Slike strani

pointing to the demonstration of a spirit of in- Mr. Johnson, the faithful and consistent sentinel justice and aggrandizement made by our coun- of the law and of the constitution, disapproved try, in the midst of an amicable negotiation! in that instance, as he does in this, and moved Behold, said they, the conduct of those who are an inquiry. The public mind remained agitated constantly reproaching kings! You saw how and unappeased, until the recent atonement so those admirers were astounded and hung their honorably made by the gallant commodore. heads. You saw, too, when that illustrious And is there to be a distinction between the man, who presides over us, adopted his pacific, officers of the two branches of the public sermoderate, and just course, how they once more vice? Are former services, however eminent, lifted up their heads with exultation and delight to preclude even inquiry into recent misconbeaming in their countenances. And you saw duct? Is there to be no limit, no prudential how those minions themselves were finally com- bounds to the national gratitude? I am not pelled to unite in the general praises bestowed disposed to censure the President for not orderupon our government. Beware how you forfeiting a court of inquiry, or a general court-marthis exalted character. Beware how you give tial. Perhaps, impelled by a sense of gratitude, a fatal sanction, in this infant period of our re- he determined, by anticipation, to extend to the public, scarcely yet two-score years old, to mili- general that pardon which he had the undoubted tary insubordination. Remember that Greece right to grant after sentence. Let us not shrink had her Alexander, Rome her Cæsar, England from our duty. Let us assert our constitutional her Cromwell, France her Bonaparte, and that powers, and vindicate the instrument from miliif we would escape the rock on which they split, tary violation. we must avoid their errors.

I hope gentleman will deliberately survey the How different has been the treatment of awful isthmus on which we stand. They may General Jackson and that modest, but heroic bear down all opposition; they may even vote young man, a native of one of the smallest the general the public thanks; they may carry States in the Union, who achieved for his coun- him triumphantly through this House. But, if try, on Lake Erie, one of the most glorious they do, in my humble judgment, it will be a victories of the late war. In a moment of triumph of the principle of insubordination, a passion, he forgot himself, and offered an act triumph of the military over the civil authority, of violence which was repented of as soon as a triumph over the powers of this House, a perpetrated. He was tried, and suffered the triumph over the constitution of the land. And judgment to be pronounced by his peers. Pub-I pray most devoutly to Heaven, that it may lic justice was thought not even then to be not prove, in its ultimate effects and consesatisfied. The press and Congress took up the quences, a triumph over the liberties of the subject. My honorable friend from Virginia, people.


Mr. Clay delivered this speech, in the House | of Representatives of the United States, on the sixteenth of January, 1824; on "a bill authorizing the President of the United States to cause certain surveys and estimates to be made on the subject of roads and canals:"—

MR. CHAIRMAN: I cannot enter on the discussion of the subject before us, without first asking leave to express my thanks for the kindness of the committee, in so far accommodating me as to agree, unanimously, to adjourn its sitting to the present time, in order to afford me the opportunity of exhibiting my views; which, however, I fear I shall do very unacceptably. As a requital for this kindness, I will endeavor, as far as is practicable, to abbreviate what I have to present to your consideration. Yet, on a question of this extent and moment, there are so many topics which demand a deliberate examination, that, from the nature of se, it will be impossible, I am afraid, to

reduce the argument to any thing that the cormittee will consider a reasonable compass.

has now existed for several years a difference It is known to all who hear me, that there of opinion between the executive and legislative branches of this government, as to the nature and extent of certain powers conferred upon it by the constitution. Two successive Presidents have rne to Congress bills which had previously passed both Houses of that body, with a communication of the opinion, that Congress, under the constitution, possessed no power to enact such laws. High respect, personal and official, must be felt by all, as it is due, to those distinguished officers, and to their opinions, thus solemnly announced; and the most profound consideration belongs to our present chief magistrate, who has favored this House with a written argument, of great length and labor, consisting of not less than sixty or seventy pages, in support of his exposition of the constitution. From the magnitude of the interests involved in the question, all will readily concur

that, if the power is granted, and does really | post offices and post roads, to regulate commerce among the several States, that in relation to the judiciary, besides many other powers indisputably belonging to the federal government, are strictly municipal. If, as I understood the gentleman in the course of the subsequent part of his argument to admit, some municipal powers belong to the one system, and some to the other, we shall derive very little aid from the gentleman's principle, in making the discrimination between the two. The question must ever remain open-whether any given power, and, of course, that in question, is or is not delegated to this government, or retained by the States?

exist, it ought to be vindicated, upheld and maintained, that the country may derive the great benefits which may flow from its prudent exercise. If it has not been communicated to Congress, then all claim to it should be, at once, surrendered. It is a circumstance of peculiar regret to me, that one more competent than myself had not risen to support the course which the legislative department has heretofore felt itself bound to pursue on this great question. Of all the trusts which are created by human agency, that is the highest, most solemn, and most responsible, which involves the exercise of political power. Exerted when it has not been intrusted, the public functionary is guilty of usurpation. And his infidelity to the public good is not, perhaps, less culpable, when he neglects or refuses to exercise a power which has been fairly conveyed, to promote the public prosperity. If the power, which he thus forbears to exercise, can only be exerted by him— if no other public functionary can employ it, and the public good requires its exercise, his treachery is greatly aggravated. It is only in those cases where the object of the investment of power is the personal ease or aggrandizement of the public agent, that his forbearance to use it is praiseworthy, gracious, or magnanimous.

The conclusion of the gentleman is, that all internal improvements belong to the State governments: that they are of a limited and local character, and are not comprehended within the scope of the federal powers, which relate to external or general objects. That many, perhaps most internal improvements, partake of the character described by the gentleman, I shall not deny. But it is no less true that there are others, emphatically national, which neither the policy, nor the power, nor the interests, of any State will induce it to accomplish, and which can only be effected by the application of the resources of the nation. The improveI was extremely happy to find, that, on many ment of the navigation of the Mississippi furof the points of the argument of the honorable nishes a striking example. This is undeniably gentleman from Virginia, Mr. Barbour, there is a great and important object. The report of a entire concurrence between us, widely as we highly scientific and intelligent officer of the differ in our ultimate conclusions. On this engineer corps (which I hope will be soon taken occasion (as on all others on which that gentle- up and acted upon) has shown that the cost of man obliges the House with an expression of any practicable improvement in the navigation his opinions), he displayed great ability and of that river, in the present state of the inhabingenuity; and, as well from the matter as itants of its banks, is a mere trifle in comparison from the respectful manner of his argument, it to the great benefits which would accrue from is deserving of the most thorough consideration. it. I believe that about double the amount of I am compelled to differ from that gentleman at the loss of single steamboat and cargo (the the very threshold. He commenced by laying Tennessee) would effect the whole improvement down as a general principle, that, in the distri- in the navigation of that river, which ought to bution of powers among our federal and State be at this time attempted. In this great object governments, those which are of a municipal twelve States and two territories are, in different character are to be considered as appertaining degrees, interested. The power to effect the to the State governments, and those which improvement of that river is surely not municirelate to external affairs, to the general govern- pal, in the sense in which the gentleman used ment. If I may be allowed to throw the argu- the term. If it were, to which of the twelve ment of the gentleman into the form of a States and two territories concerned does it syllogism (a shape which I presume would be belong? It is a great object, which can only quite agreeable to him), it amounts to this: be effected by a confederacy. And here is municipal powers belong exclusively to the existing that confederacy, and no other can State governments; but the power to make in- lawfully exist: for the constitution prohibits ternal improvements is municipal; therefore it the States, immediately interested, from enterbelongs to the State governments alone. I denying into any treaty or compact with each other. both the premises and the conclusion. If the Other examples might be given to show, that, gentleman had affirmed that certain municipal if even the power existed, the inclination to powers, and the great mass of them, belong to exert it would not be felt, to effectuate certain the State governments, his proposition would improvements eminently calculated to promote have been incontrovertible. But if he had so the prosperity of the union. Neither of the qualified it, it would not have assisted the gen- three States, nor all of them united, through tleman at all in his conclusion. But surely the which the Cumberland road passes, would ever power of taxation, the power to regulate the have erected that road. Two of them would value of coin, the power to establish a uniform have thrown in every impediment to its comstandard of weights and measures, to establish pletion in their power. Federative in its char

acter, it could only have been executed so far | parts of the constitution which appear to me to by the application of federative means. Again, convey the power in question, I hope I shall be the contemplated canal through New Jersey; allowed to disclaim, for my part, several sources that to connect the waters of the Chesapeake whence others have deduced the authority. and Delaware; that to unite the Ohio and the The gentleman from Virginia seemed to think Potomac, are all objects of a general and fede- it remarkable that the friends of the power rative nature, in which the States, through should disagree so much among themselves; which they might severally pass, could not be and to draw a conclusion against its existence expected to feel any such special interest as from the fact of this discrepancy. But I can would lead to their execution. Tending, as see nothing extraordinary in this diversity of undoubtedly they would do, to promote the views. What is more common than for differgood of the whole, the power and the treasure ent men to contemplate the same subject under. of the whole must be applied to their execution, various aspects? Such is the nature of the huif they are ever consummated. man mind, that enlightened men, perfectly upright in their intentions, differ in their opinions on almost every topic that could be mentioned. It is rather a presumption in favor of the cause which I am humbly maintaining, that the same result should be attained by so many various modes of reasoning. But, if contrariety of views may be pleaded with any effect against the advocates of the disputed power, it equally avails against their opponents. There is, for example, not a very exact coincidence in opin

I do not think, then, that we shall be at all assisted in expounding the Constitution of the United States, by the principle which the gentleman from Virginia has suggested in respect to municipal powers. The powers of both governments are undoubtedly municipal, often operating upon the same subject. I think a better rule than that which the gentleman furnished for interpreting the constitution, might be deduced from an attentive consideration of the peculiar character of the articles of confedera-ion between the President of the United States tion, as contrasted with that of the present con- and the gentleman from Virginia. The Presistitution. By those articles, the powers of the dent says, (page 25 of his book,) “the use of thirteen United States were exerted collaterally. the existing road, by the stage, mail carrier, or They opera through an intermediary. They post boy, in passing over it, as others do, is all were addressed to the several States, and their that would be thought of; the jurisdiction and execution depended upon the pleasure and the soil remaining to the State, with a right in the co-operation of the States individually. The State, or those authorized by its legislature, to States seldom fulfilled the expectations of the change the road at pleasure.” Again, page 27, general government in regard to its requisitions, the President asks, "if the United States posand often wholly disappointed them. Languor sessed the power, contended for under this grant, and debility, in the movement of the old con- might they not, in adopting the roads of the infederation, were the inevitable consequence of dividual States, for the carriage of the mail, as that arrangement of power. By the existing has been done, assume jurisdiction over them, constitution, the powers of the general govern- and preclude a right to interfere with or alter ment act directly on the persons and things them?" They both agree that the general govwithin its scope, without the intervention or ernment does not possess the power. The genimpediments incident to any intermediary. In tleman from Virginia admits, if I understood executing the great trust which the Constitu- him correctly, that the designation of a State tion of the United States creates, we must, road as a post road, so far withdraws it from therefore, reject that interpretation of its provi- the jurisdiction of the State, that it cannot be sions which would make the general govern- afterwards put down or closed by the State; ment dependent upon those of the States for the and in this he claims for the general governexecution of any of its powers, and may safely ment more power than the President concedes conclude that the only genuine construction to it. The President, on the contrary, prowould be that which should enable this govern-nounces that "the absurdity of such a pretenment to execute the great purposes of its insti- sion," (that is, preventing, by the designation tution, without the co-operation, and, if indis- of a post road, the power of the State from pensably necessary, even against the will, of any altering or changing it,) "must be apparent to particular State. This is the characteristic all who examine it!" The gentleman thinks difference between the two systems of govern- that the designation of a post road withdraws it ment, of which we should never lose sight. entirely, so far as it is used for that purpose, Interpreted in the one way, we shall relapse from the power of the whole State; whilst the into the feebleness and debility of the old con- President thinks it absurd to assert that a mere federacy. In the other, we shall escape from county court may not defeat the execution of a its evils, and fulfil the great purposes which the law of the United States! The President enlightened framers of the existing constitution thinks that, under the power of appropriating intended to effectuate. The importance of this the money of the United States, Congress may essential difference in the two forms of govern- apply it to any object of internal improvement, ment, will be shown in the future progress of provided it does not assume any territorial juthe argument. risdiction; and, in this respect, he claims for Before I proceed to comment upon those the general government more power than the

gentleman from Virginia assigns to it. And I must own, that I so far coincide with the gentleman from Virginia. If the power can be traced to no more legitimate source than to that of appropriating the public treasure, I yield the question.

The truth is, that there is no specific grant, in the constitution, of the power of appropriation; nor was any such requisite. It is a resulting power. The constitution vests in Congress the power of taxation, with but few limitations, to raise a public revenue. It then enumerates the powers of Congress. And it follows, of necessity, that Congress has the right to apply the money, so raised, to the execution of the powers so granted. The clause, which concludes the enumeration of the granted powers, by authorizing the passage of all laws, "necessary and proper" to effectuate them, comprehends the power of appropriation. And the framers of the constitution recognize it by the restriction, that no money shall be drawn from the treasury but in virtue of a previous appropriation by law. It is to me wonderful how the President should have brought his mind to the conclusion, that, under the power of appropriation, thus incidentally existing, a right could be set up, in its nature almost without limitation, to employ the public money. He combats with great success and much ability, any deduction of power from the clause relating to the general welfare. He shows that the effect of it would be to overturn, or render useless and nugatory, the careful enumeration of our powers; and that it would convert a cautiously limited government into one without limitation. The same process of reasoning by which his mind was brought to this just conclusion, one would have thought, should have warned him against his claiming, under the power of appropriation, such a vast latitude of authority. He reasons strongly against the power, as claimed by us, harmless and beneficent and limited, as it must be admitted to be, and yet he sets up a power boundless in its extent, unrestrained to the object of internal improvements, and comprehending the whole scope of human affairs! For, if the power exists, as he asserts it, what human restraint is there upon it? He does, indeed, say, that it cannot be exerted so as to interfere with the territorial jurisdiction of the States. But this is a restriction altogether gratuitous, flowing from the bounty of the President, and not found in the prescriptions of the constitution. If we have a right, indefinitely, to apply the money of the government to internal improvements, or to any other object, what is to prevent the application of it to the purchase of the sovereignty itself, of a State, if a State were mean enough to sell its sovereignty-to the purchase of kingdoms, empires, the globe itself? With an almost unlimited power of taxation; and, after the revenue is raised, with a right to apply it under no other limitations than those which the President's caution has suggested, I VOL. II.-19

cannot see what other human power is needed. It has been said, by Cæsar or Bonaparte, no doubt thought by both, that, with soldiers enough, they could get money enough; and, with money enough, they could command soldiers enough. According to the President's interpretation of the constitution, one of these great levers of public force and power is possessed by this government. The President seems to contemplate, as fraught with much danger, the power, humbly as it is claimed, to effect the internal improvement of the country. And, in his attempt to overthrow it, sets up one of infinitely greater magnitude. The quantum of power which we claim over the subject of internal improvement, is, it is true, of greater amount and force than that which results from the President's view of the constitution; but then it is limited to the object of internal improvements; whilst the power set up by the President has no such limitation; and, in effect, as I conceive, has no limitation whatever, but that of the ability of the people to bear taxation.

With the most profound respect for the President, and after the most deliberate consideration of his argument, I cannot agree with him. I cannot think that any political power accrues to this government, from the mere authority which it possesses to appropriate the public revenue. The power to make internal improvements draws after it most certainly the right to appropriate money to consummate the object. But I cannot conceive that this right of appropria tion draws after it the power of internal improvements. The appropriation of money is consequence, not cause. It follows, it does not precede. According to the order of nature, we first determine upon the object to be accomplished, and then appropriate the money necessary to its consummation. According to the order of the constitution, the power defined, and the application, that is, the appropriation of the money requisite to its effectuation, follows as a necessary and proper means. The practice of congressional legislation is conformable to both. We first inquire what we may do, and provide by law for its being done, and we then appropriate, by another act of legislation, the money necessary to accomplish the specified object. The error of the argument lies in its beginning too soon. It supposes the money to be in the treasury, and then seeks to disburse it. But how came it there? Congress cannot impose taxes without an object. Their imposition must be in reference to the whole mass of our powers, to the general purposes of government, or with the view to the fulfilment of some one of those powers, or to the attainment of some one of those purposes. In either case, we consult the constitution, and ascertain the extent of the authority which is confided to us. We cannot, constitutionally lay the taxes without regard to the extent of our powers; and then, having acquired the money of the public, appropriate it, because we have got it, to any object indefinitely.

Nor do I claim the power in question, from the consent or grant of any particular State or States, through which an object of internal improvement may pass. It may, indeed, be prudent to consult a State through which such an improvement may happen to be carried, from considerations of deference and respect to its sovereign power; and from a disposition to maintain those relations of perfect amity which are ever desirable between the general and State governments. But the power to establish the improvement, nrust be found in the constitution, or it does not exist. And what is granted by all, it cannot be necessary to obtain the consent of some to perform.

The gentleman from Virginia, in speaking of incidental powers, used a species of argument which I entreat him candidly to reconsider. He said, that the chain of cause and effect was without end; that if we argued from a power expressly granted to all others, which might be convenient or necessary to its execution, there were no bounds to the power of this government; that, for example, under the power "to provide and maintain a navy," the right might be assumed to the timber necessary to its construction, and the soil on which it grew. The gentleman might have added, the acorns from which it sprung. What, upon the gentleman's own hypothesis, ought to have been his conclusion? That Congress possessed no power to provide and maintain a navy. Such a conclusion would have been quite as logical, as that Congress has no power over internal improvements, from the possible lengths to which this power may be pushed. No one ever has, or can controvert the existence of incidental powers. We may apply different rules for their extraction, but all must concur in the necessity of their actual existence. They result from the imperfections of our nature, and from the utter impossibility of foreseeing all the turns and vicissitudes in human affairs. They cannot be defined. Much is attained when the power, the end, is specified and guarded. Keeping that constantly in view, the means necessary to its attainment must be left to the sound and responsible discretion of the public functionary. Intrench him as you please, employ what language you may, in the constitutional instrument, necessary and proper," "indispensably necessary," or any other, and the question is still left open-does the proposed measure fall within the scope of the incidental power, circumscribed as it may be? Your safety against abuse must rest in his interest, his integrity, his responsibility to the exercise of the elective franchise; finally, in the ultimate right, when all other redress fails, of an appeal to the remedy, to be used only in extreme cases, of forcible resistance against intolerable oppression.


Doubtless, by an extravagant and abusive enlargement of incidental powers, the State governments may be reduced within too narrow limits. Take any power, however incontestably granted to the general government, and employ

that kind of process of reasoning in which the gentleman from Virginia is so skilful, by tracing it to its remotest effects, you may make it absorb the powers of the State governments. Pursue the opposite course; take any incontestable power belonging to the State governments, and follow it out into all its possible ramifications, and you may make it thwart and defeat the great operations of the government of the whole. This is the consequence of our systems. Their harmony is to be preserved only by forbearance, liberality, practical good sense, and mutual concession. Bring these dispositions into the administrations of our various institutions, and all the dreaded conflicts of authorities will be found to be perfectly imaginary.

I disclaim, for myself, several sources to which others have ascended, to arrive at the power in question. In making this disclaimer, I mean to cast no imputation on them. I am glad to meet them by whatever road they travel, at the point of a constitutional conclusion. Nor do their positions weaken mine; on the contrary, if correctly taken, and mine also are justified by fair interpretation, they add strength to mine. But I feel it my duty, frankly and sincerely, to state my own views of the constitution. In coming to the ground on which I make my stand to maintain the power, and where I am ready to meet its antagonist, I am happy, in the outset, to state my hearty concurrence with the gentleman from Virginia, in the old 1798 republican principles (now become federal also), by which the constitution is to be interpreted. I agree with him, that this is a limited government; that it has no powers but the granted powers; and that the granted powers are those which are expressly enumerated, or such as, being implied, are necessary and proper to effectuate the enumerated powers. And, if I do not show the power over federative, national, internal improvements, to be fairly deducible, after the strictest application of these principles, I entreat the committee unanimously to reject the bill. The gentleman from Virginia has rightly anticipated, that, in regard to roads, I claim the power, under the grant, to establish post offices and post roads. The whole question, on this part of the subject, turns upon the true meaning of this clause, and that again upon the genuine signification of the word "establish." According to my understanding of it, the meaning of it is, to fix, to make firm, to build. According to that of the gentleman from Virginia, it is to designate, to adopt. Grammatical criticism was to me always unpleasant, and I do not profess to be any proficient in it. But I will confidently appeal, in support of my definition, to any vocabulary whatever, of respectable authority, and to the common use of the word. That it cannot mean only adoption, is to me evident; for adoption pre-supposes establishment, which is precedent in its very nature. That which does not exist, which is not established, cannot be adopted. There is, then, an essential difference between the gentleman from Virginia and me.

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