CHAPTER X.

INTERNAL IMPROVEMENT.

The Presidential election of 1824 was approaching, the candidates

in the field, their respective friends active and busy, and popular

topics for the canvass in earnest requisition. The New-York canal

had just been completed, and had brought great popularity to its

principal advocate (De Witt Clinton), and excited a great appetite

in public men for that kind of fame. Roads and canals--meaning

common turnpike, for the steam car had not then been invented, nor

McAdam impressed his name on the new class of roads which afterwards

wore it--were all the vogue; and the candidates for the Presidency

spread their sails upon the ocean of internal improvements. Congress

was full of projects for different objects of improvement, and the

friends of each candidate exerted themselves in rivalry of each

other, under the supposition that their opinions would stand for

those of their principals. Mr. Adams, Mr. Clay, and Mr. Calhoun,

were the avowed advocates of the measure, going thoroughly for

a general national system of internal improvement: Mr. Crawford

and General Jackson, under limitations and qualifications. The

Cumberland road, and the Chesapeake and Ohio canal, were the

two prominent objects discussed; but the design extended to a

general system, and an act was finally passed, intended to be

annual and permanent, to appropriate $30,000 to make surveys of

national routes. Mr. Monroe signed this bill as being merely for

the collection of information, but the subject drew from him the

most elaborate and thoroughly considered opinion upon the general

question which has ever been delivered by any of our statesmen.

It was drawn out by the passage of an act to provide for the

preservation and repair of the Cumberland road, and was returned

by him to the House in which it originated, with his objections,

accompanied by a state paper, in exposition of his opinions upon

the whole subject; for the whole subject was properly before him.

The act which he had to consider, though modestly entitled for the

"preservation" and "repair" of the Cumberland road, yet, in its

mode of accomplishing that purpose, assumed the whole of the powers

which were necessary to the execution of a general system. It passed

with singular unanimity through both Houses, in the Senate, only

seven votes against it, of which I afterwards felt proud to have

been one. He denied the power; but before examining the arguments

for and against it, very properly laid down the amount and variety

of jurisdiction and authority which it would require the federal

government to exercise within the States, in order to execute a

system, and that in each and every part--in every mile of each and

every canal road--it should undertake to construct. He began with

acquiring the right of way, and pursued it to its results in the

construction and preservation of the work, involving jurisdiction,

ownership, penal laws, and administration. Commissioners, he said,

must first be appointed to trace a route, and to acquire a right

to the ground over which the road or canal was to pass, with a

sufficient breadth for each. The ground could only be acquired

by voluntary grants from individuals, or by purchases, or by

condemnation of the property, and fixing its value through a jury

of the vicinage, if they refused to give or sell, or demanded an

exorbitant price. After all this was done, then came the repairs,

the care of which was to be of perpetual duration, and of a kind to

provide against criminal and wilful injuries, as well as against

the damages of accident, and deterioration from time and use. There

are persons in every community capable of committing voluntary

injuries, of pulling down walls that are made to sustain the road;

of breaking the bridges over water-courses, and breaking the road

itself. Some living near it might be disappointed that it did not

pass through their lands, and commit these acts of violence and

waste from revenge. To prevent these crimes Congress must have a

power to pass laws to punish the offenders, wherever they may be

found. Jurisdiction over the road would not be sufficient, though it

were exclusive. There must be power to follow the offenders wherever

they might go. It would seldom happen that the parties would be

detected in the act. They would generally commit it in the night,

and fly far off before the sun appeared. Right of pursuit must

attach, or the power of punishing become nugatory. Tribunals, State

or federal, must be invested with power to execute the law. Wilful

injuries would require all this assumption of power, and machinery

of administration, to punish and prevent them. Repair of natural

deteriorations would require the application of a different remedy.

Toll gates, and persons to collect the tolls, were the usual resort

for repairing this class of injuries, and keeping the road in order.

Congress must have power to make such an establishment, and to enact

a code of regulations for it, with fines and penalties, and agents

to execute it. To all these exercises of authority the question of

the constitutionality of the law may be raised by the prosecuted

party. But opposition might not stop with individuals. States might

contest the right of the federal government thus to possess and

to manage all the great roads and canals within their limits; and

then a collision would be brought on between two governments, each

claiming to be sovereign and independent in its actions over the

subject in dispute.

Thus did Mr. Monroe state the question in its practical bearings,

traced to their legitimate results, and the various assumptions

of power, and difficulties with States or individuals which

they involved; and the bare statement which he made--the bare

presentation of the practical working of the system, constituted a

complete argument against it, as an invasion of State rights, and

therefore unconstitutional, and, he might have added, as complex and

unmanageable by the federal government, and therefore inexpedient.

But, after stating the question, he examined it under every head

of constitutional derivation under which its advocates claimed the

power, and found it to be granted by no one of them, and virtually

prohibited by some of them. These were, _first_, the right to

establish post-offices and post-roads; _second_, to declare war;

_third_, to regulate commerce among the States; _fourth_, the power

to pay the debts and provide for the common defence and general

welfare of the United States; _fifth_, to make all laws necessary

and proper to carry into effect the granted (enumerated) powers;

_sixth_, from the power to dispose of, and make all needful rules

and regulations respecting the territory or other property of the

United States. Upon this long enumeration of these claimed sources

of power, Mr. Monroe well remarked that their very multiplicity

was an argument against them, and that each one was repudiated by

some of the advocates for each of the others: that these advocates

could not agree among themselves upon any one single source of

the power; and that it was sought for from place to place, with

an assiduity which proclaimed its non-existence any where. Still

he examined each head of derivation in its order, and effectually

disposed of each in its turn. 1. The post-office and post-road

grant. The word "establish" was the ruling term: roads and offices

were the subjects on which it was to act. And how? Ask any number of

enlightened citizens, who had no connection with public affairs,

and whose minds were unprejudiced, what was the meaning of the word

"establish," and the extent of the grant it controls, and there

would not be a difference of opinion among them. They would answer

that it was a power given to Congress to legalize existing roads

as post routes, and existing places as post-offices--to fix on the

towns, court-houses, and other places throughout the Union, at

which there should be post-offices; the routes by which the mails

should be carried; to fix the postages to be paid; and to protect

the post-offices and mails from robbery, by punishing those who

commit the offence. The idea of a right to lay off roads to take the

soil from the proprietor against his will; to establish turnpikes

and tolls; to establish a criminal code for the punishment of

injuries to the road; to do what the protection and repair of a road

requires: these are things which would never enter into his head.

The use of the existing road would be all that would be thought

of; the jurisdiction and soil remaining in the State, or in those

authorized by its legislature to change the road at pleasure.

2. The war power. Mr. Monroe shows the object of this grant of

power to the federal government--the terms of the grant itself--its

incidents as enumerated in the constitution--the exclusion of

constructive incidents--and the pervading interference with the

soil and jurisdiction of the States which the assumption of the

internal improvement power by Congress would carry along with it. He

recites the grant of the power to make war, as given to Congress,

and prohibited to the States, and enumerates the incidents granted

along with it, and necessary to carrying on war: which are, to raise

money by taxes, duties, excises, and by loans; to raise and support

armies and a navy; to provide for calling out, arming, disciplining,

and governing the militia, when in the service of the United States;

establishing fortifications, and to exercise exclusive jurisdiction

over the places granted by the State legislatures for the sites of

forts, magazines, arsenals, dock-yards, and other needful buildings.

And having shown this enumeration of incidents, he very naturally

concludes that it is an exclusion of constructive incidents, and

especially of one so great in itself, and so much interfering with

the soil and jurisdiction of the States, as the federal exercise

of the road-making power would be. He exhibits the enormity of

this interference by a view of the extensive field over which it

would operate. The United States are exposed to invasion through

the whole extent of their Atlantic coast (to which may now be added

seventeen degrees of the Pacific coast) by any European power with

whom we might be engaged in war: on the northern and northwestern

frontier, on the side of Canada, by Great Britain, and on the

southern by Spain, or any power in alliance with her. If internal

improvements are to be carried on to the full extent to which they

may be useful for military purposes, the power, as it exists, must

apply to all the roads of the Union, there being no limitation to

it. Wherever such improvements may facilitate the march of troops,

the transportation of cannon, or otherwise aid the operations, or

mitigate the calamities of war along the coast, or in the interior,

they would be useful for military purposes, and might therefore be

made. They must be coextensive with the Union. The power following

as an incident to another power can be measured, as to its extent,

by reference only to the obvious extent of the power to which it is

incidental. It has been shown, after the most liberal construction

of all the enumerated powers of the general government, that the

territory within the limits of the respective States belonged to

them; that the United States had no right, under the powers granted

to them (with the exceptions specified), to any the smallest portion

of territory within a State, all those powers operating on a

different principle, and having their full effect without impairing,

in the slightest degree, this territorial right in the States.

By specifically granting the right, as to such small portions of

territory as might be necessary for these purposes (forts, arsenals,

magazines, dock-yards and other needful _buildings_), and, on

certain conditions, minutely and well defined, it is manifest that

it was not intended to grant it, as to any other portion, for

any purpose, or in any manner whatever. The right of the general

government must be complete, if a right at all. It must extend to

every thing necessary to the enjoyment and protection of the right.

It must extend to the seizure and condemnation of the property, if

necessary; to the punishment of the offenders for injuries to the

roads and canals; to the establishment and enforcement of tolls; to

the unobstructed construction protection, and preservation of the

roads. It must be a complete right, to the extent above stated, or

it will be of no avail. That right does not exist.

3. The commercial power. Mr. Monroe argues that the sense in which

the power to regulate commerce was understood and exercised by the

States, was doubtless that in which it was transferred to the United

States; and then shows that their regulation of commerce was by the

imposition of duties and imposts; and that it was so regulated by

them (before the adoption of the constitution), equally in respect

to each other, and to foreign powers. The goods, and the vessels

employed in the trade, are the only subject of regulation. It can

act on none other. He then shows the evil out of which that grant

of power grew, and which evil was, in fact, the predominating

cause in the call for the convention which framed the federal

constitution. Each State had the right to lay duties and imposts,

and exercised the right on narrow, jealous, and selfish principles.

Instead of acting as a nation in regard to foreign powers, the

States, individually, had commenced a system of restraint upon

each other, whereby the interests of foreign powers were promoted

at their expense. This contracted policy in some of the States was

counteracted by others. Restraints were immediately laid on such

commerce by the suffering States; and hence grew up a system of

restrictions and retaliations, which destroyed the harmony of the

States, and threatened the confederacy with dissolution. From this

evil the new constitution relieved us; and the federal government,

as successors to the States in the power to regulate commerce,

immediately exercised it as they had done, by laying duties and

imposts, to act upon goods and vessels: and that was the end of the

power.

4. To pay the debts and provide for the common defence and general

welfare of the Union. Mr. Monroe considers this "common defence"

and "general welfare" clause as being no grant of power, but, in

themselves, only an object and end to be attained by the exercise of

the enumerated powers. They are found in that sense in the preamble

to the constitution, in company with others, as inducing causes to

the formation of the instrument, and as benefits to be obtained by

the powers granted in it. They stand thus in the preamble: "In order

to form a more perfect union, establish justice, insure domestic

tranquillity, provide for the common defence, promote the general

welfare, and secure the blessings of liberty to ourselves and our

posterity, do ordain and establish this constitution." These are

the objects to be accomplished, but not by allowing Congress to

do what it pleased to accomplish them (in which case there would

have been no need for investing it with specific powers), but to

be accomplished by the exercise of the powers granted in the body

of the instrument. Considered as a distinct and separate grant,

the power to provide for the "common defence" and the "general

welfare," or either of them, would give to Congress the command of

the whole force, and of all the resources of the Union--absorbing

in their transcendental power all other powers, and rendering all

the grants and restrictions nugatory and vain. The idea of these

words forming an original grant, with unlimited power, superseding

every other grant, is (must be) abandoned. The government of the

United States is a limited government, instituted for great national

purposes, and for those only. Other interests are left to the States

individually, whose duty it is to provide for them. Roads and

canals fall into this class, the powers of the General Government

being utterly incompetent to the exercise of the rights which their

construction, and protection, and preservation require. Mr. Monroe

examines the instances of roads made in territories, and through

the Indian countries, and the one upon Spanish territory below the

31st degree of north latitude (with the consent of Spain), on the

route from Athens in Georgia to New Orleans, before we acquired the

Floridas; and shows that there was no objection to these territorial

roads, being all of them, to the States, ex-territorial. He examines

the case of the Cumberland road, made within the States, and upon

compact, but in which the United States exercised no power, founded

on any principle of "jurisdiction or right." He says of it: This

road was founded on an article of compact between the United States

and the State of Ohio, under which that State came into the Union,

and by which the expense attending it was to be defrayed by the

application of a certain portion of the money arising from the sales

of the public lands within the State. And, in this instance, the

United States have exercised no act of jurisdiction or sovereignty

within either of the States through which the road runs, by

taking the land from the proprietors by force--by passing acts for

the protection of the road--or to raise a revenue from it by the

establishment of turnpikes and tolls--or any other act founded on

the principles of jurisdiction or right. And I can add, that the

bill passed by Congress, and which received his veto, died under

his veto message, and has never been revised, or attempted to be

revised, since; and the road itself has been abandoned to the States.

5. The power to make all laws which shall be necessary and

proper to carry into effect the powers specifically granted to

Congress. This power, as being the one which chiefly gave rise

to the latitudinarian constructions which discriminated parties,

when parties were founded upon principle, is closely and clearly

examined by Mr. Monroe, and shown to be no grant of power at all,

nor authorizing Congress to do any thing which might not have been

done without it, and only added to the enumerated powers, through

caution, to secure their complete execution. He says: I have always

considered this power as having been granted on a principle of

greater caution, to secure the complete execution of all the powers

which had been vested in the General Government. It contains no

distinct and specific power, as every other grant does, such as to

lay and collect taxes, to declare war, to regulate commerce, and

the like. Looking to the whole scheme of the General Government, it

gives to Congress authority to make all laws which should be deemed

necessary and proper for carrying all its powers into effect. My

impression has invariably been, that this power would have existed,

substantially, if this grant had not been made. It results, by

necessary implication (such is the tenor of the argument), from

the granted powers, and was only added from caution, and to leave

nothing to implication. To act under it, it must first be shown that

the thing to be done is already specified in one of the enumerated

powers. This is the point and substance of Mr. Monroe's opinion on

this incidental grant, and which has been the source of division

between parties from the foundation of the government--the fountain

of latitudinous construction--and which, taking the judgment of

Congress as the rule and measure of what was "necessary and proper"

in legislation, takes a rule which puts an end to the limitations

of the constitution, refers all the powers of the body to its own

discretion, and becomes as absorbing and transcendental in its scope

as the "general welfare" and "common defence clauses" would be

themselves.

6. The power to dispose of, and make all needful rules and

regulations respecting the territory or other property of the United

States. This clause, as a source of power for making roads and

canals within a State, Mr. Monroe disposes of summarily, as having

no relation whatever to the subject. It grew out of the cessions of

territory which different States had made to the United States, and

relates solely to that territory (and to such as has been acquired

since the adoption of the constitution), and which lay without the

limits of a State. Special provision was deemed necessary for such

territory, the main powers of the constitution operating internally,

not being applicable or adequate thereto; and it follows that this

power gives no authority, and has even no bearing on the subject.

Such was this great state paper, delivered at a time when internal

improvement by the federal government, having become an issue

in the canvass for the Presidency, and ardently advocated by

three of the candidates, and qualifiedly by two others, had an

immense current in its favor, carrying many of the old strict

constitutionists along with it. Mr. Monroe stood firm vetoed the

bill which assumed jurisdiction over the Cumberland road, and drew

up his sentiments in full, for the consideration of Congress and

the country. His argument is abridged and condensed in this view of

it; but his positions and conclusions preserved in full, and with

scrupulous correctness. And the whole paper, as an exposition of

the differently understood parts of the constitution, by one among

those most intimately acquainted with it, and as applicable to the

whole question of constructive powers, deserves to be read and

studied by every student of our constitutional law. The only point

at which Mr. Monroe gave way, or yielded in the least, to the temper

of the times, was in admitting the power of appropriation--the right

of Congress to appropriate, but not to apply money--to internal

improvements; and in that he yielded against his earlier, and,

as I believe, better judgment. He had previously condemned the

appropriation as well as the application, but finally yielded on

this point to the counsels that beset him; but nugatorially, as

appropriation without application was inoperative, and a balk to

the whole system. But an act was passed soon after for surreys--for

making surveys of routes for roads and canals of general and

national importance, and the sum of $30,000 was appropriated for

that purpose. The act was as carefully guarded as words could do

so, in its limitation to objects of national importance, but only

presented another to the innumerable instances of the impotency of

words in securing the execution of a law. The selection of routes

under the act, rapidly degenerated from national to sectional,

from sectional to local, and from local to mere neighborhood

improvements. Early in the succeeding administration, a list of

some ninety routes were reported to Congress, from the Engineer

Department, in which occurred names of places hardly heard of

before outside of the State or section in which they were found.

Saugatuck, Amounisuck, Pasumic, Winnispiseogee, Piscataqua, Titonic

Falls, Lake Memphramagog, Conneaut Creek, Holmes' Hole, Lovejoy's

Narrows, Steele's Ledge, Cowhegan, Androscoggin, Cobbiesconte,

Ponceaupechaux, alias Soapy Joe, were among the objects which

figured in the list for national improvement. The bare reading

of the list was a condemnation of the act under which they were

selected, and put an end to the annual appropriations which were in

the course of being made for these surveys. No appropriation was

made after the year 1827. Afterwards the veto message of President

Jackson put an end to legislation upon local routes, and the

progress of events has withdrawn the whole subject--the subject of

a _system_ of national internal improvement, once so formidable and

engrossing in the public mind--from the halls of Congress, and the

discussions of the people. Steamboats and steam-cars have superseded

turnpikes and canals; individual enterprise has dispensed with

national legislation. Hardly a great route exists in any State which

is not occupied under State authority. Even great works accomplished

by Congress, at vast cost and long and bitter debates in Congress,

and deemed eminently national at the time, have lost that character,

and sunk into the class of common routes. The Cumberland road, which

cost $6,670,000 in money, and was a prominent subject in Congress

for thirty-four years--from 1802, when it was conceived to 1836,

when it was abandoned to the States: this road, once so absorbing

both of public money and public attention, has degenerated into a

common highway, and is entirely superseded by the parallel railroad

route. The same may be said, in a less degree, of the Chesapeake

and Ohio canal, once a national object of federal legislation

intended, as its name imports, to connect the tide water of the

Atlantic with the great rivers of the West; now a local canal,

chiefly used by some companies, very beneficial in its place, but

sunk from the national character which commanded for it the votes

of Congress and large appropriations from the federal treasury. Mr.

Monroe was one of the most cautious and deliberate of our public

men, thoroughly acquainted with the theory and the working of the

constitution, his opinions upon it entitled to great weight; and

on this point (of internal improvement within the States by the

federal government) his opinion has become law. But it does not

touch the question of improving national rivers or harbors yielding

revenue--appropriations for the Ohio and Mississippi and other large

streams, being easily had when unincumbered with local objects, as

shown by the appropriation, in a separate bill, in 1824, of $75,000

for the improvement of these two rivers, and which was approved and

signed by Mr. Monroe.

Thirty Years' View (Vol. 1 of 2) or, A History of the Working of the American Government for Thirty Years, from 1820 to 1850 · 第 10 / 166 章