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 main. tenance 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 alien 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 State, 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 responsi bility, 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 State: 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 ou such commerce by the suffering States, and thus had grown up a state of affairs M P-VOL I-48

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 or 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