ON INTERNAL IMPROVEMENT.

ON INTERNAL IMPROVEMENT.IN THE HOUSE OF REPRESENTATIVES, MARCH 13, 1818.[THEbill making appropriations for purposes of internal improvement, which passed congress in 1817, having been vetoed by president Madison, on the last day of his term, March third, 1817; his successor,Mr.Monroe, in his first message to congress, declared his sentiments on the subject, concurring withMr.Madison in the opinion that the power of making internal improvements was not vested in congress. Three national executives having decided against the constitutionality of the power, a great effort was made by the friends of the system, to obtain a contrary and favorable expression by congress. A resolution was offered in the house of representatives, declaring that congress had power, under the constitution, to appropriate money for the construction of military roads, post roads, and canals. On this interesting occasion, the resolution being under discussion in committee of the whole,Mr.Clay made the following speech, in vindication of the constitutionality of internal improvements by the national government, in which views he was sustained by the house, in the adoption of the resolution, by a vote of ninety to seventy-five. This triumph in the face of a new and popular administration, may be considered one of the most splendid events in parliamentary history.]IHAVEbeen anxious to catch the eye of the chairman for a few moments, to reply to some of the observations which have fallen from various gentlemen. I am aware that, in doing this, I risk the loss of what is of the utmost value—the kind favor of the house, wearied as its patience is, by this prolonged debate. But when I feel what a deep interest the union at large, and particularly that quarter of it whence I come, has, in the decision of the present question, I cannot omit any opportunity of earnestly urging upon the house the propriety of retaining the important power which this question involves. It will be recollected, that if unfortunately there should be a majority both against the abstract proposition asserting the power, and against its practical execution, the power is gone for ever—the question is put at rest, so long as the constitution remains as it is; and with respect to any amendment, in this particular, I confess I utterly despair. It will be borne in mind, that the bill which passed congress on this subject, at the last session, was rejected by the late president of the United States; that at the commencement of the present session, the president communicated his clear opinion, after every effort to come to a different conclusion, that congress does not possess the power contended for, and called upon us to take up the subject, in theshape of an amendment to the constitution; and, moreover, that the predecessor of the present and late presidents, has also intimated his opinion, that congress does not possess the power. With the great weight and authority of the opinions of these distinguished men against the power, and with the fact, solemnly entered upon the record, that this house, after a deliberate review of the ground taken by it at the last session, has decided against the existence of it, (if such, fatally, shall be the decision,) the power, I repeat, is gone—gone for ever, unless restored by an amendment of the constitution. With regard to the practicability of obtaining such an amendment, I think it altogether out of the question. Two different descriptions of persons, entertaining sentiments directly opposed, will unite and defeat such an amendment; one embracing those who believe that the constitution, fairly interpreted, already conveys the power; and the other, those who think that congress has not and ought not to have it. As a large portion of congress, and probably a majority, believes the power to exist, it must be evident, if I am right in supposing that any considerable number of that majority would vote against an amendment which they do not believe necessary, that any attempt to amend would fail. Considering, as I do, the existence of the power as of the first importance, not merely to the preservation of the union of the states, paramount as that consideration ever should be over all others, but to the prosperity of every great interest of the country, agriculture, manufactures, commerce, in peace and in war, it becomes us solemnly, and deliberately, and anxiously, to examine the constitution, and not to surrender it, if fairly to be collected from a just interpretation of that instrument.With regard to the alarm sought to be created, as to the nature of the power, by bringing up the old theme of ‘state rights,’ I would observe, that if the illustrious persons just referred to are against us in the construction of the constitution, they are on our side as to the harmless and beneficial character of the power. For it is not to be conceived, that each of them would have recommended an amendment to the constitution, if they believed that the possession of such a power, by the general government, would be detrimental, much less dangerous, to the independence and liberties of the states. What real ground is there for this alarm? Gentlemen have not condescended to show how the subversion of the rights of the states is to follow from the exercise of the power of internal improvements by the general government. We contend for the power to make roads and canals, to distribute the intelligence, force, and productions of the country, through all its parts and for such jurisdiction only over them, as is necessary to their preservation from wanton injury and from gradual decay. Suppose such a power is sustained and in full operation; imagine it to extend to every canal made, or proposed to be made, and toevery post-road; how inconsiderable and insignificant is the power in a political point of view, limited as it is, with regard to place and to purpose, when contrasted with the great mass of powers retained by the state sovereignties! What a small subtraction from the mass! Even upon these roads and canals, the state governments, according to our principles, will still exercise jurisdiction over every possible case arising upon them, whether of crime or of contract, or any other human transaction, except only what immediately affects their existence and preservation. Thus defined, thus limited, and stripped of all factitious causes of alarm, I will appeal to the candor of gentlemen to say, if the power really presents any thing frightful in it? With respect to post-roads, our adversaries admit the right of way in the general government. There have been, however, on this question, some instances of conflict, but they have passed away without any serious difficulty. Connecticut, if I have been rightly informed, disputed, at one period, the right of passage of the mail on the Sabbath. The general government persisted in the exercise of the right, and Connecticut herself, and every body else, have acquiesced in it.The gentleman from Virginia (Mr.H. Nelson) has contended, that I do not adhere, in the principles of construction which I apply to the constitution, to the republican doctrines of 1798, of which that gentleman would have us believe he is the constant disciple. Let me call the attention of the committee to the celebrated state paper to which we both refer for our principles in this respect—a paper which, although I have not seen it for sixteen years, (until the gentleman had the politeness to furnish me with it during this debate,) made such an impression on my mind, that I shall never forget the satisfaction with which I perused it. I find that I have used, without having been aware of it, when I formerly addressed the committee, almost the same identical language employed byMr.Madison in that paper. It will be recollected, that I claimed no right to exercise any power under the constitution, unless such power was expressly granted, or necessary and proper to carry into effect some granted power. I have not sought to derive power from the clause which authorizes congress to appropriate money. I have been contented with endeavoring to show, that according to the doctrines of 1798, and according to the most rigid interpretation which any one will put upon the instrument, it is expressly given in one case, and fairly deducible in others.[HereMr.Clay read sundry passages fromMr.Madison’s report to the Virginia legislature, in an answer to the resolutions of several states, concerning the alien and sedition laws, showing that there were no powers in the general government but what were granted; and that, whenever a power was claimed to be exercised by it, such power must be shown to be granted, or to be necessary and proper to carry into effect one of the specified powers.]It will be remarked, thatMr.Madison, in his reasoning on the constitution, has not employed the language fashionable during this debate; he has not said, that an implied power must beabsolutelynecessary to carry into effect the specified power, to which it is appurtenant, to enable the general government to exercise it. No! This was a modern interpretation of the constitution.Mr.Madison has employed the language of the instrument itself, and has only contended that the implied power must be necessary and proper to carry into effect the specified power. He has only insisted, that when congress applied its sound judgment to the constitution in relation to implied powers, it should be clearly seen that they were necessary and proper to effectuate the specified powers. These are my principles; but they are not those of the gentleman from Virginia and his friends on this occasion. They contend for a degree of necessity absolute and indispensable; that by no possibility can the power be otherwise executed.That there are two classes of powers in the constitution, I believe has never been controverted by an American politician. We cannot foresee and provide specifically for all contingences. Man and his language are both imperfect. Hence the existence of construction, and of constructive powers. Hence also the rule, that a grant of the end is a grant of the means. If you amend the constitution a thousand times, the same imperfection of our nature and our language will attend our new works. There are two dangers to which we are exposed. The one is, that the general government may relapse into the debility which existed in the old confederation, and finally dissolve from the want of cohesion. The denial to it of powers plainly conferred, or clearly necessary and proper to execute the conferred powers, may produce this effect. And I think, with great deference to the gentleman on the other side, this is the danger to which their principles directly tend. The other danger, that of consolidation, is, by the assumption of powers not granted nor incident to granted powers, or the assumption of powers which have been withheld or expressly prohibited. This was the danger of the period of 1798–9. For instance, that, in direct contradiction to a prohibitory clause of the constitution, a sedition act was passed; and an alien law was also passed, in equal violation of the spirit, if not of the express provisions, of the constitution. It was by such measures that the federal party, (if parties might be named,) throwing off the veil, furnished to their adversaries the most effectual ground of opposition. If they had not passed those acts, I think it highly probable that the current of power would have continued to flow in the same channel; and the change of parties in 1801, so auspicious to the best interests of the country, as I believe, would never have occurred.I beg the committee—I entreat the true friends of the confederated union of these states—to examine this doctrine of state rights,and see to what abusive, if not dangerous consequences, it may lead, to what extent it has been carried, and how it has varied by the same state at different times. In alluding to the state of Massachusetts, I assure the gentlemen from that state, and particularly the honorable chairman of the committee to whom the claim of Massachusetts has been referred, that I have no intention to create any prejudice against that claim. I hope that when the subject is taken up it will be candidly and dispassionately considered, and that a decision will be made on it consistent with the rights of the union, and of the state of Massachusetts. The high character, amiable disposition, and urbanity of the gentleman to whom I have alluded, (Mr.Mason, of Massachusetts,) will, if I had been otherwise inclined, prevent me from endeavoring to make impressions unfavorable to the claim, whose justice that gentleman stands pledged to manifest. But in the period of 1798–9, what was the doctrine promulgated by Massachusetts? It was, that the states, in their sovereign capacity, had no right to examine into the constitutionality or expediency of the measures of the general government.[Mr.Clay here quoted several passages from the answer of the state of Massachusetts to the Virginia and Kentucky resolutions, concerning the alien and sedition laws, to prove his position.]We see here an express disclaimer, on the part of Massachusetts, of any right to decide on the constitutionality or expediency of the acts of the general government. But what was the doctrine which the same state, in 1813, thought proper to proclaim to the world, and that, too, when the union was menaced on all sides? She not only claimed but exercised the right which, in 1799, she had so solemnly disavowed. She claimed the right to judge of the propriety of the call made by the general government for her militia, and she refused the militia called for. There is so much plausibility in the reasoning employed by that state in support of her modern doctrine of state rights, that, were it not for the unpopularity of the stand she took in the late war, or had it been in other times, and under other circumstances, she would very probably have escaped a great portion of that odium which has so justly fallen to her lot. The constitution gives to congress power to provide for calling out the militia to execute the laws of the union, to suppress insurrections, and to repel invasions; and in no other cases. The militia was called out by the general government, during the late war, to repel invasions. Massachusetts said, as you have no right to the militia, but in certain contingences, she was competent to decide whether those contingences had or had not occurred. And, having examined the facts, what then? She said, all was peace and quietness in Massachusetts—no non-execution of the laws; no insurrection at home; no invasion from abroad,nor any immediate danger of invasion. And, in truth, I believe there was no actual invasion for nearly two years after the requisition. Under these circumstances, were it not for the supposed motive of her conduct, would not the case which Massachusetts made out have looked extremely plausible? I hope it is not necessary for me to say, that it is very far from my intention to convey any thing like approbation of the conduct of Massachusetts. No! My doctrine is, that the states, as states, have no right to oppose the execution of the powers which the general government asserts. Any state has undoubtedly the right to express its opinion, in the form of resolution or otherwise, and to proceed, by constitutional means, to redress any real or imaginary grievance; but it has no right to withhold its military aid, when called upon by the high authorities of the general government, much less to obstruct the execution of a law regularly passed. To suppose the existence of such an alarming right, is to suppose, if not disunion itself, such a state of disorder and confusion as must inevitably lead to it.Greatly as I venerate the state which gave me birth, and much as I respect the judges of its supreme court, several of whom are my personal friends, I am obliged to think that some of the doctrines which that state has recently held concerning state rights, are fraught with much danger. If those doctrines had been asserted during the late war, a large share of the public disapprobation which has been given to Massachusetts would have fallen to Virginia. What are these doctrines? The courts of Virginia assert, that they have a right to determine on the constitutionality of any law or treaty of the United States, and to expound them according to their own views, even if they should vary from the decision of the supreme court of the United States. They assert more—that from their decision there can be no appeal to the supreme court of the United States; and that there exists in congress no power to frame a law, obliging the court of the state, in the last resort, to submit its decision to the supervision of the supreme court of the United States; or, if I do not misunderstand the doctrine, to withdraw from the state tribunal, controversies involving the laws of the United States, and to place them before the federal judiciary. I am a friend, a true friend, to state rights; but not in all cases as they are asserted. The states have their appointed orbit; so has the union; and each should be confined within its fair, legitimate, and constitutional sphere. We should equally avoid that subtle process of argument which dissipates into air the powers of this government, and that spirit of encroachment which would snatch from the state, powers not delegated to the general government. We shall thus escape both the dangers I have noticed—that of relapsing into the alarming weakness of the confederation, which is described as a mere rope of sand; and also that other, perhaps not the greatest danger, consolidation. No man deprecates morethan I do, the idea of consolidation; yet, between separation and consolidation, painful as would be the alternative, I would greatly prefer the latter.I will now proceed to endeavor to discover the real difference, in the interpretation of the constitution, between the gentlemen on the other side and myself. It is agreed, that there is no power in the general government but that which is expressly granted, or which is impliable from an express grant. The difference, then, must be in the application of this rule. The gentleman from Virginia, who has favored the house with so able an argument on the subject, has conceded, though somewhat reluctantly, the existence of incidental powers, but he contended that they must have a direct and necessary relation to some specified power. Granted. But who is to judge of this relation? And what rule can you prescribe, different from that which the constitution has required, that it should be necessary and proper? Whatever may be the rule, in whatever language you may choose to express it, there must be a certain degree of discretion left to the agent who is to apply it. But gentlemen are alarmed at this discretion—that law of tyrants, on which they contend there is no limitation. It should be observed, in the first place, that the gentlemen are brought, by the very course of reasoning which they themselves employ, by all the rules which they would lay down for the constitution, to cases where discretion must exist. But is there no limitation, no security against the abuse of it? Yes, there is such security in the fact of our being members of the same society, equally affected ourselves by the laws we promulgate. There is the further security in the oath which is taken to support the constitution, and which will tend to restrain congress from deriving powers which are not proper and necessary. There is the yet further security, that, at the end of every two years, the members must be amenable to the people for the manner in which their trusts have been performed. And there remains also that further, though awful security, the last resort of society, which I contend belongs alike to the people and to the states in their sovereign capacity, to be exercised in extreme cases, and when oppression becomes intolerable, the right of resistance. Take the gentleman’s own doctrine, (Mr.Barbour,) the most restricted which has been asserted, and what other securities have we against the abuse of power, than those which I have enumerated? Say that there must be an absolute necessity to justify the exercise of an implied power, who is to define that absolute necessity, and then to apply it? Who is to be the judge? Where is the security against transcending that limit? The rule the gentleman contends for has no greater security than that insisted upon by us. It equally leads to the same discretion, a sound discretion, exercised under all the responsibility of a solemn oath, of a regard to our fair fame, of a knowledge that we are ourselves the subjects of those laws whichwe pass, and, lastly, of the right of resisting insupportable tyranny. And, by way of illustration, if the sedition act had not been condemned by the indignant voice of the community, the right of resistance would have accrued. If congress assumed the power to control the right of speech, and to assail, by penal statutes, the greatest of all the bulwarks of liberty, the freedom of the press, and there were no other means to arrest their progress, but that to which I have referred, lamentable as would be the appeal, such a monstrous abuse of power, I contend, would authorize a recurrence to that right.If, then, the gentlemen on the other side and myself differ so little in our general principles, as I think I have shown, I will proceed, for a few moments, to look at the constitution a little more in detail. I have contended, that the power to construct post-roads is expressly granted in the power to establish post-roads. If it be, there is an end of the controversy; but if not, the next inquiry is, whether that power may be fairly deduced, by implication, from any of the special grants of power. To show that the power is expressly granted, I might safely appeal to the arguments already used, to prove that the wordestablish, in this case, can mean only one thing—the right of making. Several gentlemen have contended, that the word has a different sense; and one has resorted to the preamble of the constitution, to show that the phrase ‘to establish justice,’ there used, does not convey the power of creation. If the word ‘establish’ is there to be taken in the sense which gentlemen claim for it, that of adoption or designation, congress could have a choice only of systems of justice preëxisting. Will any gentleman contend, that we are obliged to take the Justinian code, the Napoleon code, the code of civil, or the code of common or canon law? Establishment means in the preamble, as in other cases, construction, formation, creation. Let me ask, in all cases of crime, which are merelymalum prohibitum, if you do not resort to construction, to creating, when you make the offence? By your laws denouncing certain acts as criminal offences, laws which the good of society requires you to pass, and to adapt to our peculiar condition, you do construct and create a system of rules, to be administered by the judiciary. But gentlemen say, that the word cannot meanmake; that you would not say, for example, to establish a ship, to establish a chair. In the application of this, as of all other terms, you must be guided by the nature of the subject; and if it cannot properly be used in all cases, it does not follow that it cannot be in any. And when we take into consideration, that, under the old articles of confederation, congress had over the subject of post-roads just as much power as gentlemen allow to the existing government, that it was the general scope and spirit of the new constitution to enlarge the powers of the general government, and that, in fact, in this very clause, the power toestablish post-offices, which was alone possessed by the former government, I think that I may safely consider the argument, on this part of the subject, as successfully maintained. With respect to military roads, the concession that they may be made when called for by the emergency, is admitting that the constitution conveys the power. And we may safely appeal to the judgment of the candid and enlightened, to decide between the wisdom of these two constructions, of which one requires you to wait for the exercise of your power until the arrival of an emergency, which may not allow you to exert it, and the other, without denying you the power, if you can exercise it during the emergency, claims the right of providing beforehand against the emergency.One member has stated what appeared to him a conclusive argument against the power to cut canals, that he had understood that a proposition, made in the convention to insert such a power, was rejected. To this argument more than one sufficient answer can be made. In the first place, the fact itself has been denied, and I have never yet seen any evidence of it. But, suppose that the proposition had been made and overruled, unless the motives of the refusal to insert it are known, gentlemen are not authorized to draw the inference that it was from hostility to the power, or from a desire to withhold it from congress. May not one of the objections be, that the power was fairly to be inferred from some of the specific grants of power, and that it was therefore not necessary to insert the proposition; that to adopt it, indeed, might lead to weaken or bring into doubt other incidental powers not enumerated? A member from New York, (Mr.Storrs,) whose absence I regret on this occasion, not only on account of the great aid which might have been expected from him, but from the cause of that absence, has informed me, that, in the convention of that state, one of the objections to the constitution by the anti-federalists was, that it was understood to convey to the general government the power to cut canals. How often, in the course of the proceedings of this house, do we reject amendments, upon the sole ground that they are not necessary, the principle of the amendment being already contained in the proposition.I refer to the Federalist, for one moment, to show that the only notice taken of that clause of the constitution which relates to post-roads, is favorable to my construction. The power, that book says, must always be a harmless one. I have endeavored to show, not only that it is perfectly harmless, but that every exercise of it must be necessarily beneficial. Nothing which tends to facilitate intercourse among the states, says the Federalist, can be unworthy of the public care. What intercourse? Even if restricted on the narrowest theory of gentlemen on the other side, to the intercourse of intelligence, they deny that to us, since they will not admit that we have the power to repair or improve the way, the right of whichthey yield us. In a more liberal and enlarged sense of the word, it will comprehend all those various means of accomplishing the object, which are calculated to render us a homogeneous people—one in feeling, in interest, and affection; as we are one in our political relation.Is there not a direct and intimate relation between the power to make war, and military roads and canals? It is in vain that the convention have confided to the general government the tremendous power of declaring war; have imposed upon it the duty to employ the whole physical means of the nation to render the war, whatever may be its character, successful and glorious; if the power is withheld of transporting and distributing those means. Let us appeal to facts, which are sometimes worth volumes of theory. We have recently had a war raging on all the four quarters of the union. The only circumstance which gave me pain at the close of that war, the detention of Moose Island, would not have occurred, if we had possessed military roads. Why did not the union, why did not Massachusetts, make a struggle to reconquer the island? Not for the want of men; not for the want of patriotism, I hope; but from the want of physical ability to march a force sufficient to dislodge the enemy. On the northwestern frontier, millions of money, and some of the most precious blood of the state from which I have the honor to come, was wastefully expended for the want of such roads. My honorable friend from Ohio (General Harrison), who commanded the army in that quarter, could furnish a volume of evidence on this subject. What now paralyses our arms on the southern frontier, and occasioned the recent massacre of fifty of our brave soldiers? What, but the want of proper means for the communication of intelligence, and for the transportation of our resources from point to point? Whether we refer to our own experience, or that of other countries, we cannot fail to perceive the great value of military roads. Those great masters of the world, the Romans, how did they sustain their power so many centuries, diffusing law and liberty, and intelligence, all around them? They made permanent military roads; and among the objects of interest which Europe now presents are the remains of those Roman roads, which are shown to the curious inquirer. If there were no other monument remaining of the sagacity and of the illustrious deeds of the unfortunate captive ofSt.Helena, the internal improvements which he made, the road from Hamburgh to Basle, would perpetuate his memory to future ages. In making these allusions, let me not be misunderstood. I do not desire to see military roads established for the purpose of conquest, but of defence; and as a part of that preparation which should be made in a season of peace for a season of war. I do not wish to see this country ever in that complete state of preparation for war, for which some contend; that is, that, we should constantly have alarge standing army, well disciplined, and always ready to act. I want to see the bill reported by my friend from Ohio, or some other, embracing an effective militia system, passed into a law; and a chain of roads and canals, by the aid of which our physical means can be promptly transported to any required point. These, connected with a small military establishment to keep up our forts and garrisons, constitute the kind of preparation for war, which, it appears to me, this country ought to make. No man, who has paid the least attention to the operations of modern war, can have failed to remark, how essential good roads and canals are to the success of those operations. How often have battles been won by celerity and rapidity of movement! It is one of the most essential circumstances in war. But, without good roads, it is impossible. Members will recall to their recollection the fact, that, in the senate, several years ago, an honorable friend of mine (Mr.Bayard), whose premature death I shall ever deplore, who was an ornament to the councils of his country, and who, when abroad, was the able and fearless advocate of her rights, did, in supporting a subscription which he proposed the United States bank should make to the stock of the Delaware and Chesapeake canal company, earnestly recommend the measure as connected with our operations in war. I listened to my friend with some incredulity, and thought he pushed his argument too far. I had, soon after, a practical evidence of its justness. For, in travelling from Philadelphia, in the fall of 1813, I saw transporting, by government, from Elk river to the Delaware, large quantities of massy timbers for the construction of the Guerriere or the Franklin, or both; and, judging from the number of wagons and horses, and the number of days employed, I believe the additional expense of that single operation would have gone very far to complete that canal, whose cause was espoused with so much eloquence in the senate, and with so much effect, too; bills having passed that body more than once to give aid, in some shape or other, to that canal. With notorious facts like this, is it not obvious, that a line of military canals is not only necessary and proper, but almost indispensable to the war-making power?One of the rules of construction which has been laid down, I acknowledge my incapacity to comprehend. Gentlemen say, that the power in question is a substantive power; and that no substantive power can be derived by implication. What is their definition of a substantive power? Will they favor us with the principle of discrimination between powers which, being substantive, are not grantable but by express grant, and those which, not being substantive, may be conveyed by implication? Although I do not perceive why this power is more entitled than many implied powers, to the denomination of substantive, suppose that be yielded, how do gentlemen prove that it may not be conveyed by implication? If the positions were maintained, which have not yet been proved,that the power is substantive, and that no substantive power can be implied, yet I trust it has been satisfactorily shown that there is an express grant.My honorable friend from Virginia, (Mr.Nelson,) has denied the operation of executive influence on his mind; and has informed the committee, that from that quarter he has nothing to expect, to hope, or to fear. I did not impute to my honorable friend any such motive; I knew his independence of character and of mind too well to do so. But I entreat him to reflect, if he does not expose himself to such an imputation by those less friendly disposed towards him than myself. Let us look a little at facts. The president recommends the establishment of a bank. If ever there were a stretch of implied powers conveyed by the constitution, it has been thought that the grant of the charter of the national bank was one. But the president recommends it. Where was then my honorable friend, the friend of state rights, who so pathetically calls upon us to repent, in sackcloth and ashes, our meditated violation of the constitution; and who kindly expresses his hope, that we shall be made to feel the public indignation? Where was he at that awful epoch? Where was that eloquent tongue, which we have now heard with so much pleasure? Silent! Silent as the grave![Mr.Nelson said, across the house, that he had voted against the bank bill when first recommended.]Alas! my honorable friend had not the heart to withstand a second recommendation from the president; but, when it came, yielded, no doubt most reluctantly, to the executive wishes, and voted for the bank. At the last session of congress,Mr.Madison recommended, (and I will presently make some remarks on that subject,) an exercise of all the existing powers of the general government, to establish a comprehensive system of internal improvements. Where was my honorable friend on that occasion? Not silent as the grave, but he gave a negative vote, almost as silent. No effort was made on his part, great as he is when he exerts the powers of his well-stored mind, to save the commonwealth from that greatest of all calamities, a system of internal improvement. No; although a war with all the allies, he now thinks, would be less terrible than the adoption of this report, not one word then dropped from his lips against the measure.[Mr.Nelson said he voted against the bill.]That he whispered out an unwilling negative, I do not deny! but it was unsustained by that torrent of eloquence which he has poured out on the present occasion. But we have an executive messagenow, not quite as ambiguous in its terms, nor as oracularin its meaning, as that ofMr.Madison appears to have been. No the president now says, that he has made great efforts to vanquish his objections to the power, and that he cannot but believe that it does not exist. Then my honorable friend rouses, thunders forth the danger in which the constitution is, and sounds the tocsin of alarm. Far from insinuating that he is at all biased by the executive wishes, I appeal to his candor to say, if there is not a remarkable coincidence between his zeal and exertions, and the opinions of the chief magistrate?Now let us review those opinions, as communicated at different periods. It was the opinion ofMr.Jefferson, that, although there was no general power vested by the constitution in congress, to construct roads and canals, without the consent of the states, yet such a power might be exercised with their assent.Mr.Jefferson not only held this opinion in the abstract, but he practically executed it in the instance of the Cumberland road; and how? First, by a compact made with the state of Ohio, for the application of a specified fund, and then by compacts with Virginia, Pennsylvania, and Maryland, to apply the fund so set apart within their respective limits. If, however, I rightly understood my honorable friend the other day, he expressly denied (and in that I concur with him) that the power could be acquired by the mere consent of the state. Yet he defended the act ofMr.Jefferson, in the case referred to.[Mr.Nelson expressed his dissent to this statement of his argument.]It is far from my intention to misstate the gentleman. I certainly understood him to say, that, as the road was first stipulated for, in the compact with Ohio, it was competent afterwards to carry it through the states mentioned, with their assent. Now, if we have not the right to make a road in virtue of one compact made with a single state, can we obtain it by two contracts made with several states? The character of the fund cannot affect the question. It is totally immaterial whether it arises from the sales of the public lands, or from the general revenue. Suppose a contract made with Massachusetts, that a certain portion of the revenue, collected at the port of Boston, from foreign trade, should be expended in making roads and canals leading to that state, and that a subsequent compact should be made with Connecticut or New Hampshire, for the expenditure of the fund on these objects, within their limits. Can we acquire the power, in this manner, over internal improvements, if we do not possess it independently of such compacts? I conceive, clearly not. And I am entirely at a loss to comprehend how gentlemen, consistently with their own principles, can justify the erection of the Cumberland road. No man is prouder than I am of that noble monument of the provident care of the nation, and of the public spirit of its projectors;and I trust that, in spite of all constitutional and other scruples, here or elsewhere, an appropriation will be made to complete that road. I confess, however, freely, that I am entirely unable to conceive of any principle on which that road can be supported, that would not uphold the general power contended for.I will now examine the opinion ofMr.Madison. Of all the acts of that pure, virtuous, and illustrious statesman, whose administration has so powerfully tended to advance the glory, honor, and prosperity of this country, I most regret, for his sake and for the sake of the country, the rejection of the bill of the last session. I think it irreconcilable withMr.Madison’s own principles—those great, broad, and liberal principles, on which he so ably administered the government. And, sir, when I appeal to the members of the last congress, who are now in my hearing, I am authorized to say, with regard to the majority of them, that no circumstance, not even an earthquake, that should have swallowed up one half of this city, could have excited more surprise than when it was first communicated to this house, thatMr.Madison had rejected his own bill—I say his own bill, for his message at the opening of the session meant nothing, if it did not recommend such an exercise of power as was contained in that bill. My friend, who is near me, (Mr.Johnson, of Virginia,) the operations of whose vigorous and independent mind, depend upon his own internal perceptions, has expressed himself with becoming manliness, and thrown aside the authority of names, as having no bearing with him on the question. But their authority has been referred to, and will have influence with others. It is impossible, moreover, to disguise the fact, that the question is now a question between the executive on the one side, and the representatives of the people on the other. So it is understood in the country, and such is the fact.Mr.Madison enjoys, in his retreat at Montpelier, the repose and the honors due to his eminent and laborious services; and I would be among the last to disturb it. However painful it is to me to animadvert upon any of his opinions, I feel perfectly sure that the circumstance can only be viewed by him with an enlightened liberality. What are the opinions which have been expressed byMr.Madison on this subject? I will not refer to all the messages wherein he has recommended internal improvements; but to that alone which he addressed to congress, at the commencement of the last session, which contains this passage:‘I particularly inviteagainthe attention of congress to the expediency of exercisingtheir existing powers, and, where necessary, of resorting to the prescribed mode of enlarging them, in order toeffectuate a comprehensive system of roads and canals, such as will have the effect of drawing more closely together every part of our country, by promoting intercourse and improvements, and by increasing the share of every part in the common stock of national prosperity.’In the examination of this passage, two positions force themselves upon our attention. The first is, the assertion that there are existing powers in congress to effectuate a comprehensive system of roads and canals, the effect of which would be to draw the different parts of the country more closely together. And I would candidly admit, in the second place, that it was intimated, that, in the exercise of those existing powers, some defect might be discovered which would render an amendment of the constitution necessary. Nothing could be more clearly affirmed than the first position; but in the message ofMr.Madison returning the bill, passed in consequence of his recommendation, he has not specified a solitary case to which those existing powers are applicable; he has not told us what he meant by those existing powers; and the general scope of his reasoning, in that message, if well founded, proves that there are no existing powers whatever. It is apparent, thatMr.Madison himself has not examined some of those principal sources of the constitution from which, during this debate, the power has been derived. I deeply regret, and I know thatMr.Madison regretted, that the circumstances under which the bill was presented to him (the last day but one of a most busy session) deprived him of an opportunity of that thorough investigation of which no man is more capable. It is certain, that, taking his two messages at the same session together, they are perfectly irreconcilable. What, moreover, was the nature of that bill? It did not apply the money to any specific object of internal improvement, nor designate any particular mode in which it should be applied; but merely set apart and pledged the fund to the general purpose, subject to the future disposition of congress. If, then, there were any supposable case whatever, to which congress might apply money in the erection of a road, or cutting a canal, the bill did not violate the constitution. And it ought not to have been anticipated, that money constitutionally appropriated by one congress would be unconstitutionally expended by another.I come now to the message ofMr.Monroe; and if, by the communication of his opinion to congress, he intended to prevent discussion, he has most wofully failed. I know that, according to a most venerable and excellent usage, the opinion, neither of the president nor of the senate, upon any proposition depending in this house, ought to be adverted to. Even in the parliament of Great Britain, a member who would refer to the opinion of the sovereign, in such a case, would be instantly called to order; but under the extraordinary circumstances of the president having, with, I have no doubt, the best motives, volunteered his opinion on this head, and inverted the order of legislation by beginning where it should end, I am compelled, most reluctantly, to refer to that opinion. I cannot but deprecate the practice of which the president has, in this instance, set the example to his successors. The constitutionalorder of legislation supposes that every bill originating in one house, shall be there deliberately investigated, without influence from any other branch of the legislature; and then remitted to the other house for a like free and unbiased consideration. Having passed both houses, it is to be laid before the president; signed if approved, and if disapproved, to be returned, with his objections, to the originating house. In this manner, entire freedom of thought and of action is secured, and the president finally sees the proposition in the most matured form which congress can give to it. The practical effect, to say no more, of forestalling the legislative opinion, and telling us what we may or may not do, will be to deprive the president himself of the opportunity of considering a proposition so matured, and us of the benefit of his reasoning applied specifically to such proposition. For the constitution further enjoins it upon him, to state his objections upon returning the bill. The originating house is then to reconsider it, and deliberately to weigh those objections; and it is further required, when the question is again taken, shall the bill pass, those objections notwithstanding? that the votes shall be solemnly spread, by ayes and noes, upon the record. Of this opportunity of thus recording our opinions, in matters of great public concern, we are deprived, if we submit to the innovation of the president. I will not press this part of the subject further. I repeat, again and again, that I have no doubt but that the president was actuated by the purest motives. I am compelled, however, in the exercise of that freedom of opinion which, so long as I exist, I will maintain, to say, that the proceeding is irregular and unconstitutional. Let us, however, examine the reasoning and opinion of the president.‘A difference of opinion has existed from the first formation of our constitution to the present time, among our most enlightened and virtuous citizens, respecting the right of congress to establish a system of internal improvement. Taking into view the trust with which I am now honored, it would be improper, after what has passed, that this discussion should be revived, with an uncertainty of my opinion respecting the right. Disregarding early impressions, I have bestowed on the subject all the deliberation which its great importance and a just sense of my duty required, and the result is, a settled conviction in my mind, that congress does not possess the right. It is not contained in any of the specified powers granted to congress; nor can I consider it incidental to, or a necessary mean, viewed on the most liberal scale, for carrying into effect any of the powers which are specifically granted. In communicating this result, I cannot resist the obligation which I feel, to suggest to congress the propriety of recommending to the states the adoption of an amendment to the constitution, which shall give the right in question. In cases of doubtful construction, especially of such vital interest, it comports with the nature and origin of our institutions, and will contribute much to preserve them, to apply to our constituents for an explicit grant of power. We may confidently rely, that, if it appears to their satisfaction that the power is necessary, it will always be granted.’In this passage, the president has furnished us with no reasoning, no argument in support of his opinion—nothing addressed to the understanding. He gives us, indeed, an historical account of the operations of his own mind, and he asserts that he has made alaborious effort to conquer his early impressions, but that the result is a settled conviction against the power, without a single reason. In his position, that the power must be specifically granted, or incident to a power so granted, it has been seen, that I have the honor to entirely concur with him; but, he says, the power is not among the specified powers. Has he taken into consideration the clause respecting post-roads, and told us how and why that does not convey the power? If he had acted within what I conceive to be his constitutional sphere of rejecting the bill, after it had passed both houses, he must have learned that great stress was placed on that clause, and we should have been enlightened by his comments upon it. As to his denial of the power, as an incident to any of the express grants, I would have thought that we might have safely appealed to the experience of the president, during the late war, when the country derived so much benefit from his judicious administration of the duties of the war department, whether roads and canals for military purposes were not essential to celerity and successful result in the operations of armies. This part of the message is all assertion, and contains no argument which I can comprehend, or which meet the points contended for during this debate. Allow me here to say, and I do it without the least disrespect to that branch of the government, on whose opinions and acts it has been rendered my painful duty to comment; let me say, in reference to any man, however elevated his station, even if he be endowed with the power and prerogatives of a sovereign, that his acts are worth infinitely more, and are more intelligible, than mere paper sentiments or declarations. And what have been the acts of the president? During his tour of the last summer, did he not order a road to be cut or repaired from near Plattsburgh to theSt.Lawrence? My honorable friend will excuse me, if my comprehension is too dull to perceive the force of that argument, which seeks to draw a distinction between repairing an old and making a new road.[Mr.Nelson said, he had not drawn that distinction, having only stated the fact.]Other roads, in other parts of the union, have, it seems, been likewise ordered, or their execution, at the public expense, sanctioned by the executive, without the concurrence of congress. If the president has the power to cause these public improvements to be executed at his pleasure, whence is it derived? If any member will stand up in this place and say the president is clothed with this authority, and that it is denied to congress, let us hear from him; and let him point to the clause of the constitution which vests it in the executive and withholds it from the legislative branch.There is no such clause; there is no such exclusive executive power. The power is derivable by the executive only from those provisions of the constitution which charge him with the duties of commanding the physical force of the country, and the employment of that force in war, and the preservation of the public tranquillity, and in the execution of the laws. But congress has paramount powers to the president. It alone can declare war, can raise armies, can provide for calling out the militia, in the specified instances, and can raise and appropriate the ways and means necessary to those objects. Or is it come to this, that there are to be two rules of construction for the constitution—one, an enlarged rule, for the executive, and another, a restricted rule, for the legislature? Is it already to be held, that, according to the genius and nature of our constitution, powers of this kind may be safely intrusted to the executive, but, when attempted to be exercised by the legislature, are so alarming and dangerous, that a war with all the allied powers would be less terrible, and that the nation should clothe itself straightway in sackcloth and ashes! No, sir; if the power belongs only by implication to the chief magistrate, it is placed both by implication and express grant in the hands of congress. I am so far from condemning the act of the president, to which I have referred, that I think it deserving of high approbation. That it was within the scope of his constitutional authority, I have no doubt; and I sincerely trust, that the secretary at war will, in time of peace, constantly employ in that way the military force. It will at the same time guard that force against the vicesincident to indolence and inaction, and correct the evil of subtracting from the mass of the labor of society, where labor is more valuable than in any other country, that portion of it which enters into the composition of the army. But I most solemnly protest against any exercise of powers of this kind by the president, which are denied to congress. And, if the opinions expressed by him, in his message, were communicated, or are to be used here, to influence the judgment of the house, their authority is more than countervailed by the authority of his deliberate acts.Some principles drawn from political economists have been alluded to, and we are advised to leave things to themselves, upon the ground that, when the condition of society is ripe for internal improvements—that is, when capital can be so invested with a fair prospect of adequate remuneration, they will be executed by associations of individuals, unaided by government. With my friend from South Carolina (Mr.Lowndes) I concur in this as a general maxim; and I also concur with him that there are exceptions to it. The foreign policy which I think this country ought to adopt, presents one of those exceptions. It would perhaps be better for mankind, if, in the intercourse between nations, all would leave skill and industry to their unstimulated exertions. But this is not done; and if other powers will incite the industry of their subjects, and depress that of our citizens, in instances where they may come into competition, we must imitate their selfish example. Hence the necessity to protect our manufactures. In regard to internal improvements, it does not follow, that they will always be constructed whenever they will afford a competent dividend upon the capital invested. It may be true generally that, in old countries, where there is a great accumulation of surplus capital, and a consequent low rate of interest, they will be made. But, in a new country, the condition of society may be ripe for public works long before there is, in the hands of individuals, the necessary accumulation of capital to effect them; and, besides, there is generally, in such a country, not only a scarcity of capital, but such a multiplicity of profitable objects presenting themselves as to distract the judgment. Further; the aggregate benefit resulting to the whole society, from a public improvement, may be such as to amply justify the investment of capital in its execution, and yet that benefit may be so distributed among different and distant persons, that they can never be got to act in concert. The turnpike roads wanted to pass the Alleghany mountains, and the Delaware and Chesapeake canal, are objects of this description. Those who will be most benefited by these improvements, reside at a considerable distance from the sites of them; many of those persons never have seen and never will see them. How is it possible to regulate the contributions, or to present to individuals so situated a sufficiently lively picture of their real interests, to get them to make exertionsin effectuating the object, commensurate with their respective abilities? I think it very possible that the capitalist, who should invest his money in one of these objects, might not be reimbursed three per centum annually upon it; and yet society, in various forms, might actually reap fifteen or twenty per centum. The benefit resulting from a turnpike road, made by private associations, is divided between the capitalist who receives his tolls, the lands through which it passes, and which are augmented in their value, and the commodities whose value is enhanced by the diminished expense of transportation. A combination, upon any terms, much less a just combination, of all those interests, to effect the improvement, is impracticable. And if you await the arrival of the period when the tolls alone can produce a competent dividend, it is evident that you will have to suspend its execution long after the general interests of society would have authorized it.Again, improvements, made by private associations, are generally made by local capital. But ages must elapse before there will be concentrated in certain places, where the interests of the whole community may call for improvements, sufficient capital to make them. The place of the improvement, too, is not always the most interested in its accomplishment. Other parts of the union—the whole line of the seaboard—are quite as much, if not more interested, in the Delaware and Chesapeake canal, as the small tract of country through which it is proposed to pass. The same observation will apply to turnpike roads passing through the Alleghany mountain. Sometimes the interest of the place of the improvement is adverse to the improvement and to the general interest. I would cite Louisville, at the rapids of the Ohio, as an example, whose interest will probably be more promoted by the continuance, than the removal of the obstruction. Of all the modes in which a government can employ its surplus revenue, none is more permanently beneficial than that of internal improvement. Fixed to the soil, it becomes a durable part of the land itself, diffusing comfort, and activity, and animation, on all sides. The first direct effect is on the agricultural community, into whose pockets comes the difference in the expense of transportation between good and bad ways. Thus, if the price of transporting a barrel of flour by the erection of the Cumberland turnpike should be lessened two dollars, the producer of the article would receive that two dollars more now than formerly.But, putting aside all pecuniary considerations, there may be political motives sufficiently powerful alone to justify certain internal improvements. Does not our country present such? How are they to be effected, if things are left to themselves? I will not press the subject further. I am but too sensible how much I have abused the patience of the committee by trespassing so long upon its attention. The magnitude of the question, and the deep interestI feel in its rightful decision, must be my apology. We are now making the last effort to establish our power, and I call on the friends of congress, of this house, or the true friends of state rights, (not charging others with intending to oppose them,) to rally round the constitution, and to support by their votes, on this occasion, the legitimate powers of the legislature. If we do nothing this session but pass an abstract resolution on the subject, I shall, under all circumstances, consider it a triumph for the best interests of the country, of which posterity will, if we do not, reap the benefit. I trust, that by the decision which shall be given, we shall assert, uphold, and maintain, the authority of congress, notwithstanding all that has been or may be said against it.[The resolution of giving the power of congress, first, to appropriate money to the construction of military and post roads, make canals, and improve water-courses, was adopted: yeas ninety; nays seventy-five: secondly, to construct such roads: lost: yeas eighty-two; nays eighty-four: thirdly, to construct roads and canals for commercial purposes: lost: yeas seventy-one; nays ninety-five: fourthly, to construct canals for military purposes: lost: eighty-one to eighty-three.]

IN THE HOUSE OF REPRESENTATIVES, MARCH 13, 1818.

[THEbill making appropriations for purposes of internal improvement, which passed congress in 1817, having been vetoed by president Madison, on the last day of his term, March third, 1817; his successor,Mr.Monroe, in his first message to congress, declared his sentiments on the subject, concurring withMr.Madison in the opinion that the power of making internal improvements was not vested in congress. Three national executives having decided against the constitutionality of the power, a great effort was made by the friends of the system, to obtain a contrary and favorable expression by congress. A resolution was offered in the house of representatives, declaring that congress had power, under the constitution, to appropriate money for the construction of military roads, post roads, and canals. On this interesting occasion, the resolution being under discussion in committee of the whole,Mr.Clay made the following speech, in vindication of the constitutionality of internal improvements by the national government, in which views he was sustained by the house, in the adoption of the resolution, by a vote of ninety to seventy-five. This triumph in the face of a new and popular administration, may be considered one of the most splendid events in parliamentary history.]

IHAVEbeen anxious to catch the eye of the chairman for a few moments, to reply to some of the observations which have fallen from various gentlemen. I am aware that, in doing this, I risk the loss of what is of the utmost value—the kind favor of the house, wearied as its patience is, by this prolonged debate. But when I feel what a deep interest the union at large, and particularly that quarter of it whence I come, has, in the decision of the present question, I cannot omit any opportunity of earnestly urging upon the house the propriety of retaining the important power which this question involves. It will be recollected, that if unfortunately there should be a majority both against the abstract proposition asserting the power, and against its practical execution, the power is gone for ever—the question is put at rest, so long as the constitution remains as it is; and with respect to any amendment, in this particular, I confess I utterly despair. It will be borne in mind, that the bill which passed congress on this subject, at the last session, was rejected by the late president of the United States; that at the commencement of the present session, the president communicated his clear opinion, after every effort to come to a different conclusion, that congress does not possess the power contended for, and called upon us to take up the subject, in theshape of an amendment to the constitution; and, moreover, that the predecessor of the present and late presidents, has also intimated his opinion, that congress does not possess the power. With the great weight and authority of the opinions of these distinguished men against the power, and with the fact, solemnly entered upon the record, that this house, after a deliberate review of the ground taken by it at the last session, has decided against the existence of it, (if such, fatally, shall be the decision,) the power, I repeat, is gone—gone for ever, unless restored by an amendment of the constitution. With regard to the practicability of obtaining such an amendment, I think it altogether out of the question. Two different descriptions of persons, entertaining sentiments directly opposed, will unite and defeat such an amendment; one embracing those who believe that the constitution, fairly interpreted, already conveys the power; and the other, those who think that congress has not and ought not to have it. As a large portion of congress, and probably a majority, believes the power to exist, it must be evident, if I am right in supposing that any considerable number of that majority would vote against an amendment which they do not believe necessary, that any attempt to amend would fail. Considering, as I do, the existence of the power as of the first importance, not merely to the preservation of the union of the states, paramount as that consideration ever should be over all others, but to the prosperity of every great interest of the country, agriculture, manufactures, commerce, in peace and in war, it becomes us solemnly, and deliberately, and anxiously, to examine the constitution, and not to surrender it, if fairly to be collected from a just interpretation of that instrument.

With regard to the alarm sought to be created, as to the nature of the power, by bringing up the old theme of ‘state rights,’ I would observe, that if the illustrious persons just referred to are against us in the construction of the constitution, they are on our side as to the harmless and beneficial character of the power. For it is not to be conceived, that each of them would have recommended an amendment to the constitution, if they believed that the possession of such a power, by the general government, would be detrimental, much less dangerous, to the independence and liberties of the states. What real ground is there for this alarm? Gentlemen have not condescended to show how the subversion of the rights of the states is to follow from the exercise of the power of internal improvements by the general government. We contend for the power to make roads and canals, to distribute the intelligence, force, and productions of the country, through all its parts and for such jurisdiction only over them, as is necessary to their preservation from wanton injury and from gradual decay. Suppose such a power is sustained and in full operation; imagine it to extend to every canal made, or proposed to be made, and toevery post-road; how inconsiderable and insignificant is the power in a political point of view, limited as it is, with regard to place and to purpose, when contrasted with the great mass of powers retained by the state sovereignties! What a small subtraction from the mass! Even upon these roads and canals, the state governments, according to our principles, will still exercise jurisdiction over every possible case arising upon them, whether of crime or of contract, or any other human transaction, except only what immediately affects their existence and preservation. Thus defined, thus limited, and stripped of all factitious causes of alarm, I will appeal to the candor of gentlemen to say, if the power really presents any thing frightful in it? With respect to post-roads, our adversaries admit the right of way in the general government. There have been, however, on this question, some instances of conflict, but they have passed away without any serious difficulty. Connecticut, if I have been rightly informed, disputed, at one period, the right of passage of the mail on the Sabbath. The general government persisted in the exercise of the right, and Connecticut herself, and every body else, have acquiesced in it.

The gentleman from Virginia (Mr.H. Nelson) has contended, that I do not adhere, in the principles of construction which I apply to the constitution, to the republican doctrines of 1798, of which that gentleman would have us believe he is the constant disciple. Let me call the attention of the committee to the celebrated state paper to which we both refer for our principles in this respect—a paper which, although I have not seen it for sixteen years, (until the gentleman had the politeness to furnish me with it during this debate,) made such an impression on my mind, that I shall never forget the satisfaction with which I perused it. I find that I have used, without having been aware of it, when I formerly addressed the committee, almost the same identical language employed byMr.Madison in that paper. It will be recollected, that I claimed no right to exercise any power under the constitution, unless such power was expressly granted, or necessary and proper to carry into effect some granted power. I have not sought to derive power from the clause which authorizes congress to appropriate money. I have been contented with endeavoring to show, that according to the doctrines of 1798, and according to the most rigid interpretation which any one will put upon the instrument, it is expressly given in one case, and fairly deducible in others.

[HereMr.Clay read sundry passages fromMr.Madison’s report to the Virginia legislature, in an answer to the resolutions of several states, concerning the alien and sedition laws, showing that there were no powers in the general government but what were granted; and that, whenever a power was claimed to be exercised by it, such power must be shown to be granted, or to be necessary and proper to carry into effect one of the specified powers.]

It will be remarked, thatMr.Madison, in his reasoning on the constitution, has not employed the language fashionable during this debate; he has not said, that an implied power must beabsolutelynecessary to carry into effect the specified power, to which it is appurtenant, to enable the general government to exercise it. No! This was a modern interpretation of the constitution.Mr.Madison has employed the language of the instrument itself, and has only contended that the implied power must be necessary and proper to carry into effect the specified power. He has only insisted, that when congress applied its sound judgment to the constitution in relation to implied powers, it should be clearly seen that they were necessary and proper to effectuate the specified powers. These are my principles; but they are not those of the gentleman from Virginia and his friends on this occasion. They contend for a degree of necessity absolute and indispensable; that by no possibility can the power be otherwise executed.

That there are two classes of powers in the constitution, I believe has never been controverted by an American politician. We cannot foresee and provide specifically for all contingences. Man and his language are both imperfect. Hence the existence of construction, and of constructive powers. Hence also the rule, that a grant of the end is a grant of the means. If you amend the constitution a thousand times, the same imperfection of our nature and our language will attend our new works. There are two dangers to which we are exposed. The one is, that the general government may relapse into the debility which existed in the old confederation, and finally dissolve from the want of cohesion. The denial to it of powers plainly conferred, or clearly necessary and proper to execute the conferred powers, may produce this effect. And I think, with great deference to the gentleman on the other side, this is the danger to which their principles directly tend. The other danger, that of consolidation, is, by the assumption of powers not granted nor incident to granted powers, or the assumption of powers which have been withheld or expressly prohibited. This was the danger of the period of 1798–9. For instance, that, in direct contradiction to a prohibitory clause of the constitution, a sedition act was passed; and an alien law was also passed, in equal violation of the spirit, if not of the express provisions, of the constitution. It was by such measures that the federal party, (if parties might be named,) throwing off the veil, furnished to their adversaries the most effectual ground of opposition. If they had not passed those acts, I think it highly probable that the current of power would have continued to flow in the same channel; and the change of parties in 1801, so auspicious to the best interests of the country, as I believe, would never have occurred.

I beg the committee—I entreat the true friends of the confederated union of these states—to examine this doctrine of state rights,and see to what abusive, if not dangerous consequences, it may lead, to what extent it has been carried, and how it has varied by the same state at different times. In alluding to the state of Massachusetts, I assure the gentlemen from that state, and particularly the honorable chairman of the committee to whom the claim of Massachusetts has been referred, that I have no intention to create any prejudice against that claim. I hope that when the subject is taken up it will be candidly and dispassionately considered, and that a decision will be made on it consistent with the rights of the union, and of the state of Massachusetts. The high character, amiable disposition, and urbanity of the gentleman to whom I have alluded, (Mr.Mason, of Massachusetts,) will, if I had been otherwise inclined, prevent me from endeavoring to make impressions unfavorable to the claim, whose justice that gentleman stands pledged to manifest. But in the period of 1798–9, what was the doctrine promulgated by Massachusetts? It was, that the states, in their sovereign capacity, had no right to examine into the constitutionality or expediency of the measures of the general government.

[Mr.Clay here quoted several passages from the answer of the state of Massachusetts to the Virginia and Kentucky resolutions, concerning the alien and sedition laws, to prove his position.]

We see here an express disclaimer, on the part of Massachusetts, of any right to decide on the constitutionality or expediency of the acts of the general government. But what was the doctrine which the same state, in 1813, thought proper to proclaim to the world, and that, too, when the union was menaced on all sides? She not only claimed but exercised the right which, in 1799, she had so solemnly disavowed. She claimed the right to judge of the propriety of the call made by the general government for her militia, and she refused the militia called for. There is so much plausibility in the reasoning employed by that state in support of her modern doctrine of state rights, that, were it not for the unpopularity of the stand she took in the late war, or had it been in other times, and under other circumstances, she would very probably have escaped a great portion of that odium which has so justly fallen to her lot. The constitution gives to congress power to provide for calling out the militia to execute the laws of the union, to suppress insurrections, and to repel invasions; and in no other cases. The militia was called out by the general government, during the late war, to repel invasions. Massachusetts said, as you have no right to the militia, but in certain contingences, she was competent to decide whether those contingences had or had not occurred. And, having examined the facts, what then? She said, all was peace and quietness in Massachusetts—no non-execution of the laws; no insurrection at home; no invasion from abroad,nor any immediate danger of invasion. And, in truth, I believe there was no actual invasion for nearly two years after the requisition. Under these circumstances, were it not for the supposed motive of her conduct, would not the case which Massachusetts made out have looked extremely plausible? I hope it is not necessary for me to say, that it is very far from my intention to convey any thing like approbation of the conduct of Massachusetts. No! My doctrine is, that the states, as states, have no right to oppose the execution of the powers which the general government asserts. Any state has undoubtedly the right to express its opinion, in the form of resolution or otherwise, and to proceed, by constitutional means, to redress any real or imaginary grievance; but it has no right to withhold its military aid, when called upon by the high authorities of the general government, much less to obstruct the execution of a law regularly passed. To suppose the existence of such an alarming right, is to suppose, if not disunion itself, such a state of disorder and confusion as must inevitably lead to it.

Greatly as I venerate the state which gave me birth, and much as I respect the judges of its supreme court, several of whom are my personal friends, I am obliged to think that some of the doctrines which that state has recently held concerning state rights, are fraught with much danger. If those doctrines had been asserted during the late war, a large share of the public disapprobation which has been given to Massachusetts would have fallen to Virginia. What are these doctrines? The courts of Virginia assert, that they have a right to determine on the constitutionality of any law or treaty of the United States, and to expound them according to their own views, even if they should vary from the decision of the supreme court of the United States. They assert more—that from their decision there can be no appeal to the supreme court of the United States; and that there exists in congress no power to frame a law, obliging the court of the state, in the last resort, to submit its decision to the supervision of the supreme court of the United States; or, if I do not misunderstand the doctrine, to withdraw from the state tribunal, controversies involving the laws of the United States, and to place them before the federal judiciary. I am a friend, a true friend, to state rights; but not in all cases as they are asserted. The states have their appointed orbit; so has the union; and each should be confined within its fair, legitimate, and constitutional sphere. We should equally avoid that subtle process of argument which dissipates into air the powers of this government, and that spirit of encroachment which would snatch from the state, powers not delegated to the general government. We shall thus escape both the dangers I have noticed—that of relapsing into the alarming weakness of the confederation, which is described as a mere rope of sand; and also that other, perhaps not the greatest danger, consolidation. No man deprecates morethan I do, the idea of consolidation; yet, between separation and consolidation, painful as would be the alternative, I would greatly prefer the latter.

I will now proceed to endeavor to discover the real difference, in the interpretation of the constitution, between the gentlemen on the other side and myself. It is agreed, that there is no power in the general government but that which is expressly granted, or which is impliable from an express grant. The difference, then, must be in the application of this rule. The gentleman from Virginia, who has favored the house with so able an argument on the subject, has conceded, though somewhat reluctantly, the existence of incidental powers, but he contended that they must have a direct and necessary relation to some specified power. Granted. But who is to judge of this relation? And what rule can you prescribe, different from that which the constitution has required, that it should be necessary and proper? Whatever may be the rule, in whatever language you may choose to express it, there must be a certain degree of discretion left to the agent who is to apply it. But gentlemen are alarmed at this discretion—that law of tyrants, on which they contend there is no limitation. It should be observed, in the first place, that the gentlemen are brought, by the very course of reasoning which they themselves employ, by all the rules which they would lay down for the constitution, to cases where discretion must exist. But is there no limitation, no security against the abuse of it? Yes, there is such security in the fact of our being members of the same society, equally affected ourselves by the laws we promulgate. There is the further security in the oath which is taken to support the constitution, and which will tend to restrain congress from deriving powers which are not proper and necessary. There is the yet further security, that, at the end of every two years, the members must be amenable to the people for the manner in which their trusts have been performed. And there remains also that further, though awful security, the last resort of society, which I contend belongs alike to the people and to the states in their sovereign capacity, to be exercised in extreme cases, and when oppression becomes intolerable, the right of resistance. Take the gentleman’s own doctrine, (Mr.Barbour,) the most restricted which has been asserted, and what other securities have we against the abuse of power, than those which I have enumerated? Say that there must be an absolute necessity to justify the exercise of an implied power, who is to define that absolute necessity, and then to apply it? Who is to be the judge? Where is the security against transcending that limit? The rule the gentleman contends for has no greater security than that insisted upon by us. It equally leads to the same discretion, a sound discretion, exercised under all the responsibility of a solemn oath, of a regard to our fair fame, of a knowledge that we are ourselves the subjects of those laws whichwe pass, and, lastly, of the right of resisting insupportable tyranny. And, by way of illustration, if the sedition act had not been condemned by the indignant voice of the community, the right of resistance would have accrued. If congress assumed the power to control the right of speech, and to assail, by penal statutes, the greatest of all the bulwarks of liberty, the freedom of the press, and there were no other means to arrest their progress, but that to which I have referred, lamentable as would be the appeal, such a monstrous abuse of power, I contend, would authorize a recurrence to that right.

If, then, the gentlemen on the other side and myself differ so little in our general principles, as I think I have shown, I will proceed, for a few moments, to look at the constitution a little more in detail. I have contended, that the power to construct post-roads is expressly granted in the power to establish post-roads. If it be, there is an end of the controversy; but if not, the next inquiry is, whether that power may be fairly deduced, by implication, from any of the special grants of power. To show that the power is expressly granted, I might safely appeal to the arguments already used, to prove that the wordestablish, in this case, can mean only one thing—the right of making. Several gentlemen have contended, that the word has a different sense; and one has resorted to the preamble of the constitution, to show that the phrase ‘to establish justice,’ there used, does not convey the power of creation. If the word ‘establish’ is there to be taken in the sense which gentlemen claim for it, that of adoption or designation, congress could have a choice only of systems of justice preëxisting. Will any gentleman contend, that we are obliged to take the Justinian code, the Napoleon code, the code of civil, or the code of common or canon law? Establishment means in the preamble, as in other cases, construction, formation, creation. Let me ask, in all cases of crime, which are merelymalum prohibitum, if you do not resort to construction, to creating, when you make the offence? By your laws denouncing certain acts as criminal offences, laws which the good of society requires you to pass, and to adapt to our peculiar condition, you do construct and create a system of rules, to be administered by the judiciary. But gentlemen say, that the word cannot meanmake; that you would not say, for example, to establish a ship, to establish a chair. In the application of this, as of all other terms, you must be guided by the nature of the subject; and if it cannot properly be used in all cases, it does not follow that it cannot be in any. And when we take into consideration, that, under the old articles of confederation, congress had over the subject of post-roads just as much power as gentlemen allow to the existing government, that it was the general scope and spirit of the new constitution to enlarge the powers of the general government, and that, in fact, in this very clause, the power toestablish post-offices, which was alone possessed by the former government, I think that I may safely consider the argument, on this part of the subject, as successfully maintained. With respect to military roads, the concession that they may be made when called for by the emergency, is admitting that the constitution conveys the power. And we may safely appeal to the judgment of the candid and enlightened, to decide between the wisdom of these two constructions, of which one requires you to wait for the exercise of your power until the arrival of an emergency, which may not allow you to exert it, and the other, without denying you the power, if you can exercise it during the emergency, claims the right of providing beforehand against the emergency.

One member has stated what appeared to him a conclusive argument against the power to cut canals, that he had understood that a proposition, made in the convention to insert such a power, was rejected. To this argument more than one sufficient answer can be made. In the first place, the fact itself has been denied, and I have never yet seen any evidence of it. But, suppose that the proposition had been made and overruled, unless the motives of the refusal to insert it are known, gentlemen are not authorized to draw the inference that it was from hostility to the power, or from a desire to withhold it from congress. May not one of the objections be, that the power was fairly to be inferred from some of the specific grants of power, and that it was therefore not necessary to insert the proposition; that to adopt it, indeed, might lead to weaken or bring into doubt other incidental powers not enumerated? A member from New York, (Mr.Storrs,) whose absence I regret on this occasion, not only on account of the great aid which might have been expected from him, but from the cause of that absence, has informed me, that, in the convention of that state, one of the objections to the constitution by the anti-federalists was, that it was understood to convey to the general government the power to cut canals. How often, in the course of the proceedings of this house, do we reject amendments, upon the sole ground that they are not necessary, the principle of the amendment being already contained in the proposition.

I refer to the Federalist, for one moment, to show that the only notice taken of that clause of the constitution which relates to post-roads, is favorable to my construction. The power, that book says, must always be a harmless one. I have endeavored to show, not only that it is perfectly harmless, but that every exercise of it must be necessarily beneficial. Nothing which tends to facilitate intercourse among the states, says the Federalist, can be unworthy of the public care. What intercourse? Even if restricted on the narrowest theory of gentlemen on the other side, to the intercourse of intelligence, they deny that to us, since they will not admit that we have the power to repair or improve the way, the right of whichthey yield us. In a more liberal and enlarged sense of the word, it will comprehend all those various means of accomplishing the object, which are calculated to render us a homogeneous people—one in feeling, in interest, and affection; as we are one in our political relation.

Is there not a direct and intimate relation between the power to make war, and military roads and canals? It is in vain that the convention have confided to the general government the tremendous power of declaring war; have imposed upon it the duty to employ the whole physical means of the nation to render the war, whatever may be its character, successful and glorious; if the power is withheld of transporting and distributing those means. Let us appeal to facts, which are sometimes worth volumes of theory. We have recently had a war raging on all the four quarters of the union. The only circumstance which gave me pain at the close of that war, the detention of Moose Island, would not have occurred, if we had possessed military roads. Why did not the union, why did not Massachusetts, make a struggle to reconquer the island? Not for the want of men; not for the want of patriotism, I hope; but from the want of physical ability to march a force sufficient to dislodge the enemy. On the northwestern frontier, millions of money, and some of the most precious blood of the state from which I have the honor to come, was wastefully expended for the want of such roads. My honorable friend from Ohio (General Harrison), who commanded the army in that quarter, could furnish a volume of evidence on this subject. What now paralyses our arms on the southern frontier, and occasioned the recent massacre of fifty of our brave soldiers? What, but the want of proper means for the communication of intelligence, and for the transportation of our resources from point to point? Whether we refer to our own experience, or that of other countries, we cannot fail to perceive the great value of military roads. Those great masters of the world, the Romans, how did they sustain their power so many centuries, diffusing law and liberty, and intelligence, all around them? They made permanent military roads; and among the objects of interest which Europe now presents are the remains of those Roman roads, which are shown to the curious inquirer. If there were no other monument remaining of the sagacity and of the illustrious deeds of the unfortunate captive ofSt.Helena, the internal improvements which he made, the road from Hamburgh to Basle, would perpetuate his memory to future ages. In making these allusions, let me not be misunderstood. I do not desire to see military roads established for the purpose of conquest, but of defence; and as a part of that preparation which should be made in a season of peace for a season of war. I do not wish to see this country ever in that complete state of preparation for war, for which some contend; that is, that, we should constantly have alarge standing army, well disciplined, and always ready to act. I want to see the bill reported by my friend from Ohio, or some other, embracing an effective militia system, passed into a law; and a chain of roads and canals, by the aid of which our physical means can be promptly transported to any required point. These, connected with a small military establishment to keep up our forts and garrisons, constitute the kind of preparation for war, which, it appears to me, this country ought to make. No man, who has paid the least attention to the operations of modern war, can have failed to remark, how essential good roads and canals are to the success of those operations. How often have battles been won by celerity and rapidity of movement! It is one of the most essential circumstances in war. But, without good roads, it is impossible. Members will recall to their recollection the fact, that, in the senate, several years ago, an honorable friend of mine (Mr.Bayard), whose premature death I shall ever deplore, who was an ornament to the councils of his country, and who, when abroad, was the able and fearless advocate of her rights, did, in supporting a subscription which he proposed the United States bank should make to the stock of the Delaware and Chesapeake canal company, earnestly recommend the measure as connected with our operations in war. I listened to my friend with some incredulity, and thought he pushed his argument too far. I had, soon after, a practical evidence of its justness. For, in travelling from Philadelphia, in the fall of 1813, I saw transporting, by government, from Elk river to the Delaware, large quantities of massy timbers for the construction of the Guerriere or the Franklin, or both; and, judging from the number of wagons and horses, and the number of days employed, I believe the additional expense of that single operation would have gone very far to complete that canal, whose cause was espoused with so much eloquence in the senate, and with so much effect, too; bills having passed that body more than once to give aid, in some shape or other, to that canal. With notorious facts like this, is it not obvious, that a line of military canals is not only necessary and proper, but almost indispensable to the war-making power?

One of the rules of construction which has been laid down, I acknowledge my incapacity to comprehend. Gentlemen say, that the power in question is a substantive power; and that no substantive power can be derived by implication. What is their definition of a substantive power? Will they favor us with the principle of discrimination between powers which, being substantive, are not grantable but by express grant, and those which, not being substantive, may be conveyed by implication? Although I do not perceive why this power is more entitled than many implied powers, to the denomination of substantive, suppose that be yielded, how do gentlemen prove that it may not be conveyed by implication? If the positions were maintained, which have not yet been proved,that the power is substantive, and that no substantive power can be implied, yet I trust it has been satisfactorily shown that there is an express grant.

My honorable friend from Virginia, (Mr.Nelson,) has denied the operation of executive influence on his mind; and has informed the committee, that from that quarter he has nothing to expect, to hope, or to fear. I did not impute to my honorable friend any such motive; I knew his independence of character and of mind too well to do so. But I entreat him to reflect, if he does not expose himself to such an imputation by those less friendly disposed towards him than myself. Let us look a little at facts. The president recommends the establishment of a bank. If ever there were a stretch of implied powers conveyed by the constitution, it has been thought that the grant of the charter of the national bank was one. But the president recommends it. Where was then my honorable friend, the friend of state rights, who so pathetically calls upon us to repent, in sackcloth and ashes, our meditated violation of the constitution; and who kindly expresses his hope, that we shall be made to feel the public indignation? Where was he at that awful epoch? Where was that eloquent tongue, which we have now heard with so much pleasure? Silent! Silent as the grave!

[Mr.Nelson said, across the house, that he had voted against the bank bill when first recommended.]

Alas! my honorable friend had not the heart to withstand a second recommendation from the president; but, when it came, yielded, no doubt most reluctantly, to the executive wishes, and voted for the bank. At the last session of congress,Mr.Madison recommended, (and I will presently make some remarks on that subject,) an exercise of all the existing powers of the general government, to establish a comprehensive system of internal improvements. Where was my honorable friend on that occasion? Not silent as the grave, but he gave a negative vote, almost as silent. No effort was made on his part, great as he is when he exerts the powers of his well-stored mind, to save the commonwealth from that greatest of all calamities, a system of internal improvement. No; although a war with all the allies, he now thinks, would be less terrible than the adoption of this report, not one word then dropped from his lips against the measure.

[Mr.Nelson said he voted against the bill.]

That he whispered out an unwilling negative, I do not deny! but it was unsustained by that torrent of eloquence which he has poured out on the present occasion. But we have an executive messagenow, not quite as ambiguous in its terms, nor as oracularin its meaning, as that ofMr.Madison appears to have been. No the president now says, that he has made great efforts to vanquish his objections to the power, and that he cannot but believe that it does not exist. Then my honorable friend rouses, thunders forth the danger in which the constitution is, and sounds the tocsin of alarm. Far from insinuating that he is at all biased by the executive wishes, I appeal to his candor to say, if there is not a remarkable coincidence between his zeal and exertions, and the opinions of the chief magistrate?

Now let us review those opinions, as communicated at different periods. It was the opinion ofMr.Jefferson, that, although there was no general power vested by the constitution in congress, to construct roads and canals, without the consent of the states, yet such a power might be exercised with their assent.Mr.Jefferson not only held this opinion in the abstract, but he practically executed it in the instance of the Cumberland road; and how? First, by a compact made with the state of Ohio, for the application of a specified fund, and then by compacts with Virginia, Pennsylvania, and Maryland, to apply the fund so set apart within their respective limits. If, however, I rightly understood my honorable friend the other day, he expressly denied (and in that I concur with him) that the power could be acquired by the mere consent of the state. Yet he defended the act ofMr.Jefferson, in the case referred to.

[Mr.Nelson expressed his dissent to this statement of his argument.]

It is far from my intention to misstate the gentleman. I certainly understood him to say, that, as the road was first stipulated for, in the compact with Ohio, it was competent afterwards to carry it through the states mentioned, with their assent. Now, if we have not the right to make a road in virtue of one compact made with a single state, can we obtain it by two contracts made with several states? The character of the fund cannot affect the question. It is totally immaterial whether it arises from the sales of the public lands, or from the general revenue. Suppose a contract made with Massachusetts, that a certain portion of the revenue, collected at the port of Boston, from foreign trade, should be expended in making roads and canals leading to that state, and that a subsequent compact should be made with Connecticut or New Hampshire, for the expenditure of the fund on these objects, within their limits. Can we acquire the power, in this manner, over internal improvements, if we do not possess it independently of such compacts? I conceive, clearly not. And I am entirely at a loss to comprehend how gentlemen, consistently with their own principles, can justify the erection of the Cumberland road. No man is prouder than I am of that noble monument of the provident care of the nation, and of the public spirit of its projectors;and I trust that, in spite of all constitutional and other scruples, here or elsewhere, an appropriation will be made to complete that road. I confess, however, freely, that I am entirely unable to conceive of any principle on which that road can be supported, that would not uphold the general power contended for.

I will now examine the opinion ofMr.Madison. Of all the acts of that pure, virtuous, and illustrious statesman, whose administration has so powerfully tended to advance the glory, honor, and prosperity of this country, I most regret, for his sake and for the sake of the country, the rejection of the bill of the last session. I think it irreconcilable withMr.Madison’s own principles—those great, broad, and liberal principles, on which he so ably administered the government. And, sir, when I appeal to the members of the last congress, who are now in my hearing, I am authorized to say, with regard to the majority of them, that no circumstance, not even an earthquake, that should have swallowed up one half of this city, could have excited more surprise than when it was first communicated to this house, thatMr.Madison had rejected his own bill—I say his own bill, for his message at the opening of the session meant nothing, if it did not recommend such an exercise of power as was contained in that bill. My friend, who is near me, (Mr.Johnson, of Virginia,) the operations of whose vigorous and independent mind, depend upon his own internal perceptions, has expressed himself with becoming manliness, and thrown aside the authority of names, as having no bearing with him on the question. But their authority has been referred to, and will have influence with others. It is impossible, moreover, to disguise the fact, that the question is now a question between the executive on the one side, and the representatives of the people on the other. So it is understood in the country, and such is the fact.Mr.Madison enjoys, in his retreat at Montpelier, the repose and the honors due to his eminent and laborious services; and I would be among the last to disturb it. However painful it is to me to animadvert upon any of his opinions, I feel perfectly sure that the circumstance can only be viewed by him with an enlightened liberality. What are the opinions which have been expressed byMr.Madison on this subject? I will not refer to all the messages wherein he has recommended internal improvements; but to that alone which he addressed to congress, at the commencement of the last session, which contains this passage:

‘I particularly inviteagainthe attention of congress to the expediency of exercisingtheir existing powers, and, where necessary, of resorting to the prescribed mode of enlarging them, in order toeffectuate a comprehensive system of roads and canals, such as will have the effect of drawing more closely together every part of our country, by promoting intercourse and improvements, and by increasing the share of every part in the common stock of national prosperity.’

In the examination of this passage, two positions force themselves upon our attention. The first is, the assertion that there are existing powers in congress to effectuate a comprehensive system of roads and canals, the effect of which would be to draw the different parts of the country more closely together. And I would candidly admit, in the second place, that it was intimated, that, in the exercise of those existing powers, some defect might be discovered which would render an amendment of the constitution necessary. Nothing could be more clearly affirmed than the first position; but in the message ofMr.Madison returning the bill, passed in consequence of his recommendation, he has not specified a solitary case to which those existing powers are applicable; he has not told us what he meant by those existing powers; and the general scope of his reasoning, in that message, if well founded, proves that there are no existing powers whatever. It is apparent, thatMr.Madison himself has not examined some of those principal sources of the constitution from which, during this debate, the power has been derived. I deeply regret, and I know thatMr.Madison regretted, that the circumstances under which the bill was presented to him (the last day but one of a most busy session) deprived him of an opportunity of that thorough investigation of which no man is more capable. It is certain, that, taking his two messages at the same session together, they are perfectly irreconcilable. What, moreover, was the nature of that bill? It did not apply the money to any specific object of internal improvement, nor designate any particular mode in which it should be applied; but merely set apart and pledged the fund to the general purpose, subject to the future disposition of congress. If, then, there were any supposable case whatever, to which congress might apply money in the erection of a road, or cutting a canal, the bill did not violate the constitution. And it ought not to have been anticipated, that money constitutionally appropriated by one congress would be unconstitutionally expended by another.

I come now to the message ofMr.Monroe; and if, by the communication of his opinion to congress, he intended to prevent discussion, he has most wofully failed. I know that, according to a most venerable and excellent usage, the opinion, neither of the president nor of the senate, upon any proposition depending in this house, ought to be adverted to. Even in the parliament of Great Britain, a member who would refer to the opinion of the sovereign, in such a case, would be instantly called to order; but under the extraordinary circumstances of the president having, with, I have no doubt, the best motives, volunteered his opinion on this head, and inverted the order of legislation by beginning where it should end, I am compelled, most reluctantly, to refer to that opinion. I cannot but deprecate the practice of which the president has, in this instance, set the example to his successors. The constitutionalorder of legislation supposes that every bill originating in one house, shall be there deliberately investigated, without influence from any other branch of the legislature; and then remitted to the other house for a like free and unbiased consideration. Having passed both houses, it is to be laid before the president; signed if approved, and if disapproved, to be returned, with his objections, to the originating house. In this manner, entire freedom of thought and of action is secured, and the president finally sees the proposition in the most matured form which congress can give to it. The practical effect, to say no more, of forestalling the legislative opinion, and telling us what we may or may not do, will be to deprive the president himself of the opportunity of considering a proposition so matured, and us of the benefit of his reasoning applied specifically to such proposition. For the constitution further enjoins it upon him, to state his objections upon returning the bill. The originating house is then to reconsider it, and deliberately to weigh those objections; and it is further required, when the question is again taken, shall the bill pass, those objections notwithstanding? that the votes shall be solemnly spread, by ayes and noes, upon the record. Of this opportunity of thus recording our opinions, in matters of great public concern, we are deprived, if we submit to the innovation of the president. I will not press this part of the subject further. I repeat, again and again, that I have no doubt but that the president was actuated by the purest motives. I am compelled, however, in the exercise of that freedom of opinion which, so long as I exist, I will maintain, to say, that the proceeding is irregular and unconstitutional. Let us, however, examine the reasoning and opinion of the president.

‘A difference of opinion has existed from the first formation of our constitution to the present time, among our most enlightened and virtuous citizens, respecting the right of congress to establish a system of internal improvement. Taking into view the trust with which I am now honored, it would be improper, after what has passed, that this discussion should be revived, with an uncertainty of my opinion respecting the right. Disregarding early impressions, I have bestowed on the subject all the deliberation which its great importance and a just sense of my duty required, and the result is, a settled conviction in my mind, that congress does not possess the right. It is not contained in any of the specified powers granted to congress; nor can I consider it incidental to, or a necessary mean, viewed on the most liberal scale, for carrying into effect any of the powers which are specifically granted. In communicating this result, I cannot resist the obligation which I feel, to suggest to congress the propriety of recommending to the states the adoption of an amendment to the constitution, which shall give the right in question. In cases of doubtful construction, especially of such vital interest, it comports with the nature and origin of our institutions, and will contribute much to preserve them, to apply to our constituents for an explicit grant of power. We may confidently rely, that, if it appears to their satisfaction that the power is necessary, it will always be granted.’

In this passage, the president has furnished us with no reasoning, no argument in support of his opinion—nothing addressed to the understanding. He gives us, indeed, an historical account of the operations of his own mind, and he asserts that he has made alaborious effort to conquer his early impressions, but that the result is a settled conviction against the power, without a single reason. In his position, that the power must be specifically granted, or incident to a power so granted, it has been seen, that I have the honor to entirely concur with him; but, he says, the power is not among the specified powers. Has he taken into consideration the clause respecting post-roads, and told us how and why that does not convey the power? If he had acted within what I conceive to be his constitutional sphere of rejecting the bill, after it had passed both houses, he must have learned that great stress was placed on that clause, and we should have been enlightened by his comments upon it. As to his denial of the power, as an incident to any of the express grants, I would have thought that we might have safely appealed to the experience of the president, during the late war, when the country derived so much benefit from his judicious administration of the duties of the war department, whether roads and canals for military purposes were not essential to celerity and successful result in the operations of armies. This part of the message is all assertion, and contains no argument which I can comprehend, or which meet the points contended for during this debate. Allow me here to say, and I do it without the least disrespect to that branch of the government, on whose opinions and acts it has been rendered my painful duty to comment; let me say, in reference to any man, however elevated his station, even if he be endowed with the power and prerogatives of a sovereign, that his acts are worth infinitely more, and are more intelligible, than mere paper sentiments or declarations. And what have been the acts of the president? During his tour of the last summer, did he not order a road to be cut or repaired from near Plattsburgh to theSt.Lawrence? My honorable friend will excuse me, if my comprehension is too dull to perceive the force of that argument, which seeks to draw a distinction between repairing an old and making a new road.

[Mr.Nelson said, he had not drawn that distinction, having only stated the fact.]

Other roads, in other parts of the union, have, it seems, been likewise ordered, or their execution, at the public expense, sanctioned by the executive, without the concurrence of congress. If the president has the power to cause these public improvements to be executed at his pleasure, whence is it derived? If any member will stand up in this place and say the president is clothed with this authority, and that it is denied to congress, let us hear from him; and let him point to the clause of the constitution which vests it in the executive and withholds it from the legislative branch.

There is no such clause; there is no such exclusive executive power. The power is derivable by the executive only from those provisions of the constitution which charge him with the duties of commanding the physical force of the country, and the employment of that force in war, and the preservation of the public tranquillity, and in the execution of the laws. But congress has paramount powers to the president. It alone can declare war, can raise armies, can provide for calling out the militia, in the specified instances, and can raise and appropriate the ways and means necessary to those objects. Or is it come to this, that there are to be two rules of construction for the constitution—one, an enlarged rule, for the executive, and another, a restricted rule, for the legislature? Is it already to be held, that, according to the genius and nature of our constitution, powers of this kind may be safely intrusted to the executive, but, when attempted to be exercised by the legislature, are so alarming and dangerous, that a war with all the allied powers would be less terrible, and that the nation should clothe itself straightway in sackcloth and ashes! No, sir; if the power belongs only by implication to the chief magistrate, it is placed both by implication and express grant in the hands of congress. I am so far from condemning the act of the president, to which I have referred, that I think it deserving of high approbation. That it was within the scope of his constitutional authority, I have no doubt; and I sincerely trust, that the secretary at war will, in time of peace, constantly employ in that way the military force. It will at the same time guard that force against the vicesincident to indolence and inaction, and correct the evil of subtracting from the mass of the labor of society, where labor is more valuable than in any other country, that portion of it which enters into the composition of the army. But I most solemnly protest against any exercise of powers of this kind by the president, which are denied to congress. And, if the opinions expressed by him, in his message, were communicated, or are to be used here, to influence the judgment of the house, their authority is more than countervailed by the authority of his deliberate acts.

Some principles drawn from political economists have been alluded to, and we are advised to leave things to themselves, upon the ground that, when the condition of society is ripe for internal improvements—that is, when capital can be so invested with a fair prospect of adequate remuneration, they will be executed by associations of individuals, unaided by government. With my friend from South Carolina (Mr.Lowndes) I concur in this as a general maxim; and I also concur with him that there are exceptions to it. The foreign policy which I think this country ought to adopt, presents one of those exceptions. It would perhaps be better for mankind, if, in the intercourse between nations, all would leave skill and industry to their unstimulated exertions. But this is not done; and if other powers will incite the industry of their subjects, and depress that of our citizens, in instances where they may come into competition, we must imitate their selfish example. Hence the necessity to protect our manufactures. In regard to internal improvements, it does not follow, that they will always be constructed whenever they will afford a competent dividend upon the capital invested. It may be true generally that, in old countries, where there is a great accumulation of surplus capital, and a consequent low rate of interest, they will be made. But, in a new country, the condition of society may be ripe for public works long before there is, in the hands of individuals, the necessary accumulation of capital to effect them; and, besides, there is generally, in such a country, not only a scarcity of capital, but such a multiplicity of profitable objects presenting themselves as to distract the judgment. Further; the aggregate benefit resulting to the whole society, from a public improvement, may be such as to amply justify the investment of capital in its execution, and yet that benefit may be so distributed among different and distant persons, that they can never be got to act in concert. The turnpike roads wanted to pass the Alleghany mountains, and the Delaware and Chesapeake canal, are objects of this description. Those who will be most benefited by these improvements, reside at a considerable distance from the sites of them; many of those persons never have seen and never will see them. How is it possible to regulate the contributions, or to present to individuals so situated a sufficiently lively picture of their real interests, to get them to make exertionsin effectuating the object, commensurate with their respective abilities? I think it very possible that the capitalist, who should invest his money in one of these objects, might not be reimbursed three per centum annually upon it; and yet society, in various forms, might actually reap fifteen or twenty per centum. The benefit resulting from a turnpike road, made by private associations, is divided between the capitalist who receives his tolls, the lands through which it passes, and which are augmented in their value, and the commodities whose value is enhanced by the diminished expense of transportation. A combination, upon any terms, much less a just combination, of all those interests, to effect the improvement, is impracticable. And if you await the arrival of the period when the tolls alone can produce a competent dividend, it is evident that you will have to suspend its execution long after the general interests of society would have authorized it.

Again, improvements, made by private associations, are generally made by local capital. But ages must elapse before there will be concentrated in certain places, where the interests of the whole community may call for improvements, sufficient capital to make them. The place of the improvement, too, is not always the most interested in its accomplishment. Other parts of the union—the whole line of the seaboard—are quite as much, if not more interested, in the Delaware and Chesapeake canal, as the small tract of country through which it is proposed to pass. The same observation will apply to turnpike roads passing through the Alleghany mountain. Sometimes the interest of the place of the improvement is adverse to the improvement and to the general interest. I would cite Louisville, at the rapids of the Ohio, as an example, whose interest will probably be more promoted by the continuance, than the removal of the obstruction. Of all the modes in which a government can employ its surplus revenue, none is more permanently beneficial than that of internal improvement. Fixed to the soil, it becomes a durable part of the land itself, diffusing comfort, and activity, and animation, on all sides. The first direct effect is on the agricultural community, into whose pockets comes the difference in the expense of transportation between good and bad ways. Thus, if the price of transporting a barrel of flour by the erection of the Cumberland turnpike should be lessened two dollars, the producer of the article would receive that two dollars more now than formerly.

But, putting aside all pecuniary considerations, there may be political motives sufficiently powerful alone to justify certain internal improvements. Does not our country present such? How are they to be effected, if things are left to themselves? I will not press the subject further. I am but too sensible how much I have abused the patience of the committee by trespassing so long upon its attention. The magnitude of the question, and the deep interestI feel in its rightful decision, must be my apology. We are now making the last effort to establish our power, and I call on the friends of congress, of this house, or the true friends of state rights, (not charging others with intending to oppose them,) to rally round the constitution, and to support by their votes, on this occasion, the legitimate powers of the legislature. If we do nothing this session but pass an abstract resolution on the subject, I shall, under all circumstances, consider it a triumph for the best interests of the country, of which posterity will, if we do not, reap the benefit. I trust, that by the decision which shall be given, we shall assert, uphold, and maintain, the authority of congress, notwithstanding all that has been or may be said against it.

[The resolution of giving the power of congress, first, to appropriate money to the construction of military and post roads, make canals, and improve water-courses, was adopted: yeas ninety; nays seventy-five: secondly, to construct such roads: lost: yeas eighty-two; nays eighty-four: thirdly, to construct roads and canals for commercial purposes: lost: yeas seventy-one; nays ninety-five: fourthly, to construct canals for military purposes: lost: eighty-one to eighty-three.]

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