, and submitted to the states for ratifi
These, Vr. Chairman, (said Vr. Stevenson,)
were the proceedings which produced and lc<l to
the formation and: (.(doption ofthe present Constitu
tion of the United States, and I beg gentlemen
to examine these various reports, resolutions,|and
proceedings, and they will be satisfied that the
power now claimed tv regulate commerce be
tween the states, was no.* intended to go farther
than to place all the states upon an erputlity in a
fre ; and uninterrupted intercourse. That this
wa« tic; great and Icadisgobyect ofthe immediate
fanners of the Constitution aud the understand
ing ofthe people, Mr. Stevenson said, he would
he .Pile to satisfy the committee by other high
authority, He meant to test the d**cfrinos now
advanced by those of the enlightened advocate*
>f the constitution at the immediate time of it*
sdoption. H-; alluded particularly to the writ
nS* rin'’ opinions, of Mr. JVadiaon, ani Mr.
Hamilton, to whose abilities the establishment of
Iho constitution was much sttributed. In the first
volume of the; federalist, vVr. Jiadison says,
“ The defect of power in the existing confederacy
11 to regulate commerce between the states, has
“ been already pointod out by experience. It
“ may lie added that, without this supplemental
“ provissiou, llie great and essential power of re
“gulating foreign commerce would have been
“ incomplete and incfTectual. A material object
“ of this power was a relief of the atases which
“ex port and import through other states, from the
“ improper contributions levied on them by the
“ latter. Were these at liberty to regulate, the
“ trade between state and state, it mast be foreseen
“that ways would befoun ! out to loud the articles
“ of import and export, during the passage fh rough
“theirjurisdiction, rcilh duties, which would fall
“ on the makers of the latter, ami Ihc consumer
“>f the former. We may be assured, by past
“experience, that such a practice would bo in
troduced by future contrivances: and both hv
“ that, and a common knowledge of huinau at
“ fairs, that it would nourish unceasing animosi
“ ties, and not improbably terminate in serious
“ interruptions of the public peace." JMr. Jlam
“ ilton, in the same volume, in |N>inting out the
advantages and objects of this j>owcr, is equally
strong. “The interfering and unneighborly rc
“ gulr,lions ofsome slates, contrary loh'ie true sjii
“ rit (f the Union, have, in different instances, giv
“en just cause of umbrage and complaint to o
“ thers; aud it is to he feared that thecxainplesof
“ this nature, if not restrained by a national
“ control, would be multiplied and extended till
“ they become not less serious sources of animosi- t
“ ty and discord, than injurious impediments to J
“ the intercourse between different parts of the I
“ confederacy. The commerce of the German
“ Empire is in continual trammel! from the mul
“ tiplicity of the duties which the several princes j
“ and states exact upon the merchandises pas- !
“sing through their territories, by which the
“fine streams and navigable rivers, with which
“ Germany is so happily watered, arc rendered ,
“ almost useless.—Though the genius of the '
“ people of America might never permifthis dcs-1
“ cription to be strictly applicable to them, vet i
“ we may reasonably expect, from the gradual
“ con-Iids (f state. regulations, that the c itizens of
“ each would at length come to be considered and
“treated by the others in no better light than
“that of foreigners and aliens.” In the con
vention of Virginia, when this clause to “re
gulate commerce between the states,” was un
de-consideration, Mr. Madison said, “.dll a
g.oe that the General Government ought to
have power for the regulation of commerce. It
will be a principal object to guard against smug
gling, and such other attacks on the revenue, n«
other nations arc subject to. We are now ob
liged not only jto defend against those lawless
attempts, but, from the interfering regulations
of different states, with little success. There are
regulations im different states which arc unfavor
able to the inhabitants of other states, and which
militate against the revenue.—New York levies I
money from New Jersey by her imposts. In New !
Jersey instead of co-operating with New York,
the legislature fovors violations on her regula
tions.—This will not be the case when uniform
regulations will be made.”
Grayson, (who was second only to Patrick
Henry in the bold stand, made in Virginia, a
gainst the constiution, from fear and jealousy of
the powers of the General Govern
ment, and especially those derivable by im
plication,) said “that he was willing to give the
general Government the. regulation of trade,
as it would be serviceable in regulating thetr id
among the states.” This is all that was said iu
the convention of Virginia upon the subject of
regulating commerce between the states.
Again, Mr. Stevenson said, the Articles of
Confederation contained this term “regulate,”
in relation to other things. Congress had the
power of “regulating” the value of coin struck
by the respective state governments. The sense
in which itwa.nsed here was obvious and limited.
A similarity in the use of the rorno phrase in the
two charters, might, therefore, justly be consid
ered as rendering the meaiiing les3 liable to he
misconstrued in the latter instrument. If the
meaning of thi word “reguhde,” therefore, was
used in a limited and restricted sense in the in
strument revised and remodelled, it cannot be
supposed that, when it is copied into the present
constitution, a different and more enlarged mean- j
ing ought to be attached to it. [Here, Mr. Ste
venson referred lo the report in the Virginia
Legislature, of \)8 and ’99, as to the rule of con
Now, Mr. Chairman, said Mr. S. I appeal to
every candid and unprejudiced mind, and ask,
whether the motives and objects in giving this
power to regulate commerce between the States,
were not (hose pointed out in the extracts and
speeches which I have referred to.
If it was intended, as mv friend from Dela
ware supposes, to give the power, (under the
term regulate commerce) “ facilitate,” “ carry
on,” cut canals, make roads, &c. (besides the
othrr powers of jurisdiction, Sic. which I have
pointed out in the first point of my argument on
thcsuhjectof reads.) would not some of the friends
ofthc constitution have urged them in vindication
of the power, or its foes have seized on them for the
purpose of object ion and denunciation. Lo fany
candid man, Mr. S. said, read the proceedings to
which I have referred, and the debates in the
•■state conventions, compare the chn.raete.r of the
power now claimed with others which were seiz
ed on, a* strong grounds of objection, and sav
whether, if it had then been known or suspected
that such a power was given or intended to bo
granted, the constitution would have been adopt
ed. Mr. S. said in his own .State, the constitu
tion was carried by a majority of only ten votes.
If the rules of interpretation and construction of!
the present day, had then existed, it would not i
have received, he believed, ten votes in its fa
Surely, then, such a cotemporancotis exposi
tion of the meaning <nd objects of the Constitu
tion, ought not to he disregarded.
Vlr. S. said, that this word * regulate’ was
pushed by his friend from Delaware, beyond its
fair and legitimate meaning. He did not mean
to quibble about words, but its meaning ought to
be limited. He would illustrate bv a familiar
case: The Speaker of this House has jHuver to
“regulate thi* Util.” What is the meaning of
this rule? That he shall have it kept open for
ingress and regress of the members—and made
comfortable for the purposes of legislation.
But, can he pull down the columns, or change
the shane or construction of the room, without
our consent ? It would not be pretended. So,
in the case of regulating commerce. This
government may he considered as the friendly
third power to decide between the states—not to
participate herself, but with the power to regu
late the manner in which it shall be carried on.
She stands as the umpire, to secure a free inter
change upon principles <f equality, between the
States of the South and the North, the East and
the 'Vest—to ensure to each an uninterrupted
and unfettered intercourse—to protect each
state from fraudulent and unequal prohibitions,
whilst carrying on trade through the jurisdictions
of one another—to prevent smuggling—regulate
the conduct of seamen—establishing ports—fix
on places of lading and unlading, as might he
most, convenient for the merchant, on the one'
hand, and for the effectual collection of the Re
venue on the other AII these objects, and many
others of like character, fall within the power, of
‘ regulating commerce.’ Again. If we have
the power, under this word * regulate,’ to do
every thing which shall facilitate commerce—.
f we cannot otily regulate, but '* tarry it on,’
why may not the government, build ships at the
expense of the natiflo, for thr purpose of trans
porting commodities to and from one port to ano
ther, especially where small ports may be too
poor to build vessels to transport their products ?
Why may we not legislate upon the subjects of
bills of exchange and promissory notes ? Whole
some laws and regulations, in relation to these
objects might facilitate and aid commerce and
trade between the states ? Why not, too, in
corporate agricultural, manufacturing,and com
mercial companies ? These may be subservient
and useful m relation to our commerce, aud
would tend to facilitate and fost.'r it. But,
would such powers be tolerated in this govern
ment, or even claimed by the warmest advocates
of this hill? Against this power of the general
government, to make internal improvements by
means of roads and canals, under any part of
the Constitution, Mr. S. said, he would bring
the sanction of a high name in the armals of
our Political 11istory—the authority of a man,
whose principles liud been as uniformly stead
fast as republican, and whose virtues were as
pure as his genious was splendid—a man who
had justly been considered as the “ Apostle of
Liberty.” It was unnecessary to say that he al
luded to Thomas Jefferson. In his message to
Congress in 1C0G lie denies, in terms, the power
iu this government to execute a system of inter
nal improvement by roads and canals, and re
commends an amendment of the Constitution in
t his’rcspcct.
[HereMr. S. real Extracts from the Mes
I deny, then, (said Jtfr. S.) any power in this
government, under the clause to “ regulate
commerce among the states,” to make roads aud
canals in any part of this Union.
Jl/r. S. said, he had intended to have gone at
large into an cx-uninatiou of a third source from
which this power, lie knew, was claimed by
sotneof the friends of the bill, (though not by
the Speaker an I the gentleman from Delaware,)
and tlial was the “ power of unlimited appropri
ation of money.” But lie was sensible that he
was trespassing too long upon the attention of
the Committee, who had so kindly attended to
him throughout the discussion, and he would
therefore, content himself, with a few general
This doctrine of unlimited appropriation by
this government, ol the nation, was first asserted
by „Ur. Hamilton, whilst Secretary of the Trea
sury, in the year 1791. In his report of the 5lh of
December, 1791, he maintained that it belonged
to the discretion of the National Legislature to
“ pronounce upon the objects which concern the
general welfare, and to .appropriate the money of
the Union to whatever concerns “thegeneral in
terests of learning, of agriculture, of manufac
tures, and of commerce
If, said .Ur. S. you have this power of the
purse unlimited, you destroy the effect of any
particular enumeration of powers in the Consti
tution. The effect is precisely the same as if
the Constitution authorized every measure.—
There was not a [lower which might not have
some reference to the common defence and gen
eral welfare, no» one of any magnitude, which,
in exercise, did not embrace an appropriation
of money. Any government, therefore, which
possessed cither the power of legislating for
the public welfare, or the right of appropriating,
at pleasure, the public money, was, in effect,
absolute and unlimited.
Sir, said .Ur. S. in our general system of Po
litical Economy, having for its object the nation
al welfare, every thing is related immediately or
remotely, to every other thing, and, consequent
ly, a power over any one thing, if not limited bv
some obvious and precise a ffinity, may amount to
a power over every other thing—ends and means
may be made to change their character, at the
will oflcgislative ingenuity, and what was in
tended as an end, in one case* may become means
in another.
Wc know, from experience, how easily this
can be done. The: British Parliament found no
difficulty, when collecting a revenue from the
commerce of America, in calling it a tax for the
regulation of commerce, ora regulation of trade,
with an eve to tax.
It is conceded that this government may tax
without limit; but then comes the enumeration
of the eases to which its powers shall extend.—
You may apply the money to the common de
fence and general welfare, but it must be in ap
plication to some particular measure, pointed
out and authorized by the constitution. Sir,
the question ought to be, when money is about
to be applied to any specific measure, is it in
the enumerated powers of the Constitution ; or
is it fairly incident to any of those enumerated ?
If so, it is right—lf not, it is wrong. Therefore,
the Constitution wisely provi les that no money
shall be drawn from the Treasuay, but by appro
priations of law. It is immaterial, Jl/r. S. said
whether unlimited powers be exercised under
the name of unlimited powers, or under that of
unlimited means, in^carrying a limited power
into execution. A government may be limited
in its sovereignty, with respect to its means, as
well as to its objects of power, and to give an
extent to means, is to make it unlimited. And
here, Jl/r. S. said, he would take occasion, be
fore he concluded, to offer one or two remarks
upon the subject of “ implied or incidental pow
ers ,* on which so much had been said. He did
not deny, nor did his colleague, (Jl/r. Barbour,)
as some gentlemen !*ad supposed, that this go
vernment did possess some powers of this charac
ter. Indeed, without them, he was willing to
admit, the government could not get along. But
they must be “fairly incident* to some epnme
rated power, given by the Constitution. It was
a clear principle, ,Mr. S. said, of universal law—
of the law of nature—nations—of the common
law—and of reason, that the general grant of
power carries with it the means which are ne
cessary to the fair execution of the power. But
it must be those means and those only, which arc
Vattel says—“Since a nation is obliged to
preserve itself, it has a right to every thing ne
cessary for its preservation ; for the law of na
ture gives us a right to every thing, without
which we could not fulfil an obligation; other
wise it would oblige us to do impossibilities, or
rather contradict itself in prescribing a duty,
and prohibiting,at the same time, (lie rm/y means
of fulfilling it.” So, too, he tells us, that “ if a
man grant to our his house, and to another his
garden, the only entry into which, is through
the house, the right of going through the house
passes as an incident ; for it would he absurd to
give a garden to a rnan, into which he could not
enter.” Again, Vattel says—“ The grant of a
passage for troops includes every thing connec
ted with the passsce, and, without which, it
would not be practicable, as exercising military
discipline, buying provisions,” kc.
There was, Mr. S. said, in these examples,
an entire coincidence with the principles of the
common law. In all, the incidental power is
limited to what is necessary, and not to unlimited
discretion and will.
The common law tell us “that,when one
grants a thing, he grants, also, that, without
which the grant cannot have effect.”'—(Knivct’s
case, in Coke.) So, (according to Blackstone,)
aright of way, arises on the same principle of
necessity, by force of law ; as if a man grants
me a piece of land in the middle of his field, he
tacitly and implicitly gives me a right to come at
it. And Coke says, that, when the law giveth
any thing to any our, it implicitly giveth "what
ever is necessary for taking or enjoying the same
—it giveth what is “ necessary.* ' It was, also,
a principle of the common law, that the incident
is to be taken, according to “ a reasonable and
e>tsi) sen and not -entrained to comprehend
things remote, “ vnli'rely or unusual*
Now, said Mr. S. I contend that these instan
ces arc conclusive to shew a restricted con
st ruction of ihejincidental powers of tlieConstitu
tion. They show what is nsccssary is only
granted. They exclude the things that are on
ly remotely necessary, or which may tend to the
fulfilment of the grant. The rules stud doctrines'
of the common law, Mr. S. said, ought to go
vern, in expoundiug the Constitution of the
United States. We must, necessarily, resort
to the common law, in expounding the Consti
tution. Many of its powers were given iu terms
only known to the common law, and its autho
rity has been universally admitted, to a certain
extent, in expounding and construing the Con
stitution. (Here, Mr. S. referred to the lie
port and Resolutions of Virginia, in ’ytt and ’yy,
and the essays bv Hampden.) The Federal
ist, too, (in page 2GG of 1st voi.) says, “ that all
powers indispensably necessary are given by the
Constitution, though they be not cxnresslv
granted.” 1
“ Incidental powers are defined to be [powers
appertaining to, or following others as more
worthy or principal”—-Coke, Lilt. 151—Means
falling iu along the maiu desi p\.
Can this government, then, said Mr. S. claim,
as “ incidental,n means which are of an indefi
nite or paramount character. Can tlie govern
ment convert and change terms as it pleases, and
under the cloak of incidental pouam, make the
Constitution a nose ol wax, anti compress or en
large it as occasion or necessity may reem to re
quire. Mr. S. said, ho hoped not. ’ It had been
said that men govern the world, and money,
inen. Give any government the sword and
the purse, and they want nothing else. Give
tothis government the power to adopt and exe
cute a great national scheme of internal im
provement, and the unlimited right to appropri
ate money, and it would be worse than folly to
suppose that any limit can be imposed on it but
legislative discretion and pleasure. In everv
point of view in which he had been able to con
sider the subject, Mr. S. said, his mind had
brought him to the conclusion that Congress
had no power to pass this bill, and that it ought
to be rejected.
une worn more, Mr. !S. said, before lie sat
down. The friends of this hill were right in
saying that it was an importantjneasure. The
precedent now to be set would hereafter be re
lied on by those who sliail come after us. Those
who succeed us will venture a little farther.
One step will strengthen another. That which
is now supported by example, growing old will
become an example itself. Heretofore, the
warfare on the part of the national legislature,
against the rights of the states and people, had
been carried on, Mr. S. said, by detachment;
but now that policy was thought to work too
slowly, and was, therefore, to he abandoned.—
We are now called on to lend our high sanction
to a latitude in expounding the Constitution,
which is calculated to break down all the land
marks intended by a limitation of its powers,
and to substitute for a definite connexion be
tween means and ends, a legislative discretion
to which no practicable limit could be assigned.
We are now to sweep down, at one blow, the
independence and power of the state govern
ments, in order to make this a great and splen
did government.
Sir, said Mr. S. these must be the consequen
ces to which the doctrines of this day lead.—
The genius and eloquence of my friend from
Delaware, and the Hon. Speaker, may shed a
lustre over this subject; but strip it, and all will
be found to be gloomy and hopeless mischief.
I call upon the committee to pause, before they
sanction this bill, and to weigh well its conse
quences. I do this in the name of our common
country. I do it in behalf of those State gov
ernments to which the people are so much and
so deservedly attached, and which are the.
safeguards and ornaments o our Constitution
Sir, they stand now upon a little spot, surround
ed by inundations; and, as the waters are ri
sing on every side, and undermining their foun
dation, let us realize the wise purposes for which
this Government was formed, and become the
dyke to fence out the flood.
We congratulate the people of the United
States on the different aspects presented by the
two statements above. W bile the Anti-Caucus
manifesto is to he received as a pledge that the
rights of the people to elect tide own President
will be sustained by nearly threefourths of their
representatives in the legislative branch of the
government; it exhibits in strong contrasts the
paucity of the faction which would practically
oppose that right, and render the wishes of the
people altogether inoperative. This public act
of the friends of Mr. Crawford, calling a caucus,
may be considered as the act which announces
their secession from the ranks of the republican
party. It is the act of a minority, insignificant
both in number and talents, andhas drawn llio
lino which will be immutable and eternal.—It
will be observed, that of the 11 persons who have
signed the call fora caucus, txco, vi/.. .Mr. Dick
erson of New Jersey, and j. B. Thomas of Illi
nois, are the only individuals of the respective
delegations from those states who are no! strong
ly opposed both to the caucus and the candidal
who is proposed to be named by tliat caucus:
also, that Mr. Lloyd of Maryland, anothersigne
goes into caucus against the express recom
mendation of the legislature of Maryland, by
whom he was elected; And also tliat a fourth,
Mr. Lowrie of Pennsylvania,, is almost the only
individual in the representatives of that great
state, who is not inimical both to Mr. Crawford
and the caucus. It will be further observed,
tliat all the eleven signers of the rail, and all
those who intend to go into caucus, are the
known friends of Mr. Crawford, and that their
object in attending a caucus is to make one last,
desperate struggle, to recover him from tliat
hopeless condition into which he has fallen, and
to give him, by an appeal to the prejudices of
the people, and bv the influence of the machine
; ry of intrigue and management, tliat chance of
; success, which they could not hope to gain
from an appeal to the virtue or the understand
ing of the people.
Ed. Washington Rcpublican.
Monday, Feb, 9, 1821.
Mr. Wirt concluded his argument for the
plaintiff in the case of Gibbons vs. Ogden.
Cargo of the brig Fanny vs. Vasques, Consul
General of Portugal, was argued by Mr. Win
der, for the Appellant, and Mr. D. Hoffman,
for the Appellee.
Vasques vs. l.rxry, claimant of cargo of brig
Fanny, was argued bv Mr. D. Hoffman for
! Appellant, and Gen. Winder, for Appellee.
The followinggentlemcn were admitted Coun
sellors in this Court, viz. J. C. Ikacks, J.
Blunt, A. G. Whitney, G. W. Murra
; C. A. Wicki.iefe, Wm. D. Mf.rrtck, Aakon
H. Palmer, Ichahod Bartlett, Charles
G. JIaine9, Wm. Parker, G. II. Richards,
G. W. Owen.
_ •
F.xtrarl from Oor. Robertson s Message to the Le
gislature of Louisiana.
** Gentlemen of the Legislature, among the mea
sures formerly recommended, and to which your at
tention is again respectfully directed, was the re
peal of all laws authorizing imprisonment for debt.
Strange, that so unrighteous a system should have
ever existed—stranger still, that it should hr suffer
ed yet to pollute our free institutions. The le.r
taliorxis, an eye foT an eye, a tooth for a tooth, is
discarded as unworthy of civilization. But, will
you give up a man, body and soul, to he tortured k
debased by his creditor, because he withholds from
him a certain portion, however small, of mere dross
—surely dross, when weighed against human liber
ty. The spirit of ou* government—the epoch at
which we live-^thc dictate* uisticc, and the feel
mgs of every honest heart, all revolt against this
odious legacy of ages past away, and unworthy of
the influence they yet possess over minds that should
be firm enough to spurn their trammels. The transi
tion. in ail respects, is natural from imprisonment for
debt, to imprisonment for crime, and our who *
scheme of confining those who owe money, with
those who steal it—petty delinquents, with hardened
offenders, a d mi ruby calculated to convert the inno*
cent into criminals, and to give to criminals all the
ai complislmvents which a jail education can bestow.
It is useless, however, to press this subject. You,
gcutlomeu, agree with me in the opinion, that a
gtcat change is necessary—policy, economy and phi
lanthropy—the successful experiments of our sister
states, the commencement of the establishment by
your predecessors, the expense already incurred, all
forbid that the penitentiary system should now be
I cannot omit again and again to denounce to
you the vexation, ruin, and oppression, brought
upon the community, by permitting judicial officer*
to charge the parties "litigant, for the most part
the poor and the ignorant, fees for the servi
ces they render. A justice of the peace ought ttv
be, as his title would seem to indicate, a mediator,
a common friend—he ought to use his influence and
his station to accommodate disputes—to settle ami
cably controversies which arise in his neighbour
hood : and may not this be effected? Can it be be
lieved, if appointed insufficient numbers, to prevent
their duties from becoming a burthen, that any vir
tuous and intelligent citizen would refuse lo act gra
tuitously in this then honorable office? 1 am not
dealing in mere speculation—in Wginia and some
other states this is done: high-minded magistrates
disdain to require pecuniary compensation for ad
tninisteting to the poor that law and justice which
our constitutions declare shall not be sold or de
nied—and surely all our best feelings must be en
listed against an unnatural system which refuse*
right to The indigent until it is purchased, whilst
it is giver, to the opulent, and paid for out of a
common fund, to which no part of the community is
excused from contributing. In this city and in some
of the smaller towns, it might be difficult to find.per
sons whose avocations would permit them to give up
their time to the business of others. In these racec
it might be made the duty of the parish judges, or of
special courts, paid as other courts are*-to attend iu
public, and kat regular sittings, to the subjects now
confided to thc-justices of the peace.1’
w ^ut *° conclude this topic, and to sum up in one
ennobling word, countless sources of happiness and
exultatation, we are Americans ; citizens of the on
ly fiee, peaceful and enlightened government on
earth—Europe, if she be not sunk too low to excite
a feeling, can only be viewed with abhorrence_The
war which has raged, or haply rages still, is the
most atrocious that defiles the blood-stained pa-m of
history. Spain, miserable Spain, subject of old to
the domination of fierce invaders, or what is worse,
to the tyranny of her own despots, and inquisitors,
had it was hoped “absolved her fated round” and
reached the end of a long but inglorious life. Re
[ generated, born again, she seemed to commence a
new- existence, illustrated with great and brilliant
achievements. Calling to mind her deeds of heroism,
though few indeed and far between, and arming her
modern Cids with native steel, she met the greatest
captain of the age in battle, fought and conquered.
And can it be !—will she now submit to the lowest
of all humiliation, the meanest of all disgrace,_
shall her traitors, her modern Judas’ again deliver
her over to worse than Moorish bondage ? Had she
yielded to him, whose eagles spread their triumph
ant wings over distant and warlike nations, she
might have found some consolation in the grandeur
and magnificence of her foe ; but him she successful
ly opposed—overthrew the giants of combat, in
serutible event! to cower before pigmies. This it
is indeed to drain the cup of misery to the dregs, to
be spurned by the ignoble lieast of the fable—And
France* degenerate France, once the friend of free
dom of man, now “fallen from her high estate” &
stooping to act the despots readiest tool, in binding
chains on tnose, who canrot like herself, wear them
lightly and shamelessly before the scornful glance
a nd withering scow! of the votaries of liberty, doubt- '•
ing her former virtue, and despising her present
grovelling debasement. But still there is a people,
in Europe too I admit, which commands our warm
est sympathy—Greece, once the scat of gods, and
gori-like men, breaks through the dark night in
which she basso long been drugged in deepest sleep
“ The trophies of Militades will let her sleep no
more she boldly strikes for the enjoyment of this*
our glorious era, with its political and moral truths,
mere worthy of admiration, than, even that c»>
did, which cuice was all her own. May her banner*
wave triumphant o’er her inspiring fields, and hills
and streams, and groves, and as of yore, mere rod ’
sufficed to chase a host of slaves, so may the narn"V?
and memories of her mighty dead, strike terror
thro.igh the barbarous hordes which dare pollute her
“ W ere the wretched populace of Western Europe
alone concerned in the conduct of their masters
whether monarch, priest, or noble, we might be con
tent to bestow in silence on the one, and the other,
our Pity and contempt; but none, but the wilfully
blind, can avoid seeing, that the war of the present
time, is a war not of ambition, hut of principle_
directed with deadly aim against free government,
wherever it exists: and although the sword is not
yet drawn against ourselves, die heralds announce
hostility. The cloud is dark in the distance, and'
whether the bolt be sped, depends on its power to
reach us. For are we rot already told that our
neighbors, on this continent of America, are to bo
hroi- V within the pale of legitimate government,
through the fender mercies of an unholy band of
crowned conspirator ? If this he so—and wc stand
alriu—an Oasis in the otherwise desert world—a
reproach *o the demons of destruction, which shall
have so far prevailed? will. “ the daily beauty iu
our life, which makes them ugly,” prove a protecti
on ! or shall we not rather, be considered as the
sole, remainin'.: head of the hydra, to be lopped off,
that the Hercules'of despotism may rest from their
House of Representatives, January 10.
tiie tariff bill.
Mr. Tod then moved that Ihc House go into
. committee of the whole on the State of the U
mon, with a view to take up the bill fo.- a revi
sion of the tariff.
Mr. Randolph rose, and paid—“Sufficient for
the day is the evil thereof—I hope the House
will do not such thing-.”
Mr. Hamilton was going-on with some re
marks, bearing- in part on the merits of the bill,
when Mr. Taylor called him to order—and the
Chair decided that he was nut oforder,on a ques
tion merely to take up the bill, to go into its
The question was then put on Mr. Tod’s mo'
lion, and carried. Ayes 83, Noes 82.
The House accordingly went into committee
I of the whole on the State of the Union, Mr*
, Condict in the chair, and, on motion of./»fr.
I oil, took up the Tariff Bill; which was read ir»
part at the Clerk’s table.
Some progress having been made in the rea
On motion of Mr. Webster.
f he committee rose, reported progress, and
had leave to sit again.
The House then, on motion of.Vr. Webster,
went into Committee of the Whole, Mr. La
tlirop in the chair, on the hill to authorize the
issuing oflctfeis patent fo Samuel Grown.
Mr. Webster stated the circumstances of
the case, and quote,1 prr cedents to show that
similar acts had frequently passed.
The committee rose, and reported the bill,
without amendment; and, after some conver
sation between Mr. Little and Mr. Bm#Gn, it
was ordered to be engrossed for a third reading.
And then the Home adjourned.
Ayes and Noes on engrossing the Rill for a third
rending, on Internal Improvement.
The question was then put on engrossing the bill
for a third reading—and the yeas and nays being
called for by Mr. M'COY, stood as follows: ■
• YfcAS—Messrs. Abbott. Alexander, of Tcnn. Al
len, of Tcnn. Alli.on, Hailey, Haylies J. S. Bar
hour, Bartley, Boechet, Blair, Breck, Burnt. Btwwr

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