Sidebilder
PDF
ePub

MARCH, 1818.

Internal Improvements.

H. OF R.

times won? Sir, I have before cited the strong expressions, of the late able President of the United States and of the present Chief Magistrate, when Secretary of War, on the influence of former acts of Government, which have been quietly

-here a sleeve, and there a skirt, and strut about in all the rueful oddity of puritanical plainness. I will follow neither of these. I see nothing so technical in the language of this Constitution, as to induce me to give it a very technical construction. It is an instrument formed under circum-acquiesced in by the people and the States. There stances of great and insuperable difficulties. It is a division of one sovereignty into two sovereignties—a division of the attributes of sovereignty between the States and the Union-each to be sovereign and superior to the other in its appropriate sphere. In short, it is, in some sort, an attempt to reconcile contradictions, and to effect impossibilities to create two powers, each greater than the other to define the boundaries of the two powers, when, in truth, they run into each other like the colors of the rainbow. Already have we had repeated and decisive evidence that, in spite of the great ability and wisdom which distinguishes this instrument, it is not free from that imperfection which characterizes all human institutions. Already, in the military and judicial departments of the Government, have there existed the most serious collisions. They must continue to exist until the construction is settled by practice and universal acquiescence. Will gentlemen attempt to bring into the discussion of a question like this, the principles of mathematical science, or the attenuated logic of metaphysics? The subject does not admit of it. You cannot lay down the powers of the Government with mathematical exactness. Plat down the boundaries of the two sovereignties, according to the principles of gentlemen, and a Kentucky land claim would not exhibit more embarrassing interferences. No, sir, it is not a mathematical, it is a moral certainty, that we are to expect on these great questions of political right. And how is this moral certainty to be better attained than by a practical construction, supported and fortified by the practice of the Government, and the uniform acquiescence of the nation, in analogous cases? This practice-this uniform acquiescence-these decisions of the nation, on Constitutional powers, which admit not of precise definition, but are rather to be referred to practical good sense and sound discretion-these, I say, serve as landmarks for subsequent legislatures. They are the buoys which the wisdom of the nation has fixed, to mark out the channel that divides the rival jurisdictions.

I do not contend, but have explicitly disavowed the idea, that we are bound by legislative precedents against the clear meaning of the Constitution. But I do contend, that when a principle has been long avowed and admitted, and acted upon, we ought not entirely to disregard it in deciding on a doubtful point. Do gentlemen suppose that if, which Heaven permit this confederation of States shall last for a century, we shall, throughout that period, be continually mooting Constitutional points; holding nothing as decided; admitting no construction to have been agreed upon; and, instead of going on with the business of the nation, continually occupied with fighting, over and over again, battles a thousand

is, as might be expected, great good sense in their opinion. It is an opinion peculiarly correct, when applied to a Government, which, like ours, provides the means for its own alteration. If a power is asserted by the National Government which is conceived not to have been granted, or to have been improperly bestowed, the States have the power of amending the Constitution and prohibiting its exercise. Hence, when this power is not exercised though the question has been agitated among the States, it furnishes a fair presumption that the power has not been improperly asserted; it affords the best evidence, in all cases not admitting of clear and unequivocal exposition, of what is the true practical construction of the act of union. Nor is it at all a novelty that practice and acquiescence should receive so much consideration. They often form the Constitution itself. What is the constitution of Great Britain but a constitution founded on usage and long acquiescence? But, my friend (Mr. BARBOUR) says, that it may be altered by Parliament. True-let us come nearer home. Who made our State constitution? The ordinary Legislature. There was no convention. The gentleman on my left (Mr. H. NELSON) whispers that they called themselves a convention. If then, we call ourselves a convention, will it give us the power of altering the Constitution? By no means. What then gives validity to the Virginia constitution? What then makes her citizens look up to it with veneration, as the unalterable charter of the Government ? The consent, universal understanding, and acquiescence of the people! It was formed in a moment of difficulty and danger, by the ordinary Legislature; it was promulgated as the frame of government; it has been acquiesced in as such, and is now as much the constitution of the State as the instrument we have sworn to support is the Constitution of this Confederacy.

It is true, that all sorts of precedents are not to be regarded. It would be absurd to speak of the alien and sedition laws as precedents. It would be absurd to attribute the sanctity of national acquiescence, to measures which were received with the deep-toned murmurs of national disapprobation.

[ocr errors]

It may not be improper, after these general remarks in relation to the spirit with which the Constitution should be construed, to say something on the subject of the terms necessary and proper" in that Constitution. The gentleman from Virginia (Mr. BARBOUR) seems to think "necessary" means, absolutely necessary. [Mr. BARBOUR denied that he had said so.] Sir, I do not mean to mistake the remarks of my friend from Virginia; and, I hope he does not take amiss my mistake. We have known each other from our boyish days, and I have never felt for

[blocks in formation]

him any other sentiments than those of esteem and regard.

The present debate cannot lessen or affect these sentiments. It can only produce one effect-to increase my high estimate of his abilities by the wonderful display of his powers, which we have witnessed on this present occasion. Another gentleman from Virginia, however, has certainly adopted the idea that "necessary" must mean "absolutely necessary" by declaring that we can exercise no incidental power, unless, without it the grant of the express power would be nugatory. But, sir, if "absolutely necessary" means more than "necessary," I ask, by what right gentlemen interpolate into the Constitution, which they construe so strictly, so important a word? Or how can it be said of any one mean that it is absolutely necessary to effect the end; since, in almost every imaginable case, more than one mean may be conceived of effecting any given object.

MARCH, 1818.

is, upon their principles, a miserable fortress, not one gun of which can be brought to bear upon an enemy, while its whole artillery is most admirably pointed against the garrison!

Sir, this doctrine of extremity may be, and has been, carried too far. It is not conceivable that the Constitutional necessity, which the framers of this instrument intended should confer right, must be that extreme necessity which is above right. It never could have been intended that we should be driven to extremity before we could act; that the public enemy must be upon us before we can construct a military road. Constitutional difficulties of this description, it would seem, are not confined to this body. In a certain great city, not a thousand miles off, and at a period not a hundred years remote, a great question arose on the corporation's constitutional powers to build a bridge. A bridge was erecting, and the abutments constructed for throwing a noble arch of stone over the stream which ran through The gentleman (Mr. BARBOUR) certainly has the city, when, all at once, a scruple arose as to contended that our right to make military roads the power of making a stone arch. The bridge is the result only of extremity-of an extreme ne- makers very fairly contend that as they had cessity, which, by the laws of nations, would give power to build the bridge, they possessed the aca right to march through neutral territory. And cessary power of constructing the arch. But the can he really believe that, in relation to the power constitutionalists very ingeniously and subtily reof carrying on war, we were intended to enjoy plied, that as a bridge might be made of sills and only the powers given by the laws of nations? sleepers of wood, a stone arch could not be absoHe tells us we cannot cut a military road, unless lutely necessary; and the power was therefore our army should be placed in a situation from not given, unless indeed a case of extremity which we could not retreat without cutting one should exist which might justify it. Their counand how shall it be cut when we are pressed by sels prevailed. A wooden bridge was erected. an enemy? It would be impossible and thus and the floods came, and the torrents roared, and it seems, to use the clear language of the gentle- the constitutional bridge was in imminent danman from South Carolina, (Mr. LOWNDES,) when ger of being swept away. Then the constitutionit is practicable it is unconstitutional, and when alists were heard to cry out "the extremity has it is Constitutional, it is impracticable. In reply arrived, you may now construct the stone arch;" to the difficulties suggested in the report of the but, alas! it was too late! The workmen proselect committee, in relation to the transport of nounced it impossible; and the members of the military stores and munitions of war, the same corporation, in looking on while the bridge was gentleman has said, that we might establish ar- mingling with the flood, could but sigh at the resenals along the frontier where arms, &c., would flection, that, by their singular charter, what was be wanting; and that thus it was manifest mili-practicable was unconstitutional, and what was tary roads were not indispensable. My worthy friend from South Carolina, who has too much I shall not pretend, Mr. Chairman, to pass over delicacy to speak disrespectfully of any argument, the whole ground which other gentlemen have so has yet so forcibly illustrated the impolicy of ably occupied in support of these resolutions. placing our arsenals and magazines within the For this reason I shall not find it necessary to jaws of the enemy, that I am satisfied the gentle- comment at large upon the meaning of the word man will perceive his system of construction to "establish" in the post office clause. Whether be impracticable and inconsistent with the wis-"establish" means "construct," may well be left dom and views of the framers of the Constitution. to stand upon their arguments. I will however Sir, the gentleman has told us that, on our prin- add these suggestions on this point: If the power ciples of construction, the instrument is nothing but "to establish seminaries of learning" had been paper and packthread. I will tell him that on his given, would not that term have justified "the principles it is not even that. He shaved it away construction" of colleges, and the acquirement of by his acute and ingenious mode of reasoning, collegiate property? If the power to " establish” until you may see through it. It is so attenuated post offices gives the power to rent or purchase as to be impalpable. It is of no practical use. post offices, which has always been exercised The Government could never have been set in without dispute, is it not equally fair to undermotion upon his principles. In short-this Con- stand the power "to establish" post roads, as stitution, which will not permit us to prepare for giving at least the power to make them with the our defence against a foreign foe-this wonder-States' assent? I will also add, the Articles of ful instrument, so much the subject of our admi- Confederation did not authorize the establishment ration, and so zealously defended by gentlemen- of post roads: it applied only to post offices Why

constitutional was impracticable!

[blocks in formation]

then were the other words inserted, if establish only meant to designate? The designation of the office was always a sufficient designation of the road. The argument derives, too, additional force from the consideration, that the words "and post roads" were not in the first draught of the Constitution, but were interlined.

H. OF R.

cult to show a "direct relation" between the duty of carrying the mail and the power to render the roads passable. How much less direct in its relation is the power of hanging a robber of the mail under the power of establishing the road! And, unless the life of a citizen is considered unimportant, it may also fairly be alleged that there is a greater disproportion between this power of hanging and the establishment of a road, than between the power of declaring and carrying on war, and that of making a military road with a view to its successful prosecution.

For my own part, however, I am disposed to consider the power of improving the post roads rather as an accessary to the power of establishing post offices and post roads. I am inclined to this construction, because I am not disposed to strain the meaning of any term in this Constitu- The two gentlemen from Virginia, however, tion. I would assume indisputable ground. I do (Messrs. BARBOUR and NELSON,) and particularly not find myself called upon at this time to say the last, have contended, that the following clause how far we can go, but I am satisfied with say-in the 8th section of the first article of the Coning, confidently, that we can safely go as far as stitution, proves that it never was intended that is contemplated. It is sufficient for me that we the Federal Government should acquire any right can constitutionally do what the public good re- in the soil, in any of the States, except in the few quires, and I do not find it necessary to decide instances there specified. whether we can do more. Hence, I have already voted in the Committee, and shall continue to vote in the House, against those resolutions, which assert the power of Congress to construct roads and canals without the consent of the States. I confess myself, indeed, strongly inclined to the opinion that, in the exercise of these incidental' powers, the assent of the States must be obtained. I stated to the Committee, the other day, some reasons for this opinion, and shall, before I conclude, touch upon the subject once more.

The gentleman from Virginia (Mr. BARBOUR) seems to me to have conceded here the whole ground. He admits the right of way to be given by the post office clause; and he further admits, that a post road once established by Congress cannot be shut up by the State; though it may discontinue the road for all other purposes except the transportation of the mail. What, then, is the inference? Either that the State is bound to keep the road in repair for the use of the United States, out of the State funds; or, that the United States may, with their own funds, and with the State assent, put the post road in repair, (which is the position I contend for;) or, that the post roads of the United States may be permitted to go entirely out of repair, grow up into a wilderness, and become impassable, by which means the Federal Government can neither exercise the power nor perform the duty arising out of the post office clause.

This latter supposition cannot be contended for; and the gentleman may have his option as to the two former. For my own part, as a lover of State rights, I should much rather see the United States repairing the roads out of their own funds, than compelling us to repair them out of ours. It is not difficult to decide which would be the most dangerous invasion of State sovereignty.

The same gentleman has laid it down as a rule, that there must be a "direct relation" between the express power and the incident; and it is also contended, (though the position is entirely unsupported,) that the incidental power must not be greater than the principal. It is surely not diffi

That clause is in these words: "Congress shall have power to exercise exclusive legislation, &c., &c., and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock' yards, and other needful buildings." And gentlemen say, that bad the Convention contemplated the right of this Government to acquire property, ad libitum, from the States, they would not have conferred expressly these trivial powers to acquire small pieces of property for certain specified purposes. The argument is incorrect. It is founded on a false conception of the passage. It is based on the supposition, that this clause gives the power to purchase forts, &c., when a slight inspection will prove that this is not true. The clause gives jurisdiction only; it does not give the right to purchase. On the contrary, it furnishes to us an irresistible argument, that the power of purchase was taken for granted; for the power is not given expressly anywhere, but the mention of it here, incidentally, only shows that its existence was, nevertheless, clearly contemplated.

Sir, this is not only the fair construction of this clause of the Constitution, but, I will proceed to show, that, from the commencement of the Government to this day, the Federal Government has proceeded upon the presumption, that it had a right to acquire property by purchase and by cession from the States.

I will first mention custom-houses, some of which have cost large sums of money; whether purchased under the power to regulate commerce, or the general power here asserted of acquiring property, the construction which justifies them is at least as latitudinous as that we contend for.

The Harper's Ferry purchase. We had the power to purchase the site for an arsenal, but we had not only purchased this, but two considerable tracts of land, one of which does not lie contiguous to the arsenal, but at some distance from it.

The property owned by the United States in this District. But as these, together with a va

[blocks in formation]

riety of others, may be supposed referrible to some other power in the Constitution, we shall pass on to what is more important.

The purchase of Louisiana. Where will gentlemen, upon their principles of construction, find the justification of this measure? [Mr. NELSON rose, and referred it to the power of admitting new States into the Union. Mr. BARBOUR said, it had been referred to the treaty-making power, but, whether right or wrong, it would not operate as a precedent for him.]

As to the clause admitting new States into the Union, it clearly refers to States to be composed out of parts of the United States. If not, yet there are two sufficient replies to the argument. First, that Louisiana was not admitted as a State, but as a Territory, the property of the United States. Secondly, that unless it be admitted, as we contend, that we have a right to spend the revenues of the Union for the national advantage, we had no right to lay out our money in the purchase of the State, even if we had a right to admit it into the Union. And, moreover, the right to admit the State could not, of itself, justify the United States in acquiring for the General Government the immense quantity of public lands which it holds in that Territory.

MARCH, 1818.

which was the exercise of that very power in controversy; if not, then we gave to Georgia $1,200,000 for nothing. Now, if the Constitution does not permit us to lay out our money in acquiring property, or in giving aid to public improvement, I should be happy if the honorable gentleman will point out the clause which au thorizes us to give away the public money, without any consideration at all.

The next case I shall mention is the Virginia cession, made under the circumscribed powers of the old Confederation. If a power to receive a cession of territory existed under that instrument, it cannot be denied under this. Under that instrument, the immense western territory of Virginia, conquered by her arms under the gallant General Clarke, was ceded to the Confederacy. Will the gentleman deny the title of Virginia? Will he, the champion of her rights, assert that she had no claim to this property? He will not, he cannot. Whilst, therefore, according to his argument, the Mississippi cession furnishes an instance of our giving away our money, without consideration, the Virginia cession affords an example of our receiving a valuable consideration, without giving away our money.

A strong inference in relation to this power of As to the treaty-making power. This is a still acquisition, from one of the Confederacy, is afmore unsubstantial ground to rest upon. For forded by this cession of Virginia, made to the there is one principle which, in this House, we Union not more than a year before the adoption hold sacred; that whatever may be the treaties of this Constitution. If the convention had not made by the Executive, we are not obliged to intended this power to be exercised, which, under make the appropriation; still less can the treaty the still more narrow provisions of the Confedcompel us to make an appropriation, which generation, had been deemed legitimate, why does tlemen tell us the Constitution does not authorize. But, it is further to be remarked, that the appropriation of two millions for that purchase, was actually made a considerable time before the treaty; so that, unless the effect can produce the cause, the treaty cannot be resorted to to defend

the act.

The Committee will understand me as by no means arraigning these measures, which I deem not only Constitutional, but highly expedient and beneficial, but as contending that they cannot be justified, except upon the principle I advocate, "that the Federal Government has a right to purchase property for national benefit, with the national funds."

The next purchase I shall mention is the Mississippi, purchased from Georgia. To get rid of this difficulty, the gentleman from Virginia (Mr. NELSON) contended, that it had been conquered from Great Britain by the Union; that Georgia had no title to it; that it never was within the settled limits and jurisdiction of that State. The fact is mistaken, and the argument more so. The fact is mistaken. To a great part of the ceded territory the United States never asserted any claim; and I understand from a gentleman from Georgia before me, (Mr. COBB,) that a county on the Mississippi, called Bourbon, within the ceded territory, was laid off by that State before the cession. The argument is as incorrect as the fact is mistaken. If Georgia had a title, then we have purchased a title to land with our resources,

the Constitution contain no provisions inhibiting it to the Federal Government?

Sir, I do not call in question the validity of these cessions. I believe them Constitutional; but as they cannot be supported on the grounds assumed by gentlemen, and, as they disclaim the only principles on which they can be justified, it is to be hoped that, in fulfilling the important duty of supporting this Constitution, they will make amends for the errors committed, by receding to the States their respective territories. It is not enough for gentlemen to say "these precedents do not bind us. We do not justify these acts." It becomes their duty to repair the breach in the Constitution, by a prompt repeal of the unauthorized acts. If they will effect this, they shall, indeed, be called the defenders of the States. Georgia stands here ready to receive back her lands and give you your money again; and my parent State !-If you will only recede what she has lavished upon you, she will no longer be found begging at your doors for a little bit of land to discharge the just claims of her soldiers, of which they have been deprived by fraud or by mistake, in this very contract, whose validity is now called in question.

I will only add one other instance in relation to the United States acquisition of property. By the direct tax laws it has been provided that wherever there was default in the payment of the land tax, and upon the sale of the lands no person would bid the amount due, the land should

MARCH, 1818.

Internal Improvements.

H. OF R.

be purchased for the use of the United States. under the act of cession; it can only be supportThe gentleman whispers me that they were di- ed on our principles. The act of cession provirected to be sold again. But until the sale it was ded "that the ceded territory should be considthe United States property; and the resale may ered as a common fund for the benefit of the be made or not, according to the pleasure of the members of the Confederation." The fund is Government. Here, then, is a mode by which thus placed upon the same footing with the other the Union may be gradually, yet constantly, ac- funds of the United States. There is not a sylquiring property in the States. If, then, the gen- lable providing for or directing its application. tleman's argument that Congress has exclusive The act which erected Ohio into a State, in dijurisdiction over all the property it possesses, un-recting the application of a part of these funds to der the power to make "needful rules and regu- the construction of roads, is not, therefore, justilations" be correct, here is a mode in which the fied by the act of cession, but by the general prinmost extensive exclusive jurisdiction is to be ciple that we may expend our funds for the benacquired within the States. But the deduction efit of the Confederacy; and the acts authorizing of the gentleman is incorrect. The fair construc- the construction of the Cumberland road, (which tion of the clause he refers to, when connected have received the sanction of several Congresses with the clause in the 8th section on the subject and two Presidents, as also of the States of Pennof exclusive jurisdiction, does not give jurisdic-sylvania, Maryland, and Virginia,) having origition over property thus acquired. It only gives nated in the act last mentioned, can rest for their the right to make rules with respect to its dispo-justification only upon general principles, and sition and management.

I shall not detain the Committee with the numerous instances in which the United States have acquired property within the States-sometimes with, sometimes without, their assent.* But, before I quit this part of the subject, I will beg leave to reply to the remarks of the gentleman (Mr. NELSON) on the Cumberland and Plattsburg roads. These works he has attempted (as I understand him) to justify. The Committee referred to the former, as an instance of the appropriation of the public moneys of the United States, to the construction of roads through the several States, with their respective assent. The gentleman justifies this work, while he opposes the doctrine that the Federal Government can appropriate money for the improvement of roads. How does he justify it? Does he contend that we can appropriate to those purposes the proceeds of the sales of public lands, but no other funds? If so, and if an appropriation of this character will solve his difficulties, let us appropriate these funds for internal improvement instead of bank fund. I shall be happy to receive his support to the proposition. But what difference, in principle, is there between spending on roads a dollar that came in through the customs, or a dollar produced by the sale of public lands? Or how does our greater command over the fund give us a right to acquire property in one way and not in the other? The gentleman tells us we bound ourselves, by a compact with the State of Ohio, to make this road. Can this compact justify the act, if it would have been unconstitutional without it? If such compacts untie the Gordian knot, then let us make compacts with the respective States to effect this desirable purpose of internal improvement. It is all that we require. Sir, the Cumberland road cannot be supported

* See the first volume of the Laws of the United States, (Bioren & Duane's edition,) pages 664, 665, 666, 667, 668, 679, 680, 681, 682, 683, 684, 685, 686; the whole of which are occupied by a list of the property of the United States in different States of the Union.

not upon anything peculiar in their character, or in the character of the fund which has been employed.

The road from Plattsburg to Sackett's Harbor has been spoken of in justificatory language. It is said the soldiers have been employed on fatigue duty in making this road. If we have the power to make roads, it is all I ask. I care not whether they are made by soldiers or citizens. Let us-if the calling our laborers soldiers will justify the act-increase the number and appropriate our funds for doing the work effectually. It is said three cents per day additional allowance is all that it costs the United States. Fifteen cents additional is the real sum. But is there any difference, in principle, between three cents and three hundred ? It is said the road was there before. But is there any difference, in principle, between the right to repair the road, and to make it anew? If there be, and the former be Constitutional, let us all unite in appropriating funds to repair the existing roads. We shall have enough upon our hands in this view of the subject. It is said that this was directed by the military authority. And can the military authority, in time of peace, make a road without the consent of a State, when the legislative body cannot authorize it with their assent ? Sir, Í, too, approve the making of this road, but not upon these principles. I approve it, because we have a right to appropriate our funds to such purposes; because the legislative body did, by their appropriation of fifteen cents additional to the soldier's pay for this purpose, authorize the act; and because, although the State assent was not formally procured, there is every reason to believe it met with universal approbation.

I will not detain the Committee by enlarging on topics peculiar to military roads. There is no power in this Constitution more extensive than the war power. It never could have been intended by its framers, who had felt, through a long and often disastrous war, the evils of too limited powers, 'that this nation should, in such trying scenes, be handcuffed and manacled. It never could have entered into their views, that

« ForrigeFortsett »