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congress in such manner as to preclude the exercise of it by the states, and for such an idea no one contends.
Is there a power in the general government over roads and canals, concurrent with the power of the states? If so, it may be asked, where are the limitations of these respective powers? Or have the congress a sovereign authority, and is that of the states subordinate? The constitution is silent on this subject not so, where concurrent powers may be exercised. For example, in the 10th section of article 1, it is provided that the states shall lay no imposts or duties on exports or imports except such as are absolutely necessary for executing their inspection laws--they may not keep troops or ships of war in time of peace, nor engage in war unless actually invaded. It is within the province of the national government to lay duties and imposts--to keep troops and ships of war, and especially to engage in war; yet these powers in the cases specified and with the limitations prescribed, are retained by the states, and may be exercised concurrently. In the 8th section of the 1st article, and in the 2d section of the 2d article, there are more striking examples of concurrent powers. To the congress, the power is given of calling forth the militia in the cases therein mentioned, and to the president the power of being their commander in chief when in actual service. There is also reserved to the states the power of appointing their officers and of training the militia. There may be some question as to the precise extent of the powers of this government and of the states over the militia, but a concurrent power is manifestly established and attempted to be defined.
Mr. Daggett asked again, is this measure constitutional, because congress may provide for the “ general welfare and common defence?" If so, then an enumeration of powers was wholly unnecessary, and is worse than useless; then there is no constitutional 'limit to the powers of this government, but the discretion of the legislature, and, in truth, such is now a very prevalent opinion, if a judgment is to be formed from the manner in which power is claimed and exercised. The instrument may be termed “the sacred charter of our liberties--our polar star, and by many other pretty names, and at the same time be practically disregarded. Again, all those internal and municipal regulations of every description, which contribute to promote the strength and prosperity of the community, are provisions for the common defence and general welfare." The congress, then, may construct and support roads, bridges, and canals; regulate manufactures and agriculture; establish schools, academies, and colleges; enact wise laws for the suppression of sin
for the preservation of morals—for the punishment of all offenders, and thus assume all the powers of legislation. Then, indeed, our union would be strengthened, as
mentioned by a gentleman from Pennsylvania, our state authorities broken down, and our government consolidated.
Will the power in question be claimed by that part of the constitution which authorises congress to regulate commerce between the states? If so, to regulate commerce, means to promote, to facilitate, to secure it by all discreet measures, and the bill seems to have been framed in reference to such an exposition. Inspection laws are useful to promote commerce between states, and yet laws of this character have never been attempted by congress; on the contrary, the states have the power, by irresistible implication, of enacting inspection laws; and there is an express power given to congress“ to revise and control them,” and this enumeration of that power strongly implies, that no other power over this subject is intended to be given.
It would be wise, in the opinion of many, that all promissory notes should be negotiable, to facilitate commerce; and undoubtedly the whole law on the subject of inland bills of exchange, is intimately connected with commerce; the buying and selling of slaves in one state, to be transported into another, is a portion of the commerce between states. Laws then may be made by congress to control all these subjects. It may deserve much consideration, whether such a broad construction is not in the face of the constitution, and especially of the 10th article of amendments, which is in these words“ The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
It is said, however, that appropriations have been made, and roads laid out by congress; and the Cumberland road and others are mentioned. Congress may undoubtedly make roads through the lands of the United States, not within the jurisdiction of any state, and the Cumberland road was established probably as a post road. Be that as it may, precedents of such doubtful character, and of such modern date, will not weigh much. The constitution is not to be expounded by a single decision of the legislature. It would scarcely be admitted by a majority of the senate, that the sedition law, as it is termed, was authorised by the constitution, though it received the sanction of the judicial tribunals, as well as the legislature; nor is it clear that the act to repeal the judiciary law in 1803, would now be viewed as it was when passed.
It is further asserted, that these roads and canals are to be constructed, and the expenditure made, with the assent of the states, and thus the power of congress, if doubtful, is confirmed, and the bill in question is drawn with this aspect. Mr. Daggett said, on this point he would ask one question: Can money be appropriated by congress for an object over which it is not
authorized to legislate, because the states assent? Or, in other words, can a law be made, with the consent of the states, which is not warranted by the constitution? By the constitution, the judicial power extends to all cases arising under the constitution, &c. Can congress, with the assent of the states, extend the judicial power to murders, felonies, and other offences committed in the states? Where would be found a judge rash enough to execute such a law? It is believed that the true doctrine is, that the constitution is the shield of every individual in the nation, and that its powers can neither be enlarged nor diminished by the states, except by amendments made in pursuance of its provisions.
It may be added, that neither of the presidents Washington or Adams, ever proposed a measure of this character. The present chief magistrate has suggested it in one or more of his messages, but always with doubts as to the propriety of an interference, without amendments to the constitution.
If, however, there were no objection arising from a want of constitutional authority, Mr. Daggett said, that, in his judg. ment, the project was inexpedient.
No details are provided. What is to be the amount of interest in these various projects? Are co-partnerships with states or individuals to be formed, and the profits divided? Or are boards of works to be established all the states, with all the machinery of management incident to them to be superintended by congress? On all these points, and many others which might be suggested, the bill is silent; and the only answer we hear from the friends of the bill, to our enquiries, is, no details can be agreed on-should details be attempted, the bill would not be carried. Is this a sufficient answer? Before we proceed to grant away more than twelve millions of dollars, it is reasonable that the manner of expenditure should be pointed out.
The time also is not proper. A war has just terminated, leaving upon us a debt (with that which existed before) of one hundred and twenty millions of dollars. Our navigating and manufacturing interests are languishing, and no small portion of distress pervades many parts of our country. It is not then the prosperous moment to enter upon gigantic projects-it is not the time to expend millions on undefined objects.
It would be unwise, at any time, to pledge this great amount, and pledge it beyond the control of government in any exigency of affairs. We are now at peace we may soon be at war. Yesterday a proposition to reduce the army was rejected; and a strong reason urged was, that our relations with a nation bordering on our territory were in a disturbed condition. We all have a painful recollection of the state of our pecuniary resources during the years 1813, 14 and 15. We have now a full treasury, and we speak of it as inexhaustible. No private or VOL. II.
public treasure is inexhaustible, without frugal and discreet management. Are we sure of the continuance of our resources? That derived from the land tax we can no longer look to; the other internal taxes will surely follow that on the land. A disposition is manifest to rid the nation of these vexatious taxes, and they will soon die without a struggle or a groan. Our revenue from imposts is liable at all times, to be seriously affected or cut off by a war. In such an event, will the people acquiesce in supporting burdens to construct roads and canals? The appropriation can be made by the next congress; no part of the 1,500,000 dollars will be received before its next session, and not more than one dividend. A change in the aspect of our affairs may occasion regret
for this measure. Many of the states have already expended large sums for the objects contemplated by this bill. The public is sufficiently accommodated. It is unequitable to burthen such states with taxes for a system of internal improvements, not needed by themselves, because other states have neglected these objects.
The measure is inexpedient, becuuse, upon the principles assumed in the bill, the United States may be defeated in the accomplishment of the proposed objects, by a refusal of the assent of the states. If this government has not the power of controlling absolutely roads and canals, leave them with the competent authorities. If it has the power, it should be exerted in a manner becoming the supreme authority, and not by bargains with states.
On the 3d of March, after the bill had passed both houses, the President of the United States, MR. MADISON, sent the following message to the house of representatives:
To the House of Representatives of the United States. Having considered the bill this day presented to me, entitled “ An act to set apart and pledge certain funds for internal improvements;" and which sets apart and pledges funds“ for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several states, and to render more easy and less expensive the means and provisions for the common defence;" I am constrained, by the insuperable difficulty I feel in reconciling the bill with the constitution of the United States, to return it, with that objection, to the house of representatives, in which it originated.
The legislative powers vested in congress are specified and enumerated in the 8th section of the first article of the constitution; and it does not appear that the power, proposed to be exercised by the bill, is among the enumerated powers; or that it falls, by any just interpretation, within the power to make
laws necessary and proper for carrying into execution those or other powers vested by the constitution in the government of the United States.
“ The power to regulate commerce among the several states," cannot include a power to construct roads and canals, and to improve the navigation of water courses, in order to facilitate, promote, and secure, such a commerce, without a latitude of construction, departing from the ordinary import of the terms, strengthened by the known inconveniences which doubtless led to the grant of this remedial power to congress. To refer the power in question to the clause " to provide for the common defence and general welfare," would be contrary to the established and consistent rules of interpretation; as rendering the special and careful enumeration of powers which follow the clause, nugatory and improper. Such a view of the constitution would have the effect of giving to congress a general power of legislation, instead of the defined and limited one hitherto understood to belong to them; the terms defence and general welfare," embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the constitution and laws of the several states, in all cases not specifically exempted, to be superseded by laws of congress; it being expressly declared, “ that the constitution of the United States, and laws made in pursuance thereof, shall be the supreme law of the land, and the judges of every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." Such a view of the constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the general and the state governments; inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
A restriction of the power “ to provide for the common defence and general welfare," to cases which are to be provided for by the expenditure of money, would still leave within the legislative power of congress all the great and most important measures of government; money being the ordinary and necessary means of carrying them into execution.
If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by congress, the assent of the states, in the mode provided in the bill, cannot confer the power. The only cases in which the consent and cession of particular states can extend the power of congress, are those specified and provided for in the constitution.
I am not unaware of the great importance of roads and canals,