Volume 2 — VETO MESSAGE.

WASHINGTON, May 4, 1822.

To the House of Representatives:

Having duly considered the bill entitled "An act for the preservation and repair of the Cumberland road," it is with deep regret, approving as I do the policy, that I am compelled to object to its passage and to return the bill to the House of Representatives, in which it originated, under a conviction that Congress do not possess the power under the Constitution to pass such a law.

A power to establish turnpikes with gates and tolls, and to enforce the collection of tolls by penalties, implies a power to adopt and execute a complete system of internal improvement. A right to impose duties to be paid by all persons passing a certain road, and on horses and carriages, as is done by this bill, involves the right to take the land from the proprietor on a valuation and to pass laws for the protection of the road from injuries, and if it exist as to one road it exists as to any other, and to as many roads as Congress may think proper to establish. A right to legislate for one of these purposes is a right to legislate for the others. It is a complete right of jurisdiction and sovereignty for all the purposes of internal improvement, and not merely the right of applying money under the power vested in Congress to make appropriations, under which power, with the consent of the States through which this road passes, the work was originally commenced, and has been so far executed. I am of opinion that Congress do not possess this power; that the States individually can not grant it, for although they may assent to the appropriation of money within their limits for such purposes, they can grant no power of jurisdiction or sovereignty by special compacts with the United States. This power can be granted only by an amendment to the Constitution and in the mode prescribed by it.

If the power exist, it must be either because it has been specifically granted to the United States or that it is incidental to some power which has been specifically granted. If we examine the specific grants of power we do not find it among them, nor is it incidental to any power which has been specifically granted.

It has never been contended that the power was specifically granted. It is claimed only as being incidental to some one or more of the powers which are specifically granted. The following are the powers from which it is said to be derived:

First, from the right to establish post-offices and post-roads; second, from the right to declare war; third, to regulate commerce; fourth, to pay the debts and provide for the common defense and general welfare; fifth, from the power to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the Government of the United States or in any department or officer thereof; sixth and lastly, from the power to dispose of and make all needful rules and regulations respecting the territory and other property of the United States.

According to my judgment it can not be derived from either of those powers, nor from all of them united, and in consequence it does not exist.

Having stated my objections to the bill, I should now cheerfully communicate at large the reasons on which they are founded if I had time to reduce them to such form as to include them in this paper. The advanced stage of the session renders that impossible. Having at the commencement of my service in this high trust considered it a duty to express the opinion that the United States do not possess the power in question, and to suggest for the consideration of Congress the propriety of recommending to the States an amendment to the Constitution to vest the power in the United States, my attention has been often drawn to the subject since, in consequence whereof I have occasionally committed my sentiments to paper respecting it. The form which this exposition has assumed is not such as I should have given it had it been intended for Congress, nor is it concluded. Nevertheless, as it contains my views on this subject, being one which I deem of very high importance, and which in many of its bearings has now become peculiarly urgent, I will communicate it to Congress, if in my power, in the course of the day, or certainly on Monday next.

JAMES MONROE.

WASHINGTON, May 4, 1822.

To the House of Representatives:

I transmit the paper alluded to in the message of this day, on the subject of internal improvements.

JAMES MONROE.

VIEWS OF THE PRESIDENT OF THE UNITED STATES ON THE SUBJECT OF INTERNAL IMPROVEMENTS.

It may be presumed that the proposition relating to internal improvements by roads and canals, which has been several times before Congress, will be taken into consideration again either for the purpose of recommending to the States the adoption of an amendment to the Constitution to vest the necessary power in the General Government or to carry the system into effect on the principle that the power has already been granted. It seems to be the prevailing opinion that great advantage would be derived from the exercise of such a power by Congress. Respecting the right there is much diversity of sentiment. It is of the highest importance that this question should be settled. If the right exist, it ought forthwith to be exercised. If it does not exist, surely those who are friends to the power ought to unite in recommending an amendment to the Constitution to obtain it. I propose to examine this question.

The inquiry confined to its proper objects and within the most limited scale is extensive. Our Government is unlike other governments both in its origin and form. In analyzing it the differences in certain respects between it and those of other nations, ancient and modern, necessarily come into view. I propose to notice these differences so far as they are connected with the object of inquiry, and the consequences likely to result from them, varying in equal degree from those which have attended other governments. The digression, if it may be so called, will in every instance be short and the transition to the main object immediate and direct.

To do justice to the subject it will be necessary to mount to the source of power in these States and to pursue this power in its gradations and distribution among the several departments in which it is now vested. The great division is between the State governments and the General Government. If there was a perfect accord in every instance as to the precise extent of the powers granted to the General Government, we should then know with equal certainty what were the powers which remained to the State governments, since it would follow that those which were not granted to the one would remain to the other. But it is on this point, and particularly respecting the construction of these powers and their incidents, that a difference of opinion exists, and hence it is necessary to trace distinctly the origin of each government, the purposes intended by it, and the means adopted to accomplish them. By having the interior of both governments fully before us we shall have all the means which can be afforded to enable us to form a correct opinion of the endowments of each.

Before the Revolution the present States, then colonies, were separate communities, unconnected with each other except in their common relation to the Crown. Their governments were instituted by grants from the Crown, which operated, according to the conditions of each grant, in the nature of a compact between the settlers in each colony and the Crown. All power not retained in the Crown was vested exclusively in the colonies, each having a government consisting of an executive, a judiciary, and a legislative assembly, one branch of which was in every instance elected by the people. No office was hereditary, nor did any title under the Crown give rank or office in any of the colonies. In resisting the encroachments of the parent country and abrogating the power of the Crown the authority which had been held by it vested exclusively in the people of the colonies, By them was a Congress appointed, composed of delegates from each colony, who managed the war, declared independence, treated with foreign powers, and acted in all things according to the sense of their constituents. The Declaration of Independence confirmed in form what had before existed in substance. It announced to the world new States, possessing and exercising complete sovereignty, which they were resolved to maintain. They were soon after recognized by France and other powers, and finally by Great Britain herself in 1783.

Soon after the power of the Crown was annulled the people of each colony established a constitution or frame of government for themselves, in which these separate branches—legislative, executive, and judiciary—were instituted, each independent of the others. To these branches, each having its appropriate portion, the whole power of the people not delegated to Congress was communicated, to be exercised for their advantage on the representative principle by persons of their appointment, or otherwise deriving their authority immediately from them, and holding their offices for stated terms. All the powers necessary for useful purposes held by any of the strongest governments of the Old World not vested in Congress were imparted to these State governments without other checks than such as are necessary to prevent abuse, in the form of fundamental declarations or bills of right. The great difference between our governments and those of the Old World consists in this, that the former, being representative, the persons who exercise their powers do it not for themselves or in their own right, but for the people, and therefore while they are in the highest degree efficient they can never become oppressive. It is this transfer of the power of the people to representative and responsible bodies in every branch which constitutes the great improvement in the science of government and forms the boast of our system. It combines all the advantages of every known government without any of their disadvantages. It retains the sovereignty in the people, while it avoids the tumult and disorder incident to the exercise of that power by the people themselves. It possesses all the energy and efficiency of the most despotic governments, while it avoids all the oppressions and abuses inseparable from those governments.

In every stage of the conflict from its commencement until March, 1781, the powers of Congress were undefined, but of vast extent. The assemblies or conventions of the several colonies being formed by representatives from every county in each colony and the Congress by delegates from each colonial assembly, the powers of the latter for general purposes resembled those of the former for local. They rested on the same basis, the people, and were complete for all the purposes contemplated. Never was a movement so spontaneous, so patriotic, so efficient. The nation exerted its whole faculties in support of its rights, and of its independence after the contest took that direction, and it succeeded. It was, however, foreseen at a very early stage that although the patriotism of the country might be relied on in the struggle for its independence, a well-digested compact would be necessary to preserve it after obtained. A plan of confederation was in consequence proposed and taken into consideration by Congress even at the moment when the other great act which severed them from Great Britain and declared their independence was proclaimed to the world. This compact was ratified on the 21st March, 1781, by the last State, and thereupon carried into immediate effect.

The following powers were vested in the United States by the Articles of Confederation. As this, the first bond of union, was in operation nearly eight years, during which time a practical construction was given to many of its powers, all of which were adopted in the Constitution with important additions, it is thought that a correct view of those powers and of the manner in which they are executed may shed light on the subject under consideration. It may fairly be presumed that where certain powers were transferred from one instrument to the other and in the same terms, or terms descriptive only of the same powers, that it was intended that they should be construed in the same sense in the latter that they were in the former.

Article I declares that the style of the Confederacy shall be "The United States of America."

Article II. Each State retains its sovereignty, freedom, and independence, and every power and right which is not expressly delegated to the United States.

Article III. The States severally enter into a firm league of friendship with each other for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to or attacks made upon them on account of religion, sovereignty, trade, etc.

Article IV. The free inhabitants of each State, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States, etc. Fugitives from justice into any of the States shall be delivered up on the demand of the executive of the State from which they fled. Full faith and credit shall be given in each State to the records and acts of every other State.

Article V. Delegates shall be annually appointed by the legislature of each State to meet in Congress on the first Monday in November, with a power to recall, etc. No State shall appoint less than two nor more than seven, nor shall any delegate hold his office for more than three in six years. Each State shall maintain its own delegates. Each State shall have one vote. Freedom of speech shall not be impeached, and the members shall be protected from arrests, except for treason, etc.

Article VI. No State shall send or receive an embassy or enter into a treaty with a foreign power. Nor shall any person holding any office of profit or trust under the United States or any State accept any present, emolument, office, or title from a foreign power. Nor shall the United States or any State grant any title of nobility. No two States shall enter into any treaty without the consent of Congress. No State shall lay any imposts or duties which may interfere with any treaties entered into by the United States. No State shall engage in war unless it be invaded or menaced with invasion by some Indian tribe, nor grant letters of marque or reprisal unless it be against pirates, nor keep up vessels of war nor any body of troops in time of peace without the consent of Congress; but every State shall keep up a well regulated militia, etc.

Article VII. When land forces are raised by any State for the common defense, all officers of and under the rank of colonel shall be appointed by the legislature of each State.

Article VIII. All charges of war and all other expenses which shall be incurred for the common defense or general welfare shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all the land in each State granted to individuals. The taxes for paying each proportion shall be levied by the several States.

Article IX. Congress shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article; of sending and receiving ambassadors; entering into alliances, except, etc.; of establishing rules for deciding what captures on land and water shall be legal; of granting letters of marque and reprisal in time of peace; appointing courts for the trial of piracies and felonies on the high seas; for deciding controversies between the States and between individuals claiming lands under two or more States whose jurisdiction has been adjusted; of regulating the alloy and value of coin struck by their authority and of foreign coin; fixing the standard of weights and measures; regulating the trade with the Indians; establishing and regulating post offices from one State to another and throughout all the States, and exacting such postage as may be requisite to defray the expenses of the office; of appointing all officers of the land forces except the regimental; appointing all the officers of the naval forces; to ascertain the necessary sums of money to be raised for the service of the United States and appropriate the same; to borrow money and emit bills of credit; to build and equip a Navy; to agree on the number of land forces and to make requisitions on each State for its quota; that the assent of nine States shall be requisite to these great acts.

Article X regulates the powers of the committee of the States to sit in the recess of Congress.

Article XI provides for the admission of Canada into the Confederation.

Article XII pledges the faith of the United States for the payment of all bills of credit issued and money borrowed on their account.

Article XIII. Every State shall abide by the determination of the United States on all questions submitted to them by the Confederation, the Articles of the Confederation to be perpetual and not to be altered without the consent of every State.

This bond of union was soon found to be utterly incompetent to the purposes intended by it. It was defective in its powers; it was defective also in the means of executing the powers actually granted by it. Being a league of sovereign and independent States, its acts, like those of all other leagues, required the interposition of the States composing it to give them effect within their respective jurisdictions. The acts of Congress without the aid of State laws to enforce them were altogether nugatory. The refusal or omission of one State to pass such laws was urged as a reason to justify like conduct in others, and thus the Government was soon at a stand.

The experience of a few years demonstrated that the Confederation could not be relied on for the security of the blessings which had been derived from the Revolution. The interests of the nation required a more efficient Government, which the good sense and virtue of the people provided by the adoption of the present Constitution.

The Constitution of the United States was formed by a convention of delegates from the several States, who met in Philadelphia, duly authorized for the purpose, and it was ratified by a convention in each State which was especially called to consider and decide on the same. In this progress the State governments were never suspended in their functions. On the contrary, they took the lead in it. Conscious of their incompetency to secure to the Union the blessings of the Revolution, they promoted the diminution of their own powers and the enlargement of those of the General Government in the way in which they might be most adequate and efficient. It is believed that no other example can be found of a Government exerting its influence to lessen its own powers, of a policy so enlightened, of a patriotism so pure and disinterested. The credit, however, is more especially due to the people of each State, in obedience to whose will and under whose control the State governments acted.

The Constitution of the United States, being ratified by the people of the several States, became of necessity to the extent of its powers the paramount authority of the Union. On sound principles it can be viewed in no other light. The people, the highest authority known to our system, from whom all our institutions spring and on whom they depend, formed it. Had the people of the several States thought proper to incorporate themselves into one community, under one government, they might have done it. They had the power, and there was nothing then nor is there anything now, should they be so disposed, to prevent it. They wisely stopped, however, at a certain point, extending the incorporation to that point, making the National Government thus far a consolidated Government, and preserving the State governments without that limit perfectly sovereign and independent of the National Government. Had the people of the several States incorporated themselves into one community, they must have remained such, their Constitution becoming then, like the constitution of the several States, incapable of change until altered by the will of the majority. In the institution of a State government by the citizens of a State a compact is formed to which all and every citizen are equal parties. They are also the sole parties and may amend it at pleasure. In the institution of the Government of the United States by the citizens of every State a compact was formed between the whole American people which has the same force and partakes of all the qualities to the extent of its powers as a compact between the citizens of a State in the formation of their own constitution. It can not be altered except by those who formed it or in the mode prescribed by the parties to the compact itself.

This Constitution was adopted for the purpose of remedying all defects of the Confederation, and in this it has succeeded beyond any calculation that could have been formed of any human institution. By binding the States together the Constitution performs the great office of the Confederation; but it is in that sense only that it has any of the properties of that compact, and in that it is more effectual to the purpose, as it holds them together by a much stronger bond; and in all other respects in which the Confederation failed the Constitution has been blessed with complete success. The Confederation was a compact between separate and independent States, the execution of whose articles in the powers which operated internally depended on the State governments. But the great office of the Constitution, by incorporating the people of the several States to the extent of its powers into one community and enabling it to act directly on the people, was to annul the powers of the State governments to that extent, except in cases where they were concurrent, and to preclude their agency in giving effect to those of the General Government. The Government of the United States relies on its own means for the execution of its powers, as the State governments do for the execution of theirs, both governments having a common origin or sovereign, the people—the State governments the people of each State, the National Government the people of every State—and being amenable to the power which created it. It is by executing its functions as a Government thus originating and thus acting that the Constitution of the United States holds the States together and performs the office of a league. It is owing to the nature of its powers and the high source from whence they are derived—the people—that it performs that office better than the Confederation or any league which ever existed, being a compact which the State governments did not form, to which they are not parties, and which executes its own powers independently of them.

There were two separate and independent governments established over our Union, one for local purposes over each State by the people of the State, the other for national purposes over all the States by the people of the United States. The whole power of the people, on the representative principle, is divided between them. The State governments are independent of each other, and to the extent of their powers are complete sovereignties. The National Government begins where the State governments terminate, except in some instances where there is a concurrent jurisdiction between them. This Government is also, according to the extent of its powers, a complete sovereignty. I speak here, as repeatedly mentioned before, altogether of representative sovereignties, for the real sovereignty is in the people alone.

The history of the world affords no such example of two separate and independent governments established over the same people, nor can it exist except in governments founded on the sovereignty of the people. In monarchies and other governments not representative there can be no such division of power. The government is inherent in the possessor; it is his, and can not be taken from him without a revolution. In such governments alliances and leagues alone are practicable. But with us individuals count for nothing in the offices which they hold; that is, they have no right to them. They hold them as representatives, by appointment from the people, in whom the sovereignty is exclusively vested. It is impossible to speak too highly of this system taken in its twofold character and in all its great principles of two governments, completely distinct from and independent of each other, each constitutional, founded by and acting directly on the people, each competent to all its purposes, administering all the blessings for which it was instituted, without even the most remote danger of exercising any of its powers in a way to oppress the people. A system capable of expansion over a vast territory not only without weakening either government, but enjoying the peculiar advantage of adding thereby new strength and vigor to the faculties of both; possessing also this additional advantage, that while the several States enjoy all the rights reserved to them of separate and independent governments, and each is secured by the nature of the Federal Government, which acts directly on the people, against the failure of the others to bear their equal share of the public burdens, and thereby enjoys in a more perfect degree all the advantages of a league, it holds them together by a bond altogether different and much stronger than the late Confederation or any league that was ever known before—a bond beyond their control, and which can not even be amended except in the mode prescribed by it. So great an effort in favor of human happiness was never made before; but it became those who made it. Established in the new hemisphere, descended from the same ancestors, speaking the same language, having the same religion and universal toleration, born equal and educated in the same principles of free government, made independent by a common struggle and menaced by the same dangers, ties existed between them which never applied before to separate communities. They had every motive to bind them together which could operate on the interests and affections of a generous, enlightened, and virtuous people, and it affords inexpressible consolation to find that these motives had their merited influence.

In thus tracing our institutions to their origin and pursuing them in their progress and modifications down to the adoption of this Constitution two important facts have been disclosed, on which it may not be improper in this stage to make a few observations. The first is that in wresting the power, or what is called the sovereignty, from the Crown it passed directly to the people. The second, that it passed directly to the people of each colony and not to the people of all the colonies in the aggregate; to thirteen distinct communities and not to one. To these two facts, each contributing its equal proportion, I am inclined to think that we are in an eminent degree indebted for the success of our Revolution. By passing to the people it vested in a community every individual of which had equal rights and a common interest. There was no family dethroned among us, no banished pretender in a foreign country looking back to his connections and adherents here in the hope of a recall; no order of nobility whose hereditary rights in the Government had been violated; no hierarchy which had been degraded and oppressed. There was but one order, that of the people, by whom everything was gained by the change. I mention it also as a circumstance of peculiar felicity that the great body of the people had been born and educated under these equal and original institutions. Their habits, their principles, and their prejudices were therefore all on the side of the Revolution and of free republican government.

Had distinct orders existed, our fortune might and probably would have been different. It would scarcely have been possible to have united so completely the whole force of the country against a common enemy. A contest would probably have arisen in the outset between the orders for the control. Had the aristocracy prevailed, the people would have been heartless. Had the people prevailed, the nobility would probably have left the country, or, remaining behind, internal divisions would have taken place in every State and a civil war broken out more destructive even than the foreign, which might have defeated the whole movement. Ancient and modern history is replete with examples proceeding from conflicts between distinct orders, of revolutions attempted which proved abortive, of republics which have terminated in despotism. It is owing to the simplicity of the elements of which our system is composed that the attraction of all the parts has been to a common center, that every change has tended to cement the union, and, in short, that we have been blessed with such glorious and happy success.

And that the power wrested from the British Crown passed to the people of each colony the whole history of our political movement from the emigration of our ancestors to the present day clearly demonstrates. What produced the Revolution? The violation of our rights. What rights? Our chartered rights. To whom were the charters granted, to the people of each colony or to the people of all the colonies as a single community? We know that no such community as the aggregate existed, and of course that no such rights could be violated. It may be added that the nature of the powers which were given to the delegates by each colony and the manner in which they were executed show that the sovereignty was in the people of each and not in the aggregate. They respectively presented credentials such as are usual between ministers of separate powers, which were examined and approved before they entered on the discharge of the important duties committed to them. They voted also by colonies and not individually, all the members from one colony being entitled to one vote only. This fact alone, the first of our political association and at the period of our greatest peril, fixes beyond all controversy the source from whence the power which has directed and secured success to all our measures has proceeded.

Had the sovereignty passed to the aggregate, consequences might have ensued, admitting the success of our Revolution, which might even yet seriously affect our system. By passing to the people of each colony the opposition to Great Britain, the prosecution of the war, the Declaration of Independence, the adoption of the Confederation and of this Constitution are all imputable to them. Had it passed to the aggregate, every measure would be traced to that source; even the State governments might be said to have emanated from it, and amendments of their constitutions on that principle be proposed by the same authority. In short it is not easy to perceive all the consequences into which such a doctrine might lead. It is obvious that the people in mass would have had much less agency in all the great measures of the Revolution and in those which followed than they actually had, and proportionably less credit for their patriotism and services than they are now entitled to and enjoy. By passing to the people of each colony the whole body in each were kept in constant and active deliberation on subjects of the highest national importance and in the supervision of the conduct of all the public servants in the discharge of their respective duties. Thus the most effectual guards were provided against abuses and dangers of every kind which human ingenuity could devise, and the whole people rendered more competent to the self-government which by an heroic exertion they had acquired.

I will now proceed to examine the powers of the General Government, which, like the governments of the several States, is divided into three branches—a legislative, executive, and judiciary—each having its appropriate share. Of these the legislative, from the nature of its powers, all laws proceeding from it, and the manner of its appointment, its members being elected immediately by the people, is by far the most important. The whole system of the National Government may be said to rest essentially on the powers granted to this branch. They mark the limit within which, with few exceptions, all the branches must move in the discharge of their respective functions. It will be proper, therefore, to take a full and correct view of the powers granted to it.

By the eighth section of the first article of the Constitution it is declared that Congress shall have power—

First. To lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States;

Second. To borrow money;

Third. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes;

Fourth. To establish an uniform rule of naturalization and uniform laws respecting bankruptcies;

Fifth. To coin money, regulate the value thereof and of foreign coin, and fix the standard of weights and measures;

Sixth. To provide for the punishment of counterfeiting the securities and current coin of the United States;

Seventh. To establish post offices and post-roads;

Eighth. To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

Ninth. To constitute tribunals inferior to the Supreme Court, to define and punish piracies and felonies committed on the high seas, and offenses against the laws of nations;

Tenth. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

Eleventh. To raise and support armies;

Twelfth. To provide and maintain a navy;

Thirteenth. To make rules for the government of the land and naval forces;

Fourteenth. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions;

Fifteenth. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be in the service of the United States, reserving to the States the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress;

Sixteenth. To exercise exclusive legislation in all cases whatever over such district (not exceeding 10 miles square) as may, by the cession of particular States and the acceptance of by Congress, become the seat of Government of the United States; and to exercise like authority over all places purchased, by the consent of the legislature of the State in which the same may be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;

Seventeenth. And to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof.

To the other branches of the Government the powers properly belonging to each are granted. The President, in whom the executive power is vested, is made commander in chief of the Army and Navy, and militia when called into the service of the United States. He is authorized, with the advice and consent of the Senate, two-thirds of the members present concurring, to form treaties, to nominate and, with the advice and consent of the Senate, to appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers whose appointments are not otherwise provided for by law. He has power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. It is made his duty to give to Congress from time to time information of the state of the Union, to recommend to their consideration such measures as he may judge necessary and expedient, to convene both Houses on extraordinary occasions, to receive ambassadors, and to take care that the laws be faithfully executed.

The judicial power is vested in one Supreme Court and in such inferior courts as Congress may establish; and it is made to extend to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority. Cases affecting ambassadors and other public characters, cases of admiralty and maritime jurisdiction, causes in which the United States are a party, between two or more States, between citizens of different States, between citizens of the same State claiming grants of land under different States, between a State or the citizens thereof and foreign States, are specially assigned to these tribunals.

Other powers have been granted in other parts of the Constitution which, although they relate to specific objects, unconnected with the ordinary administration, yet, as they form important features in the Government and may shed useful light on the construction which ought to be given to the powers above enumerated, it is proper to bring into view.

By Article I, section 9, clause 1, it is provided that the migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by Congress prior to the year 1808, but a tax or duty may be imposed on such importation not exceeding $10 for each person.

By Article III, section 3, clause 1, new States may be admitted by Congress into the Union, but that no new State shall be formed within the jurisdiction of another State, nor any State be formed by the junction of two or more States or parts of States without the consent of the legislature of the States concerned as well as of the United States. And by the next clause of the same article and section power is vested in Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United. States, with a proviso that nothing in the Constitution shall be so construed as to prejudice any claims of the United States or of any particular State.

By Article IV, section 4, the United States guarantee to every State a republican form of government and engage to protect each of them against invasion; and on application of the legislature, or of the executive when the legislature can not be convened, against domestic violence.

Of the other parts of the Constitution relating to power, some form restraints on the exercise of the powers granted to Congress and others on the exercise of the powers remaining to the States. The object in both instances is to draw more completely the line between the two governments and also to prevent abuses by either. Other parts operate like conventional stipulations between the States, abolishing between them all distinctions applicable to foreign powers and securing to the inhabitants of each State all the rights and immunities of citizens in the several States.

By the fifth article it is provided that Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which in either case shall be valid as a part of the Constitution when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode may be proposed by Congress: Provided, That no State, without its consent, shall be deprived of its equal vote in the Senate, and that no amendment which may be made prior to the year 1808 shall affect the first and fourth clauses in the ninth section of the first article.

By the second section of the sixth article it is declared that the Constitution, and laws of the United States which shall be made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land, and that the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. This right in the National Government to execute its powers was indispensable to its existence. If the State governments had not been restrained from encroaching on the powers vested in the National Government, the Constitution, like the Confederation, would soon have been set at naught; and it was not within the limit of the human mind to devise any plan for the accomplishment of the object other than by making a national constitution which should be to the extent of its powers the supreme law of the land. This right in the National Government would have existed under the Constitution to the full extent provided for by this declaration had it not been made. To prevent the possibility of a doubt, however, on so important a subject it was proper to make the declaration.

Having presented above a full view of all the powers granted to the United States, it will be proper to look to those remaining to the States. It is by fixing the great powers which are admitted to belong to each government that we may hope to come to a right conclusion respecting those in controversy between them. In regard to the National Government, this task was easy because its powers were to be found in specific grants in the Constitution; but it is more difficult to give a detail of the powers of the State governments, as their constitutions, containing all powers granted by the people not specifically taken from them by grants to the United States, can not well be enumerated. Fortunately, a precise detail of all the powers remaining to the State governments is not necessary in the present instance. A knowledge of their great powers only will answer every purpose contemplated, and respecting these there can be no diversity in opinion. They are sufficiently recognized and established by the Constitution of the United States itself. In designating the important powers of the State governments it is proper to observe, first, that the territory contemplated by the Constitution belongs to each State in its separate character and not to the United States in their aggregate character. Bach State holds territory according to its original charter, except in cases where cessions have been made to the United States by individual States. The United States had none when the Constitution was adopted which had not been thus ceded to them and which they held on the conditions on which such cession had been made. Within the individual States it is believed that they held not a single acre; but if they did it was as citizens held it, merely as private property. The territory acquired by cession lying without the individual States rests on a different principle, and is provided for by a separate and distinct part of the Constitution. It is the territory within the individual States to which the Constitution in its great principles applies, and it applies to such territory as the territory of a State and not as that of the United States. The next circumstance to be attended to is that the people composing this Union are the people of the several States, and not of the United States in the full sense of a consolidated government. The militia are the militia of the several States; lands are held under the laws of the States; descents, contracts, and all the concerns of private property, the administration of justice, and the whole criminal code, except in the cases of breaches of the laws of the United States made under and in conformity with the powers vested in Congress and of the laws of nations, are regulated by State laws. This enumeration shows the great extent of the powers of the State governments. The territory and the people form the basis on which all governments are founded. The militia constitutes their effective force. The regulation and protection of property and of personal liberty are also among the highest attributes of sovereignty. This, without other evidence, is sufficient to show that the great office of the Constitution of the United States is to unite the States together under a Government endowed with powers adequate to the purposes of its institution, relating, directly or indirectly, to foreign concerns, to the discharge of which a National Government thus formed alone could be competent.

This view of the exclusive jurisdiction of the several States over the territory within their respective limits, except in cases otherwise specially provided for, is supported by the obvious intent of the several powers granted to Congress, to which a more particular attention is now due. Of these the right to declare war is perhaps the most important, as well by the consequences attending war as by the other powers granted in aid of it. The right to lay taxes, duties, imposts, and excises, though necessary for the support of the civil government, is equally necessary to sustain the charges of war; the right to raise and support armies and a navy and to call forth and govern the militia when in the service of the United States are altogether of the latter kind. They are granted in aid of the power to make war and intended to give effect to it. These several powers are of great force and extent, and operate more directly within the limits and upon the resources of the States than any of the other powers. But still they are means only for given ends. War is declared and must be maintained, an army and a navy must be raised, fortifications must be erected for the common defense, debts must be paid, For these purposes duties, imposts, and excises are levied, taxes are laid, the lands, merchandise, and other property of the citizens are liable for them; if the money is not paid, seizures are made and the lands are sold. The transaction is terminated; the lands pass into other hands, who hold them, as the former proprietors did, under the laws of the individual States. They were means only to certain ends; the United States have nothing further to do with them. The same view is applicable to the power of the General Government over persons. The militia is called into the service of the United States; the service is performed; the corps returns to the State to which it belongs; it is the militia of such State, and not of the United States. Soldiers are required for the Army, who may be obtained by voluntary enlistment or by some other process founded in the principles of equality. In either case the citizen after the tour of duty is performed is restored to his former station in society, with his equal share in the common sovereignty of the nation. In all these cases, which are the strongest which can be given, we see that the right of the General Government is nothing more than what it is called in the Constitution, a power to perform certain acts, and that the subject on which it operates is a means only to that end; that it was both before and after that act under the protection and subject to the laws of the individual State within which it was.

To the other powers of the General Government the same remarks are applicable and with greater force. The right to regulate commerce with foreign powers was necessary as well to enable Congress to lay and collect duties and imposts as to support the rights of the nation in the intercourse with foreign powers. It is executed at the ports of the several States and operates almost altogether externally. The right to borrow and coin money and to fix its value and that of foreign coin are important to the establishment of a National Government, and particularly necessary in support of the right to declare war, as, indeed, may be considered the right to punish piracy and felonies on the high seas and offenses against the laws of nations. The right to establish an uniform rule of naturalization and uniform laws respecting bankruptcies seems to be essentially connected with the right to regulate commerce. The first branch of it relates to foreigners entering the country; the second to merchants who have failed. The right to promote the progress of useful arts and sciences may be executed without touching any of the individual States. It is accomplished by granting patents to inventors and preserving models, which may be done exclusively within the Federal district. The right to constitute courts inferior to the Supreme Court was a necessary consequence of the judiciary existing as a separate branch of the General Government. Without such inferior court in every State it would be difficult and might even be impossible to carry into effect the laws of the General Government. The right to establish post-offices and post-roads is essentially of the same character. For political, commercial, and social purposes it was important that it should be vested in the General Government. As a mere matter of regulation, and nothing more, I presume, was intended by it, it is a power easily executed and involving little authority within the States individually. The right to exercise exclusive legislation in all cases whatsoever over the Federal district and over forts, magazines, arsenals, dockyards, and other needful buildings with the consent of the State within which the same may be is a power of a peculiar character, and is sufficient in itself to confirm what has been said of all the other powers of the General Government. Of this particular grant further notice will hereafter be taken.

I shall conclude my remarks on this part of the subject by observing that the view which has been presented of the powers and character of the two Governments is supported by the marked difference which is observable in the manner of their endowment. The State governments are divided into three branches—a legislative, executive, and judiciary—and the appropriate duties of each assigned to it without any limitation of power except such as is-necessary to guard against abuse, in the form of bills of right. But in instituting the National Government an entirely different principle was adopted and pursued. The Government itself is organized, like the State governments, into three branches, but its powers are enumerated and defined in the most precise form. The subject has already been too fully explained to require illustration by a general view of the whole Constitution, every part of which affords proof of what is here advanced. It will be sufficient to advert to the eighth section of the first article, being that more particularly which defines the powers and fixes the character of the Government of the United States. By this section it is declared that Congress shall have power, first, to lay and collect taxes, duties, imposts, and excises, etc.

Having shown the origin of the State governments and their endowments when first formed; having also shown the origin of the National Government and the powers vested in it, and having shown, lastly, the powers which are admitted to have remained to the State governments after those which were taken from them by the National Government, I will now proceed to examine whether the power to adopt and execute a system of internal improvement by roads and canals has been vested in the United States.

Before we can determine whether this power has been granted to the General Government it will be necessary to ascertain distinctly the nature and extent of the power requisite to make such improvements. When that is done we shall be able to decide whether such power is vested in the National Government.

If the power existed it would, it is presumed, be executed by a board of skillful engineers, on a view of the whole Union, on a plan which would secure complete effect to all the great purposes of our Constitution. It is not my intention, however, to take up the subject here on this scale. I shall state a case for the purpose of illustration only. Let it be supposed that Congress intended to run a road from the city of Washington to Baltimore and to connect the Chesapeake Bay with the Delaware and the Delaware with the Raritan by a canal, what must be done to carry the project into effect? I make here no question of the existing power. I speak only of the power necessary for the purpose. Commissioners would be appointed to trace a route in the most direct line, paying due regard to heights, water courses, and other obstacles, and to acquire the right to the ground over which the road and canal would pass, with sufficient breadth for each. This must be done by voluntary grants, or by purchases from individuals, or, in case they would not sell or should ask an exorbitant price, by condemning the property and fixing its value by a jury of the vicinage. The next object to be attended to after the road and canal are laid out and made is to keep them in repair. We know that there are people in every community capable of committing voluntary injuries, of pulling down walls that are made to sustain the road, of breaking the bridges over water courses, and breaking the road itself. Some living near it might be disappointed that it did not pass through their lands and commit these acts of violence and waste from revenge or in the hope of giving it that direction, though for a short time. Injuries of this kind have been committed and are still complained of on the road from Cumberland to the Ohio. To accomplish this object Congress should have a right to pass laws to punish offenders wherever they may be found. Jurisdiction over the road would not be sufficient, though it were exclusive. It would seldom happen that the parties would be detected in the act. They would generally commit it in the night and fly far off before the sun appeared. The power to punish these culprits must therefore reach them wherever they go. They must also be amenable to competent tribunals, Federal or State. The power must likewise extend to another object not less essential or important than those already mentioned. Experience has shown that the establishment of turnpikes, with gates and tolls and persons to collect the tolls, is the best expedient that can be adopted to defray the expense of these improvements and the repairs which they necessarily require. Congress must therefore have power to make such an establishment and to support it by such regulations, with fines and penalties in the case of injuries, as may be competent to the purpose. The right must extend to all those objects, or it will be utterly incompetent. It is possessed and exercised by the States individually, and it must be possessed by the United States or the pretension must be abandoned.

Let it be further supposed that Congress, believing that they do possess the power, have passed an act for those purposes, under which commissioners have been appointed, who have begun the work. They are met at the first farm on which they enter by the owner, who forbids them to trespass on his land. They offer to buy it at a fair price or at twice or thrice its value. He persists in his refusal. Can they, on the principle recognized and acted on by all the State governments that in cases of this kind the obstinacy and perverseness of an individual must yield to the public welfare, summon a jury of upright and discreet men to condemn the land, value it, and compel the owner to receive the amount and to deliver it up to them? I believe that very few would concur in the opinion that such a power exists.

The next object is to preserve these improvements from injury. The locks of the canal are broken, the walls which sustained the road are pulled down, the bridges are broken, the road itself is plowed up, toll is refused to be paid, the gates of the canal or turnpike are forced. The offenders are pursued, caught, and brought to trial. Can they be punished? The question of right must be decided on principle. The culprits will avail themselves of every barrier that may serve to screen them from punishment. They will plead that the law under which they stand arraigned is unconstitutional, and that question must be decided by the court, whether Federal or State, on a fair investigation of the powers vested in the General Government by the Constitution. If the judges find that these powers have not been granted to Congress, the prisoners must be acquitted, and by their acquittal all claim to the right to establish such a system is at an end.

I have supposed an opposition to be made to the right in Congress by the owner of the land and other individuals charged with breaches of laws made to protect the works from injury, because it is the mildest form in which it can present itself. It is not, however, the only one. A State, also, may contest the right, and then the controversy assumes another character. Government might contend against government, for to a certain extent both the Governments are sovereign and independent of each other, and in that form it is possible, though not probable, that opposition might be made. To each limitations are prescribed, and should a contest rise between them respecting their rights and the people sustain it with anything like an equal division of numbers the worst consequences might ensue.

It may be urged that the opposition suggested by the owner of the land or by the States individually may be avoided by a satisfactory arrangement with the parties. But a suppression of opposition in that way is no proof of a right in Congress, nor could it, if confined to that limit, remove all the impediments to the exercise of the power. It is not sufficient that Congress may by the command and application of the public revenue purchase the soil, and thus silence that class of individuals, or by the accommodation afforded to individual States put down opposition on their part. Congress must be able rightfully to control all opposition or they can not carry the system into effect. Cases would inevitably occur to put the right to the test. The work must be preserved from injury, tolls must be collected, offenders must be punished. With these culprits no bargain can be made. When brought to trial they must deny the validity of the law, and that plea being sustained all claim to the right ceases.

If the United States possess this power, it must be either because it has been specifically granted or that it is incidental and necessary to carry into effect some specific grant. The advocates for the power derive it from the following sources: First, the right to establish post-offices and post-roads; second, to declare war; third, to regulate commerce among the several States; fourth, from the power to pay the debts and provide for the common defense and general welfare of the United States; fifth, from the power to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the Government of the United States or in any department or officer thereof; sixth and lastly, from the power to dispose of and make all needful rules and regulations respecting the territory and other property of the United States. It is to be observed that there is but little accord among the advocates for this power as to the particular source from whence it is derived. They all agree, however, in ascribing it to some one or more of those above mentioned. I will examine the ground of the claim in each instance.

The first of these grants is in the following words: "Congress shall have power to establish post-offices and post-roads." What is the just import of these words and the extent of the grant? The word "establish" is the ruling term; "post-offices and post-roads" are the subjects on which it acts. The question therefore is, What power is granted by that word? The sense in which words are commonly used is that in which they are to be understood in all transactions between public bodies and individuals. The intention of the parties is to prevail, and there is no better way of ascertaining it than by giving to the terms used their ordinary import. If we were to ask any number of our most enlightened citizens, who had no connection with public affairs and whose minds were unprejudiced, what was the import of the word "establish" and the extent of the grant which it controls, we do not think there would be any difference of opinion among them. We are satisfied that all of them would answer that a power was thereby given to Congress to fix on the towns, court-houses, and other places throughout our Union at which there should be post-offices, the routes by which the mails should be carried from one post-office to another, so as to diffuse intelligence as extensively and to make the institution as useful as possible, to fix the postage to be paid on every letter and packet thus carried, to support the establishment, and to protect the post-office and mails from robbery by punishing those who should commit the offense. The idea of a right to lay off the roads of the United States on a general scale of improvement, to take the soil from the proprietor by force, to establish turnpikes and tolls, and to punish offenders in the manner stated above would never occur to any such person. The use of the existing road by the stage, mail carrier, or postboy in passing over it as others do is all that would be thought of, the jurisdiction and soil remaining to the State, with a right in the State or those authorized by its legislature to change the road at pleasure.

The intention of the parties is supported by other proof, which ought to place it beyond all doubt. In the former act of Government, the Confederation, we find a grant for the same purpose expressed in the following words: "The United States in Congress assembled shall have the sole and exclusive right and power of establishing and regulating post-offices from one State to another throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office." The term "establish" was likewise the ruling one in that instrument, and was evidently intended and understood to give a power simply and solely to fix where there should be post-offices. By transferring this term from the Confederation into the Constitution it was doubtless intended that it should be understood in the same sense in the latter that it was in the former instrument, and to be applied alike to post-offices and post-roads. In whatever sense it is applied to post-offices it must be applied in the same sense to post-roads. But it may be asked, If such was the intention, why were not all the other terms of the grant transferred with it? The reason is obvious. The Confederation being a bond of union between independent States, it was necessary in granting the powers which were to be exercised over them to be very explicit and minute in defining the powers granted. But the Constitution to the extent of its powers having incorporated the States into one Government like the government of the States individually, fewer words in defining the powers granted by it were not only adequate, but perhaps better adapted to the purpose. We find that brevity is a characteristic of the instrument. Had it been intended to convey a more enlarged power in the Constitution than had been granted in the Confederation, surely the same controlling term would not have been used, or other words would have been added, to show such intention and to mark the extent to which the power should be carried. It is a liberal construction of the powers granted in the Constitution by this term to include in it all the powers that were granted in the Confederation by terms which specifically defined and, as was supposed, extended their limits. It would be absurd to say that by omitting from the Constitution any portion of the phraseology which was deemed important in the Confederation the import of that term was enlarged, and with it the powers of the Constitution, in a proportional degree, beyond what they were in the Confederation. The right to exact postage and to protect the post-offices and mails from robbery by punishing the offenders may fairly be considered as incidents to the grant, since without it the object of the grant might be defeated. Whatever is absolutely necessary to the accomplishment of the object of the grant, though not specified, may fairly be considered as included in it. Beyond this the doctrine of incidental power can not be carried.

If we go back to the origin of our settlements and institutions and trace their progress down to the Revolution, we shall see that it was in this sense, and in none other, that the power was exercised by all our colonial governments. Post-offices were made for the country, and not the country for them. They are the offspring of improvement; they never go before it. Settlements are first made, after which the progress is uniform and simple, extending to objects in regular order most necessary to the comfort of man—schools, places of public worship, court-houses, and markets; post-offices follow. Roads may, indeed, be said to be coeval with settlements; they lead to all the places mentioned, and to every other which the various and complicated interests of society require.

It is believed that not one example can be given, from the first settlement of our country to the adoption of this Constitution, of a post-office being established without a view to existing roads or of a single road having been made by pavement, turnpike, etc., for the sole purpose of accommodating a post-office. Such, too, is the uniform progress of all societies. In granting, then, this power to the United States it was undoubtedly intended by the framers and ratifiers of the Constitution to convey it in the sense and extent only in which it had been understood and exercised by the previous authorities of the country.

This conclusion is confirmed by the object of the grant and the manner of its execution. The object is the transportation of the mail throughout the United States, which may be done on horseback, and was so done until lately, since the establishment of stages. Between the great towns and in other places where the population is dense stages are preferred because they afford an additional opportunity to make a profit from passengers; but where the population is sparse and on crossroads it is generally carried on horseback. Unconnected with passengers and other objects, it can not be doubted that the mail itself may be carried in every part of our Union with nearly as much economy and greater dispatch on horseback than in a stage, and in many parts with much greater. In every part of the Union in which stages can be preferred the roads are sufficiently good provided those which serve for every other purpose will accommodate them. In every other part where horses alone are used if other people pass them on horseback surely the mail carrier can. For an object so simple and so easy in its execution it would doubtless excite surprise if it should be thought proper to appoint commissioners to lay off the country on a great scheme of improvement, with the power to shorten distances, reduce heights, level mountains, and pave surfaces.

If the United States possessed the power contended for under this grant, might they not in adopting the roads of the individual States for the carriage of the mail, as has been done, assume jurisdiction over them and preclude a right to interfere with or alter them? Might they not establish turnpikes and exercise all the other acts of sovereignty above stated over such roads necessary to protect them from injury and defray the expense of repairing them? Surely if the right exists these consequences necessarily followed as soon as the road was established. The absurdity of such a pretension must be apparent to all who examine it. In this way a large portion of the territory of every State might be taken from it, for there is scarcely a road in any State which will not be used for the transportation of the mail. A new field for legislation and internal government would thus be opened.

From this view of the subject I think we may fairly conclude that the right to adopt and execute a system of internal improvement, or any part of it, has not been granted to Congress under the power to establish post-offices and post-roads; that the common roads of the country only were contemplated by that grant and are fully competent to all its purposes.

The next object of inquiry is whether the right to declare war includes the right to adopt and execute this system of improvement. The objections to it are, I presume, not less conclusive than those which are applicable to the grant which we have just examined.

Under the last-mentioned grant a claim has been set up to as much of that system as relates to roads. Under this it extends alike to roads and canals.

We must examine this grant by the same rules of construction that were applied to the preceding one. The object was to take this power from the individual States and to vest it in the General Government. This has been done in clear and explicit terms, first by granting the power to Congress, and secondly by prohibiting the exercise of it by the States. "Congress shall have a right to declare war." This is the language of the grant. If the right to adopt and execute this system of improvement is included in it, it must be by way of incident only, since there is nothing in the grant itself which bears any relation to roads and canals. The following considerations, it is presumed, prove incontestably that this power has not been granted in that or any other manner.

The United States are exposed to invasion through the whole extent of their Atlantic coast by any European power with whom we might be engaged in war—on the northern and northwestern frontier on the side of Canada by Great Britain, and on the southern by Spain or any power in alliance with her. If internal improvements are to be carried to the full extent to which they may be useful for military purposes, the power as it exists must apply to all the roads of the Union, there being no limitation to it. Wherever such improvements may facilitate the march of troops, the transportation of cannon, or otherwise aid the operations or mitigate the calamities of war along the coast or in any part of the interior they would be useful for military purposes, and might therefore be made. The power following as an incident to another power can be measured as to its extent by reference only to the obvious extent of the power to which it is incidental. So great a scope was, it is believed, never given to incidental power.

If it had been intended that the right to declare war should include all the powers necessary to maintain war, it would follow that nothing would have been done to impair the right or to restrain Congress from the exercise of any power which the exigencies of war might require. The nature and extent of this exigency would mark the extent of the power granted, which should always be construed liberally, so as to be adequate to the end. A right to raise money by taxes, duties, excises, and by loan, to raise and support armies and a navy, to provide for calling forth, arming, disciplining, and governing the militia when in the service of the United States, establishing fortifications and governing the troops stationed in them independently of the State authorities, and to perform many other acts is indispensable to the maintenance of war—no war with any great power can be prosecuted with success without the command of the resources of the Union in all these respects. These powers, then, would of necessity and by common consent have fallen within the right to declare war had it been intended to convey by way of incident to that right the necessary powers to maintain war. But these powers have all been granted specifically with many others, in great detail, which experience had shown were necessary for the purposes of war. By specifically granting, then, these powers it is manifest that every power was thus granted which it was intended to grant for military purposes, and that it was also intended that no important power should be included in this grant by way of incident, however useful it might be for some of the purposes of the grant.

By the sixteenth of the enumerated powers, Article I, section 8, Congress are authorized to exercise exclusive legislation in all cases whatever over such district as may by cession of particular States and the acceptance of Congress, not exceeding 10 miles square, become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other useful buildings. If any doubt existed on a view of other parts of the Constitution respecting the decision which ought to be formed on the question under consideration, I should suppose that this clause would completely remove it. It has been shown after the most liberal construction of all the enumerated powers of the General Government that the territory within the limits of the respective States belonged to them; that the United States had no right under the powers granted to them, with the exception specified in this grant, to any the smallest portion of territory within a State, all those powers operating on a different principle and having their full effect without impairing in the slightest degree this right in the States; that those powers were in every instance means to ends, which being accomplished left the subject—that is, the property, in which light only land could be regarded—where it was before, under the jurisdiction and subject to the laws of the State governments.

The second number of the clause, which is applicable to military and naval purposes alone, claims particular attention here. It fully confirms the view taken of the other enumerated powers, for had it been intended to include in the right to declare war, by way of incident, any right of jurisdiction or legislation over territory within a State, it would have been done as to fortifications, magazines, arsenals, dockyards, and other needful buildings. By specifically granting the right as to such small portions of territory as might be necessary for these purposes and on certain conditions, minutely and well defined, it is manifest that it was not intended to grant it as to any other portion on any condition for any purpose or in any manner whatsoever.

It may be said that although the authority to exercise exclusive legislation in certain cases within the States with their consent may be considered as a prohibition to Congress to exercise like exclusive legislation in any other case, although their consent should be granted, it does not prohibit the exercise of such jurisdiction or power within a State as would be competent to all the purposes of internal improvement. I can conceive no ground on which the idea of such a power over any part of the territory of a State can be inferred from the power to declare war. There never can be an occasion for jurisdiction for military purposes except in fortifications, dockyards, and the like places. If the soldiers are in the field or are quartered in garrisons without the fortifications, the civil authority must prevail where they are. The government of the troops by martial law is not affected by it. In war, when the forces are increased and the movement is on a greater scale, consequences follow which are inseparable from the exigencies of the state. More freedom of action and a wider range of power in the military commanders, to be exercised on their own responsibility, may be necessary to the public safety; but even here the civil authority of the State never ceases to operate. It is also exclusive for all civil purposes.

Whether any power short of that stated would be adequate to the purposes of internal improvement is denied. In the case of territory one government must prevail for all the purposes intended by the grant. The jurisdiction of the United States might be modified in such manner as to admit that of the State in all cases and for all purposes not necessary to the execution of the proposed power; but the right of the General Government must be complete for all the purposes above stated. It must extend to the seizure and condemnation of the property, if necessary; to the punishment of offenders for injuries to the roads and canals; to the establishment and enforcement of tolls, etc. It must be a complete right to the extent above stated or it will be of no avail. That right does not exist.

The reasons which operate in favor of the right of exclusive legislation in forts, dockyards, etc., do not apply to any other places. The safety of such works and of the cities which they are intended to defend, and even of whole communities, may sometimes depend on it. If spies are admitted within them in time of war, they might communicate intelligence to the enemy which might be fatal. All nations surround such works with high walls and keep their gates shut. Even here, however, three important conditions are indispensable to such exclusive legislation: First, the ground must be requisite for and be applied to those purposes; second, it must be purchased; third, it must be purchased by the consent of the State in which it may be. When we find that so much care has been taken to protect the sovereignty of the States over the territory within their respective limits, admitting that of the United States over such small portions and for such special and important purposes only, the conclusion is irresistible not only that the power necessary for internal improvements has not been granted, but that it has been clearly prohibited.

I come next to the right to regulate commerce, the third source from whence the right to make internal improvements is claimed. It is expressed in the following words: "Congress shall have power to regulate commerce with foreign nations and among the several States and with the Indian tribes." The reasoning applicable to the preceding claims is equally so to this. The mischief complained of was that this power could not be exercised with advantage by the individual States, and the object was to transfer it to the United States. The sense in which the power was understood and exercised by the States was doubtless that in which it was transferred to the United States. The policy was the same as to three branches of this grant, and it is scarcely possible to separate the two first from each other in any view which may be taken of the subject. The last, relating to the Indian tribes, is of a nature distinct from the others for reasons too well known to require explanation. Commerce between independent powers or communities is universally regulated by duties and imposts. It was so regulated by the States before the adoption of this Constitution equally in respect to each other and to foreign powers. The goods and vessels employed in the trade are the only subjects of regulation. It can act on none other. A power, then, to impose such duties and imposts in regard to foreign nations and to prevent any on the trade between the States was the only power granted.

If we recur to the causes which produced the adoption of this Constitution, we shall find that injuries resulting from the regulation of trade by the States respectively and the advantages anticipated from the transfer of the power to Congress were among those which had the most weight. Instead of acting as a nation in regard to foreign powers, the States individually had commenced a system of restraint on each other whereby the interests of foreign powers were promoted at their expense. If one State imposed high duties on the goods or vessels of a foreign power to countervail the regulations of such power, the next adjoining States imposed lighter duties to invite those articles into their ports, that they might be transferred thence into the other States, securing the duties to themselves. This contracted policy in some of the States was soon counteracted by others. Restraints were immediately laid on such commerce by the suffering States, and thus had grown up a state of affairs disorderly and unnatural, the tendency of which was to destroy the Union itself and with it all hope of realizing those blessings which we had anticipated from the glorious Revolution which had been so recently achieved. From this deplorable dilemma, or, rather, certain ruin, we were happily rescued by the adoption of the Constitution.

Among the first and most important effects of this great Revolution was the complete abolition of this pernicious policy. The States were brought together by the Constitution as to commerce into one community equally in regard to foreign nations and each other. The regulations that were adopted regarded us in both respects as one people. The duties and imposts that were laid on the vessels and merchandise of foreign nations were all uniform throughout the United States, and in the intercourse between the States themselves no duties of any kind were imposed other than between different ports and counties within the same State.

This view is supported by a series of measures, all of a marked character, preceding the adoption of the Constitution. As early as the year 1781 Congress recommended it to the States to vest in the United States a power to levy a duty of 5 per cent on all goods imported from foreign countries into the United States for the term of fifteen years. In 1783 this recommendation, with alterations as to the kind of duties and an extension of this term to twenty-five years, was repeated and more earnestly urged. In 1784 it was recommended to the States to authorize Congress to prohibit, under certain modifications, the importation of goods from foreign powers into the United States for fifteen years. In 1785 the consideration of the subject was resumed, and a proposition presented in a new form, with an address to the States, explaining fully the principles on which a grant of the power to regulate trade was deemed indispensable. In 1786 a meeting took place at Annapolis of delegates from several of the States on this subject, and on their report a convention was formed at Philadelphia the ensuing year from all the States, to whose deliberations we are indebted for the present Constitution.

In none of these measures was the subject of internal improvement mentioned or even glanced at. Those of 1784, 1785, 1786, and 1787, leading step by step to the adoption of the Constitution, had in view only the obtaining of a power to enable Congress to regulate trade with foreign powers. It is manifest that the regulation of trade with the several States was altogether a secondary object, suggested by and adopted in connection with the other. If the power necessary to this system of improvement is included under either branch of this grant, I should suppose that it was the first rather than the second. The pretension to it, however, under that branch has never been set up. In support of the claim under the second no reason has been assigned which appears to have the least weight.

The fourth claim is founded on the right of Congress to "pay the debts and provide for the common defense and general welfare" of the United States. This claim has less reason on its side than either of those which we have already examined. The power of which this forms a part is expressed in the following words: "Congress shall have power to lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States." That the second part of this grant gives a right to appropriate the public money, and nothing more, is evident from the following considerations: First. If the right of appropriation is not given by this clause, it is not given at all, there being no other grant in the Constitution which gives it directly or which has any bearing on the subject, even by implication, except the two following: First, the prohibition, which is contained in the eleventh of the enumerated powers, not to appropriate money for the support of armies for a longer term than two years; and, second, the declaration of the sixth member or clause of the ninth section of the first article that no money shall be drawn from the Treasury but in consequence of appropriations made by law. Second. This part of the grant has none of the characteristics of a distinct and original power. It is manifestly incidental to the great objects of the first part of the grant, which authorizes Congress to lay and collect taxes, duties, imposts, and excises, a power of vast extent, not granted by the Confederation, the grant of which formed one of the principal inducements to the adoption of this Constitution. If both parts of the grant are taken together (as they must be, for the one follows immediately after the other in the same sentence), it seems to be impossible to give to the latter any other construction than that contended for. Congress shall have power to lay and collect taxes, duties, imposts, and excises. For what purpose? To pay the debts and provide for the common defense and general welfare of the United States, an arrangement and phraseology which clearly show that the latter part of the clause was intended to enumerate the purposes to which the money thus raised might be appropriated. Third. If this is not the real object and fair construction of the second part of this grant, it follows either that it has no import or operation whatever or one of much greater extent than the first part. This presumption is evidently groundless in both instances. In the first because no part of the Constitution can be considered useless; no sentence or clause in it without a meaning. In the second because such a construction as made the second part of the clause an original grant, embracing the same object with the first, but with much greater power than it, would be in the highest degree absurd. The order generally observed in grants, an order founded in common sense, since it promotes a clear understanding of their import, is to grant the power intended to be conveyed in the most full and explicit manner, and then to explain or qualify it, if explanation or qualification should be necessary. This order has, it is believed, been invariably observed in all the grants contained in the Constitution. In the second because if the clause in question is not construed merely as an authority to appropriate the public money, it must be obvious that it conveys a power of indefinite and unlimited extent; that there would have been no use for the special powers to raise and support armies and a navy, to regulate commerce, to call forth the militia, or even to lay and collect taxes, duties, imposts, and excises. An unqualified power to pay the debts and provide for the common defense and general welfare, as the second part of this clause would be if considered as a distinct and separate grant, would extend to every object in which the public could be interested. A power to provide for the common defense would give to Congress the command of the whole force and of all the resources of the Union; but a right to provide for the general welfare would go much further. It would, in effect, break down all the barriers between the States and the General Government and consolidate the whole under the latter.

The powers specifically granted to Congress are what are called the enumerated powers, and are numbered in the order in which they stand, among which that contained in the first clause holds the first place in point of importance. If the power created by the latter part of the clause is considered an original grant, unconnected with and independent of the first, as in that case it must be, then the first part is entirely done away, as are all the other grants in the Constitution, being completely absorbed in the transcendent power granted in the latter part; but if the clause be construed in the sense contended for, then every part has an important meaning and effect; not a line, a word, in it is superfluous. A power to lay and collect taxes, duties, imposts, and excises subjects to the call of Congress every branch of the public revenue, internal and external, and the addition to pay the debts and provide for the common defense and general welfare gives the right of applying the money raised—that is, of appropriating it to the purposes specified according to a proper construction of the terms. Hence it follows that it is the first part of the clause only which gives a power which affects in any manner the power remaining to the States, as the power to raise money from the people, whether it be by taxes, duties, imposts, or excises, though concurrent in the States as to taxes and excises must necessarily do. But the use or application of the money after it is raised is a power altogether of a different character. It imposes no burden on the people, nor can it act on them in a sense to take power from the States or in any sense in which power can be controverted, or become a question between the two Governments. The application of money raised under a lawful power is a right or grant which may be abused. It may be applied partially among the States, or to improper purposes in our foreign and domestic concerns; but still it is a power not felt in the sense of other power, since the only complaint which any State can make of such partiality and abuse is that some other State or States have obtained greater benefit from the application than by a just rule of apportionment they were entitled to. The right of appropriation is therefore from its nature secondary and incidental to the right of raising money, and it was proper to place it in the same grant and same clause with that right. By rinding them, then, in that order we see a new proof of the sense in which the grant was made, corresponding with the view herein taken of it.

The last part of this grant, which provides that all duties, imposts, and excises shall be uniform throughout the United States, furnishes another strong proof that it was not intended that the second part should constitute a distinct grant in the sense above stated, or convey any other right than that of appropriation. This provision operates exclusively on the power granted in the first part of the clause. It recites three branches of that power—duties, imposts, and excises—those only on which it could operate, the rule by which the fourth—that is, taxes—should be laid being already provided for in another part of the Constitution. The object of this provision is to secure a just equality among the States in the exercise of that power by Congress. By placing it after both the grants—that is, after that to raise and that to appropriate the public money—and making it apply to the first only it shows that it was not intended that the power granted in the second should be paramount to and destroy that granted in the first. It shows also that no such formidable power as that suggested had been granted in the second, or any power against the abuse of which it was thought necessary specially to provide. Surely if it was deemed proper to guard a specific power of limited extent and well-known import against injustice and abuse, it would have been much more so to have guarded against the abuse of a power of such vast extent and so indefinite as would have been granted by the second part of the clause if considered as a distinct and original grant.

With this construction all the other enumerated grants, and, indeed, all the grants of power contained in the Constitution, have their full operation and effect. They all stand well together, fulfilling the great purposes intended by them. Under it we behold a great scheme, consistent in all its parts, a Government instituted for national purposes, vested with adequate powers for those purposes, commencing with the most important of all, that of the revenue, and proceeding in regular order to the others with which it was deemed proper to endow it, all, too, drawn with the utmost circumspection and care. How much more consistent is this construction with the great objects of the institution and with the high character of the enlightened and patriotic citizens who framed it, as well as of those who ratified it, than one which subverts every sound principle and rule of construction and throws everything into confusion.

I have dwelt thus long on this part of the subject from an earnest desire to fix in a clear and satisfactory manner the import of the second part of this grant, well knowing from the generality of the terms used their tendency to lead into error. I indulge a strong hope that the view herein presented will not be without effect, but will tend to satisfy the unprejudiced and impartial that nothing more was granted by that part than a power to appropriate the public money raised under the other part. To what extent that power may be carried will be the next object of inquiry.