A Compilation of the Messages and Papers of the Presidents - James D. Richardson
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By an act of April 30, 1802, entitled "An act to enable the people of
the eastern division of the territory northwest of the river Ohio to
form a constitution and State government, and for the admission of such
State into the Union on an equal footing with the original States, and
for other purposes," after describing the limits of the proposed new
State and authorizing the people thereof to elect a convention to
form a constitution, the three following propositions were made to the
convention, to be obligatory on the United States if accepted by it:
First, that section No. 16 of every township, or, where such section
had been sold, other lands equivalent thereto, should be granted to the
inhabitants of such township for the use of free schools. Second, that
the 6 miles' reservation, including the salt springs commonly called
the Sciota Salt Springs, the salt springs near the Muskingum River and
in the military tract, with the sections which include the same, should
be granted to the said State for the use of the people thereof, under
such regulations as the legislature of the State should prescribe:
_Provided_, That it should never sell or lease the same for more than
ten years. Third, that one twentieth part of the proceeds of the public
lands lying within the said State which might be sold by Congress from
and after the 30th June ensuing should be applied to the laying out and
making public roads from the navigable waters emptying into the
Atlantic, to the Ohio, and through the State of Ohio, such roads to be
laid out under the authority of Congress, with the consent of the
several States through which they should pass.
These three propositions were made on the condition that the convention
of the State should provide by an ordinance, irrevocable without the
consent of the United States, that every tract of land sold by Congress
after the 30th of June ensuing should remain for the term of five years
after sale exempt from every species of tax whatsoever.
It is impossible to read the ordinance of the 23d of April, 1784, or
the provisions of the act of April 30, 1802, which are founded on it,
without being profoundly impressed with the enlightened and magnanimous
policy which dictated them. Anticipating that the new States would be
settled by the inhabitants of the original States and their offspring,
no narrow or contracted jealousy was entertained of their admission
into the Union in equal participation in the national sovereignty with
the original States. It was foreseen at the early period at which that
ordinance passed that the expansion of our Union to the Lakes and to
the Mississippi and all its waters would not only make us a greater
power, but cement the Union itself. These three propositions were well
calculated to promote these great results. A grant of land to each
township for free schools, and of the salt springs to the State, which
were within its limits, for the use of its citizens, with 5 per cent of
the money to be raised from the sale of lands within the State for the
construction of roads between the original States and the new State, and
of other roads within the State, indicated a spirit not to be mistaken,
nor could it fail to produce a corresponding effect in the bosoms of
those to whom it was addressed. For these considerations the sole return
required of the convention was that the new State should not tax the
public lands which might be sold by the United States within it for the
term of five years after they should be sold. As the value of these
lands would be enhanced by this exemption from taxes for that term, and
from which the new State would derive its proportionable benefit, and
as it would also promote the rapid sale of those lands, and with it
the augmentation of its own population, it can not be doubted, had this
exemption been suggested unaccompanied by any propositions of particular
advantage, that the convention would, in consideration of the relation
which had before existed between the parties, and was about to be so
much improved, most willingly have acceded to it and without regarding
it as an onerous condition.
Since, then, it appears that the whole of the money to be employed in
making this road was to be raised from the sale of the public lands, and
which would still belong to the United States, although no mention had
been made of them in the compact, it follows that the application of the
money to that purpose stands upon the same ground as if such compact had
not been made, and in consequence that the example in favor of the right
of appropriation is in no manner affected by it.
The same rule of construction of the right of appropriation has been
observed and the same liberal policy pursued toward the other new
States, with certain modifications adapted to the situation of each,
which were adopted with the State of Ohio. As, however, the reasoning
which is applicable to the compact with Ohio in relation to the right
of appropriation, in which light only I have adverted to it, is equally
applicable to the several compacts with the other new States, I deem it
unnecessary to take a particular notice of them.
It is proper to observe that the money which was employed in the
construction of all the other roads was taken directly from the
Treasury. This fact affords an additional proof that in the
contemplation of Congress no difference existed in the application of
money to those roads between that which was raised by the sale of lands
and that which was derived from taxes, duties, imposts, and excises.
So far I have confined my remarks to the acts of Congress respecting the
right of appropriation to such measures only as operate internally and
affect the territory of the individual States. In adverting to those
which operate externally and relate to foreign powers I find only two
which appear to merit particular attention. These were gratuitous grants
of money for the relief of foreigners in distress--the first in 1794
to the inhabitants of St. Domingo, who sought an asylum on our coast
from the convulsions and calamities of the island; the second in 1812
to the people of Caracas, reduced to misery by an earthquake. The
considerations which were applicable to these grants have already
been noticed and need not be repeated.
In this examination of the right of appropriation I thought it proper
to present to view also the practice of the Government under it, and to
explore the ground on which each example rested, that the precise nature
and extent of the construction thereby given of the right might be
clearly understood. The right to raise money would have given, as is
presumed, the right to use it, although nothing had been said to that
effect in the Constitution; and where the right to raise it is granted
without special limitation, we must look for such limitation to other
causes. Our attention is first drawn to the right to appropriate, and
not finding it there we must then look to the general powers of the
Government as designated by the specific grants and to the purposes
contemplated by them, allowing to this (the right to raise money), the
first and most important of the enumerated powers, a scope which will
be competent to those purposes. The practice of the Government, as
illustrated by numerous and strong examples directly applicable, ought
surely to have great weight in fixing the construction of each grant.
It ought, I presume, to settle it, especially where it is acquiesced
in by the nation and produces a manifest and positive good. A practical
construction, thus supported, shows that it has reason on its side and
is called for by the interests of the Union. Hence, too, the presumption
that it will be persevered in. It will surely be better to admit that
the construction given by these examples has been just arid proper than
to deny that construction and still to practice on it--to say one thing
and to do another.
Wherein consists the danger of giving a liberal construction to the
right of Congress to raise and appropriate the public money? It has
been shown that its obvious effect is to secure the rights of the
States from encroachment and greater harmony in the political movement
between the two governments, while it enlarges to a certain extent
in the most harmless way the useful agency of the General Government
for all the purposes of its institution. Is not the responsibility of
the representative to his constituent in every branch of the General
Government equally strong and as sensibly felt as in the State
governments, and is not the security against abuse as effectual in the
one as in the other government? The history of the General Government
in all its measures fully demonstrates that Congress will never venture
to impose unnecessary burdens on the people or any that can be avoided.
Duties and imposts have always been light, not greater, perhaps, than
would have been imposed for the encouragement of our manufactures had
there been no occasion for the revenue arising from them; and taxes and
excises have never been laid except in cases of necessity, and repealed
as soon as the necessity ceased. Under this mild process and the sale
of some hundreds of millions of acres of good land the Government will
be possessed of money, which may be applied with great advantage to
national purposes. Within the States only will it be applied, and,
of course, for their benefit, it not being presumable that such appeals
as were made to the benevolence of the country in the instances of
the inhabitants of St. Domingo and Caracas will often occur. How,
then, shall this revenue be applied? Should it be idle in the Treasury?
That our resources will be equal to such useful purposes I have no
doubt, especially if by completing our fortifications and raising and
maintaining our Navy at the point provided for immediately after the
war we sustain our present altitude and preserve by means thereof for
any length of time the peace of the Union.
When we hear charges raised against other governments of breaches
of their constitutions, or, rather, of their charters, we always
anticipate the most serious consequences--communities deprived of
privileges which they have long enjoyed, or individuals oppressed and
punished in violation of the ordinary forms and guards of trial to
which they were accustomed and entitled. How different is the situation
of the United States! Nor can anything mark more strongly the great
characteristics of that difference than the grounds on which like
charges are raised against this Government. It is not alleged that any
portion of the community or any individual has been oppressed or that
money has been raised under a doubtful title. The principal charges are
that a work of great utility to the Union and affecting immediately
and with like advantage many of the States has been constructed; that
pensions to the surviving patriots of our Revolution, to patriots who
fought the battles and promoted the independence of their country, have
been granted, by money, too, raised not only without oppression, but
almost without being felt, and under an acknowledged constitutional
power.
From this view of the right to appropriate and of the practice under
it I think that I am authorized to conclude that the right to make
internal improvements has not been granted by the power "to pay the
debts and provide for the common defense and general welfare," included
in the first of the enumerated powers; that that grant conveys nothing
more than a right to appropriate the public money, and stands on the
same ground with the right to lay and collect taxes, duties, imposts,
and excises, conveyed by the first branch of that power; that the
Government itself being limited, both branches of the power to raise
and appropriate the public money are also limited, the extent of the
Government as designated by the specific grants marking the extent
of the power in both branches, extending, however, to every object
embraced by the fair scope of those grants and not confined to a strict
construction of their respective powers, it being safer to aid the
purposes of those grants by the appropriation of money than to extend
by a forced construction the grant itself; that although the right to
appropriate the public money to such improvements affords a resource
indispensably necessary to such a scheme, it is nevertheless deficient
as a power in the great characteristics on which its execution depends.
The substance of what has been urged on this subject may be expressed in
a few words. My idea is that Congress have an unlimited power to raise
money, and that in its appropriation they have a discretionary power,
restricted only by the duty to appropriate it to purposes of common
defense and of general, not local, national, not State, benefit.
I will now proceed to the fifth source from which the power is said to
be derived, viz, the power to make all laws which shall be necessary
and proper for carrying into execution all the powers vested by the
Constitution in the Government of the United States or in any department
or officer thereof. This is the seventeenth and last of the enumerated
powers granted to Congress.
I have always considered this power as having been granted on a
principle of greater caution to secure the complete execution of all
the powers which had been vested in the General Government. It contains
no distinct and specific power, as every other grant does, such as to
lay and collect taxes, to declare war, to regulate commerce, and the
like. Looking to the whole scheme of the General Government, it gives
to Congress authority to make all laws which should be deemed necessary
and proper for carrying all its powers into effect. My impression has
been invariably that this power would have existed substantially if this
grant had not been made; for why is any power granted unless it be to be
executed when required, and how can it be executed under our Government
unless it be by laws necessary and proper for the purpose--that is, well
adapted to the end? It is a principle universally admitted that a grant
of a power conveys as a necessary consequence or incident to it the
means of carrying it into effect by a fair construction of its import.
In the formation, however, of the Constitution, which was to act
directly upon the people and be paramount to the extent of its powers
to the constitutions of the States, it was wise in its framers to leave
nothing to implication which might be reduced to certainty. It is known
that all power which rests solely on that ground has been systematically
and zealously opposed under all governments with which we have any
acquaintance; and it was reasonable to presume that under our system,
where there was a division of the sovereignty between the two
independent governments, the measures of the General Government would
excite equal jealousy and produce an opposition not less systematic,
though, perhaps, less violent. Hence the policy by the framers of our
Government of securing by a fundamental declaration in the Constitution
a principle which in all other governments had been left to implication
only. The terms "necessary" and "proper" secure to the powers of all
the grants to which the authority given in this is applicable a fair
and sound construction, which is equally binding as a rule on both
Governments and on all their departments.
In examining the right of the General Government to adopt and execute
under this grant a system of internal improvement the sole question
to be decided is whether the power has been granted under any of the
other grants. If it has, this power is applicable to it to the extent
stated. If it has not, it does not exist at all, for it has not been
hereby granted. I have already examined all the other grants (one only
excepted, which will next claim attention) and shown, as I presume, on
the most liberal construction of their powers that the right has not
been granted by any of them; hence it follows that in regard to them
it has not been granted by this.
I come now to the last source from which this power is said to be
derived, viz, the power to dispose of and make all needful rules and
regulations respecting the territory or other property of the United
States, which is contained in the second clause of the third section
of the fourth article of the Constitution.
To form a just opinion of the nature and extent of this power it will
be necessary to bring into view the provisions contained in the first
clause of the section of the article referred to, which makes an
essential part of the policy in question. By this it is declared that
new States shall be admitted into the Union, but that no new States
shall be formed or erected within the jurisdiction of any other State,
nor any States be formed by the junction of two or more States or parts
of States, without the consent of the legislatures of the States
concerned as well as of the United States.
If we recur to the condition of our country at the commencement of
the Revolution, we shall see the origin and cause of these provisions.
By the charters of the several colonies limits by latitude and other
descriptions were assigned to each. In commencing the Revolution the
colonies, as has already been observed, claimed by those limits,
although their population extended in many instances to a small portion
of the territory lying within them. It was contended by some of the
States after the declaration of independence that the vacant lands lying
within any of the States should become the property of the Union, as by
a common exertion they would be acquired. This claim was resisted by the
others on the principle that all the States entered into the contest in
the full extent of their chartered rights, and that they ought to have
the full benefit of those rights in the event of success. Happily this
controversy was settled, as all interfering claims and pretensions
between the members of our Union and between the General Government and
any of these members have been, in the most amicable manner and to the
satisfaction of all parties. On the recommendation of Congress the
individual States having such territory within their chartered limits
ceded large portions thereof to the United States on condition that it
should be laid off into districts of proper dimensions, the lands to
be sold for the benefit of the United States, and that the districts
be admitted into the Union when they should obtain such a population
as it might be thought proper and reasonable to prescribe. This is the
territory and this the property referred to in the second clause of the
fourth article of the Constitution.
All the States which had made cessions of vacant territory except
Georgia had made them before the adoption of the Constitution, and
that State had made a proposition to Congress to that effect which
was under consideration at the time the Constitution was adopted. The
cession was completed after the adoption of the Constitution. It was
made on the same principle and on similar conditions with those which
had been already made by the other States. As differences might arise
respecting the right or the policy in Congress to admit new States
into the Union under the new Government, or to make regulations for the
government of the territory ceded in the intermediate state, or for the
improvement and sale of the public lands, or to accept other cessions,
it was thought proper to make special provisions for these objects,
which was accordingly done by the above-recited clause in the
Constitution.
Thus the power of Congress over the ceded territory was not only
limited to these special objects, but was also temporary. As soon as
the territory became a State the jurisdiction over it as it had before
existed ceased. It extended afterwards only to the unsold lands, and
as soon as the whole were sold it ceased in that sense also altogether.
From that moment the United States have no jurisdiction or power in the
new States other than in the old, nor can it be obtained except by an
amendment of the Constitution.
Since, then, it is manifest that the power granted to Congress to
dispose of and make all needful regulations respecting the territory
and other property of the United States relates solely to the territory
and property which had been ceded by individual States, and which after
such cession lay without their respective limits, and for which special
provision was deemed necessary, the main power of the Constitution
operating internally, not being applicable or adequate thereto, it
follows that this power gives no authority, and has even no bearing on
the question of internal improvement. The authority to admit new States
and to dispose of the property and regulate the territory is not among
the enumerated powers granted to Congress, because the duties to be
performed under it are not among the ordinary duties of that body, like
the imposition of taxes, the regulation of commerce, and the like. They
are objects in their nature special, and for which special provision was
more suitable and proper.
Having now examined all the powers of Congress under which the right
to adopt and execute a system of internal improvement is claimed and
the reasons in support of it in each instance, I think that it may
fairly be concluded that such a right has not been granted. It appears
and is admitted that much may be done in aid of such a system by the
right which is derived from several of the existing grants, and more
especially from that to appropriate the public money. But still it is
manifest that as a system for the United States it can never be carried
into effect under that grant nor under all of them united, the great
and essential power being deficient, consisting of a right to take up
the subject on principle; to cause our Union to be examined by men of
science, with a view to such improvements; to authorize commissioners to
lay off the roads and canals in all proper directions; to take the land
at a valuation if necessary, and to construct the works; to pass laws
with suitable penalties for their protection; and to raise a revenue
from them, to keep them in repair, and make further improvement by the
establishment of turnpikes and tolls, with gates to be placed at the
proper distances.
It need scarcely be remarked that this power will operate, like many
others now existing, without affecting the sovereignty of the States
except in the particular offices to be performed. The jurisdiction of
the several States may still exist over the roads and canals within
their respective limits, extending alike to persons and property, as if
the right to make and protect such improvements had not been vested in
Congress. The right, being made commensurate simply with the purposes
indispensable to the system, may be strictly confined to them. The
right of Congress to protect the works by laws imposing penalties would
operate on the same principles as the right to protect the mail. The act
being punishable only, a jurisdiction over the place would be altogether
unnecessary and even absurd.
In the preceding inquiry little has been said of the advantages which
would attend the exercise of such a power by the General Government.
I have made the inquiry under a deep conviction that they are almost
incalculable, and that there was a general concurrence of opinion among
our fellow-citizens to that effect. Still, it may not be improper for
me to state the grounds upon which my own impression is founded. If it
sheds no additional light on this interesting part of the subject, it
will at least show that I have had more than one powerful motive for
making the inquiry. A general idea is all that I shall attempt.
The advantages of such a system must depend upon the interests to be
affected by it and the extent to which they may be affected, and those
must depend on the capacity of our country for improvement and the means
at its command applicable to that object.
I think that I may venture to affirm that there is no part of our globe
comprehending so many degrees of latitude on the main ocean and so
many degrees of longitude into the interior that admits of such great
improvement and at so little expense. The Atlantic on the one side, and
the Lakes, forming almost inland seas, on the other, separated by high
mountains, which rise in the valley of the St. Lawrence and determine
in that of the Mississippi, traversing from north to south almost the
whole interior, with innumerable rivers on every side of those mountains,
some of vast extent, many of which take their sources near to each other,
give the great outline. The details are to be seen on the valuable maps
of our country.
It appears by the light already before the public that it is practicable
and easy to connect by canals the whole coast from its southern to its
northern extremity in one continued inland navigation, and to connect in
like manner in many parts the Western lakes and rivers with each other.
It is equally practicable and easy to facilitate the intercourse between
the Atlantic and the Western country by improving the navigation of
many of the rivers which have their sources near to each other in the
mountains on each side, and by good roads across the mountains between
the highest navigable points of those rivers. In addition to the example
of the Cumberland road, already noticed, another of this kind is now in
train from the head waters of the river James to those of the Kanawha;
and in like manner may the Savannah be connected with the Tennessee. In
some instances it is understood that the Eastern and Western waters may
be connected together directly by canals. One great work of this kind is
now in its progress and far advanced in the State of New York, and there
is good reason to believe that two others may be formed, one at each
extremity of the high mountains above mentioned, connecting in the one
instance the waters of the St. Lawrence with Lake Champlain, and in
the other some of the most important of the Western rivers with those
emptying into the Gulf of Mexico, the advantage of which will be seen
at the first glance by an enlightened observer.