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arm of legitimate authority. When they yield, it is commonly to the strong power of insurrection. But, with regard to precedents applicable to the present subject, none have been adduced which seem to me to be appropriate. The laws establishing the banks have been referred to, but they have no analogy to the present case; and if they had, there has been no consistency of decisions on the subject. The decisions are both ways, and therefore go for nothing, even if legislative precedent could be for a moment admitted to determine the construction of the Constitution. With regard to the bank, it is unnecessary to admit or deny its constitutionality, in discussing the present subject. I observe that some of the State Legislatures propose taxing the stock. In the practical operation of the bank, there is no doubt it is injurious to State institutions of the same kind, as its branches are extended through the States of the Union. Similar State institutions in Massachusetts have yielded a revenue of fifteen thousand dollars, from a tax laid on their capital stock, which has been applied to the suport of her literary institutions, while the Branch nk of the United States is free from such a tax. I will not digress further from the subject, but return for a moment to the subject of precedents; not because I consider it intrinsically important, but because it has been urged upon the consideration of the Committee with great zeal and ardor. The Cumberland road has been adduced, and for aught appears, the law respecting it passed without a moment's consideration upon the constitutionality of the measure; and if so, it is entitled to no weight whatever. The purchase of Louisiana is in no point analogous. The express powers of making war and peace render the acquisition of lands, without the limits of the States, subject to the rules of war and of the treaty-making power. The design of war is conquest, and an enemy is to be followed into his own dominions, if practicable and necessary, and his territory is acquired by force, by the laws of war, which Congress have an express power to declare. The war ceases in virtue of the treaty-making power, and it is in virtue of this also that the conquered or other lands may be ceded for the benefit of the people. There is another kind of precedent alluded to, as well in the report as by entlemen in argument, the expenditure of money i. charities, public buildings, books, ornaments. It is not certain that the trustees of the public money have always applied it to the best possible purposes. But there is a sensible difference between applying it to improvident or useless purposes, and employing it to assume power and subvert right. The difference is easy of illustration. If I employ a factor to dispose of my chattels, and west the proceeds in stocks, it is merely a breach of trust, if he apply the money in schemes of his own devising; but, if he employ the money to subvert my soil, and divert my water-courses, this is a violation of my rights. Yet, both of us might agree to this intermeddling with the soil and the streams, when there was an outstanding title in the estate, a mortgage, or
other beneficial interest; and if the proprietor of that interest should neither be consulted nor regarded, his rights would be violated. And this, sir, is precisely the case before the Committee. The people would have no rights, but in Congress and the State Legislatures, according to the doctrine contended for, and still the Constitution determines it to be otherwise. Sir, there is no agreement among the advocates of the resolutions on your table. Some find the power contended for in almost all parts of the Constitution; some find it absolute, others incidental; to o: for the common defence and general welfare, gives it; to make and carry on war, gives it ; to regulate commerce, and to establish post offices and post roads, give it. The honorable Speaker has contended, that the power to establish post offices and post roads, is the power to make them. But I cannot accede to this doctrine. I cannot, consistently with the dignity of this body, condescend, Mr. Chairman, to quibble about the word establish. I will attempt a fair explanation of it: The subjects to which it may, with propriety, be applied, must determine its import. Its most common and appropriate application is, to particular modes, accidents, or qualities, of things existing. But it can seldom, if ever, with propriety, be applied to the formation of things, by mechanieal or other manual labor. You would not ask an artificer to establish you a ship, a coach, a suit of clothes. Neither, when a law is passed or made by Congress, can it be said, with any propriety of language, that the law is established. But, if a point in dispute, arising out of that law, should be decided in a court of justice, the law upon that point would be established. There have also been adduced, from the Constitution itself, instances of the use of this word, to show it to be synonymous with make or construct. The first instance that occurs, is in the preamble, where it is declared, that the Constitution is formed, among other things, to “establish justice.” It must be obvious, at first thought, that justice is of higher origin and greater antiquity, than the Constitution; and, when courts of justice are said to be established, the meaning is, that a quality is conferred on men, to try causes, and establish points of law. The plain meaning of this clause of the Constitution, according to my understanding of it, is, that certain towns and villages shall be designated in parts of the country where civilized society resides, and such society shall be accommodated with a conveyance by the public agents for their letters and newspapers. They are entitled to this beneficence no longer than their roads will admit of it. As to the power to regulate commerce, I cannot perceive how the power contended for results from that, especially as there would be no limit to your results; for public markets, corporations with particular privileges, and commercial wants, with an infinity of other resulting powers, would necessarily follow in succession. The first would be usurpation, and then another, and another. At the first, therefore, I should say, stand off. I will
suppose, however, that your road was actually made and furnished with all its agents, superintendents, surveyors. The State is to have jurisdiction over it; they shall punish felonies and misdemeanors committed upon it. But what is to be done if the State suffers obstructions to be erected upon your road, and neglect to interpose their authority ? You will then send a platoon, I suppose, to supply the place of authority. Again, what character is your road to have 3 Is it not to be the highway of the United States, and a proper subject of negotiation as to its use, in exchange for an equivalent? To facilitate commerce in peace, and approaches in war, your road is made from Maine to Canada, it may be supposed, altogether commodious for passing between New Brunswick and Canada. Will you grant the use of it, by treaty, for British troops, passing between the two colonies, in exchange for some advantage of commerce to the West Indies? Then, should the standard of revolt be raised in the Canadas, your road, and its borders, would be turned into a theatre of warfare, and that in direct violation of Constitutional rights. In time of war, let the laws of war governo; in peace, prepare for it by Constitutional means only. It is sufficient to resort to the law of necessity when all others are insufficient. The close of the long series of calamities which have passed in succession before us, seems not to require any unusual, any untried schemes of aggrandizement of power. In pursuit of these objects, we have seen the Old World in constant convulsions for more than twenty years. The passions of men were there moulded to a ferocity exceeding the fiercest tenant of the forest. uman sacrifice, by human hands, was the ordinary work of the day—it was brought into system. Justice and humanity ceased to be the signs of merit. Ambition swallowed up all subordinate sensations of the heart, and the air was constantly rent with shouts and acclamations of victorious war, while the earth groaned with the miseries of the fallen. In fine, sir, the genius of destruction, the destroying angel, was commissioned and let loose upon the world; and, from the burning deserts of the South, to the frozen regions of Siberia; from the Indies to the western limit of the Old World, all felt the vengeance of his arm, the blast of his wings. But the Old World was too narrow for the fulfillment of his commission. We have seen him on the ocean, a witness to scenes of conflict, when our own approached an enemy's o: close and terrible, but in no measure doubtful. We have seen him on our Atlantic shores; in the North; in the West. And here, sir, in our own dominions, his dread commission was closed— and it may be said, without imputation of ostentation, that he imprinted the word “victory” on our national banner, and retired from the world. All was instantly a calm. We look back on the mighty spectacle without the power to grasp it, even by the efforts of imagination. We are confounded by the awful grandeur of realities in history, which have been witnessed in our own days. No period since the existence of the world
is to be named with it, and none can be imagined as probable in future ages. In the calm of the present moment, we are called upon to legislate as if another similar period were at hand. Sir, f repeat, I would always be prepared for war, but prepared according to the dictates of sound discretion, in apportioning the means to the occasion. But especially would I avoid even the appearance of encroachment on vested rights, when the imperious law of necessity makes no demand of it. I do not consider, Mr. Chairman, that the stipulation in your resolutions to give an equivalent for the property you may take, in the exercise of the power contemplated, is of the smallest importance. There can be no equivalent for rights seized upon. The laws of the respective States have established the mode, the process by which the individual may be divested of the use of his property for the public benefit, and, by the constitutions and laws of some of the States, there are some kinds of privileged property which cannot be taken in so ordinary administration of such constitutions and laws. The right, to be heard in the courts established to adjudicate on this subject, is a vested right in every individual. I have hardly thought it necessary to advert to arguments founded on a supposed analogy, between expending money for building lighthouses, purchasing a library, paintings, and making charitable or honorary gifts to the proposed objects of expenditure in the resolutions. Sir, there is no exercise of power in all this, that may not be exercised by an individual. He may build a house and ornament it, or he may place it on a promontory and light it up in the night for the benefit of the merchant and mariner; but there is really nothing of analogy, that I can perceive, in the nature of the case. Mr. Chairman, I will touch but one subject more, and that briefly. The measure in contemplation, if carried into effect, must pervade the whole system of State and municipal authorities, and impair the wested rights of innumerable cororations, who have virtually the faith of their tates pledged not to admit so powerful a competition as the Congress of the United States to the exercise of the functions of those institutions. The honorable Speaker has seen fit to introduce the letter of the “Father of his Country” to the President of Congress, stating, among other things, that the Convention had kept in view “the consolidation of our Union.” Sir, the consolidation of our Union is essentially different from a consolidation of the States and their definite powers —the one is the cement of your marble, the other the chemical process that dissolves it to a rude unformed mass. I agree with the honorable Speaker, that we are one family, and that the good of all is to be consulted. But, sir, it is never to be forgotten, that we are a family by affinity and inhabit distinct apartments of the political edifice. You hold the upper loft of the same edifice. I would be cautious of enlarging the avenues to these different apartments now harmoniously governed by their occupants; but, espe
cially, I would not remove the partitions, for in this operation even the pillars must be swept away, and your superstructure fall into ruins. rom these ruins would be moulded, by the hand of faction, a stupendous despotism, splendid in armor, but terrific in aspect, gigantic in power, relentless in the exercise of it; every voice that should be heard in support of our expiring liberties would be silenced; every arm that should be raised in their defence would be paralyzed— smitten off. I would, therefore, not venture hastily on experiments which tend to blend or confuse the powers of our political institutions; but, with a scrupulous care, would leave no means unessayed to protect all, and hand down to posterity that reat body of National and State rights and privileges, which we have derived from the wisdom, the valor, and the blood of our fathers. Mr. CLAY said, that he had been anxious to catch the eye of the Chairman for a few moments, to reply to some of the observations which had fallen from various gentlemen. He was aware that, in doing this, he risked the loss of what was of the utmost value—the kind favor of the House, wearied as its patience was by this rolonged debate. But, when he felt what a deep interest the Union at large, and particularly that quarter of it whence he came, had in the decision of the present question, he could not omit an opportunity of earnestly urging upon the House the propriety of retaining the important power which that question involved. It will be recollected, said Mr. C., that, if unfortunately there should be a majority both against the abstract proposition asserting that power, and against its practical execution, the power is gone forever—the question is put at rest so long as the Constitution remains as it is; and with respect to any amendment, in this particular, he confessed he utterly despaired. It would be borne in mind, that the bill which o: Congress on this subject at the last session, ad been rejected by the late President of the United States; that, at the commencement of the resent session, the President had communicated is clear opinion, after every effort to come to a different conclusion, that Congress did not possess the power contended for, and had called upon us to take up the subject in the shape of an amendment to the Constitution; and, moreover, that the predecessor of the present and late President had also intimated his opinion that Congress did not possess the power. With the great weight and authority of the opinions of these distinguished men against the power, and with the fact, solemnly entered upon the record, that this House, after a deliberate review of the ground taken by it at the last session, had decided against the existence of it,(if such fatally should be the decision,) the power, he repeated, was gone, gone forever, unless restored by an amendment to the Consti. tution. With regard to the practicability of obtaining such an amendment, he thought it altogether out of the question. Two different descriptions of persons, entertaining sentiments directly opposed, would unite and defeat such an
amendment; one embracing those who believed that the Constitution, fairly interpreted, already s conveys the power, and the other, those who thin that Congress have not, and ought not to have it. As a large portion of Congress, and probably a majority, believed the power already to exist, it must be evident, if he were right in supposing that any considerable number of that majority would vote against an amendment which they did not believe necessary, that any attempt to amend would fail. Considering, as he did, the existence of the power as of the first importance, not merely to the preservation of the Union of the States, paramount as that consideration ever should be over all others, but to the prosperity of every great interest of the country, agriculture, manufactures, commerce, in peace and in war, it becomes us, said Mr. C., solemnly, and deliberately, and anxiously, to examine the Constitution, and not to surrender it, if fairly to be collected from a just interpretation of that instrument. With regard to the alarm sought to be created, as to the nature of the power, by bringing up the old theme of “State rights,” he would observe, that if the illustrious persons just referred to were against us in the construction of the Constitution, they were on our side, as to the harmless and beneficial character of the power. For it was not to be conceived that each of them would have recommended an amendment to the Constitution, if they believed that the possession of such a power by the General Government would be detrimental, much less dangerous to the independence and liberties of the states what rei ground was there for this alarm 7 Gentlemen had not condescended to show how the subversion of the rights of the States was to follow from the exercise of the power of internal improvements by the General Government. We contend for the ower to make roads and canals to distribute the intelligence, force, and productions of the country through all its parts; and for such jurisdiction only over them as is necessary to their preservation from wanton injury, and from gradual decay. Suppose such a power is maintained, and in full operation; imagine it to extend to every canal made or proposed to be made, and to every post road, how inconsiderable and insignificant is the power, in a political point of view, limited as it is with regard to place and to purpose, when contrasted with the great mass of powers retained by the State sovereignties! What a small subtraction from that mass 1 Even upon those roads and canals the State governments, according to our principles, would still exercise jurisdiction over every possible case arising upon them, whether of crime or of contract, or any other human transaction, except only what immediately affected their existence and preservation. Thus defined, thus limited, and stripped of all factitious causes of alarm, Mr. C. would appeal to the dispassionate candor of gentlemen to say, if the wer really presented anything frightful in it 7 ith respect to post roads, our adversaries admit
the right of way in the General Government.
There had been, however, on this question some instances of conflict, which had passed away without any serious difficulty. , Connecticut, if he had been rightly informed, had disputed, at one eriod, the right of passage of the mail on the ś. The General Government persisted in the exercise of the right, and Connecticut herself, and everybody else, acquiesced in it. The gentleman from Virginia (Mr. H. NElson) has contended, Mr. C. continued, that I do not adhere, in the principles of construction which I apply to the Constitution, to the republican doctrines of 1798, of which that gentleman would have us believe he is the constant disciple. Let me call the attention of the Committee to the celebrated State paper to which we both refer for our principles in this respect—a paper which, although I had not seen it for sixteen years until the gentleman had the politeness to furnish me with it during this debate, made such an impression upon my mind, that I shall never forget the satisfaction with which I first perused it. I find that I had used, without having been aware of it, when I formerly addressed the Committee, almost the identical language employed by Mr. Madison in that paper. It will be recollected that I claimed no right to exercise any power under the Constitution, unless such power was expressly granted, or necessary and proper to carry into effect some granted power. I have not sought to derive the power from the clause which authorizes Congress to appropriate money. I have been contented with endeavoring to show, that according to the doctrines of 1798, that according to the most rigid interpretation which any one will put upon the instrument, it is expressly given in one case, and fairly deducible in others. [Here Mr. C. read sundry passages from Mr. Madison's of: to the Virginia Legislature of an answer to the resolutions of several States, concerning the alien and sedition laws, showing that there were no powers in the General Government but what were granted, and that, whenever a power was claimed to be exercised by it, such power must be shown to be granted, or to be necessary and proper to carry into effect one of the specified powers.]... It would be remarked, Mr. C. said, that Mr. Madison, in his reasoning on the Constitution, had not employed the language fashionable during this debate; he had not said that an implied power must be absolutely necessary to carry into effect the specified power, to which it is appurtenant, to enable the General Government to exercise it. No! Mr. C. said, this was a modern interpretation of the Constitution. Mr. Madison had employed the language of the instrument itself, and had only contended that the implied power must be necessary and proper to carry into effect the specified power. He had only contended that when Congress applied its sound judgment to the Constitution, in relation to implied powers, it should be clearly seen that they were necessary and proper to effectuate the specified powers. These, said Mr. C., are my principles; but they are not those of the gentleman from Virginia and his friends on this occasion.
They contend for a degree of necessity absolute and indispensable, that by no possibility could the power be otherwise executed. That there are two classes of powers in the Constitution, Mr. C. believed never to have been controverted by any American politician. We cannot foresee and provide specifically for all contingencies. Man and his language are both imperfect. Hence, the existence of construction, and of constructive powers. Hence, also, the rule that a grant of the end is a grant of the means. If you amend the Constitution a thousand times, the same imperfection of our nature and our language will attend your new works. There are two dangers to which we are exposed. The one is, that #. General Government may relapse into the debility which existed in the old Confederation, and finally dissolve from the want of cohesion. "The deniai’to it of powers plainly conferred, or clearly necessary and proper to execute the conferred powers, may produce this effect. And, I think, with great deference to the gentlemen on the other side, this is the danger to which their principles directly tend. The other danger is, that of consolidation by the assumption of powers not granted nor incident to granted powers—the assumption of powers which have been withheld or expressly prohibited. This was the danger of the period ..}}. For instance, in that direct contradiction to a prohibitory clause of the Constitution, a sedition act was passed; and an alien law was also passed, in equal violation of the spirit, if not of the express provisions of the Constitution. It was by such measures that the Federal party, (if parties might be named,) throwing off the veil, furnished to their adversaries the most effectual ground of opposition. If they had not passed those acts, he thought it # probable that the current of power would have continued to flow in the same channel; and the change of parties in 1801, so auspicious to the best interests of this country, as he believed, would never have occurred. Mr. C. begged the Committee—he entreated the true friends of the confederated Union of these States—to examine this doctrine of State rights, and see to what abusive, if not dangerous, consequences it may lead, to what extent it had been carried, and how it had varied by the same State at different times. In alluding to the State of Massachusetts, he assured the gentlemen from that State, and particularly the honorable chairman of the committee to whom the claim of Massachusetts had been referred, that he had no intention to create any prejudice against that claim. He hoped that, when the subject was taken up, it would be candidly and dispassionately considered, and that a decision would be made on it consistent with the rights of the Union and of the State of Massachusetts. The high character, amiable disposition, and urbanity of the gentleman (Mr. Mason, of Massachusetts) to whom he had alluded, would, if he had been otherwise inclined, prevent him from endeavoring to make impressions unfavorable to the claim whose justice that gentleman stands pledged to
manifest. But, in the period of 1798–9, what was the doctrine promulgated by Massachusetts? It was, that the States, in their sovereign capacities, had no right to examine into the Constitutionality or expediency of the measures of the General Government. [Mr. C. here quoted several passages from the answer of the State of Massachusetts to the Virginia and Kentucky resolutions concerning the alien and sedition laws, to prove his position.] We see here an express disclaimer, on the part of Massachusetts, of any right to decide on the Constitutionality or expediency of the acts of the General Government. But what was the doctrine which the same State, in 1813, thought proper to proclaim to the world, and that too when the Union was menaced on all sides 7 She not only claimed, but exercised, the right which, in 1799, she had so solemnly disavowed. She claimed the right to judge of the propriety of the call made, by the General Government, for her militia, and she refused the militia called for. There was so much plausibility in the reasoning employed by that State in support of her modern doctrine of “State rights,” that, were it not for the unpopularity of the stand she took in the late war, or had it been in other times and under other circumstances, she would very probably have escaped a great
ortion of that odium which has most justly allen to her lot. The Constitution gives to Congress power to provide for calling out the militia to execute the laws of the Union, to suppress insurrections and to repel invasions, and in no other cases. The militia is called out by the General Government, during the late war, to repel invasion. Massachusetts said, as you have no right to the militia but in certain contingen
cies, she was competent to decide whether those And, having examined the fact, what then 7 She said
all was peace and quietness in Massachusetts, no
contingencies had or had not occurred.
non-execution of the laws, no insurrection at
home, no invasion from abroad, nor any immeAnd, in truth, Mr. C. said, he believed there was no actual invasion for Under
diate danger of invasion.
nearly two years after the requisition. these circumstances, had it not been for the supposed motive of her conduct, he asked if the case which Massachusetts made out would not be extremely plausible? Mr. C. said he hoped it was not necessary for him to say that it was very far from his in
tention to convey anything like approbation of
the conduct of Massachusetts. No! his doctrine was, that the States, as States, have no right to oppose the execution of the powers which the General Government asserts. Any State has undoubtedly the right to express its opinion, in the
form of resolution or otherwise, and to proceed,
by Constitutional means, to redress any real or even imaginary grievance; but it has no right to withhold its military aid, when called upon by the high authorities of the General Government, much less to obstruct the execution of a law regularly passed. To suppose the existence of such an alarming right, is to suppose, if not dis
union itself, such a state of disorder and consusion as must inevitably lead to it. Mr. C. said, that, greatly as he venerated the State which gave him birth, and much as he respected the judges of its supreme court, several of whom were his personal friends, he was obliged to think that some of the doctrines which hat State had recently held concerning State rights, were fraught with much danger. Had those doc. trines been asserted during the late war, and related to the means of carrying on that war, a large share of the public disapprobation which has been given to Massachusetts, might have fallen on Virginia. What were these doctrines? The courts of Virginia have asserted that the have a right to determine on the Constitutionality of any law or treaty of the United States, and to expound them, according to their own views, even if they should vary from the decision of the Supreme Court of the United States. They have asserted more—that from their decision there could be no appeal to the Supreme Court of the United States, and that there exists in Congress no power to frame a law, obliging the court of the §. in the last resort, to submit its decision to the supervision of the Supreme Court of the United States; or, is he did not misunderstand the doctrine, to withdraw from the State tribunals controversies involving the laws of the United States, and to place them before the Federal Judiciary. I am a friend, said Mr. C., a true friend to State rights; but not in all cases as they are asserted. The States have their appointed orbit; so has the Union; and each should be confined within its fair, legitimate, and Constitutional sphere. We should equally avoid that subtle process of argument which dissipates into air the powers of this Government, and that spirit of encroachment which would snatch from the States powers not delegated to the General Government. We shall thus escape both the dangers I have noticed—that of relapsing into the alarming weakness of the Confederation, which was described as a mere rope of sand, and also that other, perhaps not the greatest danger consolidation. No man deprecates more than f do, the idea of consolidation; yet, between separation and consolidation, painful as would be the alternative, he should greatly prefer the latter. Mr. C. would now proceed to endeavor to discover the real difference, in the interpretation of the Constitution, between the gentlemen on the other side and himself. It was agreed that there was no power in the General Government but that which is expressly granted, or which is implicable from an express grant. The difference, then, must be in the application of this rule. The gentleman from Virginia, who has favored the House with so able an argument on the subject, had conceded, though somewhat reluctantly, the existence of incidental powers; but he contended that they must have a direct and necessar relation to some specified power. Granted. But who is to judge of this relation ? And what rule can you prescribe different from that which the Constitution has required, that it should be ne