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the question of the constitutionality of the lawened 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-officesdependent 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 should be post-offices; the routes by which the mails should be carried; to fix the postages to be paid; and to protect the post-offices and mails from robbery, by punishing those who commit the offence. The idea of a right to lay off roads to take the soil from the proprietor against his will; to establish turnpikes and tolls; to establish a criminal code for the punishment of injuries to the road; to do what the protection and repair of a road requires: these are things which would never enter into his head. The use of the existing road would be all that would be thought of; the jurisdiction and soil remaining in the State, or in those authorized by its legislature to change the road at pleasure.

Thus did Mr. Monroe state the question in its practical bearings, traced to their legitimate results, and the various assumptions of power, and difficulties with States or individuals which they involved; and the bare statement which he made the bare presentation of the practical working of the system, constituted a complete argument against it, as an invasion of State rights, and therefore unconsittutional, and, he might have added, as complex and unmanageable by the federal government, and therefore inexpedient. But, after stating the question, he examined it under every head of constitutional derivation under which its advocates claimed the power, and found it to be granted by no one of them, and virtually prohibited by some of them. These were, first, the right to establish postoffices and post-roads; second, to declare war; third, to regulate commerce among the States; fourth, the power to pay the debts and provide for the common defence and general welfare of the United States; fifth, to make all laws necessary and proper to carry into effect the granted (enumerated) powers; sixth, from the power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States. Upon this long enumeration of these claimed sources of power, Mr. Monroe well remarked that their very multiplicity was an argument against them, and that each one was repudiated by some of the advocates for each of the others: that these advocates could not agree among themselves upon any one single source of the power; and that it was sought for from place to place, with an assiduity which proclaimed its non-existence any where. Still he examined each head of derivation in its order, and effectually disposed of each in its turn. 1. The post-office and post-road grant. The word " "establish 29 was the ruling term: roads and offices were the subjects on which it was to And how? Ask any number of enlight

act.

2. The war power. Mr. Monroe shows the object of this grant of power to the federal government-the terms of the grant itself-its incidents as enumerated in the constitution-the exclusion of constructive incidents-and the pervading interference with the soil and jurisdiction of the States which the assumption of the internal improvement power by Congress would carry along with it. He recites the grant of the power to make war, as given to Congress, and prohibited to the States, and enumerates the incidents granted along with it, and necessary to carrying on war: which are, to raise money by taxes, duties, excises, and by loans; to raise and support armies and a navy; to provide for calling out, arming, disciplining, and governing the militia, when in the service of the United States; establishing fortifications, and to exercise exclusive jurisdiction over the places granted by the State legislatures for the sites of forts, magazines, arsenals, dock-yards, and other needful buildings. And having shown this enumeration of incidents, he very naturally concludes that it is an exclusion of constructive incidents, and especially of one so great in itself, and so much interfering with the soil and jurisdiction of the States, as the federal exercise of the road-making power would

be. He exhibits the enormity of this interference by a view of the extensive field over which it would operate. The United States are exposed to invasion through the whole extent of

tion, and preservation of the roads. It must be a complete right, to the extent above stated, or it will be of no avail. That right does not exist. 3. The commercial power. Mr. Monroe ar

their Atlantic coast (to which may now be add-gues that the sense in which the power to regu

late commerce was understood and exercised by the States, was doubtless that in which it was transferred to the United States; and then shows that their regulation of commerce was by the imposition of duties and imposts; and that it was so regulated by them (before the adoption of the constitution), equally in respect to each other, and to foreign powers. The goods, and the vessels employed in the trade, are the only subject of regulation. It can act on none other. He then shows the evil out of which that grant of power grew, and which evil was, in fact, the predominating cause in the call for the convention which framed the federal constitution.

Each

ed seventeen degrees of the Pacific 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 on 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 the interior, they would be useful for mili-State had the right to lay duties and imposts, tary purposes, and might therefore be made. They must be coextensive with the Union. 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. 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 exceptions specified), 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 territorial right in the States. By specifically granting the right, as to | such small portions of territory as might be necessary for these purposes (forts, arsenals, magazines, 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 it, as to any other portion, for any purpose, and "general welfare " clause as being no grant or in any manner whatever. The right of the of power, but, in themselves, 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

and exercised the right on narrow, jealous, and selfish principles. Instead of acting as a nation in regard to foreign powers, the States, individually, had commenced a system of restraint upon each other, whereby the interests of foreign powers were promoted at their expense. This contracted policy in some of the States was counteracted by others. Restraints were immediately laid on such commerce by the suffering States; and hence grew up a system of restrictions and retaliations, which destroyed the harmony of the States, and threatened the confederacy with dissolution. From this evil the new constitution relieved us; and the federal government, as successors to the States in the power to regulate commerce, immediately exercised it as they had done, by laying duties and imposts, to act upon goods and vessels: and that was the end of the power.

Roads

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 " common defence 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. 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 "general welfare" and "common defence clauses " would be themselves.

6. The power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States. This clause, as a source of power for making roads and canals within a State, Mr. Monroe disposes of summarily, as having no relation whatever to the subject. It grew out of the cessions of territory which different States had made to the United States, and relates solely to that territory (and to such as has been acquired since the adoption of the constitution), and which lay without the limits of a State. Special provision was deemed necessary for such territory, the main powers of the constitution operating internally, not being applicable or adequate thereto; and it follows that this power gives no authority, and has even no bearing on the subject.

to the whole system. But an act was passed soon after for surveys-for making surveys of routes for roads and canals of general and national importance, and the sum of $30,000 was appropriated for that purpose. The act was as carefully guarded as words could do so, in its limitation to objects of national importance, but only presented another to the innumerable instances of the impotency of words in securing the execution of a law. The selection of routes under the act, rapidly degenerated from national to sectional, from sectional to local, and from local to mere neighborhood improvements. Early in the succeeding administration, a list of some ninety routes were reported to Congress, from the Engineer Department, in which occurred names of places hardly heard of before outside of the State or section in which they were found. Saugatuck, Amounisuck, Pasumic, Winnispiseogee, Piscataqua, Titonic Falls, Lake MemSuch 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 ab

sorbing 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 degree, of the Chesapeake and Ohio canal, once a national object of federal legislation intended, as its name imports, to connect the tide water of the Atlantic with the great rivers of the West; now a local canal, chiefly used by some companies, very beneficial in its place, but sunk from the national character which commanded for it the votes of Congress and large appropriations from the federal treasury. Mr. Monroe was one of the most cautious and deliberate of our public men, thoroughly acquainted with the theory and the working of the constitution, his opinions upon it entitled to great weight; and on this point (of internal improvement within the States by the federal government) his opinion has become law. But it does not touch the question of improving national rivers or harbors yielding revenuee-appropriations for the Ohio and Mississippi and other large streams, being easily had when unincumbered with local objects, as shown by the appropriation, in a separate bill, in 1824, of $75,000 for the improvement of these two rivers, and which was approved and signed by Mr. Monroe.

CHAPTER XI.

GENERAL REMOVAL OF INDIANS.

by successive purchases of their territory, to remove these tribes further and further to the west; and that policy, vigorously pursued after the war with Great Britain, had made much progress in freeing several of these States (Kentucky entirely, and Tennessee almost) from this population, which so greatly hindered the expansion of their settlements and so much checked the increase of their growth and strength. Still there remained up to the year 1824-the last year of Mr. Monroe's administration—large portions of many of these States, and of the territories, in the hands of the Indian tribes; in Georgia, nine and a half millions of acres; in Alabama, seven and a half millions; in Mississippi, fifteen and three quarter millions; in the territory of Florida, four millions; in the territory of Arkansas, fifteen and a half millions; in the State of Missouri, two millions and three quarters; in Indiana and Illinois, fifteen millions; and in Michigan, east of the lake, seven millions. All these States and territories were desirous, and most justly and naturally so, to get possession of these vast bodies of land, generally the best within their limits. Georgia held the United States bound by a compact to relieve her. Justice to the other States and territories required the same relief; and the applications to the federal government, to which the right of purchasing Indian lands, even within the States, exclusively belonged, were incessant and urgent. Piecemeal acquisitions, to end in getting the whole, were the constant effort; and it was evident that the encumbered States and territories would not, and certainly ought not to be satisfied, until all their soil was open to settle

THE Indian tribes in the different sections of the Union, had experienced very different fates-in the northern and middle States nearly extinctin the south and west they remained numerous and formidable. Before the war of 1812, with Great Britain, these southern and western tribesment, and subject to their jurisdiction. To the held vast, compact bodies of land in these States, preventing the expansion of the white settlements within their limits, and retaining a dangerous neighbor within their borders. The victories of General Jackson over the Creeks, and the territorial cessions which ensued, made the first great breach in this vast Indian domain; but much remained to be done to free the southern and western States from a useless and dangerous population-to give them the use and jurisdiction of all the territory within their limits, and to place them, in that respect, on an

Indians themselves it was equally essential to be removed. The contact and pressure of the white race was fatal to them. They had dwindled under it, degenerated, become depraved, and whole tribes extinct, or reduced to a few individuals, wherever they attempted to remain in the old States; and could look for no other fate in the new ones.

"What," exclaimed Mr Elliott, senator from Georgia, in advocating a system of general removal-"what has become of the immense hordes of these people who once occupied the soil of the

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