VIEWS OF THE PRESIDENT OF THE UNITED STATES ON THE SUBJECT OF INTERNAL
IMPROVEMENTS.
It may be presumed that the proposition relating to internal
improvements by roads and canals, which has been several times before
Congress, will be taken into consideration again either for the purpose
of recommending to the States the adoption of an amendment to the
Constitution to vest the necessary power in the General Government or
to carry the system into effect on the principle that the power has
already been granted. It seems to be the prevailing opinion that great
advantage would be derived from the exercise of such a power by Congress.
Respecting the right there is much diversity of sentiment. It is of the
highest importance that this question should be settled. If the right
exist, it ought forthwith to be exercised. If it does not exist, surely
those who are friends to the power ought to unite in recommending an
amendment to the Constitution to obtain it. I propose to examine this
question.
The inquiry confined to its proper objects and within the most limited
scale is extensive. Our Government is unlike other governments both in
its origin and form. In analyzing it the differences in certain respects
between it and those of other nations, ancient and modern, necessarily
come into view. I propose to notice these differences so far as they are
connected with the object of inquiry, and the consequences likely to
result from them, varying in equal degree from those which have attended
other governments. The digression, if it may be so called, will in every
instance be short and the transition to the main object immediate and
direct.
To do justice to the subject it will be necessary to mount to the source
of power in these States and to pursue this power in its gradations and
distribution among the several departments in which it is now vested.
The great division is between the State governments and the General
Government. If there was a perfect accord in every instance as to
the precise extent of the powers granted to the General Government,
we should then know with equal certainty what were the powers which
remained to the State governments, since it would follow that those
which were not granted to the one would remain to the other. But it is
on this point, and particularly respecting the construction of these
powers and their incidents, that a difference of opinion exists, and
hence it is necessary to trace distinctly the origin of each government,
the purposes intended by it, and the means adopted to accomplish them.
By having the interior of both governments fully before us we shall have
all the means which can be afforded to enable us to form a correct
opinion of the endowments of each.
Before the Revolution the present States, then colonies, were separate
communities, unconnected with each other except in their common relation
to the Crown. Their governments were instituted by grants from the
Crown, which operated, according to the conditions of each grant, in
the nature of a compact between the settlers in each colony and the
Crown. All power not retained in the Crown was vested exclusively in
the colonies, each having a government consisting of an executive, a
judiciary, and a legislative assembly, one branch of which was in every
instance elected by the people. No office was hereditary, nor did any
title under the Crown give rank or office in any of the colonies. In
resisting the encroachments of the parent country and abrogating the
power of the Crown the authority which had been held by it vested
exclusively in the people of the colonies, By them was a Congress
appointed, composed of delegates from each colony, who managed the war,
declared independence, treated with foreign powers, and acted in all
things according to the sense of their constituents. The Declaration of
Independence confirmed in form what had before existed in substance.
It announced to the world new States, possessing and exercising complete
sovereignty, which they were resolved to maintain. They were soon after
recognized by France and other powers, and finally by Great Britain
herself in 1783.
Soon after the power of the Crown was annulled the people of each
colony established a constitution or frame of government for themselves,
in which these separate branches--legislative, executive, and
judiciary--were instituted, each independent of the others. To these
branches, each having its appropriate portion, the whole power of the
people not delegated to Congress was communicated, to be exercised for
their advantage on the representative principle by persons of their
appointment, or otherwise deriving their authority immediately from
them, and holding their offices for stated terms. All the powers
necessary for useful purposes held by any of the strongest governments
of the Old World not vested in Congress were imparted to these State
governments without other checks than such as are necessary to prevent
abuse, in the form of fundamental declarations or bills of right. The
great difference between our governments and those of the Old World
consists in this, that the former, being representative, the persons who
exercise their powers do it not for themselves or in their own right,
but for the people, and therefore while they are in the highest degree
efficient they can never become oppressive. It is this transfer of
the power of the people to representative and responsible bodies in
every branch which constitutes the great improvement in the science
of government and forms the boast of our system. It combines all the
advantages of every known government without any of their disadvantages.
It retains the sovereignty in the people, while it avoids the tumult
and disorder incident to the exercise of that power by the people
themselves. It possesses all the energy and efficiency of the most
despotic governments, while it avoids all the oppressions and abuses
inseparable from those governments.
In every stage of the conflict from its commencement until March,
1781, the powers of Congress were undefined, but of vast extent.
The assemblies or conventions of the several colonies being formed by
representatives from every county in each colony and the Congress by
delegates from each colonial assembly, the powers of the latter for
general purposes resembled those of the former for local. They rested
on the same basis, the people, and were complete for all the purposes
contemplated. Never was a movement so spontaneous, so patriotic, so
efficient. The nation exerted its whole faculties in support of its
rights, and of its independence after the contest took that direction,
and it succeeded. It was, however, foreseen at a very early stage
that although the patriotism of the country might be relied on in
the struggle for its independence, a well-digested compact would be
necessary to preserve it after obtained. A plan of confederation was
in consequence proposed and taken into consideration by Congress even
at the moment when the other great act which severed them from Great
Britain and declared their independence was proclaimed to the world.
This compact was ratified on the 21st March, 1781, by the last State,
and thereupon carried into immediate effect.
The following powers were vested in the United States by the Articles
of Confederation. As this, the first bond of union, was in operation
nearly eight years, during which time a practical construction was given
to many of its powers, all of which were adopted in the Constitution
with important additions, it is thought that a correct view of those
powers and of the manner in which they are executed may shed light on
the subject under consideration. It may fairly be presumed that where
certain powers were transferred from one instrument to the other and
in the same terms, or terms descriptive only of the same powers, that
it was intended that they should be construed in the same sense in
the latter that they were in the former.
Article I declares that the style of the Confederacy shall be "The
United States of America."
Article II. Each State retains its sovereignty, freedom, and
independence, and every power and right which is not expressly delegated
to the United States.
Article III. The States severally enter into a firm league of friendship
with each other for their common defense, the security of their
liberties, and their mutual and general welfare, binding themselves
to assist each other against all force offered to or attacks made upon
them on account of religion, sovereignty, trade, etc.
Article IV. The free inhabitants of each State, paupers, vagabonds, and
fugitives from justice excepted, shall be entitled to all the privileges
and immunities of free citizens in the several States, etc. Fugitives
from justice into any of the States shall be delivered up on the demand
of the executive of the State from which they fled. Full faith and
credit shall be given in each State to the records and acts of every
other State.
Article V. Delegates shall be annually appointed by the legislature of
each State to meet in Congress on the first Monday in November, with a
power to recall, etc. No State shall appoint less than two nor more than
seven, nor shall any delegate hold his office for more than three in six
years. Each State shall maintain its own delegates. Each State shall
have one vote. Freedom of speech shall not be impeached, and the members
shall be protected from arrests, except for treason, etc.
Article VI. No State shall send or receive an embassy or enter into a
treaty with a foreign power. Nor shall any person holding any office of
profit or trust under the United States or any State accept any present,
emolument, office, or title from a foreign power. Nor shall the United
States or any State grant any title of nobility. No two States shall
enter into any treaty without the consent of Congress. No State shall
lay any imposts or duties which may interfere with any treaties entered
into by the United States. No State shall engage in war unless it be
invaded or menaced with invasion by some Indian tribe, nor grant letters
of marque or reprisal unless it be against pirates, nor keep up vessels
of war nor any body of troops in time of peace without the consent of
Congress; but every State shall keep up a well regulated militia, etc.
Article VII. When land forces are raised by any State for the common
defense, all officers of and under the rank of colonel shall be
appointed by the legislature of each State.
Article VIII. All charges of war and all other expenses which shall be
incurred for the common defense or general welfare shall be defrayed
out of a common treasury, which shall be supplied by the several
States in proportion to the value of all the land in each State
granted to individuals. The taxes for paying each proportion shall
be levied by the several States.
Article IX. Congress shall have the sole and exclusive right and power
of determining on peace and war, except in the cases mentioned in
the sixth article; of sending and receiving ambassadors; entering
into alliances, except, etc.; of establishing rules for deciding what
captures on land and water shall be legal; of granting letters of marque
and reprisal in time of peace; appointing courts for the trial of
piracies and felonies on the high seas; for deciding controversies
between the States and between individuals claiming lands under two or
more States whose jurisdiction has been adjusted; of regulating the
alloy and value of coin struck by their authority and of foreign coin;
fixing the standard of weights and measures; regulating the trade with
the Indians; establishing and regulating post offices from one State to
another and throughout all the States, and exacting such postage as may
be requisite to defray the expenses of the office; of appointing all
officers of the land forces except the regimental; appointing all the
officers of the naval forces; to ascertain the necessary sums of money
to be raised for the service of the United States and appropriate the
same; to borrow money and emit bills of credit; to build and equip a
Navy; to agree on the number of land forces and to make requisitions
on each State for its quota; that the assent of nine States shall be
requisite to these great acts.
Article X regulates the powers of the committee of the States to sit in
the recess of Congress.
Article XI provides for the admission of Canada into the Confederation.
Article XII pledges the faith of the United States for the payment of
all bills of credit issued and money borrowed on their account.
Article XIII. Every State shall abide by the determination of the United
States on all questions submitted to them by the Confederation, the
Articles of the Confederation to be perpetual and not to be altered
without the consent of every State.
This bond of union was soon found to be utterly incompetent to the
purposes intended by it. It was defective in its powers; it was
defective also in the means of executing the powers actually granted by
it. Being a league of sovereign and independent States, its acts, like
those of all other leagues, required the interposition of the States
composing it to give them effect within their respective jurisdictions.
The acts of Congress without the aid of State laws to enforce them were
altogether nugatory. The refusal or omission of one State to pass such
laws was urged as a reason to justify like conduct in others, and thus
the Government was soon at a stand.
The experience of a few years demonstrated that the Confederation could
not be relied on for the security of the blessings which had been
derived from the Revolution. The interests of the nation required
a more efficient Government, which the good sense and virtue of the
people provided by the adoption of the present Constitution.
The Constitution of the United States was formed by a convention of
delegates from the several States, who met in Philadelphia, duly
authorized for the purpose, and it was ratified by a convention in each
State which was especially called to consider and decide on the same.
In this progress the State governments were never suspended in their
functions. On the contrary, they took the lead in it. Conscious of their
incompetency to secure to the Union the blessings of the Revolution,
they promoted the diminution of their own powers and the enlargement of
those of the General Government in the way in which they might be most
adequate and efficient. It is believed that no other example can be
found of a Government exerting its influence to lessen its own powers,
of a policy so enlightened, of a patriotism so pure and disinterested.
The credit, however, is more especially due to the people of each State,
in obedience to whose will and under whose control the State governments
acted.
The Constitution of the United States, being ratified by the people of
the several States, became of necessity to the extent of its powers the
paramount authority of the Union. On sound principles it can be viewed
in no other light. The people, the highest authority known to our
system, from whom all our institutions spring and on whom they depend,
formed it. Had the people of the several States thought proper to
incorporate themselves into one community, under one government, they
might have done it. They had the power, and there was nothing then nor
is there anything now, should they be so disposed, to prevent it. They
wisely stopped, however, at a certain point, extending the incorporation
to that point, making the National Government thus far a consolidated
Government, and preserving the State governments without that limit
perfectly sovereign and independent of the National Government. Had the
people of the several States incorporated themselves into one community,
they must have remained such, their Constitution becoming then, like the
constitution of the several States, incapable of change until altered
by the will of the majority. In the institution of a State government
by the citizens of a State a compact is formed to which all and every
citizen are equal parties. They are also the sole parties and may amend
it at pleasure. In the institution of the Government of the United
States by the citizens of every State a compact was formed between the
whole American people which has the same force and partakes of all the
qualities to the extent of its powers as a compact between the citizens
of a State in the formation of their own constitution. It can not be
altered except by those who formed it or in the mode prescribed by the
parties to the compact itself.
This Constitution was adopted for the purpose of remedying all
defects of the Confederation, and in this it has succeeded beyond
any calculation that could have been formed of any human institution.
By binding the States together the Constitution performs the great
office of the Confederation; but it is in that sense only that it has
any of the properties of that compact, and in that it is more effectual
to the purpose, as it holds them together by a much stronger bond; and
in all other respects in which the Confederation failed the Constitution
has been blessed with complete success. The Confederation was a compact
between separate and independent States, the execution of whose
articles in the powers which operated internally depended on the State
governments. But the great office of the Constitution, by incorporating
the people of the several States to the extent of its powers into one
community and enabling it to act directly on the people, was to annul
the powers of the State governments to that extent, except in cases
where they were concurrent, and to preclude their agency in giving
effect to those of the General Government. The Government of the United
States relies on its own means for the execution of its powers, as the
State governments do for the execution of theirs, both governments
having a common origin or sovereign, the people--the State governments
the people of each State, the National Government the people of every
State--and being amenable to the power which created it. It is by
executing its functions as a Government thus originating and thus acting
that the Constitution of the United States holds the States together and
performs the office of a league. It is owing to the nature of its powers
and the high source from whence they are derived--the people--that it
performs that office better than the Confederation or any league which
ever existed, being a compact which the State governments did not form,
to which they are not parties, and which executes its own powers
independently of them.
There were two separate and independent governments established over
our Union, one for local purposes over each State by the people of
the State, the other for national purposes over all the States by
the people of the United States. The whole power of the people, on the
representative principle, is divided between them. The State governments
are independent of each other, and to the extent of their powers are
complete sovereignties. The National Government begins where the State
governments terminate, except in some instances where there is a
concurrent jurisdiction between them. This Government is also, according
to the extent of its powers, a complete sovereignty. I speak here, as
repeatedly mentioned before, altogether of representative sovereignties,
for the real sovereignty is in the people alone.
The history of the world affords no such example of two separate and
independent governments established over the same people, nor can it
exist except in governments founded on the sovereignty of the people.
In monarchies and other governments not representative there can be no
such division of power. The government is inherent in the possessor;
it is his, and can not be taken from him without a revolution. In such
governments alliances and leagues alone are practicable. But with us
individuals count for nothing in the offices which they hold; that
is, they have no right to them. They hold them as representatives, by
appointment from the people, in whom the sovereignty is exclusively
vested. It is impossible to speak too highly of this system taken
in its twofold character and in all its great principles of two
governments, completely distinct from and independent of each other,
each constitutional, founded by and acting directly on the people, each
competent to all its purposes, administering all the blessings for which
it was instituted, without even the most remote danger of exercising
any of its powers in a way to oppress the people. A system capable
of expansion over a vast territory not only without weakening either
government, but enjoying the peculiar advantage of adding thereby new
strength and vigor to the faculties of both; possessing also this
additional advantage, that while the several States enjoy all the rights
reserved to them of separate and independent governments, and each is
secured by the nature of the Federal Government, which acts directly on
the people, against the failure of the others to bear their equal share
of the public burdens, and thereby enjoys in a more perfect degree all
the advantages of a league, it holds them together by a bond altogether
different and much stronger than the late Confederation or any league
that was ever known before--a bond beyond their control, and which can
not even be amended except in the mode prescribed by it. So great an
effort in favor of human happiness was never made before; but it became
those who made it. Established in the new hemisphere, descended from the
same ancestors, speaking the same language, having the same religion and
universal toleration, born equal and educated in the same principles of
free government, made independent by a common struggle and menaced by
the same dangers, ties existed between them which never applied before
to separate communities. They had every motive to bind them together
which could operate on the interests and affections of a generous,
enlightened, and virtuous people, and it affords inexpressible
consolation to find that these motives had their merited influence.
In thus tracing our institutions to their origin and pursuing them
in their progress and modifications down to the adoption of this
Constitution two important facts have been disclosed, on which it may
not be improper in this stage to make a few observations. The first is
that in wresting the power, or what is called the sovereignty, from
the Crown it passed directly to the people. The second, that it passed
directly to the people of each colony and not to the people of all the
colonies in the aggregate; to thirteen distinct communities and not
to one. To these two facts, each contributing its equal proportion,
I am inclined to think that we are in an eminent degree indebted for
the success of our Revolution. By passing to the people it vested in
a community every individual of which had equal rights and a common
interest. There was no family dethroned among us, no banished pretender
in a foreign country looking back to his connections and adherents here
in the hope of a recall; no order of nobility whose hereditary rights in
the Government had been violated; no hierarchy which had been degraded
and oppressed. There was but one order, that of the people, by whom
everything was gained by the change. I mention it also as a circumstance
of peculiar felicity that the great body of the people had been born
and educated under these equal and original institutions. Their habits,
their principles, and their prejudices were therefore all on the side
of the Revolution and of free republican government.
Had distinct orders existed, our fortune might and probably would have
been different. It would scarcely have been possible to have united so
completely the whole force of the country against a common enemy. A
contest would probably have arisen in the outset between the orders for
the control. Had the aristocracy prevailed, the people would have been
heartless. Had the people prevailed, the nobility would probably have
left the country, or, remaining behind, internal divisions would have
taken place in every State and a civil war broken out more destructive
even than the foreign, which might have defeated the whole movement.
Ancient and modern history is replete with examples proceeding from
conflicts between distinct orders, of revolutions attempted which proved
abortive, of republics which have terminated in despotism. It is owing
to the simplicity of the elements of which our system is composed that
the attraction of all the parts has been to a common center, that every
change has tended to cement the union, and, in short, that we have been
blessed with such glorious and happy success.
And that the power wrested from the British Crown passed to the people
of each colony the whole history of our political movement from the
emigration of our ancestors to the present day clearly demonstrates.
What produced the Revolution? The violation of our rights. What rights?
Our chartered rights. To whom were the charters granted, to the people
of each colony or to the people of all the colonies as a single
community? We know that no such community as the aggregate existed,
and of course that no such rights could be violated. It may be added
that the nature of the powers which were given to the delegates by
each colony and the manner in which they were executed show that the
sovereignty was in the people of each and not in the aggregate. They
respectively presented credentials such as are usual between ministers
of separate powers, which were examined and approved before they entered
on the discharge of the important duties committed to them. They voted
also by colonies and not individually, all the members from one colony
being entitled to one vote only. This fact alone, the first of our
political association and at the period of our greatest peril, fixes
beyond all controversy the source from whence the power which has
directed and secured success to all our measures has proceeded.
Had the sovereignty passed to the aggregate, consequences might have
ensued, admitting the success of our Revolution, which might even yet
seriously affect our system. By passing to the people of each colony
the opposition to Great Britain, the prosecution of the war, the
Declaration of Independence, the adoption of the Confederation and
of this Constitution are all imputable to them. Had it passed to the
aggregate, every measure would be traced to that source; even the State
governments might be said to have emanated from it, and amendments of
their constitutions on that principle be proposed by the same authority.
In short it is not easy to perceive all the consequences into which such
a doctrine might lead. It is obvious that the people in mass would have
had much less agency in all the great measures of the Revolution and in
those which followed than they actually had, and proportionably less
credit for their patriotism and services than they are now entitled to
and enjoy. By passing to the people of each colony the whole body in
each were kept in constant and active deliberation on subjects of the
highest national importance and in the supervision of the conduct of all
the public servants in the discharge of their respective duties. Thus
the most effectual guards were provided against abuses and dangers of
every kind which human ingenuity could devise, and the whole people
rendered more competent to the self-government which by an heroic
exertion they had acquired.
I will now proceed to examine the powers of the General Government,
which, like the governments of the several States, is divided into three
branches--a legislative, executive, and judiciary--each having its
appropriate share. Of these the legislative, from the nature of its
powers, all laws proceeding from it, and the manner of its appointment,
its members being elected immediately by the people, is by far the most
important. The whole system of the National Government may be said to
rest essentially on the powers granted to this branch. They mark the
limit within which, with few exceptions, all the branches must move
in the discharge of their respective functions. It will be proper,
therefore, to take a full and correct view of the powers granted to it.
By the eighth section of the first article of the Constitution it is
declared that Congress shall have power--
First. To lay and collect taxes, duties, imposts, and excises, to pay
the debts, and provide for the common defense and general welfare of the
United States;
Second. To borrow money;
Third. To regulate commerce with foreign nations, and among the several
States, and with the Indian tribes;
Fourth. To establish an uniform rule of naturalization and uniform laws
respecting bankruptcies;
Fifth. To coin money, regulate the value thereof and of foreign coin,
and fix the standard of weights and measures;
Sixth. To provide for the punishment of counterfeiting the securities
and current coin of the United States;
Seventh. To establish post offices and post-roads;
Eighth. To promote the progress of science and useful arts by securing
for limited times to authors and inventors the exclusive right to their
respective writings and discoveries;
Ninth. To constitute tribunals inferior to the Supreme Court, to define
and punish piracies and felonies committed on the high seas, and
offenses against the laws of nations;
Tenth. To declare war, grant letters of marque and reprisal, and make
rules concerning captures on land and water;
Eleventh. To raise and support armies;
Twelfth. To provide and maintain a navy;
Thirteenth. To make rules for the government of the land and naval
forces;
Fourteenth. To provide for calling forth the militia to execute the laws
of the Union, suppress insurrections, and repel invasions;
Fifteenth. To provide for organizing, arming, and disciplining the
militia, and for governing such part of them as may be in the service
of the United States, reserving to the States the appointment of the
officers and the authority of training the militia according to the
discipline prescribed by Congress;
Sixteenth. To exercise exclusive legislation in all cases whatever over
such district (not exceeding 10 miles square) as may, by the cession of
particular States and the acceptance of by Congress, become the seat of
Government of the United States; and to exercise like authority over all
places purchased, by the consent of the legislature of the State in
which the same may be, for the erection of forts, magazines, arsenals,
dockyards, and other needful buildings;
Seventeenth. And to make all laws which shall be necessary and proper
for carrying into execution the foregoing powers, and all other powers
vested by this Constitution in the Government of the United States or
in any department or officer thereof.
To the other branches of the Government the powers properly belonging to
each are granted. The President, in whom the executive power is vested,
is made commander in chief of the Army and Navy, and militia when called
into the service of the United States. He is authorized, with the advice
and consent of the Senate, two-thirds of the members present concurring,
to form treaties, to nominate and, with the advice and consent of the
Senate, to appoint ambassadors, other public ministers, and consuls,
judges of the Supreme Court, and all other officers whose appointments
are not otherwise provided for by law. He has power to grant reprieves
and pardons for offenses against the United States, except in cases
of impeachment. It is made his duty to give to Congress from time to
time information of the state of the Union, to recommend to their
consideration such measures as he may judge necessary and expedient, to
convene both Houses on extraordinary occasions, to receive ambassadors,
and to take care that the laws be faithfully executed.
The judicial power is vested in one Supreme Court and in such inferior
courts as Congress may establish; and it is made to extend to all cases
in law and equity arising under the Constitution, the laws of the
United States, and treaties made under their authority. Cases affecting
ambassadors and other public characters, cases of admiralty and maritime
jurisdiction, causes in which the United States are a party, between two
or more States, between citizens of different States, between citizens
of the same State claiming grants of land under different States,
between a State or the citizens thereof and foreign States, are
specially assigned to these tribunals.
Other powers have been granted in other parts of the Constitution which,
although they relate to specific objects, unconnected with the ordinary
administration, yet, as they form important features in the Government
and may shed useful light on the construction which ought to be given
to the powers above enumerated, it is proper to bring into view.
By Article I, section 9, clause 1, it is provided that the migration
or importation of such persons as any of the States now existing shall
think proper to admit shall not be prohibited by Congress prior to the
year 1808, but a tax or duty may be imposed on such importation not
exceeding $10 for each person.
By Article III, section 3, clause 1, new States may be admitted by
Congress into the Union, but that no new State shall be formed within
the jurisdiction of another State, nor any State be formed by the
junction of two or more States or parts of States without the consent of
the legislature of the States concerned as well as of the United States.
And by the next clause of the same article and section power is vested
in Congress to dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the United.
States, with a proviso that nothing in the Constitution shall be so
construed as to prejudice any claims of the United States or of any
particular State.
By Article IV, section 4, the United States guarantee to every State a
republican form of government and engage to protect each of them against
invasion; and on application of the legislature, or of the executive
when the legislature can not be convened, against domestic violence.
Of the other parts of the Constitution relating to power, some form
restraints on the exercise of the powers granted to Congress and others
on the exercise of the powers remaining to the States. The object in
both instances is to draw more completely the line between the two
governments and also to prevent abuses by either. Other parts operate
like conventional stipulations between the States, abolishing between
them all distinctions applicable to foreign powers and securing to the
inhabitants of each State all the rights and immunities of citizens in
the several States.
By the fifth article it is provided that Congress, whenever two-thirds
of both Houses shall deem it necessary, shall propose amendments, or, on
the application of the legislatures of two-thirds of the several States,
shall call a convention for proposing amendments, which in either case
shall be valid as a part of the Constitution when ratified by the
legislatures of three-fourths of the several States, or by conventions
in three-fourths thereof, as the one or the other mode may be proposed
by Congress: _Provided_, That no State, without its consent, shall be
deprived of its equal vote in the Senate, and that no amendment which
may be made prior to the year 1808 shall affect the first and fourth
clauses in the ninth section of the first article.
By the second section of the sixth article it is declared that the
Constitution, and laws of the United States which shall be made in
pursuance thereof, and all treaties made under the authority of the
United States, shall be the supreme law of the land, and that the judges
in every State shall be bound thereby, anything in the constitution or
laws of any State to the contrary notwithstanding. This right in the
National Government to execute its powers was indispensable to its
existence. If the State governments had not been restrained from
encroaching on the powers vested in the National Government, the
Constitution, like the Confederation, would soon have been set at
naught; and it was not within the limit of the human mind to devise
any plan for the accomplishment of the object other than by making a
national constitution which should be to the extent of its powers the
supreme law of the land. This right in the National Government would
have existed under the Constitution to the full extent provided for by
this declaration had it not been made. To prevent the possibility of
a doubt, however, on so important a subject it was proper to make the
declaration.
Having presented above a full view of all the powers granted to the
United States, it will be proper to look to those remaining to the
States. It is by fixing the great powers which are admitted to belong
to each government that we may hope to come to a right conclusion
respecting those in controversy between them. In regard to the National
Government, this task was easy because its powers were to be found in
specific grants in the Constitution; but it is more difficult to give a
detail of the powers of the State governments, as their constitutions,
containing all powers granted by the people not specifically taken
from them by grants to the United States, can not well be enumerated.
Fortunately, a precise detail of all the powers remaining to the State
governments is not necessary in the present instance. A knowledge of
their great powers only will answer every purpose contemplated, and
respecting these there can be no diversity in opinion. They are
sufficiently recognized and established by the Constitution of the
United States itself. In designating the important powers of the
State governments it is proper to observe, first, that the territory
contemplated by the Constitution belongs to each State in its separate
character and not to the United States in their aggregate character.
Bach State holds territory according to its original charter, except in
cases where cessions have been made to the United States by individual
States. The United States had none when the Constitution was adopted
which had not been thus ceded to them and which they held on the
conditions on which such cession had been made. Within the individual
States it is believed that they held not a single acre; but if they did
it was as citizens held it, merely as private property. The territory
acquired by cession lying without the individual States rests on a
different principle, and is provided for by a separate and distinct part
of the Constitution. It is the territory within the individual States to
which the Constitution in its great principles applies, and it applies
to such territory as the territory of a State and not as that of the
United States. The next circumstance to be attended to is that the
people composing this Union are the people of the several States, and
not of the United States in the full sense of a consolidated government.
The militia are the militia of the several States; lands are held under
the laws of the States; descents, contracts, and all the concerns of
private property, the administration of justice, and the whole criminal
code, except in the cases of breaches of the laws of the United States
made under and in conformity with the powers vested in Congress and of
the laws of nations, are regulated by State laws. This enumeration shows
the great extent of the powers of the State governments. The territory
and the people form the basis on which all governments are founded.
The militia constitutes their effective force. The regulation and
protection of property and of personal liberty are also among the
highest attributes of sovereignty. This, without other evidence, is
sufficient to show that the great office of the Constitution of the
United States is to unite the States together under a Government
endowed with powers adequate to the purposes of its institution,
relating, directly or indirectly, to foreign concerns, to the discharge
of which a National Government thus formed alone could be competent.
This view of the exclusive jurisdiction of the several States over the
territory within their respective limits, except in cases otherwise
specially provided for, is supported by the obvious intent of the
several powers granted to Congress, to which a more particular attention
is now due. Of these the right to declare war is perhaps the most
important, as well by the consequences attending war as by the other
powers granted in aid of it. The right to lay taxes, duties, imposts,
and excises, though necessary for the support of the civil government,
is equally necessary to sustain the charges of war; the right to raise
and support armies and a navy and to call forth and govern the militia
when in the service of the United States are altogether of the latter
kind. They are granted in aid of the power to make war and intended to
give effect to it. These several powers are of great force and extent,
and operate more directly within the limits and upon the resources of
the States than any of the other powers. But still they are means only
for given ends. War is declared and must be maintained, an army and a
navy must be raised, fortifications must be erected for the common
defense, debts must be paid, For these purposes duties, imposts, and
excises are levied, taxes are laid, the lands, merchandise, and other
property of the citizens are liable for them; if the money is not paid,
seizures are made and the lands are sold. The transaction is terminated;
the lands pass into other hands, who hold them, as the former
proprietors did, under the laws of the individual States. They were
means only to certain ends; the United States have nothing further to
do with them. The same view is applicable to the power of the General
Government over persons. The militia is called into the service of the
United States; the service is performed; the corps returns to the State
to which it belongs; it is the militia of such State, and not of the
United States. Soldiers are required for the Army, who may be obtained
by voluntary enlistment or by some other process founded in the
principles of equality. In either case the citizen after the tour of
duty is performed is restored to his former station in society, with his
equal share in the common sovereignty of the nation. In all these cases,
which are the strongest which can be given, we see that the right of
the General Government is nothing more than what it is called in the
Constitution, a power to perform certain acts, and that the subject on
which it operates is a means only to that end; that it was both before
and after that act under the protection and subject to the laws of the
individual State within which it was.
To the other powers of the General Government the same remarks are
applicable and with greater force. The right to regulate commerce with
foreign powers was necessary as well to enable Congress to lay and
collect duties and imposts as to support the rights of the nation in
the intercourse with foreign powers. It is executed at the ports of
the several States and operates almost altogether externally. The right
to borrow and coin money and to fix its value and that of foreign
coin are important to the establishment of a National Government, and
particularly necessary in support of the right to declare war, as,
indeed, may be considered the right to punish piracy and felonies on
the high seas and offenses against the laws of nations. The right to
establish an uniform rule of naturalization and uniform laws respecting
bankruptcies seems to be essentially connected with the right to
regulate commerce. The first branch of it relates to foreigners entering
the country; the second to merchants who have failed. The right to
promote the progress of useful arts and sciences may be executed without
touching any of the individual States. It is accomplished by granting
patents to inventors and preserving models, which may be done
exclusively within the Federal district. The right to constitute courts
inferior to the Supreme Court was a necessary consequence of the
judiciary existing as a separate branch of the General Government.
Without such inferior court in every State it would be difficult and
might even be impossible to carry into effect the laws of the General
Government. The right to establish post-offices and post-roads is
essentially of the same character. For political, commercial, and social
purposes it was important that it should be vested in the General
Government. As a mere matter of regulation, and nothing more, I presume,
was intended by it, it is a power easily executed and involving little
authority within the States individually. The right to exercise
exclusive legislation in all cases whatsoever over the Federal district
and over forts, magazines, arsenals, dockyards, and other needful
buildings with the consent of the State within which the same may be is
a power of a peculiar character, and is sufficient in itself to confirm
what has been said of all the other powers of the General Government.
Of this particular grant further notice will hereafter be taken.
I shall conclude my remarks on this part of the subject by observing
that the view which has been presented of the powers and character of
the two Governments is supported by the marked difference which is
observable in the manner of their endowment. The State governments
are divided into three branches--a legislative, executive, and
judiciary--and the appropriate duties of each assigned to it without
any limitation of power except such as is-necessary to guard against
abuse, in the form of bills of right. But in instituting the National
Government an entirely different principle was adopted and pursued. The
Government itself is organized, like the State governments, into three
branches, but its powers are enumerated and defined in the most precise
form. The subject has already been too fully explained to require
illustration by a general view of the whole Constitution, every part
of which affords proof of what is here advanced. It will be sufficient
to advert to the eighth section of the first article, being that more
particularly which defines the powers and fixes the character of the
Government of the United States. By this section it is declared that
Congress shall have power, first, to lay and collect taxes, duties,
imposts, and excises, etc.
Having shown the origin of the State governments and their endowments
when first formed; having also shown the origin of the National
Government and the powers vested in it, and having shown, lastly, the
powers which are admitted to have remained to the State governments
after those which were taken from them by the National Government,
I will now proceed to examine whether the power to adopt and execute
a system of internal improvement by roads and canals has been vested
in the United States.
Before we can determine whether this power has been granted to the
General Government it will be necessary to ascertain distinctly the
nature and extent of the power requisite to make such improvements.
When that is done we shall be able to decide whether such power is
vested in the National Government.
If the power existed it would, it is presumed, be executed by a board of
skillful engineers, on a view of the whole Union, on a plan which would
secure complete effect to all the great purposes of our Constitution.
It is not my intention, however, to take up the subject here on this
scale. I shall state a case for the purpose of illustration only. Let
it be supposed that Congress intended to run a road from the city of
Washington to Baltimore and to connect the Chesapeake Bay with the
Delaware and the Delaware with the Raritan by a canal, what must be
done to carry the project into effect? I make here no question of the
existing power. I speak only of the power necessary for the purpose.
Commissioners would be appointed to trace a route in the most direct
line, paying due regard to heights, water courses, and other obstacles,
and to acquire the right to the ground over which the road and canal
would pass, with sufficient breadth for each. This must be done by
voluntary grants, or by purchases from individuals, or, in case they
would not sell or should ask an exorbitant price, by condemning the
property and fixing its value by a jury of the vicinage. The next object
to be attended to after the road and canal are laid out and made is to
keep them in repair. We know that there are people 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 or in the hope of giving it that
direction, though for a short time. Injuries of this kind have been
committed and are still complained of on the road from Cumberland to the
Ohio. To accomplish this object Congress should have a right to pass
laws to punish offenders wherever they may be found. Jurisdiction over
the road would not be sufficient, though it were exclusive. 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. The power to punish these culprits must therefore reach them
wherever they go. They must also be amenable to competent tribunals,
Federal or State. The power must likewise extend to another object not
less essential or important than those already mentioned. Experience
has shown that the establishment of turnpikes, with gates and tolls and
persons to collect the tolls, is the best expedient that can be adopted
to defray the expense of these improvements and the repairs which they
necessarily require. Congress must therefore have power to make such
an establishment and to support it by such regulations, with fines and
penalties in the case of injuries, as may be competent to the purpose.
The right must extend to all those objects, or it will be utterly
incompetent. It is possessed and exercised by the States individually,
and it must be possessed by the United States or the pretension must be
abandoned.
Let it be further supposed that Congress, believing that they do
possess the power, have passed an act for those purposes, under which
commissioners have been appointed, who have begun the work. They are met
at the first farm on which they enter by the owner, who forbids them
to trespass on his land. They offer to buy it at a fair price or at
twice or thrice its value. He persists in his refusal. Can they, on the
principle recognized and acted on by all the State governments that in
cases of this kind the obstinacy and perverseness of an individual must
yield to the public welfare, summon a jury of upright and discreet men
to condemn the land, value it, and compel the owner to receive the
amount and to deliver it up to them? I believe that very few would
concur in the opinion that such a power exists.
The next object is to preserve these improvements from injury. The locks
of the canal are broken, the walls which sustained the road are pulled
down, the bridges are broken, the road itself is plowed up, toll is
refused to be paid, the gates of the canal or turnpike are forced.
The offenders are pursued, caught, and brought to trial. Can they
be punished? The question of right must be decided on principle. The
culprits will avail themselves of every barrier that may serve to screen
them from punishment. They will plead that the law under which they
stand arraigned is unconstitutional, and that question must be decided
by the court, whether Federal or State, on a fair investigation of the
powers vested in the General Government by the Constitution. If the
judges find that these powers have not been granted to Congress, the
prisoners must be acquitted, and by their acquittal all claim to the
right to establish such a system is at an end.
I have supposed an opposition to be made to the right in Congress by the
owner of the land and other individuals charged with breaches of laws
made to protect the works from injury, because it is the mildest form in
which it can present itself. It is not, however, the only one. A State,
also, may contest the right, and then the controversy assumes another
character. Government might contend against government, for to a certain
extent both the Governments are sovereign and independent of each other,
and in that form it is possible, though not probable, that opposition
might be made. To each limitations are prescribed, and should a contest
rise between them respecting their rights and the people sustain it with
anything like an equal division of numbers the worst consequences might
ensue.
It may be urged that the opposition suggested by the owner of the
land or by the States individually may be avoided by a satisfactory
arrangement with the parties. But a suppression of opposition in that
way is no proof of a right in Congress, nor could it, if confined to
that limit, remove all the impediments to the exercise of the power.
It is not sufficient that Congress may by the command and application
of the public revenue purchase the soil, and thus silence that class of
individuals, or by the accommodation afforded to individual States put
down opposition on their part. Congress must be able rightfully to
control all opposition or they can not carry the system into effect.
Cases would inevitably occur to put the right to the test. The work must
be preserved from injury, tolls must be collected, offenders must be
punished. With these culprits no bargain can be made. When brought
to trial they must deny the validity of the law, and that plea being
sustained all claim to the right ceases.
If the United States possess this power, it must be either because it
has been specifically granted or that it is incidental and necessary
to carry into effect some specific grant. The advocates for the power
derive it from the following sources: First, the right to establish
post-offices and post-roads; second, to declare war; third, to regulate
commerce among the several States; fourth, from the power to pay the
debts and provide for the common defense and general welfare of the
United States; 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. It is to be observed that there
is but little accord among the advocates for this power as to the
particular source from whence it is derived. They all agree, however,
in ascribing it to some one or more of those above mentioned. I will
examine the ground of the claim in each instance.
The first of these grants is in the following words: "Congress shall
have power to establish post-offices and post-roads." What is the just
import of these words and the extent of the grant? The word "establish"
is the ruling term; "post-offices and post-roads" are the subjects on
which it acts. The question therefore is, What power is granted by that
word? The sense in which words are commonly used is that in which they
are to be understood in all transactions between public bodies and
individuals. The intention of the parties is to prevail, and there is
no better way of ascertaining it than by giving to the terms used their
ordinary import. If we were to ask any number of our most enlightened
citizens, who had no connection with public affairs and whose minds were
unprejudiced, what was the import of the word "establish" and the extent
of the grant which it controls, we do not think there would be any
difference of opinion among them. We are satisfied that all of them
would answer that a power was thereby given to Congress to fix on the
towns, court-houses, and other places throughout our Union at which
there should be post-offices, the routes by which the mails should be
carried from one post-office to another, so as to diffuse intelligence
as extensively and to make the institution as useful as possible, to
fix the postage to be paid on every letter and packet thus carried, to
support the establishment, and to protect the post-office and mails from
robbery by punishing those who should commit the offense. The idea of a
right to lay off the roads of the United States on a general scale of
improvement, to take the soil from the proprietor by force, to establish
turnpikes and tolls, and to punish offenders in the manner stated above
would never occur to any such person. The use of the existing road by
the stage, mail carrier, or postboy in passing over it as others do is
all that would be thought of, the jurisdiction and soil remaining to the
State, with a right in the State or those authorized by its legislature
to change the road at pleasure.
The intention of the parties is supported by other proof, which ought
to place it beyond all doubt. In the former act of Government, the
Confederation, we find a grant for the same purpose expressed in the
following words: "The United States in Congress assembled shall have
the sole and exclusive right and power of establishing and regulating
post-offices from one State to another throughout all the United States,
and exacting such postage on the papers passing through the same as
may be requisite to defray the expenses of the said office." The term
"establish" was likewise the ruling one in that instrument, and was
evidently intended and understood to give a power simply and solely to
fix where there should be post-offices. By transferring this term from
the Confederation into the Constitution it was doubtless intended that
it should be understood in the same sense in the latter that it was
in the former instrument, and to be applied alike to post-offices and
post-roads. In whatever sense it is applied to post-offices it must
be applied in the same sense to post-roads. But it may be asked, If
such was the intention, why were not all the other terms of the grant
transferred with it? The reason is obvious. The Confederation being a
bond of union between independent States, it was necessary in granting
the powers which were to be exercised over them to be very explicit
and minute in defining the powers granted. But the Constitution to the
extent of its powers having incorporated the States into one Government
like the government of the States individually, fewer words in defining
the powers granted by it were not only adequate, but perhaps better
adapted to the purpose. We find that brevity is a characteristic of the
instrument. Had it been intended to convey a more enlarged power in the
Constitution than had been granted in the Confederation, surely the same
controlling term would not have been used, or other words would have
been added, to show such intention and to mark the extent to which the
power should be carried. It is a liberal construction of the powers
granted in the Constitution by this term to include in it all the powers
that were granted in the Confederation by terms which specifically
defined and, as was supposed, extended their limits. It would be absurd
to say that by omitting from the Constitution any portion of the
phraseology which was deemed important in the Confederation the import
of that term was enlarged, and with it the powers of the Constitution,
in a proportional degree, beyond what they were in the Confederation.
The right to exact postage and to protect the post-offices and mails
from robbery by punishing the offenders may fairly be considered as
incidents to the grant, since without it the object of the grant might
be defeated. Whatever is absolutely necessary to the accomplishment of
the object of the grant, though not specified, may fairly be considered
as included in it. Beyond this the doctrine of incidental power can not
be carried.
If we go back to the origin of our settlements and institutions and
trace their progress down to the Revolution, we shall see that it was in
this sense, and in none other, that the power was exercised by all our
colonial governments. Post-offices were made for the country, and not
the country for them. They are the offspring of improvement; they never
go before it. Settlements are first made, after which the progress is
uniform and simple, extending to objects in regular order most necessary
to the comfort of man--schools, places of public worship, court-houses,
and markets; post-offices follow. Roads may, indeed, be said to be
coeval with settlements; they lead to all the places mentioned, and
to every other which the various and complicated interests of society
require.
It is believed that not one example can be given, from the first
settlement of our country to the adoption of this Constitution,
of a post-office being established without a view to existing roads or
of a single road having been made by pavement, turnpike, etc., for the
sole purpose of accommodating a post-office. Such, too, is the uniform
progress of all societies. In granting, then, this power to the United
States it was undoubtedly intended by the framers and ratifiers of the
Constitution to convey it in the sense and extent only in which it had
been understood and exercised by the previous authorities of the
country.
This conclusion is confirmed by the object of the grant and the
manner of its execution. The object is the transportation of the mail
throughout the United States, which may be done on horseback, and was
so done until lately, since the establishment of stages. Between the
great towns and in other places where the population is dense stages are
preferred because they afford an additional opportunity to make a profit
from passengers; but where the population is sparse and on crossroads it
is generally carried on horseback. Unconnected with passengers and other
objects, it can not be doubted that the mail itself may be carried in
every part of our Union with nearly as much economy and greater dispatch
on horseback than in a stage, and in many parts with much greater. In
every part of the Union in which stages can be preferred the roads are
sufficiently good provided those which serve for every other purpose
will accommodate them. In every other part where horses alone are used
if other people pass them on horseback surely the mail carrier can. For
an object so simple and so easy in its execution it would doubtless
excite surprise if it should be thought proper to appoint commissioners
to lay off the country on a great scheme of improvement, with the
power to shorten distances, reduce heights, level mountains, and pave
surfaces.
If the United States possessed the power contended for under this grant,
might they not in adopting the roads of the individual States for the
carriage of the mail, as has been done, assume jurisdiction over them
and preclude a right to interfere with or alter them? Might they not
establish turnpikes and exercise all the other acts of sovereignty
above stated over such roads necessary to protect them from injury and
defray the expense of repairing them? Surely if the right exists these
consequences necessarily followed as soon as the road was established.
The absurdity of such a pretension must be apparent to all who examine
it. In this way a large portion of the territory of every State might be
taken from it, for there is scarcely a road in any State which will not
be used for the transportation of the mail. A new field for legislation
and internal government would thus be opened.
From this view of the subject I think we may fairly conclude that the
right to adopt and execute a system of internal improvement, or any part
of it, has not been granted to Congress under the power to establish
post-offices and post-roads; that the common roads of the country only
were contemplated by that grant and are fully competent to all its
purposes.
The next object of inquiry is whether the right to declare war
includes the right to adopt and execute this system of improvement.
The objections to it are, I presume, not less conclusive than those
which are applicable to the grant which we have just examined.
Under the last-mentioned grant a claim has been set up to as much of
that system as relates to roads. Under this it extends alike to roads
and canals.
We must examine this grant by the same rules of construction that
were applied to the preceding one. The object was to take this power
from the individual States and to vest it in the General Government.
This has been done in clear and explicit terms, first by granting the
power to Congress, and secondly by prohibiting the exercise of it by
the States. "Congress shall have a right to declare war." This is the
language of the grant. If the right to adopt and execute this system
of improvement is included in it, it must be by way of incident only,
since there is nothing in the grant itself which bears any relation to
roads and canals. The following considerations, it is presumed, prove
incontestably that this power has not been granted in that or any other
manner.
The United States are exposed to invasion through the whole extent of
their Atlantic 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 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 any part of the
interior they would be useful for military purposes, and might therefore
be made. 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. So great a scope was, it is believed,
never given to incidental power.
If it had been intended that the right to declare war should include
all the powers necessary to maintain war, it would follow that nothing
would have been done to impair the right or to restrain Congress from
the exercise of any power which the exigencies of war might require.
The nature and extent of this exigency would mark the extent of the
power granted, which should always be construed liberally, so as to be
adequate to the end. A right to raise money by taxes, duties, excises,
and by loan, to raise and support armies and a navy, to provide for
calling forth, arming, disciplining, and governing the militia when
in the service of the United States, establishing fortifications and
governing the troops stationed in them independently of the State
authorities, and to perform many other acts is indispensable to the
maintenance of war--no war with any great power can be prosecuted with
success without the command of the resources of the Union in all these
respects. These powers, then, would of necessity and by common consent
have fallen within the right to declare war had it been intended to
convey by way of incident to that right the necessary powers to maintain
war. But these powers have all been granted specifically with many
others, in great detail, which experience had shown were necessary for
the purposes of war. By specifically granting, then, these powers it
is manifest that every power was thus granted which it was intended
to grant for military purposes, and that it was also intended that no
important power should be included in this grant by way of incident,
however useful it might be for some of the purposes of the grant.
By the sixteenth of the enumerated powers, Article I, section 8,
Congress are authorized to exercise exclusive legislation in all cases
whatever over such district as may by cession of particular States and
the acceptance of Congress, not exceeding 10 miles square, become the
seat of the Government of the United States, and to exercise like
authority over all places purchased by the consent of the legislature
of the State in which the same shall be, for the erection of forts,
magazines, arsenals, dockyards, and other useful buildings. If any doubt
existed on a view of other parts of the Constitution respecting the
decision which ought to be formed on the question under consideration,
I should suppose that this clause would completely remove it. 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 exception specified in this
grant, 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 right in the
States; that those powers were in every instance means to ends, which
being accomplished left the subject--that is, the property, in which
light only land could be regarded--where it was before, under the
jurisdiction and subject to the laws of the State governments.
The second number of the clause, which is applicable to military
and naval purposes alone, claims particular attention here. It fully
confirms the view taken of the other enumerated powers, for had it been
intended to include in the right to declare war, by way of incident,
any right of jurisdiction or legislation over territory within a State,
it would have been done as to fortifications, magazines, arsenals,
dockyards, and other needful buildings. By specifically granting the
right as to such small portions of territory as might be necessary for
these purposes and on certain conditions, minutely and well defined,
it is manifest that it was not intended to grant it as to any other
portion on any condition for any purpose or in any manner whatsoever.
It may be said that although the authority to exercise exclusive
legislation in certain cases within the States with their consent may
be considered as a prohibition to Congress to exercise like exclusive
legislation in any other case, although their consent should be granted,
it does not prohibit the exercise of such jurisdiction or power within
a State as would be competent to all the purposes of internal
improvement. I can conceive no ground on which the idea of such a power
over any part of the territory of a State can be inferred from the power
to declare war. There never can be an occasion for jurisdiction for
military purposes except in fortifications, dockyards, and the like
places. If the soldiers are in the field or are quartered in garrisons
without the fortifications, the civil authority must prevail where they
are. The government of the troops by martial law is not affected by it.
In war, when the forces are increased and the movement is on a greater
scale, consequences follow which are inseparable from the exigencies
of the state. More freedom of action and a wider range of power in the
military commanders, to be exercised on their own responsibility, may
be necessary to the public safety; but even here the civil authority
of the State never ceases to operate. It is also exclusive for all
civil purposes.
Whether any power short of that stated would be adequate to the purposes
of internal improvement is denied. In the case of territory one
government must prevail for all the purposes intended by the grant.
The jurisdiction of the United States might be modified in such manner
as to admit that of the State in all cases and for all purposes not
necessary to the execution of the proposed power; but the right of the
General Government must be complete for all the purposes above stated.
It must extend to the seizure and condemnation of the property, if
necessary; to the punishment of offenders for injuries to the roads and
canals; to the establishment and enforcement of tolls, etc. It must be
a complete right to the extent above stated or it will be of no avail.
That right does not exist.
The reasons which operate in favor of the right of exclusive legislation
in forts, dockyards, etc., do not apply to any other places. The safety
of such works and of the cities which they are intended to defend, and
even of whole communities, may sometimes depend on it. If spies are
admitted within them in time of war, they might communicate intelligence
to the enemy which might be fatal. All nations surround such works
with high walls and keep their gates shut. Even here, however, three
important conditions are indispensable to such exclusive legislation:
First, the ground must be requisite for and be applied to those
purposes; second, it must be purchased; third, it must be purchased by
the consent of the State in which it may be. When we find that so much
care has been taken to protect the sovereignty of the States over the
territory within their respective limits, admitting that of the United
States over such small portions and for such special and important
purposes only, the conclusion is irresistible not only that the power
necessary for internal improvements has not been granted, but that it
has been clearly prohibited.
I come next to the right to regulate commerce, the third source from
whence the right to make internal improvements is claimed. It is
expressed in the following words: "Congress shall have power to regulate
commerce with foreign nations and among the several States and with the
Indian tribes." The reasoning applicable to the preceding claims is
equally so to this. The mischief complained of was that this power could
not be exercised with advantage by the individual States, and the object
was to transfer it to the United States. The sense in which the power
was understood and exercised by the States was doubtless that in which
it was transferred to the United States. The policy was the same
as to three branches of this grant, and it is scarcely possible to
separate the two first from each other in any view which may be taken
of the subject. The last, relating to the Indian tribes, is of a
nature distinct from the others for reasons too well known to require
explanation. Commerce between independent powers or communities is
universally regulated by duties and imposts. It was so regulated by the
States before the adoption of this Constitution equally in respect to
each other and to foreign powers. The goods and vessels employed in the
trade are the only subjects of regulation. It can act on none other.
A power, then, to impose such duties and imposts in regard to foreign
nations and to prevent any on the trade between the States was the only
power granted.
If we recur to the causes which produced the adoption of this
Constitution, we shall find that injuries resulting from the regulation
of trade by the States respectively and the advantages anticipated from
the transfer of the power to Congress were among those which had the
most weight. Instead of acting as a nation in regard to foreign powers,
the States individually had commenced a system of restraint on each
other whereby the interests of foreign powers were promoted at their
expense. If one State imposed high duties on the goods or vessels of
a foreign power to countervail the regulations of such power, the next
adjoining States imposed lighter duties to invite those articles into
their ports, that they might be transferred thence into the other
States, securing the duties to themselves. This contracted policy in
some of the States was soon counteracted by others. Restraints were
immediately laid on such commerce by the suffering States, and thus had
grown up a state of affairs disorderly and unnatural, the tendency of
which was to destroy the Union itself and with it all hope of realizing
those blessings which we had anticipated from the glorious Revolution
which had been so recently achieved. From this deplorable dilemma, or,
rather, certain ruin, we were happily rescued by the adoption of the
Constitution.
Among the first and most important effects of this great Revolution
was the complete abolition of this pernicious policy. The States were
brought together by the Constitution as to commerce into one community
equally in regard to foreign nations and each other. The regulations
that were adopted regarded us in both respects as one people. The duties
and imposts that were laid on the vessels and merchandise of foreign
nations were all uniform throughout the United States, and in the
intercourse between the States themselves no duties of any kind were
imposed other than between different ports and counties within the
same State.
This view is supported by a series of measures, all of a marked
character, preceding the adoption of the Constitution. As early as
the year 1781 Congress recommended it to the States to vest in the
United States a power to levy a duty of 5 per cent on all goods imported
from foreign countries into the United States for the term of fifteen
years. In 1783 this recommendation, with alterations as to the kind of
duties and an extension of this term to twenty-five years, was repeated
and more earnestly urged. In 1784 it was recommended to the States
to authorize Congress to prohibit, under certain modifications, the
importation of goods from foreign powers into the United States for
fifteen years. In 1785 the consideration of the subject was resumed,
and a proposition presented in a new form, with an address to the
States, explaining fully the principles on which a grant of the power
to regulate trade was deemed indispensable. In 1786 a meeting took place
at Annapolis of delegates from several of the States on this subject,
and on their report a convention was formed at Philadelphia the ensuing
year from all the States, to whose deliberations we are indebted for
the present Constitution.
In none of these measures was the subject of internal improvement
mentioned or even glanced at. Those of 1784, 1785, 1786, and 1787,
leading step by step to the adoption of the Constitution, had in view
only the obtaining of a power to enable Congress to regulate trade with
foreign powers. It is manifest that the regulation of trade with the
several States was altogether a secondary object, suggested by and
adopted in connection with the other. If the power necessary to this
system of improvement is included under either branch of this grant,
I should suppose that it was the first rather than the second. The
pretension to it, however, under that branch has never been set up.
In support of the claim under the second no reason has been assigned
which appears to have the least weight.