A Compilation of the Messages and Papers of the Presidents - James D. Richardson
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If we go back to the origin of our settlements and institutions and
trace their progress down to the Revolution, we shall see that it was in
this sense, and in none other, that the power was exercised by all our
colonial governments. Post-offices were made for the country, and not
the country for them. They are the offspring of improvement; they never
go before it. Settlements are first made, after which the progress is
uniform and simple, extending to objects in regular order most necessary
to the comfort of man--schools, places of public worship, court-houses,
and markets; post-offices follow. Roads may, indeed, be said to be
coeval with settlements; they lead to all the places mentioned, and
to every other which the various and complicated interests of society
require.
It is believed that not one example can be given, from the first
settlement of our country to the adoption of this Constitution,
of a post-office being established without a view to existing roads or
of a single road having been made by pavement, turnpike, etc., for the
sole purpose of accommodating a post-office. Such, too, is the uniform
progress of all societies. In granting, then, this power to the United
States it was undoubtedly intended by the framers and ratifiers of the
Constitution to convey it in the sense and extent only in which it had
been understood and exercised by the previous authorities of the
country.
This conclusion is confirmed by the object of the grant and the
manner of its execution. The object is the transportation of the mail
throughout the United States, which may be done on horseback, and was
so done until lately, since the establishment of stages. Between the
great towns and in other places where the population is dense stages are
preferred because they afford an additional opportunity to make a profit
from passengers; but where the population is sparse and on crossroads it
is generally carried on horseback. Unconnected with passengers and other
objects, it can not be doubted that the mail itself may be carried in
every part of our Union with nearly as much economy and greater dispatch
on horseback than in a stage, and in many parts with much greater. In
every part of the Union in which stages can be preferred the roads are
sufficiently good provided those which serve for every other purpose
will accommodate them. In every other part where horses alone are used
if other people pass them on horseback surely the mail carrier can. For
an object so simple and so easy in its execution it would doubtless
excite surprise if it should be thought proper to appoint commissioners
to lay off the country on a great scheme of improvement, with the
power to shorten distances, reduce heights, level mountains, and pave
surfaces.
If the United States possessed the power contended for under this grant,
might they not in adopting the roads of the individual States for the
carriage of the mail, as has been done, assume jurisdiction over them
and preclude a right to interfere with or alter them? Might they not
establish turnpikes and exercise all the other acts of sovereignty
above stated over such roads necessary to protect them from injury and
defray the expense of repairing them? Surely if the right exists these
consequences necessarily followed as soon as the road was established.
The absurdity of such a pretension must be apparent to all who examine
it. In this way a large portion of the territory of every State might be
taken from it, for there is scarcely a road in any State which will not
be used for the transportation of the mail. A new field for legislation
and internal government would thus be opened.
From this view of the subject I think we may fairly conclude that the
right to adopt and execute a system of internal improvement, or any part
of it, has not been granted to Congress under the power to establish
post-offices and post-roads; that the common roads of the country only
were contemplated by that grant and are fully competent to all its
purposes.
The next object of inquiry is whether the right to declare war
includes the right to adopt and execute this system of improvement.
The objections to it are, I presume, not less conclusive than those
which are applicable to the grant which we have just examined.
Under the last-mentioned grant a claim has been set up to as much of
that system as relates to roads. Under this it extends alike to roads
and canals.
We must examine this grant by the same rules of construction that
were applied to the preceding one. The object was to take this power
from the individual States and to vest it in the General Government.
This has been done in clear and explicit terms, first by granting the
power to Congress, and secondly by prohibiting the exercise of it by
the States. "Congress shall have a right to declare war." This is the
language of the grant. If the right to adopt and execute this system
of improvement is included in it, it must be by way of incident only,
since there is nothing in the grant itself which bears any relation to
roads and canals. The following considerations, it is presumed, prove
incontestably that this power has not been granted in that or any other
manner.
The United States are exposed to invasion through the whole extent of
their Atlantic coast by any European power with whom we might be engaged
in war--on the northern and northwestern frontier on the side of Canada
by Great Britain, and on the southern by Spain or any power in alliance
with her. If internal improvements are to be carried to the full extent
to which they may be useful for military purposes, the power as it
exists must apply to all the roads of the Union, there being no
limitation to it. Wherever such improvements may facilitate the march
of troops, the transportation of cannon, or otherwise aid the operations
or mitigate the calamities of war along the coast or in any part of the
interior they would be useful for military purposes, and might therefore
be made. The power following as an incident to another power can be
measured as to its extent by reference only to the obvious extent of the
power to which it is incidental. So great a scope was, it is believed,
never given to incidental power.
If it had been intended that the right to declare war should include
all the powers necessary to maintain war, it would follow that nothing
would have been done to impair the right or to restrain Congress from
the exercise of any power which the exigencies of war might require.
The nature and extent of this exigency would mark the extent of the
power granted, which should always be construed liberally, so as to be
adequate to the end. A right to raise money by taxes, duties, excises,
and by loan, to raise and support armies and a navy, to provide for
calling forth, arming, disciplining, and governing the militia when
in the service of the United States, establishing fortifications and
governing the troops stationed in them independently of the State
authorities, and to perform many other acts is indispensable to the
maintenance of war--no war with any great power can be prosecuted with
success without the command of the resources of the Union in all these
respects. These powers, then, would of necessity and by common consent
have fallen within the right to declare war had it been intended to
convey by way of incident to that right the necessary powers to maintain
war. But these powers have all been granted specifically with many
others, in great detail, which experience had shown were necessary for
the purposes of war. By specifically granting, then, these powers it
is manifest that every power was thus granted which it was intended
to grant for military purposes, and that it was also intended that no
important power should be included in this grant by way of incident,
however useful it might be for some of the purposes of the grant.
By the sixteenth of the enumerated powers, Article I, section 8,
Congress are authorized to exercise exclusive legislation in all cases
whatever over such district as may by cession of particular States and
the acceptance of Congress, not exceeding 10 miles square, become the
seat of the Government of the United States, and to exercise like
authority over all places purchased by the consent of the legislature
of the State in which the same shall be, for the erection of forts,
magazines, arsenals, dockyards, and other useful buildings. If any doubt
existed on a view of other parts of the Constitution respecting the
decision which ought to be formed on the question under consideration,
I should suppose that this clause would completely remove it. It has been
shown after the most liberal construction of all the enumerated powers
of the General Government that the territory within the limits of the
respective States belonged to them; that the United States had no right
under the powers granted to them, with the exception specified in this
grant, to any the smallest portion of territory within a State, all
those powers operating on a different principle and having their full
effect without impairing in the slightest degree this right in the
States; that those powers were in every instance means to ends, which
being accomplished left the subject--that is, the property, in which
light only land could be regarded--where it was before, under the
jurisdiction and subject to the laws of the State governments.
The second number of the clause, which is applicable to military
and naval purposes alone, claims particular attention here. It fully
confirms the view taken of the other enumerated powers, for had it been
intended to include in the right to declare war, by way of incident,
any right of jurisdiction or legislation over territory within a State,
it would have been done as to fortifications, magazines, arsenals,
dockyards, and other needful buildings. By specifically granting the
right as to such small portions of territory as might be necessary for
these purposes and on certain conditions, minutely and well defined,
it is manifest that it was not intended to grant it as to any other
portion on any condition for any purpose or in any manner whatsoever.
It may be said that although the authority to exercise exclusive
legislation in certain cases within the States with their consent may
be considered as a prohibition to Congress to exercise like exclusive
legislation in any other case, although their consent should be granted,
it does not prohibit the exercise of such jurisdiction or power within
a State as would be competent to all the purposes of internal
improvement. I can conceive no ground on which the idea of such a power
over any part of the territory of a State can be inferred from the power
to declare war. There never can be an occasion for jurisdiction for
military purposes except in fortifications, dockyards, and the like
places. If the soldiers are in the field or are quartered in garrisons
without the fortifications, the civil authority must prevail where they
are. The government of the troops by martial law is not affected by it.
In war, when the forces are increased and the movement is on a greater
scale, consequences follow which are inseparable from the exigencies
of the state. More freedom of action and a wider range of power in the
military commanders, to be exercised on their own responsibility, may
be necessary to the public safety; but even here the civil authority
of the State never ceases to operate. It is also exclusive for all
civil purposes.
Whether any power short of that stated would be adequate to the purposes
of internal improvement is denied. In the case of territory one
government must prevail for all the purposes intended by the grant.
The jurisdiction of the United States might be modified in such manner
as to admit that of the State in all cases and for all purposes not
necessary to the execution of the proposed power; but the right of the
General Government must be complete for all the purposes above stated.
It must extend to the seizure and condemnation of the property, if
necessary; to the punishment of offenders for injuries to the roads and
canals; to the establishment and enforcement of tolls, etc. It must be
a complete right to the extent above stated or it will be of no avail.
That right does not exist.
The reasons which operate in favor of the right of exclusive legislation
in forts, dockyards, etc., do not apply to any other places. The safety
of such works and of the cities which they are intended to defend, and
even of whole communities, may sometimes depend on it. If spies are
admitted within them in time of war, they might communicate intelligence
to the enemy which might be fatal. All nations surround such works
with high walls and keep their gates shut. Even here, however, three
important conditions are indispensable to such exclusive legislation:
First, the ground must be requisite for and be applied to those
purposes; second, it must be purchased; third, it must be purchased by
the consent of the State in which it may be. When we find that so much
care has been taken to protect the sovereignty of the States over the
territory within their respective limits, admitting that of the United
States over such small portions and for such special and important
purposes only, the conclusion is irresistible not only that the power
necessary for internal improvements has not been granted, but that it
has been clearly prohibited.
I come next to the right to regulate commerce, the third source from
whence the right to make internal improvements is claimed. It is
expressed in the following words: "Congress shall have power to regulate
commerce with foreign nations and among the several States and with the
Indian tribes." The reasoning applicable to the preceding claims is
equally so to this. The mischief complained of was that this power could
not be exercised with advantage by the individual States, and the object
was to transfer it to the United States. The sense in which the power
was understood and exercised by the States was doubtless that in which
it was transferred to the United States. The policy was the same
as to three branches of this grant, and it is scarcely possible to
separate the two first from each other in any view which may be taken
of the subject. The last, relating to the Indian tribes, is of a
nature distinct from the others for reasons too well known to require
explanation. Commerce between independent powers or communities is
universally regulated by duties and imposts. It was so regulated by the
States before the adoption of this Constitution equally in respect to
each other and to foreign powers. The goods and vessels employed in the
trade are the only subjects of regulation. It can act on none other.
A power, then, to impose such duties and imposts in regard to foreign
nations and to prevent any on the trade between the States was the only
power granted.
If we recur to the causes which produced the adoption of this
Constitution, we shall find that injuries resulting from the regulation
of trade by the States respectively and the advantages anticipated from
the transfer of the power to Congress were among those which had the
most weight. Instead of acting as a nation in regard to foreign powers,
the States individually had commenced a system of restraint on each
other whereby the interests of foreign powers were promoted at their
expense. If one State imposed high duties on the goods or vessels of
a foreign power to countervail the regulations of such power, the next
adjoining States imposed lighter duties to invite those articles into
their ports, that they might be transferred thence into the other
States, securing the duties to themselves. This contracted policy in
some of the States was soon counteracted by others. Restraints were
immediately laid on such commerce by the suffering States, and thus had
grown up a state of affairs disorderly and unnatural, the tendency of
which was to destroy the Union itself and with it all hope of realizing
those blessings which we had anticipated from the glorious Revolution
which had been so recently achieved. From this deplorable dilemma, or,
rather, certain ruin, we were happily rescued by the adoption of the
Constitution.
Among the first and most important effects of this great Revolution
was the complete abolition of this pernicious policy. The States were
brought together by the Constitution as to commerce into one community
equally in regard to foreign nations and each other. The regulations
that were adopted regarded us in both respects as one people. The duties
and imposts that were laid on the vessels and merchandise of foreign
nations were all uniform throughout the United States, and in the
intercourse between the States themselves no duties of any kind were
imposed other than between different ports and counties within the
same State.
This view is supported by a series of measures, all of a marked
character, preceding the adoption of the Constitution. As early as
the year 1781 Congress recommended it to the States to vest in the
United States a power to levy a duty of 5 per cent on all goods imported
from foreign countries into the United States for the term of fifteen
years. In 1783 this recommendation, with alterations as to the kind of
duties and an extension of this term to twenty-five years, was repeated
and more earnestly urged. In 1784 it was recommended to the States
to authorize Congress to prohibit, under certain modifications, the
importation of goods from foreign powers into the United States for
fifteen years. In 1785 the consideration of the subject was resumed,
and a proposition presented in a new form, with an address to the
States, explaining fully the principles on which a grant of the power
to regulate trade was deemed indispensable. In 1786 a meeting took place
at Annapolis of delegates from several of the States on this subject,
and on their report a convention was formed at Philadelphia the ensuing
year from all the States, to whose deliberations we are indebted for
the present Constitution.
In none of these measures was the subject of internal improvement
mentioned or even glanced at. Those of 1784, 1785, 1786, and 1787,
leading step by step to the adoption of the Constitution, had in view
only the obtaining of a power to enable Congress to regulate trade with
foreign powers. It is manifest that the regulation of trade with the
several States was altogether a secondary object, suggested by and
adopted in connection with the other. If the power necessary to this
system of improvement is included under either branch of this grant,
I should suppose that it was the first rather than the second. The
pretension to it, however, under that branch has never been set up.
In support of the claim under the second no reason has been assigned
which appears to have the least weight.
The fourth claim is founded on the right of Congress to "pay the debts
and provide for the common defense and general welfare" of the United
States. This claim has less reason on its side than either of those
which we have already examined. The power of which this forms a part
is expressed in the following words: "Congress shall have power to lay
and collect taxes, duties, imposts, and excises; to pay the debts and
provide for the common defense and general welfare of the United States;
but all duties, imposts, and excises shall be uniform throughout the
United States." That the second part of this grant gives a right to
appropriate the public money, and nothing more, is evident from the
following considerations: First. If the right of appropriation is not
given by this clause, it is not given at all, there being no other grant
in the Constitution which gives it directly or which has any bearing
on the subject, even by implication, except the two following: First,
the prohibition, which is contained in the eleventh of the enumerated
powers, not to appropriate money for the support of armies for a longer
term than two years; and, second, the declaration of the sixth member
or clause of the ninth section of the first article that no money shall
be drawn from the Treasury but in consequence of appropriations made by
law. Second. This part of the grant has none of the characteristics of
a distinct and original power. It is manifestly incidental to the great
objects of the first part of the grant, which authorizes Congress to lay
and collect taxes, duties, imposts, and excises, a power of vast extent,
not granted by the Confederation, the grant of which formed one of the
principal inducements to the adoption of this Constitution. If both
parts of the grant are taken together (as they must be, for the one
follows immediately after the other in the same sentence), it seems
to be impossible to give to the latter any other construction than
that contended for. Congress shall have power to lay and collect taxes,
duties, imposts, and excises. For what purpose? To pay the debts and
provide for the common defense and general welfare of the United States,
an arrangement and phraseology which clearly show that the latter part
of the clause was intended to enumerate the purposes to which the money
thus raised might be appropriated. Third. If this is not the real object
and fair construction of the second part of this grant, it follows
either that it has no import or operation whatever or one of much
greater extent than the first part. This presumption is evidently
groundless in both instances. In the first because no part of the
Constitution can be considered useless; no sentence or clause in it
without a meaning. In the second because such a construction as made the
second part of the clause an original grant, embracing the same object
with the first, but with much greater power than it, would be in the
highest degree absurd. The order generally observed in grants, an order
founded in common sense, since it promotes a clear understanding of
their import, is to grant the power intended to be conveyed in the
most full and explicit manner, and then to explain or qualify it, if
explanation or qualification should be necessary. This order has, it
is believed, been invariably observed in all the grants contained in
the Constitution. In the second because if the clause in question is
not construed merely as an authority to appropriate the public money,
it must be obvious that it conveys a power of indefinite and unlimited
extent; that there would have been no use for the special powers to
raise and support armies and a navy, to regulate commerce, to call forth
the militia, or even to lay and collect taxes, duties, imposts, and
excises. An unqualified power to pay the debts and provide for the
common defense and general welfare, as the second part of this clause
would be if considered as a distinct and separate grant, would extend to
every object in which the public could be interested. A power to provide
for the common defense would give to Congress the command of the whole
force and of all the resources of the Union; but a right to provide for
the general welfare would go much further. It would, in effect, break
down all the barriers between the States and the General Government and
consolidate the whole under the latter.
The powers specifically granted to Congress are what are called the
enumerated powers, and are numbered in the order in which they stand,
among which that contained in the first clause holds the first place
in point of importance. If the power created by the latter part of the
clause is considered an original grant, unconnected with and independent
of the first, as in that case it must be, then the first part is
entirely done away, as are all the other grants in the Constitution,
being completely absorbed in the transcendent power granted in the
latter part; but if the clause be construed in the sense contended for,
then every part has an important meaning and effect; not a line, a word,
in it is superfluous. A power to lay and collect taxes, duties, imposts,
and excises subjects to the call of Congress every branch of the public
revenue, internal and external, and the addition to pay the debts and
provide for the common defense and general welfare gives the right of
applying the money raised--that is, of appropriating it to the purposes
specified according to a proper construction of the terms. Hence it
follows that it is the first part of the clause only which gives a power
which affects in any manner the power remaining to the States, as the
power to raise money from the people, whether it be by taxes, duties,
imposts, or excises, though concurrent in the States as to taxes and
excises must necessarily do. But the use or application of the money
after it is raised is a power altogether of a different character.
It imposes no burden on the people, nor can it act on them in a sense
to take power from the States or in any sense in which power can be
controverted, or become a question between the two Governments. The
application of money raised under a lawful power is a right or grant
which may be abused. It may be applied partially among the States, or
to improper purposes in our foreign and domestic concerns; but still
it is a power not felt in the sense of other power, since the only
complaint which any State can make of such partiality and abuse is
that some other State or States have obtained greater benefit from the
application than by a just rule of apportionment they were entitled to.
The right of appropriation is therefore from its nature secondary and
incidental to the right of raising money, and it was proper to place
it in the same grant and same clause with that right. By rinding them,
then, in that order we see a new proof of the sense in which the grant
was made, corresponding with the view herein taken of it.