WASHINGTON, _May 4, 1822_.
_To the House of Representatives_:
Having duly considered the bill entitled "An act for the preservation
and repair of the Cumberland road," it is with deep regret, approving
as I do the policy, that I am compelled to object to its passage and to
return the bill to the House of Representatives, in which it originated,
under a conviction that Congress do not possess the power under the
Constitution to pass such a law.
A power to establish turnpikes with gates and tolls, and to enforce the
collection of tolls by penalties, implies a power to adopt and execute a
complete system of internal improvement. A right to impose duties to be
paid by all persons passing a certain road, and on horses and carriages,
as is done by this bill, involves the right to take the land from the
proprietor on a valuation and to pass laws for the protection of the
road from injuries, and if it exist as to one road it exists as to any
other, and to as many roads as Congress may think proper to establish.
A right to legislate for one of these purposes is a right to legislate
for the others. It is a complete right of jurisdiction and sovereignty
for all the purposes of internal improvement, and not merely the
right of applying money under the power vested in Congress to make
appropriations, under which power, with the consent of the States
through which this road passes, the work was originally commenced, and
has been so far executed. I am of opinion that Congress do not possess
this power; that the States individually can not grant it, for although
they may assent to the appropriation of money within their limits for
such purposes, they can grant no power of jurisdiction or sovereignty by
special compacts with the United States. This power can be granted only
by an amendment to the Constitution and in the mode prescribed by it.
If the power exist, it must be either because it has been specifically
granted to the United States or that it is incidental to some power
which has been specifically granted. If we examine the specific grants
of power we do not find it among them, nor is it incidental to any power
which has been specifically granted.
It has never been contended that the power was specifically granted.
It is claimed only as being incidental to some one or more of the powers
which are specifically granted. The following are the powers from which
it is said to be derived:
First, from the right to establish post-offices and post-roads; second,
from the right to declare war; third, to regulate commerce; fourth,
to pay the debts and provide for the common defense and general welfare;
fifth, from the power to make all laws necessary and proper for carrying
into execution all the powers vested by the Constitution in the
Government of the United States or in any department or officer thereof;
sixth and lastly, from the power to dispose of and make all needful
rules and regulations respecting the territory and other property of
the United States.
According to my judgment it can not be derived from either of those
powers, nor from all of them united, and in consequence it does not
exist.
Having stated my objections to the bill, I should now cheerfully
communicate at large the reasons on which they are founded if I had
time to reduce them to such form as to include them in this paper. The
advanced stage of the session renders that impossible. Having at the
commencement of my service in this high trust considered it a duty to
express the opinion that the United States do not possess the power in
question, and to suggest for the consideration of Congress the propriety
of recommending to the States an amendment to the Constitution to vest
the power in the United States, my attention has been often drawn to the
subject since, in consequence whereof I have occasionally committed my
sentiments to paper respecting it. The form which this exposition has
assumed is not such as I should have given it had it been intended for
Congress, nor is it concluded. Nevertheless, as it contains my views
on this subject, being one which I deem of very high importance, and
which in many of its bearings has now become peculiarly urgent, I will
communicate it to Congress, if in my power, in the course of the day,
or certainly on Monday next.