pointing to the demonstration of a spirit of in- Mr. Johnson, the faithful and consistent sentinel justice and aggrandizement made by our coun- of the law and of the constitution, disapproved try, in the midst of an amicable negotiation! | in that instance, as he does in this, and moved Behold, said they, the conduct of those who are an inquiry. The public mind remained agitated constantly reproaching kings! You saw how and unappeased, until the recent atonement so those admirers were astounded and hung their honorably made by the gallant commodore. heads. You saw, too, when that illustrious And is there to be a distinction between the man, who presides over us, adopted his pacific, officers of the two branches of the public sermoderate, and just course, how they once more vice? Are former services, however eminent, lifted up their heads with exultation and delight to preclude even inquiry into recent misconbeaming in their countenances. And you saw duct? Is there to be no limit, no prudential how those minions themselves were finally com- bounds to the national gratitude? I am not pelled to unite in the general praises bestowed disposed to censure the President for not orderupon our government. Beware how you forfeiting a court of inquiry, or a general court-marthis exalted character. Beware how you give a fatal sanction, in this infant period of our republic, scarcely yet two-score years old, to military insubordination. Remember that Greece had her Alexander, Rome her Caesar, England her Cromwell, France her Bonaparte, and that if we would escape the rock on which they split, we must avoid their errors. How different has been the treatment of General Jackson and that modest, but heroic young man, a native of one of the smallest States in the Union, who achieved for his country, on Lake Erie, one of the most glorious victories of the late war. In a moment of passion, he forgot himself, and offered an act of violence which was repented of as soon as perpetrated. He was tried, and suffered the judgment to be pronounced by his peers. Public justice was thought not even then to be satisfied. The press and Congress took up the subject. My honorable friend from Virginia, tial. Perhaps, impelled by a sense of gratitude, he determined, by anticipation, to extend to the general that pardon which he had the undoubted right to grant after sentence. Let us not shrink from our duty. Let us assert our constitutional powers, and vindicate the instrument from military violation. I hope gentleman will deliberately survey the awful isthmus on which we stand. They may bear down all opposition; they may even vote the general the public thanks; they may carry him triumphantly through this House. But, if they do, in my humble judgment, it will be a triumph of the principle of insubordination, a triumph of the military over the civil authority, a triumph over the powers of this House, a triumph over the constitution of the land. And I pray most devoutly to Heaven, that it may not prove, in its ultimate effects and conse quences, a triumph over the liberties of the people. SPEECH ON INTERNAL IMPROVEMENT. Mr. Clay delivered this speech, in the House of Representatives of the United States, on the sixteenth of January, 1824; on "a bill authorizing the President of the United States to cause certain surveys and estimates to be made on the subject of roads and canals:" | reduce the argument to any thing that the con- MR. CHAIRMAN: I cannot enter on the discussion of the subject before us, without first|viously passed both Houses of that body, with asking leave to express my thanks for the kindness of the committee, in so far accommodating me as to agree, unanimously, to adjourn its sitting to the present time, in order to afford me the opportunity of exhibiting my views; which, however, I fear I shall do very unacceptably. As a requital for this kindness, I will endeavor, as far as is practicable, to abbreviate what I have to present to your consideration. Yet, on a question of this extent and moment, there are so many topics which demand a deliberate examination, that, from the nature of the case, it will be impossible, I am afraid, to a communication of the opinion, that Congress, under the constitution, possessed no power to enact such laws. High respect, personal and official, must be felt by all, as it is due, to those distinguished officers, and to their opinions, thus solemnly announced; and the most profound consideration belongs to our present chief magistrate, who has favored this House with a written argument, of great length and labor, consisting of not less than sixty or seventy pages, in support of his exposition of the constitution. From the magnitude of the interests involved in the question, all will readily concur that, if the power is granted, and does really exist, it ought to be vindicated, upheld and maintained, that the country may derive the great benefits which may flow from its prudent exercise. If it has not been communicated to Congress, then all claim to it should be, at once, surrendered. It is a circumstance of peculiar regret to me, that one more competent than myself had not risen to support the course which the legislative department has heretofore felt itself bound to pursue on this great question. Of all the trusts which are created by human agency, that is the highest, most solemn, and most responsible, which involves the exercise of political power. Exerted when it has not been intrusted, the public functionary is guilty of usurpation. And his infidelity to the public good is not, perhaps, less culpable, when he neglects or refuses to exercise a power which has been fairly conveyed, to promote the public prosperity. If the power, which he thus forbears to exercise, can only be exerted by himif no other public functionary can employ it, and the public good requires its exercise, his treachery is greatly aggravated. It is only in those cases where the object of the investment of power is the personal ease or aggrandizement of the public agent, that his forbearance to use it is praiseworthy, gracious, or magnanimous. post offices and post roads, to regulate commerce among the several States, that in relation to the judiciary, besides many other powers indisputably belonging to the federal government, are strictly municipal. If, as I understood the gentleman in the course of the subsequent part of his argument to admit, some municipal powers belong to the one system, and some to the other, we shall derive very little aid from the gentleman's principle, in making the discrimination between the two. The question must ever remain open-whether any given power, and, of course, that in question, is or is not delegated to this government, or retained by the States? The conclusion of the gentleman is, that all internal improvements belong to the State governments: that they are of a limited and local character, and are not comprehended within the scope of the federal powers, which relate to external or general objects. That many, perhaps most internal improvements, partake of the character described by the gentleman, I shall not deny. But it is no less true that there are others, emphatically national, which neither the policy, nor the power, nor the interests, of any State will induce it to accomplish, and which can only be effected by the application of the resources of the nation. The improveI was extremely happy to find, that, on many ment of the navigation of the Mississippi furof the points of the argument of the honorable nishes a striking example. This is undeniably gentleman from Virginia, Mr. Barbour, there is a great and important object. The report of a entire concurrence between us, widely as we highly scientific and intelligent officer of the differ in our ultimate conclusions. On this engineer corps (which I hope will be soon taken occasion (as on all others on which that gentle-up and acted upon) has shown that the cost of man obliges the House with an expression of his opinions), he displayed great ability and ingenuity; and, as well from the matter as from the respectful manner of his argument, it is deserving of the most thorough consideration. I am compelled to differ from that gentleman at the very threshold. He commenced by laying down as a general principle, that, in the distribution of powers among our federal and State governments, those which are of a municipal character are to be considered as appertaining to the State governments, and those which relate to external affairs, to the general government. If I may be allowed to throw the argument of the gentleman into the form of a syllogism (a shape which I presume would be quite agreeable to him), it amounts to this: municipal powers belong exclusively to the State governments; but the power to make internal improvements is municipal; therefore it belongs to the State governments alone. I deny both the premises and the conclusion. If the gentleman had affirmed that certain municipal powers, and the great mass of them, belong to the State governments, his proposition would have been incontrovertible. But if he had so qualified it, it would not have assisted the gentleman at all in his conclusion. But surely the power of taxation, the power to regulate the value of coin, the power to establish a uniform standard of weights and measures, to establish any practicable improvement in the navigation of that river, in the present state of the inhabitants of its banks, is a mere trifle in comparison to the great benefits which would accrue from it. I believe that about double the amount of the loss of a single steamboat and cargo (the Tennessee) would effect the whole improvement in the navigation of that river, which ought to be at this time attempted. In this great object twelve States and two territories are, in different degrees, interested. The power to effect the improvement of that river is surely not municipal, in the sense in which the gentleman used the term. If it were, to which of the twelve States and two territories concerned does it belong? It is a great object, which can only be effected by a confederacy. And here is existing that confederacy, and no other can lawfully exist: for the constitution prohibits the States, immediately interested, from entering into any treaty or compact with each other. Other examples might be given to show, that, if even the power existed, the inclination to exert it would not be felt, to effectuate certain improvements eminently calculated to promote the prosperity of the union. Neither of the three States, nor all of them united, through which the Cumberland road passes, would ever have erected that road. Two of them would have thrown in every impediment to its completion in their power. Federative in its char acter, it could only have been executed so far | parts of the constitution which appear to me to by the application of federative means. Again, the contemplated canal through New Jersey; that to connect the waters of the Chesapeake and Delaware; that to unite the Ohio and the Potomac, are all objects of a general and federative nature, in which the States, through which they might severally pass, could not be expected to feel any such special interest as would lead to their execution. Tending, as undoubtedly they would do, to promote the good of the whole, the power and the treasure of the whole must be applied to their execution, if they are ever consummated. I do not think, then, that we shall be at all assisted in expounding the Constitution of the United States, by the principle which the gentleman from Virginia has suggested in respect to municipal powers. The powers of both governments are undoubtedly municipal, often operating upon the same subject. I think a better rule than that which the gentleman furnished for interpreting the constitution, might be deduced from an attentive consideration of the peculiar character of the articles of confederation, as contrasted with that of the present constitution. By those articles, the powers of the thirteen United States were exerted collaterally. They operated through an intermediary. They were addressed to the several States, and their execution depended upon the pleasure and the co-operation of the States individually. The States seldom fulfilled the expectations of the general government in regard to its requisitions, and often wholly disappointed them. Languor and debility, in the movement of the old confederation, were the inevitable consequence of that arrangement of power. By the existing constitution, the powers of the general government act directly on the persons and things within its scope, without the intervention or impediments incident to any intermediary. In executing the great trust which the Constitution of the United States creates, we must, therefore, reject that interpretation of its provisions which would make the general government dependent upon those of the States for the execution of any of its powers, and may safely conclude that the only genuine construction would be that which should enable this government to execute the great purposes of its institution, without the co-operation, and, if indispensably necessary, even against the will, of any particular State. This is the characteristic difference between the two systems of government, of which we should never lose sight. Interpreted in the one way, we shall relapse into the feebleness and debility of the old confederacy. In the other, we shall escape from its evils, and fulfil the great purposes which the enlightened framers of the existing constitution intended to effectuate. The importance of this essential difference in the two forms of government, will be shown in the future progress of the argument. Before I proceed to comment upon those convey the power in question, I hope I shall be 66 gentleman from Virginia assigns to it. And I must own, that I so far coincide with the gentleman from Virginia. If the power can be traced to no more legitimate source than to that of appropriating the public treasure, I yield the question. The truth is, that there is no specific grant, in the constitution, of the power of appropriation; nor was any such requisite. It is a resulting power. The constitution vests in Congress the power of taxation, with but few limitations, to raise a public revenue. It then enumerates the powers of Congress. And it follows, of necessity, that Congress has the right to apply the money, so raised, to the execution of the powers so granted. The clause, which concludes the enumeration of the granted powers, by authorizing the passage of all laws, 'necessary and proper" to effectuate them, comprehends the power of appropriation. And the framers of the constitution recognize it by the restriction, that no money shall be drawn from the treasury but in virtue of a previous appropriation by law. It is to me wonderful how the President should have brought his mind to the conclusion, that, under the power of appropriation, thus incidentally existing, a right could be set up, in its nature almost without limitation, to employ the public money. He combats with great success and much ability, any deduction of power from the clause relating to the general welfare. He shows that the effect of it would be to overturn, or render useless and nugatory, the careful enumeration of our powers; and that it would convert a cautiously limited government into one without limitation. The same process of reasoning by which his mind was brought to this just conclusion, one would have thought, should have warned him against his claiming, under the power of appropriation, such a vast latitude of authority. He reasons strongly against the power, as claimed by us, harmless and beneficent and limited, as it must be admitted to be, and yet he sets up a power boundless in its extent, unrestrained to the object of internal improvements, and comprehending the whole scope of human affairs! For, if the power exists, as he asserts it, what human restraint is there upon it? He does, indeed, say, that it cannot be exerted so as to interfere with the territorial jurisdiction of the States. But this is a restriction altogether gratuitous, flowing from the bounty of the President, and not found in the prescriptions of the constitution. If we have a right, indefinitely, to apply the money of the government to internal improvements, or to any other object, what is to prevent the application of it to the purchase of the sovereignty itself, of a State, if a State were mean enough to sell its sovereignty-to the purchase of kingdoms, empires, the globe itself? With an almost unlimited power of taxation; and, after the revenue is raised, with a right to apply it under no other limitations than those which the President's caution has suggested, I VOL. II.-19 cannot see what other human power is needed. It has been said, by Cæsar or Bonaparte, no doubt thought by both, that, with soldiers enough, they could get money enough; and, with money enough, they could command soldiers enough. According to the President's interpretation of the constitution, one of these great levers of public force and power is possessed by this government. The President seems to contemplate, as fraught with much danger, the power, humbly as it is claimed, to effect the internal improvement of the country. And, in his attempt to overthrow it, sets up one of infinitely greater magnitude. The quantum of power which we claim over the subject of internal improvement, is, it is true, of greater amount and force than that which results from the President's view of the constitution; but then it is limited to the object of internal improvements; whilst the power set up by the President has no such limitation; and, in effect, as I conceive, has no limitation whatever, but that of the ability of the people to bear taxation. With the most profound respect for the President, and after the most deliberate consideration of his argument, I cannot agree with him. I cannot think that any political power accrues to this government, from the mere authority which it possesses to appropriate the public revenue. The power to make internal improvements draws after it most certainly the right to appropriate money to consummate the object. But I cannot conceive that this right of appropriation draws after it the power. of internal improvements. The appropriation of money is consequence, not cause. It follows, it does not precede. According to the order of nature, we first determine upon the object to be accomplished, and then appropriate the money necessary to its consummation. According to the order of the constitution, the power is defined, and the application, that is, the appropriation of the money requisite to its effectuation, follows as a necessary and proper means. The practice of congressional legislation is conformable to both. We first inquire what we may do, and provide by law for its being done, and we then appropriate, by another act of legislation, the money necessary to accomplish the specified object. The error of the argument lies in its beginning too soon. It supposes the money to be in the treasury, and then seeks to disburse it. But how came it there? Congress cannot impose taxes without an object. Their imposition must be in reference to the whole mass of our powers, to the general purposes of government, or with the view to the fulfilment of some one of those powers, or to the attainment of some one of those purposes. In either case, we consult the constitution, and ascertain the extent of the authority which is confided to us. We cannot, constitutionally lay the taxes without regard to the extent of our powers; and then, having acquired the money of the public, appropriate it, because we have got it, to any object indefinitely. Nor do I claim the power in question, from the consent or grant of any particular State or States, through which an object of internal improvement may pass. It may, indeed, be prudent to consult a State through which such an improvement may happen to be carried, from considerations of deference and respect to its sovereign power; and from a disposition to maintain those relations of perfect amity which are ever desirable between the general and State governments. But the power to establish the improvement, must be found in the constitution, or it does not exist. And what is granted by all, it cannot be necessary to obtain the consent of some to perform. The gentleman from Virginia, in speaking of incidental powers, used a species of argument which I entreat him candidly to reconsider. He said, that the chain of cause and effect was without end; that if we argued from a power expressly granted to all others, which might be convenient or necessary to its execution, there were no bounds to the power of this government; that, for example, under the power "to provide and maintain a navy," the right might be assumed to the timber necessary to its construction, and the soil on which it grew. The gentleman might have added, the acorns from which it sprung. What, upon the gentleman's own hypothesis, ought to have been his conclusion? That Congress possessed no power to provide and maintain a navy. Such a conclusion would have been quite as logical, as that Congress has no power over internal improvements, from the possible lengths to which this power may be pushed. No one ever has, or can controvert the existence of incidental powers. We may apply different rules for their extraction, but all must concur in the necessity of their actual existence. They result from the imperfections of our nature, and from the utter impossibility of foreseeing all the turns and vicissitudes in human affairs. They cannot be defined. Much is attained when the power, the end, is specified and guarded. Keeping that constantly in view, the means necessary to its attainment must be left to the sound and responsible discretion of the public functionary. Intrench him as you please, employ what language you may, in the constitutional instrument, 66 necessary and proper," "indispensably necessary," or any other, and the question is still left open-does the proposed measure fall within the scope of the incidental power, circumscribed as it may be? Your safety against abuse must rest in his interest, his integrity, his responsibility to the exercise of the elective franchise; finally, in the ultimate right, when all other redress fails, of an appeal to the remedy, to be used only in extreme cases, of forcible resistance against intolerable oppression. Doubtless, by an extravagant and abusive enlargement of incidental powers, the State governments may be reduced within too narrow limits. Take any power, however incontestably granted to the general government, and employ | that kind of process of reasoning in which the gentleman from Virginia is so skilful, by tracing it to its remotest effects, you may make it absorb the powers of the State governments. Pursue the opposite course; take any incontes table power belonging to the State governments, and follow it out into all its possible ramifications, and you may make it thwart and defeat the great operations of the government of the whole. This is the consequence of our systems. Their harmony is to be preserved only by forbearance, liberality, practical good sense, and mutual concession. Bring these dispositions into the administrations of our various institutions, and all the dreaded conflicts of authorities will be found to be perfectly imaginary. I disclaim, for myself, several sources to which others have ascended, to arrive at the power in question. In making this disclaimer, I mean to cast no imputation on them. I am glad to meet them by whatever road they travel, at the point of a constitutional conclusion. Nor do their positions weaken mine; on the contrary, if correctly taken, and mine also are justified by fair interpretation, they add strength to mine. But I feel it my duty, frankly and sincerely, to state my own views of the constitution. In coming to the ground on which I make my stand to maintain the power, and where I am ready to meet its antagonist, I am happy, in the outset, to state my hearty concurrence with the gentleman from Virginia, in the old 1798 republican principles (now become federal also), by which the constitution is to be interpreted. I agree with him, that this is a limited government; that it has no powers but the granted powers; and that the granted powers are those which are expressly enumerated, or such as, being im plied, are necessary and proper to effectuate the enumerated powers. And, if I do not show the power over federative, national, internal in provements, to be fairly deducible, after the strictest application of these principles, I entreat the committee unanimously to reject the bill. The gentleman from Virginia has rightly antici pated, that, in regard to roads, I claim the power, under the grant, to establish post offices and post roads. The whole question, on this part of the subject, turns upon the true meaning of this clause, and that again upon the genuine signification of the word "establish." According to my understanding of it, the meaning of it is to fix, to make firm, to build. According to that of the gentleman from Virginia, it is to designate, to adopt. Grammatical criticism was to me always unpleasant, and I do not profess to be any proficient in it. But I will confidently appeal, in support of my definition, to any vocabulary whatever, of respectable authority, and to the common use of the word. That it cannot mean only adoption, is to me evident; for adoption pre-supposes establishment, which is precedent in its very nature. That which does not exist, which is not established, cannot be adopted. There is, then, an essential difference between the gentleman from Virginia and me. |