MARCH, 1818. Internal Improvements. H. or R. of carrying a mail on her roads. Carry this re- If the power of Congress to establish post roads finement out one step further, and it would follow, comprehends neither the authority to construct that, for any abuse of this right on our part, Vir- or repair roads, nor any jurisdiction over such ginia might repeal the grant by a scire facias, to roads, the United States Government will be be prosecuted on the chancery side of some of her obliged to carry the public mails on the roads county courts. Matthew De Quester, in the provided by the respective States. Being thus reign of James I, and afterwards Manley, about the obliged to perform this duty, upon the State middle of the 17th century, were English sub-roads, I pray you to solve this inquiry: Is this jects, who held the post office as patentees. Mat- Government, in transporting the mail, to be conthew De Quester, to facilitate the passage of the fined to the public roads of the State, or may mail, might have bargained and advanced his it use the private ways and roads also? If this money to the turnpike companies, to induce them Government be confined to the public roads, it folto improve the roads, or he might have agreed to lows, that, inasmuch as the construction, continuwork his own laborers on the roads. It is true, he ation, and alteration, of public roads, are under could make no laws to govern such objects, be- the entire control of the State Legislatures, the cause the power of legislation, in relation to the direction and facilities of the mail, and whole post roads, had not been granted to him as it has post office police, must be subject to their conbeen to Congress-a body that claims not as a pri- trol. But, if this Government has the right to vate grantee, but as a supreme power of legislation. carry its mails on private roads also, then every Some of my colleagues would require this Gov- private man, who has the control and direction of ernment, on approaching the southern shore of these private ways, will, as well as the State Legthe Potomac, to disrobe itself of the sovereignty islatures, have the consequent direction of the with which it has been clothed by the people, and public mail. pass with the mail through Virginia, as any pri- The public roads of the States are subject to vate citizen, yeoman, or beggar, may travel to mill the jurisdiction of the State Legislatures, by or market. But a foreign sovereign cannot be whom the superintendence and police of the roads subjected to the municipal laws of a country in are usually confided to county tribunals of police. which he sojourns. Nay; the laws of nations If one or more individuals desire the construction impose a duty on despotic Powers, as well as free of a new road, the opposite parties, whose interGovernments, to issue orders, or enact laws, which ests are affected, are summoned to show cause shall give security to the foreign sovereign, and ex- against the establishment of the proposed road, empt him om subjection to the civil laws. My and if no sufficient objection can be shown, the colleagues then, who are so zealous of State rights, road may be established. But the respective parmust see the necessity of having State laws to reg- ties often compromise their differences, before ulate and protect the rights of this Government, in any decision is made by the road tribunals, whererelation to post offices and post roads; which State by it is contracted, that a certain person, or all laws could not be enacted, unless by a resumption the persons in a certain neighborhood, or vicinof legislative powers, which have been expressly ity, may have a road through the lands of others, granted to the Government of the United States. on condition that the parties to be benefited shall My colleague, (Mr. BARBOUR) adopts an unwar- refrain from insisting on the establishment of a rantable course of argument. If, said he, you public road. These amicable arrangements have have the right to construct roads you must have a been so usually resorted to in some sections of right to take earth, stone, and gravel, with which the country, as to supersede, in a measure, the to make them; but the Constitution gives you no establishment of public roads; yet, the proprieauthority to take these materials, and therefore tor of land, who becomes bound by such local you cannot construct roads. It is true, that the contracts, is under no obligation to open his Constitution does not, by expressed words, grant grounds for the passage of any, except the perthe power to take these materials, but if it com-son, or vicinity, with which he has contracted prehends the power to construct roads (as I think I have travelled three-fourths of a day in Maryhas been proved by other gentlemen) then the land, on a direct course, in which my whole route proposition of my colleague admits, that the au- passed through fields and gates, which the prothority to take these materials is a necessary in-prietors made no objection to passing, although cident to the execution of that power. My col- they might have objected to the passage of every league also says, that we have the power to build one who were not within the purview of the a navy, but that we have no authority to impress contract in pursuance of which the gates had the mountain oak wherewith to build it. I will been erected. not stop here to examine the correctness of this I now beg leave to propound a simple quesassertion; nor will I consume your time by the tion: Can the United States force the passage inquiry, whether timber is not as essential to the of its mails through the private ways and gates building of a navy, as stone and gravel are to the that I have mentioned? If you answer in the construction of a road. But I must take leave to negative, it hence follows, that the most eligible, submit to my colleague this inquiry-whether, if and, indeed, necessary mail routes may be defeatthis Government has power to build a navy, with-ed, or impeded, not only by each State, but by out the power to impress timber, it may not also combinations of neighbors, and sometimes by a have the power to construct roads, without the single individual, in any State. But if you anauthority to impress stone and gravel? swer in the affirmative, by declaring that the 15th CoN. 1st SESS.-43 United States may force a passage for her mail through these gates, then the whole question of the power of Congress is yielded to us; for the Government may force or break the locked gates, to effect the passage; and seeing that such force is the same sort of power which is declaimed against, with regard to the improvement or construction of roads, it must follow that this Government must stop and surrender its authority on the encounter of every such gate, or exert the same powers which are sufficient for the construction or repair of post roads. I know that my colleagues will not yield to this Government a mere provisonal jurisdiction to open roads, when the States shall have omitted or refused to do so; for they declare that no act, consent, or conduct, of the State Government, can confer any power on the General Government, of which it is destitute. But, should they yield this point to the General Government, upon it would devolve the power of deciding whether the roads of the States were ample and convenient for the mails, and the power to determine and control this question would comprehend every umpirage over public roads that the friends of these resolutions contended for. Several of my honorable colleagues, addressing you in the name of Virginia, have strongly protested against infringement on State sovereignties. In this, my colleagues pursue the bent and spirit of our native State, which has always occupied the front, in guarding against the encroachments of the Federal Government. But, if my colleagues, in continually assuming Virginia as the heroine or prepositus, in every instance of illustration, have only indulged in an excusable resort to homestead pride, knowing their liberality, I can readily foresee their readiness to yield, that I may consider myself, for a while, the advocate of our State. They have exhibited our State in every attitude of hostility to, or at least defence against, the force of the General Government; and I now ask, that I may be considered as Virginia for the moment in which I shall continue to occupy the floor. I would then remind you, in behalf of my native State, that she has surrendered to you the great and efficient sources of revenue, with powers that impose on the General Government correlative duties, or obligations of equal extent. Among other important delegations of power, is included the legislative authority on the subjects of the post of fices and post roads. On this delegation of authority, you have (without any question of jurisdiction) built a department and superstructure that yields a revenue of considerable amount. This revenue is your property, and cannot be encroached on by the States; but the States, in surrendering to you the Post Office Department, although conferring with it all its incidental powers, did not mean, in regard to your relations with them, to create a mere source of revenue in your favor. The Post Office Establishment has become a considerable source of revenue to you; you extend its ramifications to a great area. I therefore require you to support it MARCH, 1818. with your own revenue, and apprize you, that it is unreasonable and unjust, that you should, while deriving so great a revenue from that establishment in Virginia, require that State, without any participation of profit, to incur the labor and expense of working roads, on which you are to derive and collect this great revenue. In behalf of the citizens and landholders, I appeal to the fifth article of the amendments of the Constitution of the United States, which provides, "that private property shall not be taken for public use without just compensation." I confide, that gentlemen who have preceded me in this debate, have proved, to the satisfaction of a majority of the House, that this Government has the power to construct military roads. This power, however, is denied by our opponents; and an honorable colleague (Mr. A. SMYTH) insists that the power to make military roads arises out of the emergencies of war, and ceases with the necessity, which justifies its exercise in a state of warfare. But in war, military roads are useful and necessary only for the passage of troops, provisions and military munitions; and, as the United States employ an army in times of peace, it is necessary to have military roads to effect the same objects at all times. My colleague (Mr. A. SMYTH) has been candid enough to admit that the United States may subscribe its money in the stock of companies incorporated for purposes of internal improvement, and the consequence which will necessarily follow from another principle he has recognised, will, I think, compel him to join our side of the question. He admits that the power to establish military roads exists in this Government; but insists that it is a military power, which belongs to the President of the United States as commander-in-chief of our army, (that is, to the Executive department.) and not to Congress. Permit me now to call his attention to the last clause of the eighth section of the Constitution of the United States, by which Congress not only has the power to make all laws which shall be necessary and proper to carry into execution its ordinary powers, but all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof. If the Congress has authority to make laws to carry into execution the powers vested in any department or officer of this Government, it must follow that, if the Executive department has the right to construct military roads, Congress may make laws to carry its power into execution; and this is all that the resolutions before us contend for. I cannot omit a review of one ground assumed by my honorable colleague, (Mr. BARBOUR,) which, according to method, ought to have been sooner noticed. He states that the Legislature of Virginia, in conferring jurisdiction on the county courts to open and alter public roads, has always paid a proper respect to the obligations imposed by the Constitution of the United States, by provisions that the courts should not have the power of discontinuing post roads. The State authorities then possessing the power to open a new road from one place to another, but no power to discontinue the old road, which is a post road, the old road which must be kept in repair by expenditures, must be worked by the State or by the United States; if, by the United States, the question is yielded to us, that this Government may employ labor on roads. But, if it be said that the State is bound to work and repair the old road, of no use but as a mail route, it would not only follow that the State subjects itself to an expense and labor to support the revenues of the United States, but, that the right to have these repairs made by the State, existing in this Government, it must, of consequence, possess the correspondent remedy to compel the States to furnish these repairs; and I may safely submit to my colleague, whether he would prefer to suffer, nay, require the United States to work her own post roads, or consent that Virginia should become the humble subaltern of the orders of this Government, and receive its mandates to work the post roads. Although I cannot agree with my honorable colleague (Mr. TUCKER) that the assent of the States is essential to the exercise of our power to construct roads, I deem such assent as material whenever the expediency of exercising the power shall come in question; and I shall indeed vote for the proposition of my colleague, that we have the power with the assent of the States; for, if we have the power without the assent of the States, we surely have it when they assent. H. of R. that in this, as in every other question, I choose to rely on my own judgment. Mr. ORR, of Massachusetts, said, that, in rising on the present occasion, he was well aware of the danger of having imputed to him a great degree of insensibility, or a still greater degree of assurance-for, he had long since observed, that the patience of the Committee was exhausted. And he could assure the Committee, that he should not have entered into the debate at this late stage of it, had he felt convinced that no further argument, in opposition to the resolutions on the table, could be urged; but, the subject was, in its nature, complex, and admitted of great diversity of illustration; and, notwithstanding it had been ably argued by the honorable gentlemen who had preceded him on the same side, he could not feel reconciled to giving a silent vote. In all that has been urged in argument, in support of the power contended for, no gentleman, said Mr. O., has condescended to inform us, what are the nature and character of that power. It has been generally said to be a resulting power, an incidental power. But this is no definition that conveys any distinct idea of its nature, its political bearing on society, its rank in the regis ter of State authorities. Then, sir, as this has not been done, I will venture to assign it a name and a rank; and I do, without hesitancy, pronounce it to be nothing short of a substantive attribute of supremacy, of high State prerogative-a power to turn rivers from the channels which nature has assigned to them, and to subvert the soil of the citizen, and convert it to public use, On firstreading the able and ingenious report of the select committee, I withheld my assent to the distinction it advances as to the different rules of interpretation which ought to pervade dissim-without his consent, express or implied. It is ilar provisions of the Constitution; as, that oner- the same degree of power as that, which can take ous powers of the Government ought to be the life of an offender against public justice, constrictly construed, whilst beneficial powers should fiscate his estate, subject him to attainder and admit of a more liberal interpretation. But, by corruption of blood. This being the nature of more mature reflection, I am convinced, that the power contended for by the advocates of the reswhatever, in a compact, is for the equal and com-olutions, by whatever mode of reasoning they may mon advantage of all the parties, may justly be have arrived at the consciousness that Congress interpreted more liberally than more odious possess it, I will proceed, said Mr. O., to examine clauses, which impose burdens and hardships on whether it is, in reality, to be found in the Conone of the parties. And conceiving that national stitution. But, before I examine that, I will avail improvements tend to the benefit of all, I yield myself of the sentiments expressed by the honomy assent to those who liberally expound our rable gentleman from Virginia, (Mr. PINDALL,) great charter; and instead of detaining the Com- who has just sat down, that the best mode of unmittee with self-made arguments on this topic, I derstanding the force of terms, the weight of premust beg leave to refer them to the second book cepts and precedents, is to have recourse to conof Vattel, chapter seventeenth, the authority of temporaneous expositions of the things to which which will surely be admitted by gentlemen who they are applied; to this I fully assent-for terms are determined to view our Constitution as an may change with time, while particular subjects, international treaty. to which they apply, admit of no change. And I go still farther, sir; we may go even behind contemporaneous exposition of precepts and precedents, as applicable to maxims of State gov ernment; and, on the present occasion, I feel it to be necessary, not only to refer to the character of our statesmen at the time of the formation of the Constitution-but the origin and progress of that political science which brought it into existence. I proceed, then, to the foundation of our political institutions: these were the ancient charters of our ancestors, first of Virginia, then of Plymouth, and others in succession; and it is I will no longer detain the Committee, but by way of conclusion must enter my protest against the scheme of interpreting the Constitution by what gentlemen are pleased to call an invocation of the principles of the revolution of 1798. This invocation is adverse to the just and liberal views which have hitherto characterized this Congress, and, without adverting to the merits or demerits of either of the old parties, it may be said that the annals of contending factions cannot be relied on as furnishing correct illustrations of political truths; and for myself at least, I must say, H. OF R. Internal Improvements. MARCH, 1818. of Congress by implication? Is the power contended for inferior in degree to any that is expressly granted in the Constitution? And can one power of equal degree result from another? It has not been contended by the advocates of the resolutions, that any but the supreme arm of State can effect the purposes contemplated-indeed, it cannot be contended. In looking into the specified powers granted to Congress, there appears to be great precision used, and even minuteness, that nothing substantive might be left to incident. It was not sufficient to give the power to declare war and leave the raising of armies to be inferred, but both powers are expressly given, and, yet how very intimate is the connexion! The great objects of the powers granted, were but few. The derangement of the internal police of the States was as much as possible guarded against, consistently with the attainment of revenue, the control of our relations abroad, and of physical force at home. But, if it could be for a moment doubtful, whether the power contended for be incidentally given in the specified powers, it seems to me, that the ninth and tenth articles of the amendments of the Constitution might put the question at rest. And, I will take the liberty, Mr. Chairman, to read them, for, there is not a word of them but what is weighty. "The enumeration, in the Constitution, of certain rights, shall not be construed to deny, or disparage others retained by the people." "The powers not delegated to 'the United States by the Constitution, nor pro'hibited by it to the States, are reserved to the States respectively, or to the people." well worthy of jremark, that almost all the defined powers of Parliament were conveyed in these charters to the colonies, by the Crown, in right of prerogative. Parliament had no power, either over the emigrants or the soil, and the Crown exercised a power towards both, that could not be exercised towards soil or subject, within the Kingdom; but in addition to Parliamentary powers, even Crown prerogatives were conferred on the colonists; and, with these chartered privileges, they commenced in the New World the operations of Government, each within prescribed limits of jurisdiction. From these grants, there was originally scarce anything left for the Crown, and, I should say, nothing at all for Parliament. Allegiance was due and acknowledged, but all powers essential to the internal government of the people, were, by them, exercised by their respective grants of territory and jurisdiction; their powers to make laws were ample; and they extended as well to all jurisdictions, liberties, privileges, immunities and franchises, as to soil and person. Here, then, sir, is the origin, of the power to make roads and canals; the power to create corporations; the power to govern within the colonial limits, and even to carry on war. It is not to conquest, to the revolution, these powers are assignable-they originated in grant, and were imbodied into system-they were in full operation, till usurpation embarrassed them, and then came the Revolution, and snatched from the Crown the brightest ornament in the colonial wreath. Allegiance and fidelity were no longer due. It matters not, that the charters were occasionally infringed, altered, and even cancelled. The maxims of government were the same- Now, sir, permit me to inquire if these amendonce adopted, they were always retained through ments were not well understood, in their import, every scene of adversity. In the Plymouth col- by those who use them. "The enumeration of ony, which led the way in the North, and was certain rights shall not impair others retained by similar in its government to all in its vicinity, the people." What are rights retained by the their ordinances respecting the laying out of people? Their soil and their rivers, or they have roads, and their proceedings under them, were no rights. The gifts of nature are theirs. The among their early acts of power; and the prin- soil, secured to them by their charters, by the ciple then adopted, as a rule between the public common law, by the constitutions and laws of and the individual whose lands might be taken, the States, is theirs; and, Congress has no lehas never been essentially changed. It is unne-gitimate power to lay a hand upon it; it would cessary to proceed further to show the origin and exercise of the power. The other colonies, under various modifications, enjoyed the same essential rights by charter, and exercised the same powers in virtue of it. Well, sir, the declaration of our independence acknowledged all these organized bodies to be free, sovereign, and independent States. All the attributes of government were theirs, and they were sustained by a people accustomed to exercise them with all the ability incident to political experience, and continued so to be exercised till the adoption of the Constitution, under which you are now legislating. Well, sir, let me ask, if any of the framers of the Constitution could ever have imagined, educated, as they were, in the school of politics, that the power to divert rivers to artificial courses, to lay open the enclosures of individuals for roads, from one end of the State to the other, without their consent, express or implied, passed into the hands be an act of usurpation. I take the liberty to use the word usurpation, for the honorable gentleman from Virginia, on my right, (Mr. NELSON,) of far greater experience than myself, has set me the example, and, indeed, in my opinion, it is the most apt word that can be selected. Again, sir, the powers not delegated are reserved to the States, or the people. What powers are here meant ? State powers, certainly-powers perfectly familiar to those who adopted the language, but, more especially, to those who proposed this amendment; both these amendments were recommended in substance, as well as many others which were not adopted, by the State conventions. The meaning, therefore, cannot be doubtful. Thus, then, the rights and powers relating to the subjects, embraced in the resolutions on your table, belong, expressly and exclusively, to the States and the people. If, yet, however, there remains a doubt, I will proceed still further, in my endeavors to remove it. I trust it will not be contended, by any of the honorable gentlemen opposed to me, that, if the framers of the Constitution, upon a proposition to insert any specific additional power, rejected that proposition, still, that power might be inferred. I speak, now, of sovereign power, as great as that which is contemplated by the resolutions under discussion. If I am right, in this supposition, I persuade myself, that the Committee may be brought to pause, before they adopt the resolutions. For, at the time of the making of the Constitution, a distinct proposition was made, to give Congress the power to make canals, and the proposition was rejected. In the written arguments, between Mr. Jefferson and Mr. Hamilton, on the bank question, in 1791, it was contended, by the former, then Secretary of State, that the power to incorporate the bank was unconstitutional, and stated the rejected proposition to be broader than was admitted by his opponent, but the Secretary of the Treasury, Mr. Hamilton, admitted, that a proposition to give Congress power to make canals had been rejected. And, yet, by construction, we are to derive a power, not only not granted, but expressly withheld, in the amendments of the Constitution, which I have before spoken of, and which, from extraneous evidence of facts which transpired in the body that framed our Constitution, it is most apparent, was never intended to be given. Sir, it is singular, that a lapse of thirty years should have made it to appear, that the men, in whose wisdom the nation put great confidence, were really ignorant of what they had done, and that powers then clearly and expressly withheld are not as clearly conferred by the Constitution, by implication. "Words are things," said the famous Mirabeau, and, whenever that is the case, I shall conclude that words have ceased to be the true signs of things. H. of R. thus assumed. The constitution of a single State is sufficient. I will select that of Connecticut. And what is that constitution? The charter of Charles the Second. Now, sir, this charter contains no provision whatever that would authorize the Legislature of that State to negotiate the functions of the constituted authorities of that State to the Congress of the United States. And, it is equally vain to look into any other State constitution that has come within my notice for any such power, express or implied. But, it has been contended, by the honorable Speaker, that the consent of the State is not necessary to the exercise of the power, and other gentlemen have advanced the same doctrine, while, yet, other honorable gentlemen, on the same side, insist on the necessity of State consent. If, indeed, the consent contemplated is not essential to the power, it would seem hardly necessary to be passing legislative compliments with the States, on the subject; and, I apprehend, such a course is not merely harmless. For, as was observed on a former day, by the honorable gentleman from Virginia, on my left (Mr. SMYTH)_with_great truth, you hold up your purse to the State Legislatures, as a temptation. And, what is the Legislature to do, in such a case? They must either violate the trust reposed in them by their constit uents, or take your assumed construction of their constitution, and accept your bonus. Sir, before engaging in this kind of legislation, they should tear up their constitutions, and give them to the winds, and your decrees should be their rule of action. But suppose, Mr. Chairman, that some of the Legislatures, by the high authority of a decision of Congress to guide themthe bonus being also set before them-should determine that by their constitutions they really have the legislative and conventional powers ascribed to them, and should actually pass such But, in order to obviate all difficulties, you pro- a law as is contemplated; the members of such a pose to exercise the power with the consent of Legislature, it is to be recollected, are not the the respective States, and that they shall have beings of a day; and the people, dissatisfied with jurisdiction over the property taken for public their past conduct, might return others in their use. By the word "State" in the resolutions, is place, and these repeal the law of the formermeant the State Legislatures. Now, it seems what would then be your answer to the second, never to have entered into the inquiry of any of the repealing law? It would be this: that the the honorable gentlemen opposed to me, whether first law was a contract, and that the second, or not the State Legislatures have the power as-repealing it, would impair the obligation of that cribed to them. This is taken for granted, and it is certainly the easiest way of proceeding with the argument. But, I am induced to call on the honorable gentleman from Virgina (Mr. PINDALL) to show me the constitution of any one of the States in the Union, which, upon any fair construction, enables its legislature to transfer any of the apppropriate functions of the State authorities to Congress. And, if any one such constitution could be produced, I should call for one after another, till the whole twenty were found to contain the requisite provisions, for, if one should be deficient, your whole plan is partial and impracticable. If, however, the gentlemen still prefer to assume for the State Legislatures, this power, as being contained in their constitutions, I will venture upon the task of controverting the facts contract, and would be void by the Constitution. Thus, by the act of a single Legislature, elected for a year, you determine the destinies of the citizens and State governments on this subject forever. It has been strongly contended by the honorable gentleman from Virginia, before me, that legislative precedents ought to have weight; and, in the sense in which he has explained the subject, bdo not dissent from the doctrine. Precedents that infringe no right may well be a rule of legislative economy; but precedents against the exercise of power are very insignificant; precedents against power are vanity-a mere gossamer. Noregard is generally had to such precedents. But, what are precedents in favor of powerassumed power? These are the bolts-the rivets of chains-and are difficult to be broken by the |