A Compilation of the Messages and Papers of the Presidents - James D. Richardson
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The last part of this grant, which provides that all duties, imposts,
and excises shall be uniform throughout the United States, furnishes
another strong proof that it was not intended that the second part
should constitute a distinct grant in the sense above stated, or
convey any other right than that of appropriation. This provision
operates exclusively on the power granted in the first part of the
clause. It recites three branches of that power--duties, imposts, and
excises--those only on which it could operate, the rule by which the
fourth--that is, taxes--should be laid being already provided for in
another part of the Constitution. The object of this provision is to
secure a just equality among the States in the exercise of that power
by Congress. By placing it after both the grants--that is, after that
to raise and that to appropriate the public money--and making it apply
to the first only it shows that it was not intended that the power
granted in the second should be paramount to and destroy that granted in
the first. It shows also that no such formidable power as that suggested
had been granted in the second, or any power against the abuse of which
it was thought necessary specially to provide. Surely if it was deemed
proper to guard a specific power of limited extent and well-known
import against injustice and abuse, it would have been much more so
to have guarded against the abuse of a power of such vast extent and so
indefinite as would have been granted by the second part of the clause
if considered as a distinct and original grant.
With this construction all the other enumerated grants, and, indeed,
all the grants of power contained in the Constitution, have their full
operation and effect. They all stand well together, fulfilling the great
purposes intended by them. Under it we behold a great scheme, consistent
in all its parts, a Government instituted for national purposes, vested
with adequate powers for those purposes, commencing with the most
important of all, that of the revenue, and proceeding in regular order
to the others with which it was deemed proper to endow it, all, too,
drawn with the utmost circumspection and care. How much more consistent
is this construction with the great objects of the institution and with
the high character of the enlightened and patriotic citizens who framed
it, as well as of those who ratified it, than one which subverts every
sound principle and rule of construction and throws everything into
confusion.
I have dwelt thus long on this part of the subject from an earnest
desire to fix in a clear and satisfactory manner the import of the
second part of this grant, well knowing from the generality of the terms
used their tendency to lead into error. I indulge a strong hope that
the view herein presented will not be without effect, but will tend to
satisfy the unprejudiced and impartial that nothing more was granted by
that part than a power to _appropriate_ the public money raised under
the other part. To what extent that power may be carried will be the
next object of inquiry.
It is contended on the one side that as the National Government is
a government of limited powers it has no right to expend money except
in the performance of acts authorized by the other specific grants
according to a strict construction of their powers; that this grant
in neither of its branches gives to Congress discretionary power of
any kind, but is a mere instrument in its hands to carry into effect
the powers contained in the other grants. To this construction I was
inclined in the more early stage of our Government; but on further
reflection and observation my mind has undergone a change, for reasons
which I will frankly unfold.
The grant consists, as heretofore observed, of a twofold power--the
first to raise, the second to appropriate, the public money--and the
terms used in both instances are general and unqualified. Bach branch
was obviously drawn with a view to the other, and the import of each
tends to illustrate that of the other. The grant to raise money gives
a power over every subject from which revenue may be drawn, and is made
in the same manner with the grants to declare war, to raise and support
armies and a navy, to regulate commerce, to establish post-offices
and post-roads, and with all the other specific grants to the General
Government. In the discharge of the powers contained in any of these
grants there is no other check than that which is to be found in the
great principles of our system, the responsibility of the representative
to his constituents. If war, for example, is necessary, and Congress
declare it for good cause, their constituents will support them in it.
A like support will be given them for the faithful discharge of their
duties under any and every other power vested in the United States.
It affords to the friends of our free governments the most heartfelt
consolation to know--and from the best evidence, our own experience--that
in great emergencies the boldest measures, such as form the strongest
appeals to the virtue and patriotism of the people, are sure to obtain
the most decided approbation. But should the representative act
corruptly and betray his trust, or otherwise prove that he was unworthy
of the confidence of his constituents, he would be equally sure to lose
it and to be removed and otherwise censured, according to his deserts.
The power to raise money by taxes, duties, imposts, and excises is alike
unqualified, nor do I see any check on the exercise of it other than
that which applies to the other powers above recited, the responsibility
of the representative to his constituents. Congress know the extent of
the public engagements and the sums necessary to meet them; they know
how much may be derived from each branch of revenue without pressing
it too far; and, paying due regard to the interests of the people,
they likewise know which branch ought to be resorted to in the first
instance. From the commencement of the Government two branches of this
power, duties and imposts, have been in constant operation, the revenue
from which has supported the Government in its various branches and met
its other ordinary engagements. In great emergencies the other two,
taxes and excises, have likewise been resorted to, and neither was the
right or the policy ever called in question.
If we look to the second branch of this power, that which authorizes the
appropriation of the money thus raised, we find that it is not less
general and unqualified than the power to raise it. More comprehensive
terms than to "pay the debts and provide for the common defense and
general welfare" could not have been used. So intimately connected with
and dependent on each other are these two branches of power that had
either been limited the limitation would have had the like effect on
the other. Had the power to raise money been conditional or restricted
to special purposes, the appropriation must have corresponded with it,
for none but the money raised could be appropriated, nor could it be
appropriated to other purposes than those which were permitted. On the
other hand, if the right of appropriation had been restricted to certain
purposes, it would be useless and improper to raise more than would be
adequate to those purposes. It may fairly be inferred these restraints
or checks have been carefully and intentionally avoided. The power in
each branch is alike broad and unqualified, and each is drawn with
peculiar fitness to the other, the latter requiring terms of great
extent and force to accommodate the former, which have been adopted,
and both placed in the same clause and sentence.
Can it be presumed that all these circumstances were so nicely adjusted
by mere accident? Is it not more just to conclude that they were the
result of due deliberation and design? Had it been intended that
Congress should be restricted in the appropriation of the public money
to such expenditures as were authorized by a rigid construction of the
other specific grants, how easy would it have been to have provided for
it by a declaration to that effect. The omission of such declaration is
therefore an additional proof that it was not intended that the grant
should be so construed.
It was evidently impossible to have subjected this grant in either
branch to such restriction without exposing the Government to very
serious embarrassment. How carry it into effect? If the grant had been
made in any degree dependent upon the States, the Government would have
experienced the fate of the Confederation. Like it, it would have
withered and soon perished. Had the Supreme Court been authorized, or
should any other tribunal distinct from the Government be authorized,
to impose its veto, and to say that more money had been raised under
either branch of this power--that is, by taxes, duties, imposts, or
excises--than was necessary, that such a tax or duty was useless, that
the appropriation to this or that purpose was unconstitutional, the
movement might have been suspended and the whole system disorganized.
It was impossible to have created a power within the Government or
any other power distinct from Congress and the Executive which should
control the movement of the Government in this respect and not destroy
it. Had it been declared by a clause in the Constitution that the
expenditures under this grant should be restricted to the construction
which might be given of the other grants, such restraint, though the
most innocent, could not have failed to have had an injurious effect on
the vital principles of the Government and often on its most important
measures. Those who might wish to defeat a measure proposed might
construe the power relied on in support of it in a narrow and contracted
manner, and in that way fix a precedent inconsistent with the true
import of the grant. At other times those who favored a measure might
give to the power relied on a forced or strained construction, and,
succeeding in the object, fix a precedent in the opposite extreme.
Thus it is manifest that if the right of appropriation be confined
to that limit, measures may oftentimes be carried or defeated by
considerations and motives altogether independent of and unconnected
with their merits, and the several powers of Congress receive
constructions equally inconsistent with their true import. No such
declaration, however, has been made, and from the fair import of the
grant, and, indeed, its positive terms, the inference that such was
intended seems to be precluded.
Many considerations of great weight operate in favor of this
construction, while I do not perceive any serious objections to it.
If it be established, it follows that the words "to provide for the
common defense and general welfare" have a definite, safe, and useful
meaning. The idea of their forming an original grant, with unlimited
power, superseding every other grant, is abandoned. They will be
considered simply as conveying a right of appropriation, a right
indispensable to that of raising a revenue and necessary to expenditures
under every grant. By it, as already observed, no new power will be
taken from the States, the money to be appropriated being raised under
a power already granted to Congress. By it, too, the motive for giving
a forced or strained construction to any of the other specific grants
will in most instances be diminished and in many utterly destroyed.
The importance of this consideration can not be too highly estimated,
since, in addition to the examples already given, it ought particularly
to be recollected that to whatever extent any specified power may be
carried the right of jurisdiction goes with it, pursuing it through
all its incidents. The very important agency which this grant has in
carrying into effect every other grant is a wrong argument in favor of
the construction contended for. All the other grants are limited by
the nature of the offices which they have severally to perform, each
conveying a power to do a certain thing, and that only, whereas this is
coextensive with the great scheme of the Government itself. It is the
lever which raises and puts the whole machinery in motion and continues
the movement. Should either of the other grants fail in consequence of
any condition or limitation attached to it or misconstruction of its
powers, much injury might follow, but still it would be the failure of
one branch of power, of one item in the system only. All the others
might move on. But should the right to raise and appropriate the public
money be improperly restricted, the whole system might be sensibly
affected, if not disorganized. Each of the other grants is limited by
the nature of the grant itself; this, by the nature of the Government
only. Hence it became necessary that, like the power to declare war,
this power should be commensurate with the great scheme of the
Government and with all its purposes.
If, then, the right to raise and appropriate the public money is not
restricted to the expenditures under the other specific grants according
to a strict construction of their powers, respectively, is there no
limitation to it? Have Congress a right to raise and appropriate the
money to any and to every purpose according to their will and pleasure?
They certainly have not. The Government of the United States is a
limited Government, instituted for great national purposes, and for
those only. Other interests are committed to the States, whose duty
it is to provide for them. Each government should look to the great
and essential purposes for which it was instituted and confine itself
to those purposes. A State government will rarely if ever apply money to
national purposes without making it a charge to the nation. The people
of the State would not permit it. Nor will Congress be apt to apply
money in aid of the State administrations for purposes strictly local
in which the nation at large has no interest, although the State should
desire it. The people of the other States would condemn it. They would
declare that Congress had no right to tax them for such a purpose, and
dismiss at the next election such of their representatives as had voted
for the measure, especially if it should be severely felt. I do not
think that in offices of this kind there is much danger of the two
Governments mistaking their interests or their duties. I rather expect
that they would soon have a clear and distinct understanding of them
and move on in great harmony.
Good roads and canals will promote many very important national
purposes. They will facilitate the operations of war, the movements of
troops, the transportation of cannon, of provisions, and every warlike
store, much to our advantage and to the disadvantage of the enemy in
time of war. Good roads will facilitate the transportation of the mail,
and thereby promote the purposes of commerce and political intelligence
among the people. They will by being properly directed to these objects
enhance the value of our vacant lands, a treasure of vast resource to
the nation. To the appropriation of the public money to improvements
having these objects in view and carried to a certain extent I do not
see any well-founded constitutional objection.
In regard to our foreign concerns, provided they are managed with
integrity and ability, great liberality is allowable in the application
of the public money. In the management of these concerns no State
interests can be affected, no State rights violated. The complete and
exclusive control over them is vested in Congress. The power to form
treaties of alliance and commerce with foreign powers, to regulate by
law our commerce with them, to determine on peace or war, to raise
armies and a navy, to call forth the militia and direct their operations
belongs to the General Government. These great powers, embracing the
whole scope of our foreign relations, being granted, on what principle
can it be said that the minor are withheld? Are not the latter clearly
and evidently comprised in the former? Nations are sometimes called upon
to perform to each other acts of humanity and kindness, of which we see
so many illustrious examples between individuals in private life. Great
calamities make appeals to the benevolence of mankind which ought not
to be resisted. Good offices in such emergencies exalt the character
of the party rendering them. By exciting grateful feelings they soften
the intercourse between nations and tend to prevent war. Surely if the
United States have a right to make war they have a right to prevent it.
How was it possible to grant to Congress a power for such minor purposes
other than in general terms, comprising it within the scope and policy
of that which conveyed it for the greater?
The right of appropriation is nothing more than a right to apply the
public money to this or that purpose. It has no incidental power, nor
does it draw after it any consequences of that kind. All that Congress
could do under it in the case of internal improvements would be to
appropriate the money necessary to make them. For every act requiring
legislative sanction or support the State authority must be relied on.
The condemnation of the land, if the proprietors should refuse to sell
it, the establishment of turnpikes and tolls, and the protection of the
work when finished must be done by the State. To these purposes the
powers of the General Government are believed to be utterly incompetent.
To the objection that the United States have no power in any instance
which is not complete to all the purposes to which it may be made
instrumental, and in consequence that they have no right to appropriate
any portion of the public money to internal improvements because they
have not the right of sovereignty and jurisdiction over them when made,
a full answer has, it is presumed, been already given. It may, however,
be proper to add that if this objection was well founded it would not
be confined to the simple case of internal improvements, but would
apply to others of high importance. Congress have a right to regulate
commerce. To give effect to this power it becomes necessary to establish
custom-houses in every State along the coast and in many parts of
the interior. The vast amount of goods imported and the duties to be
performed to accommodate the merchants and secure the revenue make it
necessary that spacious buildings should be erected, especially in the
great towns, for their reception. This, it is manifest, could best be
performed under the direction of the General Government. Have Congress
the right to seize the property of individuals if they should refuse
to sell it, in quarters best adapted to the purpose, to have it valued,
and to take it at the valuation? Have they a right to exercise
jurisdiction within those buildings? Neither of these claims has ever
been set up, nor could it, as is presumed, be sustained. They have
invariably either rented houses where such as were suitable could be
obtained, or, where they could not, purchased the ground of individuals,
erected the buildings, and held them under the laws of the State. Under
the power to establish post-offices and post-roads houses are also
requisite for the reception of the mails and the transaction of the
business of the several offices. These have always been rented or
purchased and held under the laws of the State in the same manner as
if they had been taken by a citizen. The United States have a right to
establish tribunals inferior to the Supreme Court, and such have been
established in every State of the Union. It is believed that the houses
for these inferior courts have invariably been rented. No right of
jurisdiction in them has ever been claimed, nor other right than that of
privilege, and that only while the court is in session. A still stronger
case may be urged. Should Congress be compelled by invasion or other
cause to remove the Government to some town within one of the States,
would they have a right of jurisdiction over such town, or hold even the
house in which they held their session under other authority than the
laws of such State? It is believed that they would not. If they have
a right to appropriate money for any of these purposes, to be laid out
under the protection of the laws of the State, surely they have an equal
right to do it for the purposes of internal improvements.
It is believed that there is not a corporation in the Union which does
not exercise great discretion in the application of the money raised
by it to the purposes of its institution. It would be strange if the
Government of the United States, which was instituted for such important
purposes and endowed with such extensive powers, should not be allowed
at least equal discretion and authority. The evil to be particularly
avoided is the violation of State rights. Shunning that, it seems to be
reasonable and proper that the powers of Congress should be so construed
as that the General Government in its intercourse with other nations and
in our internal concerns should be able to adopt all such measures lying
within the fair scope and intended to facilitate the direct objects of
its powers as the public welfare may require and a sound and provident
policy dictate.
The measures of Congress have been in strict accord with the view taken
of the right of appropriation both as to its extent and limitation, as
will be shown by a reference to the laws, commencing at a very early
period. Many roads have been opened, of which the following are the
principal: The first from Cumberland, at the head waters of the Potomac,
in the State of Maryland, through Pennsylvania and Virginia, to the
State of Ohio (March 29, 1806; see vol. 4, p. 13, of the late edition
of the laws). The second from the frontiers of Georgia, on the route
from Athens to New Orleans, to its intersection with the thirty-first
degree of north latitude (April 31, 1806, p. 58). The third from the
Mississippi at a point and by a route described to the Ohio (same act).
The fourth from Nashville, in Tennessee, to Natchez (same act). The
fifth from the thirty-first degree of north latitude, on the route
from Athens to New Orleans, under such regulations as might be agreed
on between the Executive and the Spanish Government (March 3, 1807,
p. 117). The sixth from the foot of the rapids of the river Miami,
of Lake Erie, to the western line of the Connecticut Reserve (December
12, 1811, p. 364). The seventh from the Lower Sandusky to the boundary
line established by the treaty of Greenville (same act). The eighth from
a point where the United States road leading from Vincennes to the
Indian boundary line, established by the treaty of Greenville, strikes
the said line, to the North Bend, in the State of Ohio (January 8, 1812,
p. 367). The ninth for repairing and keeping in repair the road between
Columbia, on Duck River, in Tennessee, and Madisonville, in Louisiana,
and also the road between Fort Hawkins, in Georgia, and Fort Stoddard
(April 27, 1816, p. 104 of the acts of that year). The tenth from the
Shawneetown, on the Ohio River, to the Sabine, and to Kaskaskias,
in Illinois (April 27, 1816, p. 112). The eleventh from Reynoldsburg,
on Tennessee River, in the State of Tennessee, through the Chickasaw
Nation, to intersect the Natchez road near the Chickasaw old town (March
3, 1817, p. 252). The twelfth: By this act authority was given to the
President to appoint three commissioners for the purpose of examining
the country and laying out a road from the termination of the Cumberland
road, at Wheeling, on the Ohio, through the States of Ohio, Indiana,
and Illinois, to a point to be chosen by them, on the left bank of the
Mississippi, between St. Louis and the mouth of the Illinois River, and
to report an accurate plan of the said road, with an estimate of the
expense of making it. It is, however, declared by the act that nothing
was thereby intended to imply an obligation on the part of the United
States to make or defray the expense of making the said road or any part
thereof.
In the late war two other roads were made by the troops for military
purposes--one from the Upper Sandusky, in the State of Ohio, through
the Black Swamp, toward Detroit, and another from Plattsburg, on Lake
Champlain, through the Chatauga woods toward Sacketts Harbor, which have
since been repaired and improved by the troops. Of these latter there
is no notice in the laws. The extra pay to the soldiers for repairing
and improving those roads was advanced in the first instance from the
appropriation to the Quartermaster's Department and afterwards provided
for by a specific appropriation by Congress. The necessity of keeping
those roads open and in good repair, being on the frontier, to
facilitate a communication between our posts, is apparent.
All of these roads except the first were formed merely by cutting down
the trees and throwing logs across, so as to make causeways over such
parts as were otherwise impassable. The execution was of the coarsest
kind. The Cumberland road is the only regular work which has been
undertaken by the General Government or which could give rise to any
question between the two Governments respecting its powers. It is a
great work, over the highest mountains in our Union, connecting from
the seat of the General Government the Eastern with the Western waters,
and more intimately the Atlantic with the Western States, in the
formation of which $1,800,000 have been expended. The measures pursued
in this case require to be particularly noticed as fixing the opinion
of the parties, and particularly of Congress, on the important question
of the right. Passing through Maryland, Pennsylvania, and Virginia,
it was thought necessary and proper to bring the subject before their
respective legislatures to obtain their sanction, which was granted by
each State by a legislative act, approving the route and providing for
the purchase and condemnation of the land. This road was founded on an
article of compact between the United States and the State of Ohio,
under which that State came into the Union, and by which the expense
attending it was to be defrayed by the application of a certain portion
of the money arising from the sale of the public lands within that
State. In this instance, which is by far the strongest in respect to
the expense, extent, and nature of the work done, the United States have
exercised no act of jurisdiction or sovereignty within either of the
States by taking the land from the proprietors by force, by passing acts
for the protection of the road, or to raise a revenue from it by the
establishment of turnpikes and tolls, or any other act founded on the
principle of jurisdiction or right. Whatever they have done has, on the
contrary, been founded on the opposite principle, on the voluntary and
unqualified admission that the sovereignty belonged to the State and not
to the United States, and that they could perform no act which should
tend to weaken the power of the State or to assume any to themselves.
All that they have done has been to appropriate the public money to
the construction of this road and to cause it to be constructed, for
I presume that no distinction can be taken between the appropriation
of money raised by the sale of the public lands and of that which
arises from taxes, duties, imposts, and excises; nor can I believe that
the power to appropriate derives any sanction from a provision to that
effect having been made by an article of compact between the United
States and the people of the then Territory of Ohio. This point may,
however, be placed in a clearer light by a more particular notice of
the article itself.