[THE bill making appropriations for purposes of internal
improvement, which passed congress in 1817, having been vetoed
by president Madison, on the last day of his term, March
third, 1817; his successor, Mr. Monroe, in his first message
to congress, declared his sentiments on the subject, concurring
with Mr. Madison in the opinion that the power of making
internal improvements was not vested in congress. Three national
executives having decided against the constitutionality of the
power, a great effort was made by the friends of the system,
to obtain a contrary and favorable expression by congress.
A resolution was offered in the house of representatives,
declaring that congress had power, under the constitution, to
appropriate money for the construction of military roads, post
roads, and canals. On this interesting occasion, the resolution
being under discussion in committee of the whole, Mr. Clay made
the following speech, in vindication of the constitutionality of
internal improvements by the national government, in which views
he was sustained by the house, in the adoption of the resolution,
by a vote of ninety to seventy-five. This triumph in the face of
a new and popular administration, may be considered one of the
most splendid events in parliamentary history.]
I HAVE been anxious to catch the eye of the chairman for a few moments,
to reply to some of the observations which have fallen from various
gentlemen. I am aware that, in doing this, I risk the loss of what
is of the utmost value――the kind favor of the house, wearied as its
patience is, by this prolonged debate. But when I feel what a deep
interest the union at large, and particularly that quarter of it whence
I come, has, in the decision of the present question, I cannot omit
any opportunity of earnestly urging upon the house the propriety of
retaining the important power which this question involves. It will
be recollected, that if unfortunately there should be a majority both
against the abstract proposition asserting the power, and against its
practical execution, the power is gone for ever――the question is put
at rest, so long as the constitution remains as it is; and with respect
to any amendment, in this particular, I confess I utterly despair.
It will be borne in mind, that the bill which passed congress on this
subject, at the last session, was rejected by the late president of
the United States; that at the commencement of the present session,
the president communicated his clear opinion, after every effort to
come to a different conclusion, that congress does not possess the
power contended for, and 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 presidents, has also intimated
his opinion, that congress does 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, has decided against the existence of it, (if such,
fatally, shall be the decision,) the power, I repeat, is gone――gone
for ever, unless restored by an amendment of the constitution. With
regard to the practicability of obtaining such an amendment, I think it
altogether out of the question. Two different descriptions of persons,
entertaining sentiments directly opposed, will unite and defeat such
an amendment; one embracing those who believe that the constitution,
fairly interpreted, already conveys the power; and the other, those
who think that congress has not and ought not to have it. As a large
portion of congress, and probably a majority, believes the power
to exist, it must be evident, if I am right in supposing that any
considerable number of that majority would vote against an amendment
which they do not believe necessary, that any attempt to amend would
fail. Considering, as I do, 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 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,’ I would observe,
that if the illustrious persons just referred to are against us in
the construction of the constitution, they are on our side as to the
harmless and beneficial character of the power. For it is 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 real ground is
there for this alarm? Gentlemen have not condescended to show how the
subversion of the rights of the states is to follow from the exercise
of the power of internal improvements by the general government. We
contend for the power 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 sustained 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 the mass! Even upon these
roads and canals, the state governments, according to our principles,
will 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 affects their existence and preservation.
Thus defined, thus limited, and stripped of all factitious causes of
alarm, I will appeal to the candor of gentlemen to say, if the power
really presents any thing frightful in it? With respect to post-roads,
our adversaries admit the right of way in the general government. There
have been, however, on this question, some instances of conflict, but
they have passed away without any serious difficulty. Connecticut, if
I have been rightly informed, disputed, at one period, the right of
passage of the mail on the Sabbath. The general government persisted in
the exercise of the right, and Connecticut herself, and every body else,
have acquiesced in it.
The gentleman from Virginia (Mr. H. Nelson) has contended, 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 have not seen it for sixteen years, (until the gentleman
had the politeness to furnish me with it during this debate,) made such
an impression on my mind, that I shall never forget the satisfaction
with which I perused it. I find that I have used, without having been
aware of it, when I formerly addressed the committee, almost the same
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 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, and 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. Clay read sundry passages from Mr. Madison’s report
to the Virginia legislature, in 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 will be remarked, that Mr. Madison, in his reasoning on the
constitution, has not employed the language fashionable during this
debate; he has 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!
This was a modern interpretation of the constitution. Mr. Madison has
employed the language of the instrument itself, and has only contended
that the implied power must be necessary and proper to carry into
effect the specified power. He has only insisted, 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 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 can the power be otherwise
executed.
That there are two classes of powers in the constitution, I believe
has never been controverted by an American politician. We cannot
foresee and provide specifically for all contingences. 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 our
new works. There are two dangers to which we are exposed. The one
is, that the general government may relapse into the debility which
existed in the old confederation, and finally dissolve from the want
of cohesion. The denial 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 gentleman on the other
side, this is the danger to which their principles directly tend. The
other danger, that of consolidation, is, by the assumption of powers
not granted nor incident to granted powers, or the assumption of powers
which have been withheld or expressly prohibited. This was the danger
of the period of 1798–9. For instance, that, in 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, I think it highly
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 the country, as I believe, would never have occurred.
I beg the committee――I entreat 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 has been carried, and how it has varied by the same
state at different times. In alluding to the state of Massachusetts,
I assure the gentlemen from that state, and particularly the honorable
chairman of the committee to whom the claim of Massachusetts has been
referred, that I have no intention to create any prejudice against that
claim. I hope that when the subject is taken up it will be candidly
and dispassionately considered, and that a decision will 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 to whom I have alluded, (Mr. Mason, of Massachusetts,)
will, if I had been otherwise inclined, prevent me 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 capacity, had no right to examine into
the constitutionality or expediency of the measures of the general
government.
[Mr. Clay 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? 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 is 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 portion of that odium which has so justly
fallen 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 was called out by the general government, during the late
war, to repel invasions. Massachusetts said, as you have no right
to the militia, but in certain contingences, she was competent to
decide whether those contingences had or had not occurred. And, having
examined the facts, what then? She said, all was peace and quietness in
Massachusetts――no non-execution of the laws; no insurrection at home;
no invasion from abroad, nor any immediate danger of invasion. And,
in truth, I believe there was no actual invasion for nearly two years
after the requisition. Under these circumstances, were it not for the
supposed motive of her conduct, would not the case which Massachusetts
made out have looked extremely plausible? I hope it is not necessary
for me to say, that it is very far from my intention to convey any
thing like approbation of the conduct of Massachusetts. No! My doctrine
is, 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 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 disunion itself, such a state of disorder and confusion
as must inevitably lead to it.
Greatly as I venerate the state which gave me birth, and much as
I respect the judges of its supreme court, several of whom are my
personal friends, I am obliged to think that some of the doctrines
which that state has recently held concerning state rights, are fraught
with much danger. If those doctrines had been asserted during the late
war, a large share of the public disapprobation which has been given to
Massachusetts would have fallen to Virginia. What are these doctrines?
The courts of Virginia assert, that they 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
assert more――that from their decision there can 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 state, in the last
resort, to submit its decision to the supervision of the supreme court
of the United States; or, if I do not misunderstand the doctrine, to
withdraw from the state tribunal, controversies involving the laws of
the United States, and to place them before the federal judiciary. I
am a friend, 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 state, 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 is described as a mere rope of sand; and
also that other, perhaps not the greatest danger, consolidation. No
man deprecates more than I do, the idea of consolidation; yet, between
separation and consolidation, painful as would be the alternative, I
would greatly prefer the latter.
I will now proceed to endeavor to discover the real difference, in the
interpretation of the constitution, between the gentlemen on the other
side and myself. It is agreed, that there is no power in the general
government but that which is expressly granted, or which is impliable
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, has conceded, though somewhat
reluctantly, the existence of incidental powers, but he contended that
they must have a direct and necessary 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 necessary 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 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 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 manner in which their trusts have been
performed. And there remains also that further, though awful security,
the last resort of society, which I contend belongs alike to the people
and to the states in their sovereign capacity, to be exercised in
extreme cases, and when oppression becomes intolerable, the right of
resistance. Take the gentleman’s own doctrine, (Mr. Barbour,) the most
restricted which has 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, 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, the 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 I have referred,
lamentable as would be the appeal, such a monstrous abuse of power,
I contend, would authorize a recurrence to that right.
If, then, the gentlemen on the other side and myself differ so little
in our general principles, as I think I have shown, I will proceed,
for a few moments, to look at the constitution a little more in detail.
I have contended, that the power to construct post-roads is expressly
granted in the power to establish post-roads. If it be, there is an
end of the controversy; but if not, the next inquiry is, whether that
power may be fairly deduced, by implication, from any of the special
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 have contended, that the word has a different sense;
and one has resorted to the preamble of the constitution, to show that
the phrase ‘to establish justice,’ there used, does not convey the
power of creation. If the word ‘establish’ is there to be taken in the
sense which gentlemen claim for it, that of adoption or designation,
congress could have a choice only of systems of justice preëxisting.
Will any gentleman contend, that we are 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. Let me ask, in all cases of
crime, which are merely _malum prohibitum_, if you do not resort to
construction, to creating, when you make the offence? By your laws
denouncing certain acts as criminal offences, laws which the good of
society requires you to pass, and to adapt to our peculiar condition,
you do construct and create a system of rules, to be administered by
the judiciary. 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-offices, which was alone possessed by the
former government, I think that I may 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 these 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 emergency, claims the right of providing beforehand against the
emergency.
One member has stated what appeared to him a conclusive argument
against the power to cut canals, that he had understood that a
proposition, made in the convention to insert such a power, was
rejected. To this argument more than one sufficient answer can be made.
In the first place, the fact itself has been denied, and I have never
yet seen any evidence of it. But, suppose that the proposition had
been made and overruled, unless the motives of the refusal to insert it
are known, gentlemen are not authorized to draw the inference that it
was from hostility to the power, or from a desire to withhold it from
congress. May not one of the objections be, that the power was fairly
to be inferred from some of the specific grants of power, and that it
was therefore not necessary to insert the proposition; that to adopt
it, indeed, might lead to weaken or bring into doubt other incidental
powers not enumerated? A member from New York, (Mr. Storrs,) whose
absence I regret on this occasion, not only on account of the great
aid which might have been expected from him, but from the cause of that
absence, has informed me, that, in the convention of that state, one
of the objections to the constitution by the anti-federalists was, that
it was understood to convey to the general government the power to cut
canals. How often, in the course of the proceedings of this house, do
we reject amendments, upon the sole ground that they are not necessary,
the principle of the amendment being already contained in the
proposition.
I refer to the Federalist, for one moment, to show that the only notice
taken of that clause of the constitution which relates to post-roads,
is favorable to my construction. The power, that book says, must always
be a harmless one. I have endeavored to show, not only that it is
perfectly harmless, but that every exercise of it must be necessarily
beneficial. Nothing 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.
Is there not a direct and intimate relation between the power to
make war, and military roads and canals? It is in vain that the
convention have confided to the general government the tremendous
power of declaring war; 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, if we had possessed military roads.
Why did not the union, why did not Massachusetts, make a struggle to
reconquer the island? Not for the want of men; not for the want of
patriotism, I hope; but from the want of physical ability to march a
force sufficient to dislodge the enemy. On the northwestern frontier,
millions of money, and some of the most precious blood of the state
from which I have the honor to come, was wastefully expended for the
want of such roads. My honorable friend from Ohio (General Harrison),
who commanded the army in that quarter, could furnish a volume of
evidence on this subject. What now paralyses our arms on the southern
frontier, and occasioned the recent massacre of fifty of our brave
soldiers? What, but the want of proper means for the communication of
intelligence, and for the transportation of our resources from point
to point? Whether we refer to our own experience, or that of other
countries, we cannot fail to perceive the great value of military
roads. Those great masters of the world, the Romans, how did they
sustain their power so many centuries, diffusing law and liberty, and
intelligence, all around them? They made permanent military roads;
and among the objects of interest which 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 Hamburgh to Basle,
would perpetuate his memory to future ages. In making these allusions,
let me not be misunderstood. I do not 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
appears to me, 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 is one of the most essential circumstances in war.
But, without good roads, it is impossible. Members will recall to
their recollection the fact, that, in the senate, several years ago,
an honorable friend of mine (Mr. Bayard), whose premature death I shall
ever deplore, who was an ornament to the councils of his country, and
who, when abroad, was the able and fearless advocate of her rights, did,
in supporting a subscription which he proposed the United States bank
should make to the stock of the Delaware and Chesapeake canal company,
earnestly recommend 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 Elk river to the Delaware,
large quantities of massy timbers for the construction of the Guerriere
or the Franklin, or both; and, judging from the number of wagons and
horses, and the number of days employed, I believe the additional
expense of that single operation would have gone very far to complete
that canal, whose cause was espoused with so much eloquence in the
senate, and with so much effect, too; bills having passed that body
more than once to give aid, in some shape or other, to that canal. With
notorious facts like this, is it not obvious, that a line of military
canals is not only necessary and proper, but almost indispensable to
the war-making power?
One of the rules of construction which has been laid down, I
acknowledge my incapacity to comprehend. Gentlemen say, that the power
in question is a substantive power; and that no substantive power can
be derived by implication. What is their definition of a substantive
power? Will they favor us with the principle of discrimination between
powers which, being substantive, are not grantable but by express grant,
and those which, not being substantive, may be conveyed by implication?
Although I do not perceive why this power is more entitled than many
implied powers, to the denomination of substantive, suppose that
be yielded, how do gentlemen prove that it may not be conveyed by
implication? If the positions were maintained, which have not yet been
proved, that the power is substantive, and that no substantive power
can be implied, yet I trust it has been satisfactorily shown that there
is an express grant.
My honorable friend from Virginia, (Mr. Nelson,) has denied the
operation of executive influence on his mind; and has informed the
committee, that from that quarter he has nothing to expect, to hope,
or to fear. I did not impute to my honorable friend any such motive;
I knew his independence of character and of mind too well to do so.
But I entreat him to reflect, if he does not expose himself to such an
imputation by those less friendly disposed towards him than myself. Let
us look a little at facts. The president recommends the establishment
of a bank. If ever there were a stretch of implied powers conveyed by
the constitution, it has been thought that the grant of the charter
of the national bank was one. But the president recommends it. Where
was then my honorable friend, the friend of state rights, who 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 that 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.]
Alas! my honorable friend had not the heart to withstand a second
recommendation from the president; but, when it came, yielded, no doubt
most reluctantly, to the executive wishes, and voted for the bank.
At the last session of congress, Mr. Madison recommended, (and I will
presently make some remarks on that subject,) an exercise of all the
existing powers of the general government, to establish a comprehensive
system of internal improvements. Where was my honorable friend on that
occasion? Not silent as the grave, but he gave a negative vote, almost
as silent. No effort was made on his part, great as he is when he
exerts the powers of his well-stored mind, to save the commonwealth
from that greatest of all calamities, a system of internal improvement.
No; although a war with all the allies, he now thinks, would be less
terrible than the adoption of this report, not one word then dropped
from his lips against the measure.
[Mr. Nelson said he voted against the bill.]
That he whispered out an unwilling negative, I do not deny! but it was
unsustained by that torrent of eloquence which he has poured out on the
present occasion. But we have an executive message _now_, not quite as
ambiguous in its terms, nor as oracular in its meaning, as that of Mr.
Madison appears to have been. No the president now says, that he has
made great efforts to 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
biased by the executive wishes, I appeal to his candor to say, if there
is not a remarkable coincidence between his zeal and exertions, and the
opinions of the chief magistrate?
Now let us review those opinions, as communicated at different
periods. It was the opinion of Mr. Jefferson, that, although there was
no general power vested by the constitution in congress, to construct
roads and canals, without the consent of the states, yet such a power
might be exercised with their assent. Mr. Jefferson not only held this
opinion in the abstract, but he practically executed it in the instance
of the Cumberland road; and how? First, by a compact made with the
state of Ohio, for the application of a specified fund, and then by
compacts with Virginia, Pennsylvania, and Maryland, to apply the 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.]
It is far from my intention to misstate the gentleman. I certainly
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 cannot affect the question. It is totally immaterial
whether it arises 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? I conceive, clearly not. And I am entirely at a loss to
comprehend how gentlemen, consistently with their own principles, can
justify the erection of the Cumberland road. No man is prouder than I
am of that noble monument of the provident care of the nation, and of
the public spirit of its projectors; and I trust that, in spite of all
constitutional and other scruples, here or elsewhere, an appropriation
will be made to complete that road. I confess, however, freely, that I
am entirely unable to conceive of any principle on which that road can
be supported, that would not uphold the general power contended for.
I will now examine the opinion of Mr. Madison. Of all the acts of
that pure, virtuous, and illustrious statesman, whose administration
has so powerfully tended to advance the glory, honor, and prosperity
of this country, I most regret, for his sake and for the sake of the
country, the rejection of the bill of the last session. I think it
irreconcilable with Mr. Madison’s own principles――those great, broad,
and liberal principles, on which he so ably administered the government.
And, sir, when I appeal to the members of the last congress, who are
now in my hearing, I am authorized to say, with regard to the majority
of them, that no circumstance, not even an earthquake, that should have
swallowed up one half of this city, could have excited more surprise
than when it was first communicated to this house, that Mr. Madison
had rejected his own bill――I say his own bill, for his message at the
opening of the session meant nothing, if it did not recommend such
an exercise of power as was contained in that bill. My friend, who is
near me, (Mr. Johnson, of Virginia,) the operations of whose vigorous
and independent mind, depend upon his own internal perceptions,
has expressed himself with 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 is 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 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 force themselves
upon our attention. The first is, 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 it was intimated, that, in the exercise of those
existing powers, some defect might be discovered which would render an
amendment of the constitution necessary. Nothing could be more clearly
affirmed than the first position; but in the message of Mr. Madison
returning the bill, passed in consequence of his recommendation,
he has not specified a solitary case to which those existing powers
are applicable; he has not told us what he meant by those existing
powers; and the general scope of his reasoning, in that message,
if well founded, proves that there are no existing powers whatever.
It is apparent, that Mr. Madison himself has not examined some of
those principal sources of the constitution from which, during this
debate, the power has been derived. I deeply regret, and I know that
Mr. Madison regretted, that the circumstances under which the bill was
presented to him (the last day but one of a most busy session) deprived
him of an opportunity of that thorough investigation of which no man is
more capable. It is certain, that, taking his two messages at the same
session together, they are perfectly irreconcilable. What, moreover,
was the nature of that bill? It did not apply the 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 be unconstitutionally expended by another.
I come now 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 unbiased 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 ayes and noes, upon
the record. Of this opportunity of thus recording our opinions, in
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 exist, I will maintain, to say, that the proceeding is irregular and
unconstitutional. Let us, however, examine the reasoning and opinion of
the president.
‘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 a system of internal improvement. Taking into view the
trust 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 in
my mind, that congress does 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, viewed
on the most liberal scale, for carrying into effect any of
the powers which are specifically granted. 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 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 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 us, 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, I 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 is all assertion, and contains no argument
which I can comprehend, or which meet the points contended for during
this debate. Allow me here to say, and I do it without the least
disrespect to that branch of the government, on whose opinions and
acts it has been rendered my painful duty to comment; let me say,
in reference to any man, however elevated his station, even if he
be endowed with the power and prerogatives of a sovereign, that his
acts are worth infinitely more, and are more intelligible, than mere
paper sentiments or declarations. And what have been the acts of the
president? During his tour of the last summer, did he not order a road
to be cut or repaired from near Plattsburgh to the St. Lawrence? My
honorable friend will excuse me, if my comprehension is too dull to
perceive the force of that argument, which seeks to draw a distinction
between repairing an old and making a new road.
[Mr. Nelson said, he had not drawn that distinction, having only
stated the fact.]
Certainly no such distinction is to be found in the constitution,
or exists in reason. Grant, however, the power of reparation, and we
will make it do. We will take the post-roads, sinuous as they are,
and put them in a condition to enable the mails to pass, without
those mortifying delays and disappointments, to which we, at least
in the west, are so often liable. The president, then, ordered a road
of considerable extent to be constructed or repaired, on his sole
authority, in a time of profound peace, when no enemy threatened the
country, and when, in relation to the power as to which alone that road
could be useful in time of war, there exists the best understanding,
and a prospect of lasting friendship, greater than at any other period.
On his sole authority the president acted, and we are already called
upon by the chairman of the committee of ways and means to sanction
the act by an appropriation. This measure has been taken, too, without
the consent of the state of New York; and what is wonderful, when
we consider the magnitude of the state rights which are said to be
violated, without even a protest on the part of that state against it.
On the contrary, I understand, from some of the military officers who
are charged with the execution of the work, what is very extraordinary,
that the people through whose quarter of the country the road passes,
do not view it as a national calamity; that they would be very glad
that the president would visit them often, and that he would order a
road to be cut and improved, at the national expense, every time he
should visit them. Other roads, in other parts of the union, have, it
seems, been likewise ordered, or their execution, at the public expense,
sanctioned by the executive, without the concurrence of congress. If
the president has the power to cause these public improvements to be
executed at his pleasure, whence is it derived? If any member will
stand up in this place and say the president is clothed with this
authority, and that it is denied to congress, let us hear from him;
and let him point to the clause of the constitution which vests it in
the executive and withholds it from the legislative branch.
There is no such clause; there is no such exclusive executive power.
The power is derivable by the executive only from those provisions of
the constitution which charge him with the duties of commanding the
physical force of the country, and the employment of that force in war,
and the preservation of the public tranquillity, and in the execution
of the laws. But congress has paramount powers to the president. It
alone can declare war, can raise armies, can provide for calling
out the militia, in the specified instances, and can raise and
appropriate the ways and means necessary to those objects. Or is it
come to this, that there are to be two rules of construction for the
constitution――one, an enlarged rule, for the executive, and another, a
restricted rule, for the legislature? Is it already to be held, that,
according to the genius and nature of our constitution, powers of this
kind may be safely intrusted to the executive, but, when attempted to
be exercised by the legislature, are so alarming and dangerous, that
a war with all the allied powers would be less terrible, and that the
nation should clothe itself straightway in sackcloth and ashes! No, sir;
if the power belongs only by implication to the chief magistrate, it is
placed both by implication and express grant in the hands of congress.
I am so far from condemning the act of the president, to which I have
referred, that I think it deserving of high approbation. That it was
within the scope of his constitutional authority, I have no doubt; and
I sincerely trust, that the secretary at war will, in time of peace,
constantly employ in that way the military force. It will at the
same time guard that force against the vices incident to indolence
and inaction, and correct the evil of subtracting from the mass of
the labor of society, where labor is more valuable than in any other
country, that portion of it which enters into the composition of the
army. But I most solemnly protest against any exercise of powers of
this kind by the president, which are denied to congress. And, if the
opinions expressed by him, in his message, were communicated, or are to
be used here, to influence the judgment of the house, their authority
is more than countervailed by the authority of his deliberate acts.
Some principles drawn from political economists have been alluded to,
and we are advised to leave things to themselves, upon the ground that,
when the condition of society is ripe for internal improvements――that
is, when capital can be so invested with a fair prospect of adequate
remuneration, they will be executed by associations of individuals,
unaided by government. With my friend from South Carolina (Mr. Lowndes)
I concur in this as a general maxim; and I also concur with him that
there are exceptions to it. The foreign policy which I think this
country ought to adopt, presents one of those exceptions. It would
perhaps be better for mankind, if, in the intercourse between nations,
all would leave skill and industry to their unstimulated exertions.
But this is not done; and if other powers will incite the industry of
their subjects, and depress that of our citizens, in instances where
they may come into competition, we must imitate their selfish example.
Hence the necessity to protect our manufactures. In regard to internal
improvements, it does not follow, that they will always be constructed
whenever they will afford a competent dividend upon the capital
invested. It may be true generally that, in old countries, where there
is a great accumulation of surplus capital, and a consequent low rate
of interest, they will be made. But, in a new country, the condition
of society may be ripe for public works long before there is, in
the hands of individuals, the necessary accumulation of capital to
effect them; and, besides, there is generally, in such a country,
not only a scarcity of capital, but such a multiplicity of profitable
objects presenting themselves as to distract the judgment. Further;
the aggregate benefit resulting to the whole society, from a public
improvement, may be such as to amply justify the investment of capital
in its execution, and yet that benefit may be so distributed among
different and distant persons, that they can never be got to act in
concert. The turnpike roads wanted to pass the Alleghany mountains,
and the Delaware and Chesapeake canal, are objects of this description.
Those who will be most benefited by these improvements, reside at a
considerable distance from the sites of them; many of those persons
never have seen and never will see them. How is it possible to
regulate the contributions, or to present to individuals so situated
a sufficiently lively picture of their real interests, to get them
to make exertions in effectuating the object, commensurate with their
respective abilities? I think it very possible that the capitalist,
who should invest his money in one of these objects, might not be
reimbursed three per centum annually upon it; and yet society, in
various forms, might actually reap fifteen or twenty per centum. The
benefit resulting from a turnpike road, made by private associations,
is divided between the capitalist who receives his tolls, the lands
through which it passes, and which are augmented in their value, and
the commodities whose value is enhanced by the diminished expense
of transportation. A combination, upon any terms, much less a just
combination, of all those interests, to effect the improvement, is
impracticable. And if you await the arrival of the period when the
tolls alone can produce a competent dividend, it is evident that you
will have to suspend its execution long after the general interests of
society would have authorized it.
Again, improvements, made by private associations, are generally
made by local capital. But ages must elapse before there will be
concentrated in certain places, where the interests of the whole
community may call for improvements, sufficient capital to make them.
The place of the improvement, too, is not always the most interested
in its accomplishment. Other parts of the union――the whole line of the
seaboard――are quite as much, if not more interested, in the Delaware
and Chesapeake canal, as the small tract of country through which it
is proposed to pass. The same observation will apply to turnpike roads
passing through the Alleghany mountain. Sometimes the interest of
the place of the improvement is adverse to the improvement and to the
general interest. I would cite Louisville, at the rapids of the Ohio,
as an example, whose interest will probably be more promoted by the
continuance, than the removal of the obstruction. Of all the modes
in which a government can employ its surplus revenue, none is more
permanently beneficial than that of internal improvement. Fixed to the
soil, it becomes a durable part of the land itself, diffusing comfort,
and activity, and animation, on all sides. The first direct effect is
on the agricultural community, into whose pockets comes the difference
in the expense of transportation between good and bad ways. Thus, if
the price of transporting a barrel of flour by the erection of the
Cumberland turnpike should be lessened two dollars, the producer of
the article would receive that two dollars more now than formerly.
But, putting aside all pecuniary considerations, there may be
political motives sufficiently powerful alone to justify certain
internal improvements. Does not our country present such? How are
they to be effected, if things are left to themselves? I will not press
the subject further. I am but too sensible how much I have abused the
patience of the committee by trespassing so long upon its attention.
The magnitude of the question, and the deep interest I feel in its
rightful decision, must be my apology. We are now making the last
effort to establish our power, and I call on the friends of congress,
of this house, or the true friends of state rights, (not charging
others with intending to oppose them,) to rally round the constitution,
and to support by their votes, on this occasion, the legitimate powers
of the legislature. If we do nothing this session but pass an abstract
resolution on the subject, I shall, under all circumstances, consider
it a triumph for the best interests of the country, of which posterity
will, if we do not, reap the benefit. I trust, that by the decision
which shall be given, we shall assert, uphold, and maintain, the
authority of congress, notwithstanding all that has been or may be
said against it.
[The resolution of giving the power of congress, first, to
appropriate money to the construction of military and post roads,
make canals, and improve water-courses, was adopted: yeas ninety;
nays seventy-five: secondly, to construct such roads: lost: yeas
eighty-two; nays eighty-four: thirdly, to construct roads and
canals for commercial purposes: lost: yeas seventy-one; nays
ninety-five: fourthly, to construct canals for military purposes:
lost: eighty-one to eighty-three.]