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.