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the question of the constitutionality of the law ened citizens, who had no connection with pubmay be raised by the prosecuted party. But op- lic affairs, and whose minds were unprejudiced, position might not stop with individuals. States what was the meaning of the word “establish," might contest the right of the federal govern- and the extent of the grant it controls, and there ment thus to possess and to manage all the great would not be a difference of opinion among roads and canals within their limits; and then a them. They would answer that it was a power collision would be brought on between two gov- given to Congress to legalize existing roads as ernments, each claiming to be sovereign and in- post routes, and existing places as post-offices, dependent in its actions over the subject in dis- to fix on the towns, court-houses, and other pute.
places throughout the Union, at which there Thus did Mr. Monroe state the question in its should be post-offices; the routes by which the practical bearings, traced to their legitimate re- mails should be carried; to fix the postages to sults, and the various assumptions of power, and be paid ; and to protect the post-offices and mails difficulties with States or individuals which they from robbery, by punishing those who commit involved; and the bare statement which he the offence. The idea of a right to lay off roads made—the bare presentation of the practical to take the soil from the proprietor against working of the system, constituted a complete his will; to establish turnpikes and tolls; to argument against it, as an invasion of State establish a criminal code for the punishment rights, and therefore unconsittutional, and, he of injuries to the road; to do what the protection might have added, as complex and unmanage- and repair of a road requires : these are things able by the federal government, and therefore which would never enter into his head. The use inexpedient. But, after stating the question, he of the existing road would be all that would be examined it under every head of constitutional thought of; the jurisdiction and soil remaining derivation under which its advocates claimed the in the State, or in those authorized by its legispower, and found it to be granted by no one of lature to change the road at pleasure. them, and virtually prohibited by some of them.
2. The war power.
Mr. Monroe shows the These were, first, the right to establish post object of this grant of power to the federal govoffices and post-roads; second, to declare war; ernment—the terms of the grant itself—its inthird, to regulate commerce among the States; cidents as enumerated in the constitution—the fourth, the power to pay the debts and provide exclusion of constructive incidents—and the perfor the common desence and general welfare of vading interference with the soil and jurisdiction the United States; fifth, to make all laws ne- of the States which the assumption of the internal cessary and proper to carry into effect the grant- improvement power by Congress would carry ed (enumerated) powers ; sixth, from the power along with it. He recites the grant of the power to dispose of, and make all needful rules and re- to make war, as given to Congress, and prohigulations respecting the territory or other pro- bited to the States, and enumerates the incidents perty of the United States. Upon this long granted along with it, and necessary to carrying enumeration of these claimed sources of power, on war: which are, to raise money by taxes, Mr. Monroe well remarked that their very mul- duties, excises, and by loans; to raise and suptiplicity was an argument against them, and that port armies and a navy; to provide for calling each one was repudiated by some of the advo- out, arming, disciplining, and governing the milicates for each of the others : that these advocates tia, when in the service of the United States; escould not agree among themselves upon any one tablishing fortifications, and to exercise exclusive single source of the power; and that it was jurisdiction over the places granted by the State sought for from place to place, with an assiduity legislatures for the sites of forts, magazines, arwhich proclaimed its non-existence any where. senals, dock-yards, and other needful buildings. Still he examined each head of derivation in its And having shown this enumeration of incidents, order, and effectually disposed of each in its turn. he very naturally concludes that it is an exclu1. The post-office and post-road grant. The sion of constructive incidents, and especially of word “establish ” was the ruling term: roads one so great in itself, and so much interfering and offices were the subjects on which it was to with the soil and jurisdiction of the States, as the act. And how? Ask any number of enlight- federal exercise of the road-making power would
be. He exhibits the enormity of this interfer- tion, and preservation of the roads. It must be ence by a view of the extensive field over which a complete right, to the extent above stated, or it would operate.
The United States are ex- it will be of no avail. That right does not exist. posed to invasion through the whole extent of 3. The commercial power.
Mr. Monroe artheir Atlantic coast (to which may now be add-gues that the sense in which the power to regued seventeen degrees of the Pacific coast) by late commerce was understood and exercised by any European power with whom we might be the States, was doubtless that in which it was engaged in war: on the northern and north- transferred to the United States; and then shows western frontier, on the side of Canada, by Great that their regulation of commerce was by the Britain, and on the southern by Spain, or any imposition of duties and imposts; and that it was power in alliance with her. If internal im- so regulated by them (before the adoption of the provements are to be carried on to the full constitution), equally in respect to cach other, extent to which they may be useful for military and to foreign powers. The goods, and the vespurposes, the power, as it exists, must apply to sels employed in the trade, are the only subject all the roads of the Union, there being no limita- of regulation. It can act on none other. He tion to it. Wherever such improvements may then shows the evil out of which that grant of facilitate the march of troops, the transportation power grew, and which evil was, in fact, the preof cannon, or otherwise aid the operations, or dominating cause in the call for the convention mitigate the calamities of war along the coast, which framed the federal constitution. Each or in the interior, they would be useful for mili- State had the right to lay duties and imposts, tary purposes, and might therefore be made. and exercised the right on narrow, jealous, and They must be coextensive with the Union. The selfish principles. Instead of acting as a nation power following as an incident to another power in regard to foreign powers, the States, individcan be measured, as to its extent, by reference ually, had commenced a system of restraint upon only to the obvious extent of the power to which each other, whereby the interests of foreign it is incidental. It has been shown, after the powers were promoted at their expense. This most liberal construction of all the enumerated contracted policy in some of the States was powers of the general government, that the ter- counteracted by others. Restraints were immeritory within the limits of the respective States diately laid on such commerce by the suffering belonged to them; that the United States had States; and hence grew up a system of restricno right, under the powers granted to them tions and retaliations, which destroyed the har(with the exceptions specified), to any the mony of the States, and threatened the confederacy smallest portion of territory within a State, all with dissolution. From this evil the new conthose powers operating on a different principle, stitution relieved us; and the federal government, and having their full effect without impairing, in as successors to the States in the power to
reguthe slightest degree, this territorial right in the late commerce, immediately exercised it as they States. By specifically granting the right, as to had done, by laying duties and imposts, to act such small portions of territory as might be ne- upon goods and vessels : and that was the end cessary for these purposes (forts, arsenals, mag- of the power. azines, dock-yards and other needful buildings), 4. To pay the debts and provide for the comand, on certain conditions, minutely and well mon defence and general welfare of the Union. defined, it is manifest that it was not intended to Mr. Monroe considers this “ common defence” grant as to any other portion, for any purpose, and “general welfare " clause no grant or in any manner whatever.
The right of the of power, but, in theinselves, only an object and general government must be complete, if a right end to be attained by the exercise of the enumeat all. It must extend to every thing necessary rated powers. They are found in that sense in to the enjoyment and protection of the right. the preamble to the constitution, in company It must extend to the seizure and condemnation with others, as inducing causes to the formation of the property, if necessary; to the punishment of the instrument, and as benefits to be obtained of the offenders for injuries to the roads and by the powers granted in it. They stand thus in canals; to the establishment and enforcement of the preamble: “In order to form a more perfect tolls; to the unobstructed, construction, protec-union, establish justice, insure domestic tran
quillity, provide for the common defence, promote road runs, by taking the land from the propriethe general welfare, and secure the blessings of tors by force—by passing acts for the protection liberty to ourselves and our posterity, do ordain of the road—or to raise a revenue from it by the and establish this constitution.” These are the establishment of turnpikes and tolls—or any objects to be accomplished, but not by allowing other act founded on the principles of jurisdicCongress to do what it pleased to accomplish tion or right. And I can add, that the bill them (in which case there would have been no passed by Congress, and which received his veto, need for investing it with specific powers), but to died under his veto message, and has never been be accomplished by the exercise of the powers revised, or attempted to be revised, since; and granted in the body of the instrument. Con- the road itself has been abandoned to the States. sidered as a distinct and separate grant, the 5. The power to make all laws which shall be power to provide for the
necessary and proper to carry into effect the and the "general welfare,” or either of them, powers specifically granted to Congress. This would give to Congress the command of the power, as being the one which chiefly gave rise whole force, and of all the resources of the to the latitudinarian constructions which disUnion-absorbing in their transcendental power criminated parties, when parties were founded all other powers, and rendering all the grants upon principle, is closely and clearly examined and restrictions nugatory and vain. The idea of by Mr. Monroe, and shown to be no grant of these words forming an original grant, with un- power at all, nor authorizing Congress to do limited power, superseding every other grant, is any thing which might not have been done with(must be) abandoned. The government of the out it, and only added to the enumerated powers, United States is a limited government, instituted through caution, to secure their complete exefor great national purposes, and for those only. cution. He says: I have always considered this Other interests are left to the States individually, power as having been granted on a principle of whose duty it is to provide for them. Roads greater caution, to secure the complete execuand canals fall into this class, the powers of the tion of all the powers which had been vested in General Government being utterly incompetent the General Government. It contains no distinct to the exercise of the rights which their con- and specific power, as every other grant does, struction, and protection, and preservation re- such as to lay and collect taxes, to declare war, quire. Mr. Monroe examines the instances of to regulate commerce, and the like. Looking to roads made in territories, and through the In- the whole scheme of the General Government, it dian countries, and the one upon Spanish terri- gives to Congress authority to make all laws tory below the 31st degree of north latitude which should be deemed necessary and proper (with the consent of Spain), on the route from for carrying all its powers into effect. My imAthens in Georgia to New Orleans, before we pression has invariably been, that this power acquired the Floridas; and shows that there was would have existed, substantially, if this grant no objection to these territorial roads, being all had not been made. It results, by necessary of them, to the States, ex-territorial. He exam- implication (such is the tenor of the argument), ines the case of the Cumberland road, made from the granted powers, and was only added within the States, and upon compact, but in from caution, and to leave nothing to implicawhich the United States exercised no power, tion. To act under it, it must first be shown founded on any principle of “jurisdiction or that the thing to be done is already specified in right.” He says of it: This road was founded one of the enumerated powers. This is the point on an article of compact between the United and substance of Mr. Monroe's opinion on this States and the State of Ohio, under which that incidental grant, and which has been the source State came into the Union, and by which the ex- of division between parties from the foundation pense attending it was to be defrayed by the ap- of the government—the fountain of latitudiplication of a certain portion of the money aris- nous construction—and which, taking the judging from the sales of the public lands within the ment of Congress as the rule and measure of State. And, in this instance, the United States what was necessary and proper”in legislation, have exercised no act of jurisdiction or sovereign- takes a rule which puts an end to the limitations ty within either of the States through which the of the constitution, refers all the powers of the
body to its own discretion, and becomes as absorb- without application was inoperative, and a balk ing and transcendental in its scope as the “gen- to the whole system. But an act was passed eral welfare ” and “ common defence clauses " soon after for surveys-for making surveys of would be themselves.
routes for roads and canals of general and nation6. The power to dispose of, and make all need- al importance, and the sum of $30,000 was apful rules and regulations respecting the territory propriated for that purpose. The act was as or other property of the United States. This carefully guarded as words could do so, in its clause, as a source of power for making roads limitation to objects of national importance, but and canals within a State, Mr. Monroe disposes only presented another to the innumerable inof summarily, as having no relation whatever to stances of the impotency of words in securing the subject. It grew out of the cessions of ter- the execution of a law. The selection of routes ritory which different States had made to the under the act, rapidly degenerated from national United States, and relates solely to that terri- to sectional, from sectional to local, and from lotory (and to such as has been acquired since the cal to mere neighborhood improvements. Early adoption of the constitution), and which lay in the succeeding administration, a list of some without the limits of a State. Special provision ninety routes were reported to Congress, from was deemed necessary for such territory, the the Engineer Department, in which occurred main powers of the constitution operating inter- names of places hardly heard of before outside nally, not being applicable or adequate thereto; of the State or section in which they were and it follows that this power gives no authority, found. Saugatuck, Amounisuck, Pasumic, Winand has even no bearing on the subject. nispiseogee, Piscataqua, Titonic Falls, Lake Mem
Such was this great state paper, delivered at phramagog, Conneaut Creek, Holmes' Hole, a time when internal improvement by the fede- Lovejoy's Narrows, Steele's Ledge, Cowhegan, ral government, having become an issue in the Androscoggin, Cobbiesconte, Ponceaupechaux, canvass for the Presidency, and ardently advo- alias Soapy Joe, were among the objects which cated by three of the candidates, and qualifiedly figured in the list for national improvement. by two others, had an immense current in its The bare reading of the list was a condemnation favor, carrying many of the old strict constitu- of the act under which they were selected, and tionists along with it. Mr. Monroe stood firm, put an end to the annual appropriations which vetoed the bill which assumed jurisdiction over were in the course of being made for these surthe Cumberland road, and drew up his senti- veys. No appropriation was made after the year ments in full, for the consideration of Congress 1827. Afterwards the veto message of Presiand the country. His argument is abridged dent Jackson put an end to legislation upon and condensed in this view of it; but his posi- local routes, and the progress of events has withtions and conclusions preserved in full, and with drawn the whole subject-the subject of a sysscrupulous correctness. And the whole paper, tem of national internal improvement, once so as an exposition of the differently understood formidable and engrossing in the public mindparts of the constitution, by one among those from the halls of Congress, and the discussions most intimately acquainted with it, and as ap- of the people. Steamboats and steam-cars have plicable to the whole question of constructive superseded turnpikes and canals; individual enpowers, deserves to be read and studied by every terprise has dispensed with national legislation. student of our constitutional law. The only Hardly a great route exists in any State which point at which Mr. Monroe gave way, or yielded is not occupied under State authority. Even in the least, to the temper of the times, was in great works accomplished by Congress, at vast admitting the power of appropriation-the right cost and long and bitter debates in Congress, of Congress to appropriate, but not to apply and deemed eminently national at the time, have money--to internal improvements; and in that lost that character, and sunk into the class of he yielded against his earlier, and, as I believe, common routes. The Cumberland road, which better judgment. He had previously condemned cost $6,670,000 in money, and was a prominent the appropriation as well as the application, but subject in Congress for thirty-four years-from finally yielded on this point to the counsels that 1802, when it was conceived to 1836, when it was beset him; but nugatorially, as appropriation abandoned to the States: this road, once so absorbing both of public money and public atten-, equality with the northern and middle States. tion, has degenerated into a common highway, From the earliest periods of the colonial settleand is entirely superseded by the parallel rail- ments, it had been the policy of the government, road route. The same may be said, in a less de- by successive purchases of their territory, to gree, of the Chesapeake and Ohio canal, once a remove these tribes further and further to the national object of federal legislation intended, as west; and that policy, vigorously pursued after its name imports, to connect the tide water of the war with Great Britain, had made much the Atlantic with the great rivers of the West; progress in freeing several of these States (Kennow a local canal, chiefly used by some com- tucky entirely, and Tennessee almost) from this panies, very beneficial in its place, but sunk from population, which so greatly hindered the expanthe national character which commanded for it sion of their settlements and so much checked the votes of Congress and large appropriations the increase of their growth and strength. Still from the federal treasury. Mr. Monroe was one there remained up to the year 1824—the last of the most cautious and deliberate of our pub- 1 year of Mr. Monroe's administration--large porlic men, thoroughly acquainted with the theory tions of many of these States, and of the terriand the working of the constitution, his opinions tories, in the hands of the Indian tribes; in upon it entitled to great weight; and on this Georgia, nine and a half millions of acres; in point (of internal improvement within the States Alabama, seven and a half millions; in Missisby the federal government) his opinion has be- sippi, fifteen and three quarter millions ; in the come law. But it does not touch the question territory of Florida, four millions; in the terriof improving national rivers or harbors yielding tory of Arkansas, fifteen and a half millions ; revenue-appropriations for the Ohio and Missis- in the State of Missouri, two millions and three sippi and other large streams, being easily had quarters; in Indiana and Illinois, fifteen milwhen unincumbered with local objects, as shown lions; and in Michigan, east of the lake, seven by the appropriation, in a separate bill, in 1821, millions. All these States and territories were of $75,000 for the improvement of these two desirous, and most justly and naturally so, to rivers
, and which was approved and signed by get possession of these vast bodies of land, Mr. Monroe.
generally the best within their limits. Georgia held the United States bound by a compact to relieve her. Justice to the other States and ter
ritories required the same relief; and the appliCHAPTER XI.
cations to the federal government, to which the
right of purchasing Indian lands, even within the GENERAL REMOVAL OF INDIANS.
States, exclusively belonged, were incessant and The Indian tribes in the different sections of the urgent. Piecemeal acquisitions, to end in getUnion, had experienced very different fates—in ting the whole, were the constant effort ; and it the northern and middle States nearly extinct, was evident that the encumbered States and terin the south and west they remained numerous ritories would not, and certainly ought not to be and formidable. Before the war of 1812, with satisfied, until all their soil was open to settleGreat Britain, these southern and western tribes ment, and subject to their jurisdiction. 'To the held vast, compact bodies of land in these Indians themselves it was equally essential to be States, preventing the expansion of the white removed. The contact and pressure of the white settlements within their lim and retaining a race was fatal to them. They had dwindled undangerous neighbor within their borders. The der it, degenerated, become depraved, and whole victories of General Jackson over the Creeks, tribes extinct, or reduced to a few individuals, and the territorial cessions which ensued, made wherever they attempted to remain in the old the first great breach in this vast Indian domain; States; and could look for no other fate in the but much remained to be done to free the south- new ones. ern and western States from a useless and dan- “What,” exclaimed Mr Elliott, senator from gerous population—to give them the use and Georgia, in advocating a system of general rejurisdiction of all the territory within their moval—“what has become of the immense hordes limits, and to place them, in that respect, on an of these people who once occupied the soil of the