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__ nr_ democracy, the cojSStitutiojw. ajyd state rig his. By PLEASANTS &■ HTItiwu i ?———ggggg—————————■ - -_J_ RICHMOND, VIRGINIA. FRIDAY. MARCH 5. 1824. ==-' [Vol. I. Nro\i 12. O'The Constitutional Wiho is published IwtCe a week, (Tuesdays' and Fridays',) at Jive dol lars per annum, payable within si c months, by all who arc original subscribers, or become so in ninety days from the dale, of the 1 at jVo., and in advance for all who subscribe thefeajler. O’ For advertising—fifty cents a square (or less) for the first insertion, and 37 1-2 cents for each con ftnuance.—The number of itiscrtioiu must be noted on the M. S., otherwise they will be continued and chari'cd accordingly. O’ Advertisements from the country to be paid for in advance, or assumed by some responsible indi vidual in this place or Manchester. 17* . Ill tellers to the Editors must be post-paid, or they will receive no attention. EigUteentVi Congvess. BPEECH OF MU RIVES, OF VA On the liillfor obtaining the necessary Surveys on the subject of Roads and Canals. IN THE HOUSE OF REPRESENTATIVES, February 3, 1U2*. Mr. Rives said, if da: importance of any question can piv« it a claim lo attention, none is more worthy of profound consideration, than the one now under discussKm. It is, in the first place, ^question of constitutional right, involv ing the true interpretation of that instrument, f rom which we derive our existence as an inde pendent member of the government, and to which we are bound, by the highest obligations to conform our legislative couduct. But this, altbou gh the must importaul aspect which any subject can assume, under a limited constitution, is not the only interest which belongs to the present question. Its decision must have a pen ailing influence upon the future policy of i lie c i untry. If that decision should be in favor • of tlie. power contended for by the advocates of the bill, it will become the foundation of a sys tem of legislation which I cannot regard other wise than as inauspicious to the liberties amldati gcroua to the best interests of die nation. Un der these impressions, incompetent as l am to do justice to the subject, or in any degree to match t he ability which has been so conspicuously ex hibited in its discussion. 1 ain yet urged by a sense of duty, to contribute tne small mite of my humble exertions in defeucc of what I deem the cause of the constitution, and the principles of sound policy. I a;n aware, Mr. Chairman, that, in investigations of this sort, general reasonings from the spirit of the constitution arc not abso lutely conclusive. The ultimate inquiry must •the, wliat the lVamcrs of the constitution have ■ itonc, a‘. evidenced by the instrument itself ra ther Ui3 u what tlicy intended to do. But if we can ascertain what was the leading intention by which they were guided, in organizing the pow ers of the Government, a strong presumption a nses th3t they have done nothing inconsistent with that intention. What, then, permit me to ask, was the cardinal principle, which directed the convention in die execution of their great «vork? It was this: to transfer fo the care of the General Government thoseobjocts only in which ail the Jritates have a common interest, leaving: tin ho m which the Slates have separate and pe culiar interests to bepruvided for by their own domestic Governments; and tills rule applies alike to every species offederal power, whetlier it he en'ernal or municipal. In pursuance of .this principle, the General Government was . charged with the question of peace or war, the regulation of commerce, the conduct of nego ciationn, and the various other objects connected with our foreign relations. In these,all thcStates have but one interest, and that, emphatically, a national interest. So, likewise, with regard to that class of powers granted to Congress, which operate internally, such as the powers to esta blish uniform laws on the subject of bankruptcy, to organize a federal judiciary, to establish a common standard of weights and measures, and to regulate the national currency. All the States stand precisely in the same relation to these powers, and are atfeeted in the same man ner, by the exercise of them, in their social and civil traiisactions. But this is not, and cannot be the case with internal improvements. They affect parts, and not the whole, of the confedera . cy. They are, from a physical necessity, local in their situation, an l local in their influence and their benefits. Take the most extended object of internal improvement, the projected road for example, from Maine to New Orleans, or, if von please, the navigation of the waters of the .Mississippi, in which the honorable Speaker has said twelve States and two territories are in rested, still comprehensive and important, a9 these schemes of improvement undoubtedly are limited, in their advantages, to particular States, an l tiic rest of the Union has no interest in them. They are, therefore, not such objects of common in teres ti. to all the States, as the constitution Intended to transfer to the General Govern inent. lint, here '.vo arc mot by the argument of the honorable Speaker, that there is an intermediate class of objects, alluding more than one State, and vet not extending to all the States, which require the united menus of a confederacy to e\ i*r'otc them, and the only confederacy which can now legitimately exist for such a purpose’ is that of the Union; because the constitution prohibits one State from entering into compacts or agreements with another State. The honora ble gentleman will excuse me for saying that this argument is founded on a mistake of the ac <u tl provision of the constitution. The consli • uti m doc3 not prohibit compacts between the States, hut merely restrains the States from en tc'iiginto such compacts, without the consent nf Congress. The consent of Congress is re quired, as a necessary check to the Union, or da 8 gerous to its peace and safety; hut, where any number of the States desire to enter into vr.Ttngcrnents with each other, for the accom pli ihmcnt nf some beneficial object, in which they have a common interest, it never cpuld hi1 re been supposed or intended, that the consent ef Congress would be withheld. The States, in • 11 }Ti cases, arc still left at liberty to unite their re utirces, by entering into compacts with each «t' icr, subject only to the reasonable control of figress; and this privilege was no doubt re po; Ted to them with an express view to the verv da if of objects now in question, which concern fcv » or more members, of the confederacy, but _y« f do not possess such a character of universal *0 & utnnl interest as to bring them within the le gili note sphere of the government of the whole. 1 "lie honorable Speaker, in the course of his f)rgi ment, laid down a position, which he seem ed t< consider entirely decisive of the present qu.'S ion. Adverting to the distinction between the : rtieles of confederation and our present const itution, and remarking that, under the for rnev, the General Government, in it* most im ' or; at t functions, operated upon the States, and, tinder the latter, that it acts directly upon the widivi Inals who compose those States, he deduc ed, !• a general principle, that tta Government ofthn Union, as now organized, is wholly inde yen<m t of the States for the execution of any 1 of its powers. So far is this from being correct, * in ' he broad exteut assumed by the honorable , Speaker, that I have always supposed directly the contrary, that the General Government is dependant upon the States, for the execution of all its powers, for it cannot exist, without the concurrence ol the States. Are not your Sena tors, who compose the other branch of the legis lative department of this Gbvernmeut, elected by the Legislatures of the States/ Is not your Executive iVIagistmte chosen, also by the agency, and under the direction, of the State Legisla tures ? (Here Mr. Clay explained. He said he ne ver contended that if a majority of the States withheld their co-operation, the General Gov ernment might not be dissolved; but, his principle was, when the General Government is once or ganized, and moves, it moves by its inherent energy, and acts independently of State power.] Mr. Rives said, he had not the pleasure of hearing the speech of the honorable gentleman. He had only read the report of it given in the newspapers, and he thought that the principle to which he had referred, as stated in that re port, required some qualification. But, even as now qualified, by tlie explanations of the Speak er, ho was not prepared to give his assent to it. I understand the honorable Speaker, said Mr. Rives, now to say, that, although the general go vernment docs depend upon the states for its "ex istence, yet. in the ordinary and regular excr ns vesica powers, it is wholly indepen dent of the aid and co-operation of the state go vernments. I have always entertained, said Mr. R. a different opinion of our political sys tem, and for tlmt opinion I supposed I had the sanction of high authority. The authors of “The Federalist,” in various passages of their celebrated work, speak of the state governments as incorporated into the system of the general government, as auxiliary to its operations, and indeed as indispensable to its maintenance. In one passage they say emphatically, if the general government should ever arbitrarily abolish the state governments, it would be compelled, by the principle of self-preservation, to reinstate them imply ing, as it seems to me, in the strongest manner, the dependence of the general govern ment upon the aid and co-operation of the state govertimeuts. But lot us examine this subject more minutely, in reference to some of the pow ers of the general government. In the exercise ol its military power, which has been so much talked of in the course of this discussion, is there not a partial dependence, at least, of the general government upon the state governments ? The Constitution gives to Congress the power to “pro >ido for organizing, arming and disciplining the militiaand “ for calling them forth to execute the laws of the union, to suppress insurrections, and to repel invasions but, expressly reserves to the states “ the appointment of the officers, and the authority of t * niug the militia accord ing to the discipline prescribed by Congress.”_ Here, then, we find the general government made dependant upon the -states, for the efficient exercise ofa vital |>ower, connnected with the peace and safety of the nation ; for, what is your militia without officers and without training ? So, likewise, in relation to another power of Con gress, which has been the subject of much com mentary in the course of this debate—I allude to the subject of fortifications, arsenal „ fcc. Amid the various constructions which have been put upon the clause of the constitution relating to this subject, all have agreed that the exclusive jurisdiction it gives over the sites of these works, cannot be exercised without the consent of the legislature of the states in which they are loca ted. Here, then, we have another example of the dependence of the general government upon the state governments, in a point belonging to one of its highest trusts, the care o' the “ com mon defence.” Whether, therefore, I look to the general aim and scope of the constitution, or to its particular nrovisions, I cannot acquiesce in the principle assumed hv the honorable Speak er. The application of this principle to the sub ject of the present discussion, has not been clearly developed, but I presume it is this. If roads and canals arc necessary to the legitimate operations of the general government, that go vermnent, being wholly md pen <ent of any ex trinsic aid in the prosecution of its lawful objects, may make roads and canals for itself, whenever and wherever it chooses. I shall hereafter en deavor to shew, that, although roads and canals may be essential to some of the purposes of the general government, yet, they arc such facili ties as would naturally arise in the progress of so c ety, under the care of the state governments, and that there was, therefore, no necessity to invest the general government with authority to create them. Any const: action which loses • :ght of the existence of the slate governments, and of the important purposes they were inten ded to fulfil, in reference to the affairs of the Union, as well as the interests of the respective states, i3 incompatible with the nature of our political system, and necessarily leads us into error. There were some other general principles laid down in the course of thh discussion, the bearing and application of which, to the, questi on under consideration, I could not very dis tinctly discern. I notice them, therefore, only for the purpose of entering my protest against them. An honorable gentleman from IV. York, (Mr. Storrs) asserted that the general govern ment was a municipal, or in other words a rvili onnl trooemmenl as contradistinguished from a federal government. I would ask that gentle man who were the parties to the formation of government? Were they the people of the U. States, as composing one entire nation, or as di vided into distinct political communities ? Un questionably the latter. It required, too, for its establishment, not the consent of a majority of the people, merely, hut the unanimous ratificati on of all the states who became parties to it. In the mode provided for its amendment, also, the concurrence of three fourths of the states is necessary to any alteration of its principles, with out regard to individual members. These cir cumstances unequivocally characterize it as a federal government. In another important relation, the only one involved in this discussion—the extent of its pow ers, it is decided Iy federal and not national. The authority to which the honorable gentleman has appealed, on another branch of the subject, (the Federalist) says, it is of the essence of a notional government to possess a supreme indefinite pow er overall persons and things, so far as they arc the objects of lawful government. Hut the pow er of this government i*, by universal acknow ledgment, defined, and limited to special objects. By what process, then, has such a government, distinguished by *o many federal features, been converted into a national government ? Bv a scries of refined deductions, which, considering thcgentletnan’s aversion to political metaphysics, doe* infinite credit to hi* genius and perspicaci ty' Having disposed of these preliminary topics, I come now to consider the particular sources in the Constitution from which the allcdged power ofCougrcss to make roads and canals lias been deduced. 1 he first of these sources is that clause oi the Constitution which gives to Con gress the power “ to establish post olficcs and post roads, ’ winch, it is contended, is an erpress grant of the power to nvilcc post roads. Whate ver contempt, therefore, gentlemen may have lor philological disquisitions, or however little they may seem to befit the dignity of legislative discussion, we are necessarily driven to in quire iu to the true moaning of the word establish. 1 he i Ion. Speaker has defined it thus, “ to make firm, to fix, to build.” I agree with the gentle man in the fiist partoflus definition, hut I am unable to follow him in the bound by which he has skipped from “ to make firm, to fix,” to the last interpretation, “ to build,” which seems to me to depart very widely trom the other mean ings ascribed to the word. The original and li teral impost of the word is, unquestionably, to render stable, or “ make firm anil, by an easy transition in its application to new objects, it has come to signify generally, to fix, to settle, to as certain. Cel us apply it in this sense, which is sanctioned by the Speaker’s definition, to the subject of post roads. There exists iu the coun try a great variety of roads, passing in different directions, and communicating with different points. If is impossible, in the nature oftliings, that all of them should he used as post roads. -* *~—...uluiuii,uicmua, gives to congress tlie power to establish,or, according to the terms of the foregoing definition, to Jix, to nettle, to ascertain, which of them should bo used as post roads, and to give them a legal character as such. But the honorable Speaker contends, that the word “establish1*' implies something more, and is used in a errati c sense ; for* examples of which he refers to the expressions “establish justice,” and “ ordain and establish thKconstitu tion,” used in the preamble of this instrument. These examples do not .appear to me to be verv apposite to the purpose for which they are cited. Hhas been very properly said, that the preamble of the constitution, in stating it to be one of the objects of the new government “ to establish jus tice,” could not have meant that justice was to be created by it. Such au use of them would be little less than sacrilegious. Justice is an abstract principle, an emanation of the divine mind, always and every where existing*. All that the constitution could accomplish, was to embody it, to organise tribunals and prescribe forms for its administration, and thus establish or Jix it, on sure and permanent foundations. Th * ho'orabla Speaker, however, contends, that in one sense, wo do create justice—Wo cre ate, he says, the criminal justice of the country, because we crca’e the crimen, which arc prohibi ted and punished by our laws. But in what sense do we create a crime ? Wo do not create theyWct which constitutes the crime, we only create the legal chirm ter which is imposed up on that fact. [Hero. Mr. Clay explained. He said there was a distinction between acts which arc mala in se, and those which are mala prohibita. As to the latter, they arc wrong, only because the le gisl iture has made them so, and an relation to them, therefore, the law creates the crime.] Mr. Rives said, his view of the subject was not affected b v the explanation of the honorable gentleman. As to that class of public wrongs which are called mala prohibita, it is true the}' arc in themselves indifferent, and become crimes only because the legislature makes thorn so. But what does this prove? It proves only that the legislature creates the/ega/ character or denomi nation oF the fact prohibited, hy making that un lawful which was before lawful; but the legisla ture does not create the fact itself, to which this new character or denomination is given. -That exists independently, and in spite of the law. This is not only consistent with, but corroborates our explanation of the word “ establish,” as ap plied to post roads. Congress by establishing a post road, gives a new character, a legal attri bute to tho subject, by making that a post road which wls before not a post road; but, in the legitimate exercise of this authority it can no more create the physical, material road, to which the new character is given, than in the case ofa crime it creates the external fact to which a penalty is annexed. The same expla nation is equally applicable to the expression, “ VVc the people, in order, tea. do ordain and ex tab'is'‘ tlii constitution.” The people certainly did not crcn'e the constitution, in the sense in which it i contended that the word “establish” gi ves to Congress authority to create post roads. The instrument already existed. It bad come from th ■ hands of the c invention perfect in all its dimensions, and was submitted to the people lor ratification. All that the people did was to establish it, by giving it the sanction of their ap probation, and investing it with a legal and bind ing character. The same kind of authority is coneeded to Congress without hesitation iii rc gar I to the establishment of post, roads. But, wc are fold, triumphantly, that the word establish must mean the same tiling, in relation to post roads that it docs in relation to post-offi ces, and that, as to post-offices, it certainly means to create, because Congress, in establish ing a post-office, at a particular place, flakes a post-office whir.h did not exist before. But what is the nature of this creation ? Congress declare that a post-office shall be kept at a place where there was no post-office before. In do ing so, it certainly docs not create the place at which the post-office is established, but gives to that place a privilege and accommodation which it did not possess before. So Congress, in es tablishing a post road, according to what wc deem the true Interpretation of this power, makes this a post road which was not a post road before, or in other words, gives to a pre-exist ing road a character and attribute which did not previously belong to it. The post road is as much created, if gentlemen will insist upon this divine perogative in the one case, as the post office, in the other, and the creation, 1 will add, no more extends to the road itself, which is the channel of the post route, in the one case, than it docs to the. place which is the scene of the post office, in the other. The examples relied upon to support the in terpretation which gentlemen have given of the word “ establish,’’ seem to me, therefore, to fall Very far short of their object. On the con trary, they are not only consistent wilh, but furnish apt. illustrations of, the sense in which we contend it is properly to he understood. The word, in its primitive and mast simple sense, means, to render stable, or make firm, and is strictly applicable to natural objects. But it is now more generally applied to intellectual ob jects, and ’alien so applied, is, of course, used in a figurative son . Natural objects are esta blished or in dc firm by means of external sup port: and, by an obvious analogy, matter of civil and political regulation are said to be es tablished or made firm when wo give to them the support nrul sanction of the fats. In this sense, the w i ' is uniformly nsod in the constitution, and all similar instruments, with such modifica tions only as necessarily arise from the nature of the subject to which it is applied. If it was intended, as gentlemen allege, to give to Con gress the power to make post roads, why was not that power granted in terms which every jicrson would have understood, and about which there could bo no controversy? Was the poverty of the language so great, or were the framers of the constitution so deficient in there knowledge of it, as to have supplied no word titled to con vey the idea? When we speak of the erection of a house, wc do uot say that such an one has established a house but that he has built it. If it had been intended to give ta Congress the pow er now rlaiinc l for it, why did not the framers of the constitution say, in so many words, that Con gress shall have power to make ami construct post roads? These words were at hand, and were well adapted to the purpose of conveying such a power. That they, or other words of plainly equivalent meaning, were not used, is evidence that the power they import was not in tended to be given. It was not necessary to the nature and object of this grant that Congress should possess the power to make, post roads. The object of the grant was the conveyance of the mail, and the transmission of intelligcpce through tl«j country, k never coukt have been contemplated- tliatao telligence should be transmitted to an unsettled country, where there were no persons to receive it.—uui) iLb buuii as a couniry ueconies seiucu, roads necessarily exist. The great interests of society, the ojicrations of commerce, and the convenience of private intercourse, necessarily give rise to them; and as the population and demands for intelligence increase, the facilities of communication increase also. The same roads which answer the ordinary purposes of so ciety, would certainly suffice for the simple ob ject of transporting the mail. It never could have been intended, in reference to such an ob ject, to confer upon Congress the disproportion ate power of opening and constructing roads through the territories of the states. Whether, therefore, I look to the language of the consti tion, or to the policy of its provisions, in relation to this subject, 1 uni alike constrained to dis card flic construction which claims for Con gress the power i:i question, under the clause we have been considering. The next source which the advocates of the bill have appealed to for the authority to exe cute a system of internal improvements, is, the military power ol thegovemment. The autho rity claimed under this part of the constitution extends to canals as well as roads.- It is not, however, like the authority asserted in relation to post roads, claimed as an express power, but only as an incidental power, or means of carry ing another power into eflect. The first inqui ry which presents itself, therefore.is, as to the true nature and extent of incidental powers. It must never be forgotten that this government is one of limited and defined powers. However ready gentlemen are to admit this proposition, when tlieir assent is distinctly challenged to it, they seem habitually to lose sight of it in their reason mgs upon constitutional questions. All the powers granted to the government are e nnmeralcd in the constitution; but, as it was im possible to foresee every individual act of legis lation which might become necessary to carry these powers into efFect, Congress is in general authuri/.sd to do any act wlfich shall he “ neccs turj and properfor carrying the granted pow ers into execution, hut none other. If we de part from this limit, we at once change the cha racter of the government, as possessing special and defined jpowers only, and convert it into one of general discretionary authority. Whenever any measure is proposed, therefore, the first question to be asked is, Is the authority to adopt it expessly granted in the constitution ? If it be not, the next question is, Is it a necessary and proper means of carrying into execution any power which is expressly granted? It is not prete ded that the authority to make roads and cana' for military purposes is expressly granted to Cong: css. It is, then, a necessary and pro per means for carrying into execution the mili tary powers which are grauted ? I will not de ny that the roads and canals are useful, or if you please, necessary, to the military operations of the government. But this is not the true ques tion. The real point of inquiry is, Is it neces sary to the military operations of the govern ment that Congress should possess the power to make them ? Hoads and canals would exist from the influence of other causes, without in voking the agency of Congress. They arc, as already suggested, the natural and invariable accompaniments of population, in every coun try. The wants anil enterprise of individuals, the common interests of society, and the pater wit cure of the State government* which arc more particularly charged with tho domestic n-dicc of the country, would bring (hem into ex istence. The B.nmc causes would ensuie their multiplication and improvement. As the coup try improved in wealth and population, the means of communication would improve Vith it. The members of the Convention, as men ordi narily conversant, at least, with human affairs, must have foreseen this natural course of things, and coul 1 not have deemed it necessary to give <o Congress the power of creating channels of communication, which would certainly grow out of the wants of society and the beneficent su nerintendence of the State governments. All that was necessary, was to give to the general government the right of using these highways in prosecuting its military and other lawful ope rations, and this right is conceded to it in the ful 'est extent. Will any gentleman deny that food nd clothing aro as necessary for the soldier ;ls roads for him to march upon? And yet, it will not he contended that Congrc.53 has authority to condemn and occupy largo portions of the ter ritory of flic* States fur farms to produce the one, or factories to supply the other. Why? Be cause the natural wants of society furnish the > ‘-t secui ity thatthesc artiele w iil be produced, and render it unnecessary to invest the goveni nent with any authority for the purpose. But if. is s I I that, in the defence of the country, and the military operations connected with it, other md better channels of communication would be required than those already existing under the authority of the. States. Tet us pause, and see to what extent this idea would carry us. We have an extensive frontier, and arc exposed to '•ttack on every side of it.* On the atlantic ■mast we arc exposed to the hostilities of any European power, and through the whole exten >f onr inland frontier, we are liable to the incur sions of our British, Spanish, and Indian ncight hors. If we undertake a system of roach and canals with a view to facilitate the operations of war, ns it is uncertain in what quarter we shall Sc assailed, we must extend them to every point >f our frontier. 'Hie whole face of our territory would thus bo covered with military roads and anal*. Is not this a solecism in legislation? ifi.lit'iry roads and canals, which would be used "tr civil and commercial purposes more than a thousand times for once that they would beap Iied to mJlitnr>i purpose*! Whether they would ver h>' used, indeed, for military purposes, Would depend upon gemetr, and dubians contin gcncics the occurrence of which no man could foresee. lint, leaving this vicwofthc subject, and re turning to the principles lirst laid down, as to the just extent of the incidental powers of the government, I ask, if it be possible to justify the measure proposed, by the application of those principles. A national system of roads and ca nals, under the exclusive patronage of Con gress, oaunot.in any sense of the term, be said to be necessary to the making and prosecuting of war. Wars have been made and prosecuted, and successfully prosecuted, without any such system. All that can be said of it is, that it might have a tendency to give greater etl'ect and increased energy to the exertion of the naiion al force, in time of war. But, if the power to declare war authorizes Congress to do every thing which may have a tende xe*/ to add to the strength and resources of the nation, in a mili tary point ot view*, then, there is nothing con nected with the “general welfare,” which Con gress may not do; for, whatever advances the interests of learning, of manufactures, of agri culture, of commerce, or, in any manner pro motes the internal prosperity of the country, ooKaiolyW a tendency to increase its strength, in a conflict with a foreign enemy. A principle of construction, leading to such comer] unices, cannot be maintained. The honorable Speaker expressed his acquiescence in flic principles as serted by Virginia, in ’98. Those principles were embalmed and immortalized in the cele uratea report or Mr. Madison, which has been mentioned in the course of this debate. The principles contained in that report, do not derive their sanction from the great name alone with which they are associated. They received a still higher sanction—that of the .American peo ple. For, it was the potent influence of these very principles, which wrought, by the voice of the people, that change of men and measures, in the administration of the government, which lias been emphatically styled, The civil revolution of 1301. If any writings, therefore, can be fairly appealed to, as authority, in constitutional discussions, it is this report. [Here, Mr. Hives read extracts from “ Madison’s report.”] The simp:j criterion, then, is this—the measure sought to be adopted, as incidental to an c\pre<$ power, must have an “ immediate and ajtproprt ate relation to that power, as a means necessa ry and proper for carrying it into execution. “ A tendency merely, in the measure to pro mote an object, for which Congress is authoriz ed to provide,” does not justify its adoption_ Now, does not all that has been said, and can be said, in favor of a national system of roads and canals, amount to this—that they would have a tendency to promote or facilitate the operations of war—not that they have an immediate and appropriate relatiou to the pow er of making war as means, necessary and pro per, for carrying that power into execution.— One of my colleagues (Mr. J. S. Barbour) ad verted to this rule for the deduction of inciden tal powers, and seemed to think it too rigid, be cause, he said, it excludes a choice of means. Sir, it does not exclude a choice of means; it only limits that choice. And permit me to say, that, in order to preserve the true character of this government, it is as necessary to limit the meai.s of executing its powers, as to limit the powers themselves; for, in the language of the distinguished authority which I have just quo- 1 ted, “ it is wholly immaterial whether unlimited powers be exercised in the name of unlimited powers, or in the name of unlimited means o carrying limited powers into execution.” f But, we have been gravely told, that roads amT canals ore fortifications. Why, sir, a live ly imagination, and an ardent zeal, may convert any thing into fortifications. It may be said, with as much justice, and as little violence of metaphor, that the hearts of our people arc for tifications ; for, after all, the moral energies of a nation are as important to its defence, as phy sical works of any sort. As a part, then, of this system of military defence, we must estab lish schools and colleges, to imbue the minds of our youth with the love of liberty, a knowledge of the principles of our free institutions, and a loyal and patriotic devotion to their country ! In like manner, the granaries of the farmer are fo7 tijii ations the workshops of the mechanic are, fortifications—for they furnish the indispen sable means of subsistence to the troops, who are to defend you. Thus, by the magic influ ence of language, Congress, in the exercise of its military functions, may invest itself with a j general and unlimited patronage of all the o-rcat interests of society—its education, its agricul ture, its industry. I it has neon triumphantly asked, if Congress cati erect forts and dock-yards, may they not make roads to go into them ? Unquestionably, liic right to erect these works, necessarily im plies the right of way, by which a communica tion is to be had with them. If there be no road leading to them, the government may ren der i'3 right of way clfectual, by opening a road for the purpose of communication. Hut what is the road, in this case ? It is strictly an ap purtenance. to the fort or dockyard, and is con fined to the purpose of communication with it. Iti, a thing wholly distinct from a system of internal improvements, having no actual con nection with any military work, nor bearing any peculiar and appropriate relation to military o perations. There can be no doubt that the General Government has a right of passage through the territory of the states for any of its lawful purposes, and’ it may, therefore, in time of war, open a military road, when it is neces sary to the accomplishment of any particular military movement. In such a case, it has a right to a passage ; and there can be no passage without a road. Hut the road is then made, and used, pro hncvicc only, and as soon as the passage is effected, all properly in, or jurisdic tion over it, ceases and dies. The right strict ly commences, and terminates with the occa sion of its increase. This case, tle-reforc, af fords no countenance to the claim of a gcncraj power to execute and maintain a permanent svstam of internal improvements, in reference to future and remote contingencies, which may never occur. In the view which I have taken of this subject, I have not found it material to inquire into the right which has been claimed for the general government of possessing itself of the soil of the states, when it is nec-ssary to the execution of any of its powers. It is ad mitted bv all that it cannot do so, cxrepl in cases where if it nerexsary to the execution of some of its power*. In each particular case, there fore, the question reenrs. Is the proposed vent- I potion of the soil of the states necessary to theex ociition of any of the powers of the government ? My object has been, to shew that the occupa tion of it, for the purpose of making roads and corals, is not nccettary to the execution of the military power of the government, and cannot be justTied by any sound doctrines of constitu tional law. The only remaining ground, worthy of par ticular consideration, upon which the authority irf this government fo make roods and meats ! has been asserted, is that portion of tbo Consti tution which gives to Congress tbo power “to I regulate commerce among tbe several states.” j 1 be honorable gentleman from Delaware, (Mr. I McLanc,) seemed to treat this as a question of | incidental power, but it is strictly and cxclusive ! ly a question of express power. The whole controversy depends upon the true ini|>ort of >ho word “ regulate.” If to “ regulate” means to “ promote” or to “facilitate,” then the power to make roads and canals, as an ordinary and natural mode of facilitating or promoting com merce, seems to be clearly comprehended in the term- ot the grant. If, however, to regulate means to make rules, as it certainly docs, in the plain ami common uso of tho word, then it gives U> Congress no other power than that of making the rules, or pretcril ing the terms, upon which commerce among the slates shall be conducted —that is, the power of making commercial rc0u lotions, as applicable to the reciprocal trade oi* the states. But, would any person call roads and canals comvu rcial regulations ? The whole question, tl.cn, might be safely left to an unso phisticated common sense interpretation of (ho language of the Constitution ; hut, as tho argu ment ot the gentleman lrom Delaware was cer tainly an original and ingenious one, I beg leave to analyse aud examine it more particularly.— Tbe outline of the argument was this: that the object of granting to Congress the power of reg ulating commerce among the states was not, as had been supposed, to prevent one state from laying burthens on the productions of another state, passing through its jurisdiction, (that ob ject being adequately provided for by another clause ol the Constitution,j but to prevent a greater mischief, absolute ji inhibitions of tho passage, which, if they should occur, it would be competent for Congress, under this power. ujiei.iuh:; uiai, ii congress can remove legal restraints upon the trade of the states, it can re move physical obstructions, aud, if it can re move physical obstructions to the trade of the states, it can create new channel's for it. How ever nicely concatenated this chain of deduc tions seems to be, I shall endeavor to shew that some of its links are too feebly connected to sus tain the coijplusion which depends upou it. The gentleman’s first,position is, that the power to regqlatc commerce among the states, was not given to Congress to prevent one state front imposing duties on the productions of another, passing through its jurisdiction, because, if this were the only object, the power would be nvga gatory, another clause of the Constitution hav ing expressly restrained the states from laying duties on imports or exports. In relation to this position, 1 will only remark, that the honor able gentleman seems to have mistaken the purpose for which the passage in the Federalist uP°n this subject was read, by my able col lergue, (P. P. Baibour) who opened this discus sion. 1 hat purpose was not to shew, nor does the authority cited import, that the only object of the power in question was to prevent the states from imposing duties on the productions of each other, passing through their respective ju risdictions. It was mentioned merely as one of the objects of the power. A farther object, un doubtedly, was as the gentleman himself has satisfactorily shewn, to prevent arbitrary inter ruptions of the trade of the states, arising from acts of positive prohibition, and other similar im ; i diments. But the gentleman is not satisfied even with this extension of the power. He says that a power of such apparent magnitude could not have been intended to be passive—a monu ment of ilx own insign ficancc—and that, ifit ex tends to remov ing no other obstacles than such as may be interposed by adverse and unfriendly legislation of the states, it becomes utterly pat sive. Why, sir, it is, in this respect, like many other powers granted by the Constitution. The powers to “ repel inv asions” and to “ suppress insurrections,” are passive, until the proper oc casions occur to bring them into action. And the honorable gentleman will permit me to re mind him that this very horror of passive autho rity, acting upon ono of the powers just men tioned, was the parent of the sedition law. The reasoning was this—the power to « suppress in surrections” implies the power to prevent ihcm and the power to prevent them implies the pow - er to punish whatever may tend or lead to them —libels upon the government tend or lead to in surrections ; therefore, Congress may pass a sc* dilion law for the punishment of libels. I he system of reasoning now employed to justify the exercise of potver contemplated by this bill, is equally, and, indeed, to mv mind, much more forced and ordinary, in its chain of inferences. Wlmt is it? The power to regu late commerce among the states authorizes Congress to remove legislative restraints, impn sed by one state upon the trade of another, pass ing through its jurisdiction. The power to re move legislative restraints, implies the power to remove natural obstructions ; and the power to remove natural obstructions, implies a power to give artificial facilities; or. in other words to make roads ami canids- But, is it true, that the power to remove legislative restraints implies the power to remove natural obstructions and to give artilicial facilities? The one aims only to protect commerce in its actual channels: the other seeks to open additional channels for com merce. The object of the forir.r is merely to secure the free use of existing highways • thn effect of the latter, is to create and nri ' highways. These things arc, in their na tures, so essentially distinct, that an inference from one to the other is wholly arbitrary and in admissible. But the honorable gentleman from Delaware need not be afraid that this power wjll remain passive, unless it is exerted in giv~ mg nitihcia! facilities to trade. It has already been exerted, and copiously exerted, in the va'L. rious and minute regulations connected w ith »ho coasting trade, and this was probably the chief if not the only, employment of it, contemplated by the framers of the Constitution. The gentleman read a passage from Vatto? for the purpose of proving the fconnection be tween good roads and canals, and tbr welfare of trade. But nothing is gained by this position, which is very readily admitted, until it is a bo proved that Congress has a general power to promote the welfare of trade. The application of this authority, therefore, proceeds upon an assumption of the very p int in dispute. A si milar defect exists in the argument which claims for the general government the same authority to make roads and canals between the states, that the government of each state has to make roads and canals within its own limits. The state go vernments have, undoubtedly, the right to make roads and canals within their respective limits but from what dees this right result? From the general, discretionary power which the state gol vemments posse 9, to ptoridc for the public wel fare. Before the argument can he sustained then, it must he shewn that the general govern ment possesses a like discretionary power! to prov ide for the gublic welfare. The state go vernments do not make roads by virtue of a specif r power to regulate commerce among the | t-cveral portion's of the nme state. If ifcay pe*.