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 of opinion. They are sufficiently recognised 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. Each 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 defence; 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; 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 return 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 mean 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 the 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 offences against the laws of nations. The right to establish a 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 consti

tute 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 postoffices and postroads 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, dock-yards, 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 dif ferent 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 :

1st. To lay and collect taxes, duties, imposts, excises, &c.

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 skilful 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 tc

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 recognised 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 ploughed 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 statutes made to protect the work 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 coutend 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: 1st, the right to establish postoffices and postroads; 2d, to declare war; 3d, to regulate commerce among the several states; 4th, from the power to pay the debts and provide for the common defence and general welfare of the United States; 5th, 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; 6th, 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 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