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this Constitution only gave such rights, in relation to the marching of armies, as the laws of nations confer. They never could have intended that our armies should be placed in extremity before they could begin to cut a road for their retreat or accommodation. They were men of the world and statesmen. They knew that, as far back as recorded history extends, roads and bridges were essentials in military operations. They must, therefore, have intended that the power to make them should be vested in the General Government, as accessary to the power of raising and supporting armies and making war. And this, of itself, furnishes a sufficient answer to the argument of gentlemen “that if these important powers were intended to be given, they would not have been left to be inferred.” If considered as fairly accessary to the war power, it was unnecessary, and would have been improper to specify them. The principle of exposition contended for, sufficiently evinces the prudence and propriety of avoiding an expressicn of what was considered as implied. Sir, the events of the late war furnish us a lesson on the subject never to be forgotten. The transportation of our cannon to Sackett's Harbor cost us, it has been said, one thousand dollars a gun, and flour, in the Northwest, cost, at one period of the war, ninety dollars a barrel, on account of the difficulties of transportation. I have before me a history of the Western war, where I find it stated, that the extra expenses of transportation, proceeding from bad roads, would have built a fleet upon the Lakes, and that each wagon loaded with flour (never more than eight barrels to a load) was obliged to be attended by two others loaded with forage. I find, also, that to the dreadful state of the roads, which prevented the arrival of artillery at the river Raisin in time for that disastrous conflict, is attributed that dire event, at the recollection of which the blood in the veins of every American must run back to its citadel—the heart. [Here Mr. T. read, from the History of the Western War, passages on these subjects.] ut, an honorable gentleman from Virginia (Mr. SMYTH) tells us, that the power of constructing military roads, at least in time of war, does belong to the Executive department of Government, but that the Legislative body has nothing to do with it. This is dangerous doctrine, sir, and not more dangerous than incorrect. How do they get the power? Is it expressly given 7 By no means. It is an accessary, it is said, and justly too, to the power of making war, and raising and supporting armies. But the accessary follows its principal. To whom, then, is the principal power given 7 To Congress; and if the accessary follows the principal, the accessary power of making roads belongs to Congress also. It is true, that if Congress makes war and puts an army into the hands of the President, necessity may sometimes compel him to exercise this power; but it is a necessity that only excuses an act which is irregular and at variance with the principles of the Constitution.
Having occupied already so much of the time of the Committee, I shall not take a view of the question as it relates to canals, except so far as it is connected with the extensive power over our revenues which this Constitution has given us.
This power “to raise money to pay the debts of the Union, and provide for the common defence and general welfare,” is one of the most comprehensive in the Constitution. By the exÉ. terms of the instrument, there is no other imitation, except that the object of expenditure must either be for the common defence or general welfare. Indeed, in the nature of things, it could not have been intended by the convention to specify, in the Constitution, all the purposes to which revenue might be applied. There is nothing more entirely indefinite and general than the uses of revenue. Money, of no value in itself, . as it will command, what we want, is capable of such an infinite diversity of uses, that to attempt to define its application, is to descend into the minutiae of human transactions. I cannot, therefore, conceive that it was the spirit and intention of the clause, to confine the expenditure of money to the objects specified in the succeeding enumeration of powers. The gentleman from Tennessee (Mr. Jones) has saved me the trouble, by his clear and logical argument, of showing, that, according to no fair principles of construction, can the powers “to borrow money,” and those which follow in the same clause, be considered as dependent upon this general clause. They are all as independent of this as they are of each other. Each depends alone upon the commencing words of the section—“Congress shall have power.”
But some gentlemen, fearful of this sweeping clause, as it is called, contend that there is a fair implication that the expenditure is to be applied to the specified objects; that upon any other construction the powers of the Federal Government would be as extensive as the wants of the nation, and swallow up all the powers of the States. I see no foundation for the implication, nor do I apprehend any danger of such an extension of power. While in relation to the “common defence,” there can be no pretext for alarm, there seems to me not more reason for apprehension in giving to the phrase “the general welfare,” in this clause of the Constitution, its plain and appropriate signification. We cannot exclude them from an instrument which we are told must be construed with so much precision. How then is this term “general” used? To indicate nationality; to point out that the object of the public expenditure must be the national welfare—the welfare of the Union as a nation—contradistinguished from the welfare of the States as members of that Union. Pursuing this plain and obvious meaning of the terms, there is no danger of the National Government insinuating itself, as has been suggested, into all those concerns which were unquestionably intended to be reserved to the States. It is only by attribing to the term “general” the idea of “universality,” of which it is not here susceptible, that any foundation can be afforded for the alarm which has been expressed. But those who apprehended so much from a construction of this clause, which would leave to Congress the unlimited disposal of the revenues of the Government, would cease to be alarmed if they would but reflect, that the unlimited power over our funds, does not imply, of necessity, a power to do everything to which these funds may be applied. My right to use my own funds at pleasure is always controlled by this obvious restriction, that I shall not acquire with them what belongs to another, without his consent. I have a right to lay out my money in the purchase of your property, if you will sell it to me; but my right to use my money does not take away, your right to keep your property. The United States have a right to appropriate money to make canals, it is true, but this does not give them a right to seize the property of the States, and make canals without their assent. The power over our funds (unlimited except by the nationality of the object to which they must be applied) does not, therefore, enlarge our powers or diminish the powers of the States. It is in this, I conceive, the error lies. Our adversaries now press upon us, what I presume to have been the Federal doctrines of 1798—that the power to raise money to provide for the “general welfare,” enlarges the powers of the General Government, instead of merely leaving it a discretion in the application of its funds to objects that are national in their character. Such a doctrine would be dangerous indeed, and has therefore always been very properly repelled. But the right of applying the public money to national objects, limited and controlled, as of necessity it must be, by the rights of the States, is a salutary and Constitutional right. The first would give to the Federal Government the power of making roads and canals in spite of the States; the last only asserts the right to spend our money in improving the State property, provided the owners (that is the States) ive their assent to the improvement. The first is subversive of State rights, the last admits them and respects them. It is this view of the subject which is to my mind most satisfactory. If it be not founded in error, we have a right to subscribe to the stock of any road or canal companies, (whichever is the most desirable mode of effecting our object.) or we may, with the assent, and under the laws of the States, proceed to the construction of roads and canals; the rights of individuals being protected by their State Legislatures, and by the provisions of the 5th article of the amendments to the Constitution. To illustrate this view of the subject, let me ask, if the United States had a deep national interest in the improvement of the navigation of the Appalachieola, from the Florida line to the Gulf, through the Spanish dominions, would they not have a right to expend the funds of the Union in that national object, with the assent of Spain? It must be admitted. Suppose they
MARch, 1818. Internal Improvements. H. or R.
purchase Florida, and it becomes a State, and the national interest requires the same improvement in the navigation; can it be contended that, though we had a right to use our funds in improving a Spanish river, with Spain's assent, we cannot improve it when it shall become one of our own rivers, even with the assent of the State through which it passes 7 Again : It is said we have now an absolute right to apply the funds of the Union in making a road through Alabama Territory; can it then be contended that, when it becomes a State, this right to apply our funds will cease, even though the State should assent to the application ? It will be perceived that, in every view of this subject, I consider the assent of the States as a term in the proposition. I do not feel myself called upon to decide whether we may not even go further, particularly in relation to military roads. It is enough for me, that we can approriate our funds to this object, which always implies the necessity of State assent to the execution of the work. I confess myself, however, inclined to the opinion, that, according to a fair construction of this instrument, State assent is a prerequisite to the execution of any permanent national improvement. The occasional construction in time of war of a road for military purposes, must always be justified, independent of assent. But it is justified by a necessity which sets right at naught, and does not therefore fairly enter into this discussion. I will, however, succinctly state, why I consider the Constitution as requiring the assent of the States wherever an incidental power affecting territorial rights is to be exerted. In the 8th section of the 1st article of the Constitution before cited, where the power of purchasing property for forts, magazines, and dockyards, is incidentally mentioned, that power seems to have been contemplated as qualified with the necessity of obtaining the consent of the States. Then, I argue thus: If, in the casual mention of certain incidental powers affecting territory, (such as purchasing land for forts, &c.,) the framers of the Constitution manifest their understanding that they are to be considered as qualified by the necessity of procuring the assent of the States, it is fair to conclude that wherever incidental powers, which interfere with territorial rights are to be exerted, they must be subject to the same qualification. Now the right to make roads as necessary to the post office clause, or the war-making power, is an in: cidental right, and interferes with the territorial rights of the States. I conclude, therefore, that it can only be exercised with the assent of the States. Nor let me be understood to contend that the assent of a State makes that Constitutional, which was not so before. I conceive the power to be given by the Constitution, but that, according to a fair construction, it is given with a qualification that the State assent shall be obtained before it can be exercised. Such, sir, are my ideas of this Constitution,
and of the question before us.. I am satisfied that the construction which I have given to it, is not calculated to prostrate the rights of the States, or to consolidate this confederacy. No man can be more alive to the just rights of the States than myself. None can be more sensitive than I am as to the interests of my native State. But I am satisfied that the principles of construction contended for by gentlemen would render this Constitution worthless. So construed, it is an useless hulk upon the waters; worm-eaten, not seaworthy; and you could no more calculate on its bearing you safely over the tempestuous ocean of political affairs, than you could expect your gallant Constitution-the old Ironsides of your navy—rigged with a single mast, and her seamen o alone with bludgeons, to return to your shores from the conquest of the Javas and the Guerrieres of the ocean, bearing aloft your flag amidst the acclamations of your people, and rendering your exploits the envy ..". admiration of the world ! The Committee rose, obtained leave to sit again, and the House adjourned about five o’clock.
FRIDAY, March 13.
Mr. Williams, from the Committee of Claims, made a report on the petition of Henry Davis which was read; when Mr. W. reported a bill for the relief of the said Henry Davis, which was read twice and committed to a Committee of the Whole. Mr. Williams also made a report on the case of Thaddeus Mayhew, transmitted to this House by the Commissioner of Claims, which was read; when Mr. W. reported a bill for the relief of the said Thaddeus Mayhew, which was read twice, and committed to a Committee of the Whole. A message from the Senate informed the House that the Senate have passed a bill, entitled “An act extending the time for obtaining military land warrants, in certain cases;” also, the bill, entitled “An act fixing the compensations of the Secretary of the Senate, and Clerk of the House of Representatives, and of the clerks employed in their offices; and the bill, entitled “An act to provide for delivering up persons held to labor or service in any of the States or Territories, who shall escape into any other State or Territory,” with amendments to each ; in which bill and amendments, they ask the concurrence of this House. The bill from the Senate was read twice and referred to the Committee on Military Affairs. The amendments to the first mentioned bill of this House were read, and referred to the Committee of Ways and Means. The amendments to the last mentioned bill were read, and ordered to lie on the table. On motion of Mr. LAwyer, the Committee on Pensions and Revolutionary Claims were instructed to inquire into the expediency of correcting a mistake that occurred in the year 1808, in placing Captain Thomas Matchin, an officer in the Rev
dollars per month, when he ought to have been placed on the pension, list at twenty dollars per month, according to the report of the then Secretary of War, and providing by law for the correction of such mistake.
. The House again resolved itself into a Committee of the Whole, on the resolutions in favor of the power and duty of Congress to authorize the making of roads and canals within the several States. Mr. Pindall, of Virginia.-I had intended to address the Committee in an earlier stage of the debate, but, the silence which the deference due to more experienced members imposed on me, has been amply rewarded, for the chief grounds of argument on which I had intended to dwell have been preoccupied : gentlemen who have handled them with an ability to which I could not have aspired. I have risen, however, to notice some of the positions of those who question the power of this Government to apply its resources to the internal improvement of the country, by the construction of roads and canals—positions which have, probably, escaped the views of gentlemen with whom I shall vote, or, indeed, may have been noticed by them, but in a light somewhat different from the views I shall take leave to submit. Gentlemen on opposite sides, in this controversy, espy the Constitution of the United States in different and very dissimilar aspects. Whilst those who affirm our power to construct roads consider the Constitution as a modification of social compact, defining and conferring legislative powers; gentlemen on the other side, who deny the power in question, seem to be out of humor whenever the instrument is viewed in any other than its federative character, or, as an international convention, to be construed as a treaty between independent Powers. I will not undertake to deny the theorem on which several honorable members seem to build their arguments, to wit: that rules of interpretation, as applied to a fundamental social institution, or, to a mere treaty between sovereigns, are different as to their latitude of operation; and gentlemen (with my leave) may assume, that a treaty shall receive a more restrained construction, with reard to granted powers, than a social compact. ut, on the other hand, all should admit that the Constitution of the United States is a compact both social and federal in its character. , Hence, it might be supposed that we ought to interpret some of its provisions as clauses of a social compact, and others of its provisions as clauses of a federative alliance. And this, again, might introduce the inquiry, whether those texts of the Constitution, from whence we seek to derive the power in question, be social or federal in their character. I will, however, beg leave, for a moment, to consider our Constitution as a mere federative instrument, or treaty, between the twenty States of the continent; this being the view of that instrument which seems so congenial to the
olutionary army, upon the pension list, at ten I wish of those who oppose the resolutions.
The Constitution, then, as a treaty between the several States, is the object or subject of some common-place rules of construction, which, if not altogether self-evident, are so usual and universally acknowledged, that I should think it a mere waste of time to mention them were it not from a persuasion that indubitable results will be seen to flow from their recollection. It may be assumed as a primary rule, that terms or words found in treaties are to be interpreted in their received signification in the sense which custom has given them. Again, the custom which presides the interpretation is the custom of the time in which the treaty was concluded or drawn up; and, as language and the customary signification of words vary with time, it behooves us, in seeking the sense of treaties of past times, to know the common sense of the terms used at the time when the treaty was written; and this can only be known (according to national law writers) by the works of contemporaneous writers, by the contemporaneous acts of those concerned, and by early acts and interpretations by those who lived and acted in times less remote than ourselves from the origin of the treaty. Here, then, we find a cure for what I consider as the error of my honorable colleague, (Mr. BARbour.) when he asserts that precedents are to have no weight in construing the Constitution. That gentleman insists that precedents are only to prevail in the technical proceedings of municipal courts, and are to lose all their virtue when .. to national compacts or treaties. In truth, the authority of precedents operates in an inverse ratio, when compared with the idea of my colleague, for the technical rule of the municipal court discards the force of precedent, unless the point quoted shall have been directly and expressly affirmed, denied, and solemnly adjudicated, otherwise the opinion of the most learned judge would be repudiated as an obiter dictum : whereas the deliberate, but theoretical disquisitions of those who had an opportunity of knowing the motives and objects of the parties are adverted to in expounding national pacts. The statesman or politician works with the same tools that employ the lawyer, and the difference is in his occasionally seizing other tools to which the lawyer is not entitled. The statesman may call his sources of information contemporaneous practice, or early practice, or more recent acts of construction acquiesced in by the parties, &c., et, after all, (as I have remarked,) he only difers with the provincial lawyer in resorting to a more liberal and extensive use of what may be called precedents. My colleague also supposes that legislative precedents prevail in the British Parliament, but ought to have no weight in this country. I agree that no act or decision of the British Parliament can furnish a precedent for us, and that, in questions of mere expediency, precedents can have but little, if any, weight in the legislative assembly. But, with regard to disputes of the boundaries of legislative power, I insist that a defertnce to precedents is the property of the Legisla
ture of the United States, and not of the British Government. The British Parliament has no limitation to its legislative powers, consequently precedents can never be resorted to for the purpose of showing the precise extent or limits of powers which are confessedly unlimited. But, although the power of British legislation knows no limitation, the separate powers of the respective branches of that Government, in their relations to each other, are so limited as to prevent collision; and in adjusting questions of that limitation, precedents are quoted and are allowed their proper weight. Hence, it is seen, that, with the British Government, whenever boundaries of power are acknowledged, or certain limits prescribed, the doctrine of precedents, furnishing the beacons or line trees in the road of certainty, is necessarily attended to. My colleague, in drawing lines of distinction between the Parliament and Congress, quotes it as a maxim of the British Parliament, that, whatever has at any time been done, may be done again. If the proposition, of which this maxim consists, had been affirmed by me, as a postulate in experimental philosophy, I think my colleague would have yielded to its truth. I presume, however, he quotes the proposition in a moral sense, and if he thereby meant, that whatever had been morally and properly done at any time, might be morally and properly done again, I would claim that maxim as the property of our Government. But there is no sense in which the maxim can apply to the powers of the British Parliament, for those powers being destitute of limitation, the Parliament may not only do again whatever has at any time been done, but may do what never has been done at any time. The structure of this Government has furnished a mean whereby the constitutionality of legislative acts may be tested. This mean administers itself through the instrumentality of the judiciary department. As laws are administered by the i. tribunal, it, in judging of the validity of those laws, and in deciding on their conformity to the Constitution interposes as an umpire between Congress and the people. Now, all will admit, that the Supreme Court of the United States, in deciding the question whether a law be Constitutional, will give ear to the authority of precedents. An appropriation of money to particular objects may be effected by a bill, which may happen to be carried into execution without passing the ordeal of an examination by the judiciary. But, after gentlemen admit that the judiciary may decide on our Constitutional powers, that the judiciary, in making that decision, will adhere to precedents, and, consequently, that precedents have authority whenever an impartial and learn: ed umpire can intervene with its authority; will they contend that, in every case where peculiar circumstances enable us to carry a measure into execution without the aid of the judiciary, and where, of course, we must determine the validity of the power ourselves, precedents are to be re: jected? How happens it that precedent shall have force in settling the validity of one Consti
tutional power, and be rejected when the question arises on another? Is it because in the latter case our ingenuity enables us to shun those scientific tribunals which the Constitution has created for its own preservation ? My colleague (Mr. BARbour) warns us of the importance of the question now under discussion, and informs us that unborn millions will be affected by the consequences of the decision now to be had. But how are unborn millions to feel the effects of this decision, unless, being had upon full and mature consideration, it be hereafter regarded as a precedent 7 Thus, the Committee may have observed my colleague rendering (as it might be called) his involuntary consent to the doctrine of precedent, at the moment when declaring his hostility to its authority. I have dwelt thus much on the topic of precedent, because I am convinced that the previous acts of this Government go to strengthen those who advocate the power of Congress; and because, not only my ...so but other members with whom I shall have the honor to vote on this occasion, have assailed the legitimate authority of precedents. The very able detail and commentary of legislative precedents and official executive opinions, which have been so eloquently dwelt on by my honorable colleague, (Mr. Tucker,) exempts me from the necessity, even if I had the ability, of discussing them. Indeed the Committee must be convinced that the authority of Congress to construct roads, as far as the construction contended for can be supported by precedents, is fully proved. I will almost venture to assert, that gentlemen who oppose the power of Congress are ready to admit that the power is established, as far at least as it can be established by precedent; else, why has my colleague (Mr. Barbour) resorted to the unusual course of denying all authority of precedents—a position involving the endless absurdity of forcing us to ten thousand decisions of a Constitutional question, which, after all, according to his theory, would leave the same question undecided through all futurity ? Else, why has another honorable colleague, (Mr. A. SMyth,) when speaking of the previous acts and executive reports of the Government, been driven to something like harshness of accusation against Albert Gallatin and others, in whom we have been accustomed to confide? a resort which, I know, was painful to my colleague, and could only have been justified in his own mind by the extreme pleasure which he felt from the authority of precedents. The Committee will remember that the advocates of the power of Congress to construct roads, insisted that the authority to do so was comprehended in the express power to establish post roads. To this my colleague, (Mr. BARBour,) in further prosecution of the idea of the Consti. tution being a treaty, replies, that the right of this Government, with regard to post routes, is only a Tight of passage through the country, granted by the sovereign power of one country to the sovereign of another. But the chairman of the
select committee has shown that a grant of the right of passage must comprehend the right of repairing or constructing roads through which it is necessary to pass. Wattel, in book 3, chapter 7, sections 130 and 134, in treating of the right of passage, as granted by one sovereign to another, informs us that, it includes every thing, without which it would not be practicable; that the sovereign thus passing may, towards rendering the right effectual, even exercise some of the attributes of sovereignty whilst on the territory of his neighbor; for he may exercise military discipline on his officers and soldiers, and he is only bound to make a just reparation or compensation for damages occasioned by the operations of encamping, entrenching, &c. If this Government has only the right of passage, it must, by the principles of national law, have the right of repairing or constructing roads, without which that right cannot be exercised with convenience, and sometimes could not be exercised at all; and must also be entitled to exercise the attributes of sovereignty, which protects the exercise of the right. This would justify legislative regulations for the preservation of the roads she repairs, during the time of the continuance of this right of passage, which is coextensive with the duration of our Constitution. Every sovereign that enters another territory in his sovereign character, does so as an enemy or as an ally: if as an ene: my, the rights of conquest entitle him to make and demolish roads at his own pleasure; if he passes as an ally, and by consent, we have seen that he may make or repair the roads of passage during the continuance of his right of passage, only repairing the damage occasioned thereby to others. And the fifth article of the amendments to the Constitution of the United States provides, that private property shall not be taken for public use without just compensation. But these views involve us in refinements that are scarcely tangible, and my only apology for indulging in them is a desire to examine the ingenious arguments of my colleagues. In truth, the powers of the United States in relation to post roads have no resemblance to the mere right of passage; the latter is a transient advantage, ceasing the moment the party has glided through the country, whilst the former is an existing perpetual right. The one is the mere boon of hospitality, extended to a guest, whilst the other is the property of sovereignty, and is contained among the legislative powers granted to Congress. But it has been said, that the United States have nothing but a right of way, on which the mail may be carried. I had not expected the advancement of this idea from my colleague, after the exceptions so ingeniously and eloquently urged against the admission of precedents, as too technical to have any place in the interpretation of the Constitution; for, no term can be more peculiarly technical, than the right of way—which is one of the ten incorporeal hereditaments, of which the common lawyers treat. This Government, then, is reduced to the consideration of a humble patentee, to whom Virginia has granted the right