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controversy; but if not, the next inquiry is, whether that power may be fairly deduced by implication from any of the specified grants of power. To show that the power is expressly granted, I might safely appeal to the arguments already used to prove that the word establish, in this case, can mean only one thing-the right of making. Several gentlemen had contended that the word had a different sense; and one had resorted to the preamble of the Constitution to show that the phrase "to establish justice," there used, did not convey the power of creation. If the word

which gentlemen claimed for it, that of adoption or designation, Congress could have had a choice only of systems of justice pre-existing. Would any gentleman contend that they were obliged to take the Justinian code, the Napoleon code, the code of civil, or the code of common or canon law? Establishment means in the preamble, as in other cases, construction, formation, creation.

cessary and proper? Whatever may be the rule, in whatever language you may choose to express it, there must be a certain degree of discretion left to the agent who is to apply it. But gentlemen are alarmed at this discretion, that law of tyrants, on which they contend there is no limitation. It should be observed, in the first place, that the gentlemen are necessarily brought, by the very course of reasoning which they themselves employ, by all the rules which they would lay down for the Constitution; to cases where discretion must exist. But is there no limitation, no security against the abuse of it? Yes, there"establish" was there to be taken in the sense is such security in the fact of our being members of the same society, equally affected ourselves by the laws we promulgate. There is the further security in the oath which is taken to support the Constitution, and which will tend to restrain Congress from deriving powers which are not proper and necessary. There is the yet further security, that at the end of every two years the members must be amenable to the people for the Let me ask, in all cases of crime, which are manner in which their trust has been performed. merely malum prohibitum, if you do not resort And there remains also that further though awful to construction, to creating, when you make the security, the last resort of society, which he con- offence? By your laws denouncing certain acts tended belonged alike to the people and the as criminal offences, laws which the good of States in their sovereign capacity, to be exercised society require you to pass, and to adapt to our in extreme cases, and when oppression becomes peculiar condition, you do construct and create a intolerable, the right of resistance. Take the gen-system of rules, to be administered by the juditleman's own doctrine, (Mr. BARBOUR,) the most restricted which had been asserted, and what other securities have we against the abuse of power than those which I have enumerated? Say that there must be an absolute necessity to justify the exercise of an implied power, who is to define that absolute necessity, and then to apply it? Who is to be the judge? Where is the security against transcending that limit? The rule the gentleman contends for has no greater security than that insisted upon by us. It equally leads to the same discretion-a sound discretion, exercised under all the responsibility of a solemn oath; of a regard to our fair fame; of a knowledge that we are ourselves the subjects of those laws which we pass; and, lastly, of the right of resisting insupportable tyranny. And by way of illustration, Mr. C. said, that if the sedition act had not been condemned by the indignant voice of the community, the right of resistance would have accrued. If Congress assumed the power to control the right of speech, and to assail by penal statutes that greatest of all the bulwarks of liberty, the freedom of the press, and there were no other means to arrest their progress, but that to which he had referred, lamentable as would be the appeal, such a monstrous abuse of power, he contended, would authorize a recurrence to that right.

ciary. But gentlemen say that the word cannot mean make; that you would not say, for example, to establish a ship, to establish a chair. In the application of this, as of all other terms, you must be guided by the nature of the subject; and if it cannot properly be used in all cases, it does not follow that it cannot be in any. And when we take into consideration, that, under the old Articles of Confederation, Congress had over the subject of post roads just as much power as gentlemen allow to the existing Government, that it was the general scope and spirit of the new Constitution to enlarge the powers of the General Government, and that, in fact, in this very clause, the power to establish post roads is superadded to the power to establish post offices, which was alone possessed by the former Government, he thought that he might safely consider the argument on this part of the subject as successfully maintained. With respect to military roads, the concession that they may be made when called for by the emergency, is admitting that the Constitution conveys the power. And we may safely appeal to the judgment of the candid and enlightened, to decide between the wisdom of those two constructions, of which one requires you to wait, for the exercise of your power, until the arrival of an emergency, which may not allow you to exert it; and the other, without denying you the power, if you can exercise it during the emergeney, claims the right of providing beforehand against the emergency.

If, then, the gentlemen on the other side and himself differed so little in their general principles, as he thought he had shown, he would proceed for a few moments to look at the Constitu- One member had stated what appeared to him tion a little more in detail. I have contended, a conclusive argument against the power to cut said Mr. C., that the power to construct post canals, that he had understood that a proposition roads is expressly granted in the power to estab-made in the Convention, to insert such a power, lish post roads. If it be, there is an end to the was rejected. To this argument more than one

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sufficient answer could be made. In the first if we had possessed military roads. Why did not place, the fact itself had been denied, and he had the Union-why did not Massachusetts make a never yet seen any evidence of it. But, suppose struggle to reconquer the island? Not for the that the proposition had been made and over- want of men; not for the want of patriotism, he ruled, unless the motives of the refusal to insert it hoped, but from the want of the physical ability were known, gentlemen were not authorized to to march a force sufficient to dislodge the enemy. draw the inference, that it was from hostility to On the Northwestern frontier, millions of money, the power, or from a desire to withhold it from and some of the most precious blood of the State Congress. Might not one of the objections be, from which I have the honor to come, were that the power was fairly to be inferred from wastefully expended for the want of such roads. some of the specific grants of power, and that it My honorable friend from Ohio, (Mr. HARRIwas therefore not necessary to insert the proposi- sON,) who commanded the army in that quarter, tion; that to adopt it, indeed, might lead to could furnish a volume of evidence on this subweaken or bring into doubt other incidental pow-ject. What now paralyzes our armies on the ers not enumerated? A member from New Southern frontier, and occasioned the recent masYork, (Mr. STORRS,) whose absence Mr. C. re- sacre of fifty of our brave soldiers? What but gretted on this occasion, not only on account of the want of proper means for the communication the great aid which might have been expected of intelligence, and for the transportation of our from him, but, from the cause of that absence, resources from point to point? had informed him that, in the convention of that Whether we refer to our own experience, or State, one of the objections to the Constitution to that of other countries, we cannot fail to perby the anti-Federalists was, that it was under-ceive the great value of military roads. Those stood to convey to the General Government, the great masters of the world, the Romans, how power to cut canals. How often, in the course did they sustain their power so many centuries, of the proceedings of this House, do we reject diffusing law and liberty, and intelligence all amendments, upon the sole ground that they are around them? They made permanent military not necessary, the principle of the amendment roads; and among the objects of interest which being already contained in the proposition? Europe now presents, are the remains of those Roman roads, which are shown to the curious inquirer. If there were no other monument remaining of the sagacity, and of the illustrious deeds of the unfortunate captive of St. Helena, the internal improvements which he made, the road from Hamburg to Basle, would perpetuate his memory to future ages. In making these

Mr. C. referred to the Federalist, for one moment, to show that the only notice taken of that clause of the Constitution which relates to post roads, was favorable to his construction. The power, that book said, must always be a harmless one. He had endeavored to show not only that it was perfectly harmless, but that every exercise of it must be necessarily beneficial. Noth-allusions, let me not be misunderstood. I do not ing which tends to facilitate intercourse among the States, says the Federalist, can be unworthy of the public care. What intercourse? Even if restricted on the narrowest theory of gentlemen, on the other side, to the intercourse of intelligence, they deny that to us, since they will not admit that we have the power to repair or improve the way, the right of which they yield us. In a more liberal and enlarged sense of the word, it will comprehend all those various means of accomplishing the object, which are calculated to render us a homogeneous people-one in feeling, in interest, and affection, as we are one in our political relation.

Was there not a direct and intimate relation between the power to make war and military roads and canals? It was in vain that the Convention should have confided to the General Government the tremendous power of declaring war; should have imposed upon it the duty to employ the whole physical means of the nation, to render the war, whatever may be its character, successful and glorious, if the power is withheld of transporting and distributing those means. Let us appeal to facts which are sometimes worth volumes of theory. We have recently had a war raging on all the four quarters of the Union. The only circumstance which gave me pain at the close of that war, the detention of Moose Island, would not have occurred,

desire to see military roads established for the purpose of conquest, but of defence; and as a part of that preparation which should be made in a season of peace for a season of war. I do not wish to see this country ever in that complete state of preparation for war for which some contend, that is, that we should constantly have a large standing army, well disciplined, and always ready to act. I want to see the bill reported by my friend from Ohio, or some other embracing an effective militia system, passed into a law; and a chain of roads and canals, by the aid of which our physical means can be promptly transported to any required point. These, connected with a small military establishment to keep up our forts and garrisons, constitute the kind of preparation for war, which, it appeared to him, this country ought to make. No man, who has paid the least attention to the operations of modern war, can have failed to remark how essential good roads and canals are to the success of those operations. How often have battles been won by celerity and rapidity of movement? It was one of the most essential circumstances in war. But, without good roads it was impossible! He recalled to the recollection of some of the members the fact that, in the Senate, several years ago, an honorable friend of his, (Mr. BAYARD,) whose premature death he ever deplored-who was an ornament to the

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so pathetically calls upon us to repent, in sackcloth and ashes, our meditated violation of the Constitution; and who kindly expresses his hope that we shall be made to feel the public indignation? Where was he at this awful epoch? Where was that eloquent tongue which we have now heard with so much pleasure? Silent! Silent as the grave!

[Mr. NELSON said, across the House, that he had voted against the bank bill when first recommended.]

councils of his country, and whom, when abroad, he found the able and fearless advocate of her rights, had, in supporting a subscription which he proposed the United States should make to the stock of the Delaware and Chesapeake Canal Company, earnestly recommended the measure as connected with our operations in war. I listened to my friend with some incredulity, and thought he pushed his argument too far. I had, soon after, a practical evidence of its justness. For, in travelling from Philadelphia, in the Fall of 1813, I saw transporting by Government, from Alas! said Mr. C., my honorable friend had Elk river to the Delaware, large quantities of not the heart to withstand a second recommenmassy timbers for the construction of the Guer- dation from the President; but, when it came, riere or the Franklin, or both; and judging from yielded, no doubt, most reluctantly to the Execthe number of wagons and horses, and the num-utive wishes, and voted for the bank! At the ber of days employed, I believe the additional last session of Congress, Mr. Madison recom. expense of that single operation, would have mends (and I will presently make some remarks gone very far to complete that canal, whose cause on that subject) an exercise of all the existing was espoused with so much eloquence in the powers of the General Government to establish Senate, and with so much effect, too, bills having a comprehensive system of internal improvepassed that body more than once to give aid, in ments. Where was my honorable friend on that some shape or other, to that canal. With noto-occasion? Not silent as the grave, but he gave rious facts like this, was it not obvious that a a negative vote almost as silent. No effort was line of military canals was not only necessary made on his part, great as he is when he exerts and proper, but almost indispensable to the war- the powers of his well stored mind to save the making power? Commonwealth from that greatest of all calamOne of the rules of construction, Mr. C. con-ities, a system of internal improvement. No, tinued, which had been laid down, he acknowl- although a war with all the allies, he now thinks, edged his incapacity to comprehend. Gentle- would be less terrible than the adoption of this men say that the power in question is a substan- report, not one word then dropped from his lips tive power; and that no substantive power could against the measure. [Mr. NELSON said he be derived by implication. What is their defi- voted against the bill.] That he whispered out nition of a substantive power? Will they favor an unwilling negative, Mr. C. did not deny, but us with the principle of discrimination between it was unsustained by that torrent of eloquence powers which being substantive are not granta- which was poured out on the present occasion. ble but by express grant, and those which, not But, said Mr. C., we have an Executive Mesbeing substantive, may be conveyed by implica- sage now, not quite as ambiguous in its terms, tion? Although he did not perceive why this nor as oracular in its meaning, as that of Mr. power was more entitled than many implied Madison appears to have been. No; the Presipowers to the denomination of substantive, sup-dent now says, that he has made great efforts to pose that be yielded, how did gentlemen prove that it may not be conveyed by implication? If the positions were maintained, which have not yet been proven, that the power is substantive, and that no substantive power can be implied, yet he trusted it had been satisfactorily shown that there was an express grant.

vanquish his objections to the power, and that he cannot but believe that it does not exist. Then my honorable friend rouses, thunders forth the danger in which the Constitution is, and sounds the tocsin of alarm. Far from insinuating that he is at all biassed by the Executive wishes, I appeal to his candor to say, if there is not a reHis honorable friend from Virginia (Mr. NEL-markable coincidence between his zeal and exerSON) had denied the operation of Executive in- tions, and the opinions of the Chief Magistrate? fluence on his mind; and had informed the Now let us review these opinions as communiCommittee that from that quarter he had noth-cated at different points. It was the opinion of ing to expect, to hope, or to fear. I did not im- Mr. Jefferson, that, although there was no genepute to my honorable friend any such motive. I ral power vested by the Constitution in Congress know his independence of character and of to construct roads and canals, without the conmind too well to do so. But, I entreat him to sent of the States, yet such a power might be exreflect, if he does not expose himself to such an ercised with their assent. Mr. Jefferson not only imputation by those less friendly disposed to held this opinion in the abstract, but he practiwards him than myself. Let us look a little at cally executed it in the instance of the Cumberfacts. The President recommended the estab- land road, and how? First, by a compact made lishment of a bank. If ever there were a stretch with the State of Ohio, for the application of a of the implied powers conveyed by the Consti- specified fund, and then by compacts with Virtution, it has been thought the grant of the char-ginia, Pennsylvania, and Maryland, to apply the ter of the National Bank was one. But the President recommends it. Where was then my honorable friend, the friend of State rights, who

fund so set apart within their respective limits. If, however, I rightly understood my honorable friend the other day, he expressly denied (and in

that I concur with him) that the power could be acquired by the mere consent of the State. Yet he defended the act of Mr. Jefferson in the case referred to. [Mr. NELSON expressed his dissent to this statement of his argument.] Mr. C. said it was far from his intention to misstate the gentleman. He certainly had understood him to say, that, as the road was first stipulated for in the compact with Ohio, it was competent afterwards to carry it through the States mentioned, with their assent. Now, if we have not the right to make a road in virtue of one compact made with a single State, can we obtain it by two contracts made with several States? The character of the fund could not affect the question. It was totally immaterial whether it arose from the sales of the public lands or from the general revenue. Suppose a contract made with Massachusetts, that a certain portion of the revenue collected at the port of Boston, from foreign trade, should be expended in making roads and canals leading to that State, and that a subsequent compact should be made with Connecticut or New Hampshire, for the expenditure of the fund on these objects, within their limits; can we acquire the power, in this manner, over internal improvements, if we do not possess it independently of such compacts? He conceived clearly not. And he was entirely at a loss to comprehend how gentlemen, consistently with their own principles, could justify the erection of the Cumberland road. No man, he said, was prouder than he was of that noble monument of the provident care of the nation and of the public spirit of its projectors; and he trusted, that, in spite of all Constitutional and other scruples here or elsewhere, an appropriation would be made to complete that road. He confessed, however, freely, that he was entirely unable to conceive of any principle on which that road could be supported that would not uphold the general power contended for.

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perceptions, has expressed himself with a becoming manliness, and thrown aside the authority of names as having no bearing with him on the question. But their authority has been referred to, and will have influence with others. It was impossible, moreover, to disguise the fact, that the question is now a question between the Executive on the one side and the Representatives of the people on the other. So it is understood in the country, and such is the fact. Mr. Madison enjoys, in his retreat at Montpelier, the repose and the honors due to his eminent and laborious public services; and I would be among the last to disturb it. However painful it is to me to animadvert upon any of his opinions, I feel perfectly sure that the circumstance can only be viewed by him with an enlightened liberality. What are the opinions which have been expressed by Mr. Madison on this subject? I will not refer to all the Messages wherein he has recommended internal improvements, but to that alone which he addressed to Congress at the commencement of the last session, which contains this passage: "I particularly invite again 'the attention of Congress to the expediency of exercising their existing powers, and, where necessary, of resorting to the prescribed mode of enlarging them, in order to effectuate a comprehensive system of roads and canals, such as will have the effect of drawing more closely together every part of our country, by promoting intercourse and improvements, and by increasing the 'share of every part in the common stock of national prosperity." In the examination of this passage, two positions forced themselves upon our attention. The first was the assertion, that there are existing powers in Congress to effectuate a comprehensive system of roads and canals, the effect of which would be to draw the different parts of the country more closely together. And I would candidly admit, in the second place, that He would now examine the opinion of Mr. it was intimated, that, in the exercise of those Madison. Of all the acts of that pure, virtuous, existing powers, some defect might be discovered and illustrious statesman, whose Administration which would render an amendment of the Conhas so powerfully tended to advance the glory, stitution necessary. Nothing could be more clearhonor, and prosperity of this country, he most re- ly affirmed than the first position; but in the Mesgretted, for his sake and for the sake of the coun- sage of Mr. Madison returning the bill, passed in try, the rejection of the bill of the last session. consequence of his recommendation, he has not He thought it irreconcilable with Mr. Madison's specified a solitary case to which those existing own principles-those great broad and liberal powers are applicable; he has not told us what principles on which he so ably administered the he meant by those existing powers; and the genGovernment. And, sir, said Mr. C., when I ap-eral scope of his reasoning in that Message, -peal to the members of the last Congress, who well founded, proved that there were no existing are now in my hearing, I am authorized to say, powers whatever. It was apparent that Mr. with regard to the majority of them, that no cir- Madison himself had not examined some of those cumstance, not even an earthquake that should principal sources of the Constitution, from which, have swallowed up one half of this city, could during this debate, the power had been derived. have excited more surprise than when it was first I deeply regret, and I know that Mr. Madison recommunicated to this House, that Mr. Madison gretted, that the circumstances under which the bill had rejected his own bill-I say his own bill-for was presented to him (the last day but one of a most his Message at the opening of the session meant busy session) deprived him of an opportunity of nothing, if it did not recommend such an exer- that thorough investigation of which no man is cise of power as was contained in that bill. My more capable. It is certain that, taking his two friend, who is near me, (Mr. JOHNSON, of Vir- Messages at the same session together, they are ginia,) the operations of whose vigorous and in- perfectly irreconcilable. What, moreover, was dependent mind depend upon his own internal the nature of that bill? It did not apply the

if

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exist I will maintain, to say that the proceeding is irregular and unconstitutional. Let us, however, examine the reasoning and opinion of the President. [Mr. C. here quoted the passage of the Message at the opening of the session, which follows:]

money to any specific object of internal improvement, nor designate any particular mode in which it should be applied, but merely set apart and pledged the fund to the general purpose, subject to the future disposition of Congress. If, then, there were any supposable case whatever to which Congress might apply money in the erection of a road, or cutting a canal, the bill did not violate the Constitution. And it ought not to have been anticipated that money constitutionally appropriated by one Congress would afterwards be un-system of improvement. Taking into view the trust constitutionally expended by another.

I come now, said Mr. C., to the Message of Mr. Monroe; and if, by the communication of his opinion to Congress, he intended to prevent discussion, he has most wofully failed. I know that, according to a most venerable and excellent usage, the opinion neither of the President nor of the Senate, upon any proposition depending in this House, ought to be adverted to. Even in the Parliament of Great Britain, a member who would refer to the opinion of the Sovereign, in such a case, would be instantly called to order; but, under the extraordinary circumstances of the President having, with I have no doubt the best motives, volunteered his opinion on this head, and inverted the order of legislation, by beginning where it should end, I am compelled, most reluctantly, to refer to that opinion. I cannot but deprecate the practice of which the President has, in this instance, set the example to his successors. The Constitutional order of legislation supposes that every bill originating in one House shall be there deliberately investigated, without influence from any other branch of the Legislature, and then remitted to the other House for a like free and unbiassed consideration. Having passed both Houses, it is to be laid before the President-signed if approved, and if disapproved to be returned, with his objections, to the originating House. In this manner, entire freedom of thought and of action is secured, and the President finally sees the proposition in the most matured form which Congress can give to it. The practical effect, to say no more, of forestalling the legislative opinion, and telling us what we may or may not do, will be to deprive the President himself of the opportunity of considering a proposition so matured, and us of the benefit of his reasoning, applied specifically to such proposition; for the Constitution further enjoins it upon him to state his objections upon returning the bill. The originating House is then to reconsider it, and deliberately to weigh those objections; and it is further required, when the question is again taken, Shall the bill pass, those objections notwithstanding? that the votes shall be solemnly spread by yeas and nays upon the record. Of this opportunity of recording our opinions on matters of great public concern we are deprived, if we submit to the innovation of the President. I will not press this part of the subject further. I repeat, again and again, that I have no doubt but that the President was actuated by the purest motives. I am compelled, however, in the exercise of that freedom of opinion which so long as I

"A difference of opinion has existed, from the first formation of our Constitution to the present time, among our most enlightened and virtuous citizens, respecting the right of Congress to establish such a with which I am now honored, it would be improper, after what has passed, that this discussion should be revived, with an uncertainty of my opinion respecting the right. Disregarding early impressions, I have bestowed on the subject all the deliberation which its great importance and a just sense of my duty required; and the result is, a settled conviction on my mind that Congress do not possess the right. It is not contained in any of the specified powers granted to Congress; nor can I consider it incidental to, or a necessary mean, effect any of the powers which are specifically granted. viewed on the most liberal scale, for carrying into In communicating this result, I cannot resist the obligation which I feel to suggest to Congress the propriety of recommending to the States the adoption of an amendment to the Constitution, which shall give to Congress the right in question. In cases of doubtful construction, especially of such vital interest, it comports with the nature and origin of our institutions, and will contribute much to preserve them, to apply to our constituents for an explicit grant of the power. We may confidently rely, that, if it appears to their satisfaction that the power is necessary, it will always be granted."

In this passage the President has furnished us with no reasoning, no argument in support of his opinion-nothing addressed to the understanding. He gives, indeed, an historical account of the operations of his own mind, and he asserts that he has made a laborious effort to conquer his early impressions, but that the result is a settled conviction against the power, without a single reason. In his position, that the power must be specifically granted or incident to a power so granted, it has been seen that I have the honor to entirely concur with him; but, he says the power is not among the specified powers. Has he taken into consideration the clause respecting post roads, and told us how and why that does not convey the power? If he had acted within what I conceive to be his Constitutional sphere of rejecting the bill, after it had passed both Houses, he must have learned that great stress was placed on that clause, and we should have been enlightened by his comments upon it. As to his denial of the power, as an incident to any of the express grants, Mr. C. said, he would have thought that we might have safely appealed to the experience of the President, during the late war, when the country derived so much benefit from his judicious administration of the duties of the War Department, whether roads and canals for military purposes were not essential to celerity and successful result in the operations of armies. This part of the Message was all assertion, and contained no argument which he could comprehend,