I will now proceed to endeavor to discover the real difference, in the interpretation of the constitution, between the gentlemen on the other side and myself. It is agreed, that there is no power in the general government but that which is expressly granted, or which is impliable from an express grant. The difference, then, must be in the application of this rule. The gentleman from Virginia, who has favored the house with so able an argument on the subject, has conceded, though somewhat reluctantly, the existence of incidental powers, but he contended that they must have a direct and necessary relation to some specified power. Granted. But who is to judge of this relation? And what rule can you prescribe, different from that which the constitution has required, that it should be necessary and proper? Whatever may be the rule, in whatever language you may choose to express it, there must be a certain degree of discretion left to the agent who is to apply it. But gentlemen are alarmed at this discretion—that law of tyrants, on which they contend there is no limitation. It should be observed, in the first place, that the gentlemen are brought, by the very course of reasoning which they themselves employ, by all the rules which they would lay down for the constitution, to cases where discretion must exist. But is there no limitation, no security against the abuse of it? Yes, there is such security in the fact of our being members of the same society, equally affected ourselves by the laws we promulgate. There is the further security in the oath which is taken to support the constitution, and which will tend to restrain congress from deriving powers which are not proper and necessary. There is the yet further security, that, at the end of every two years, the members must be amenable to the people for the manner in which their trusts have been performed. And there remains also that further, though awful security, the last resort of society, which I contend belongs alike to the people and to the states in their sovereign capacity, to be exercised in extreme cases, and when oppression becomes intolerable, the right of resistance. Take the gentleman’s own doctrine, (Mr. Barbour,) the most restricted which has been asserted, and what other securities have we against the abuse of power, than those which I have enumerated? Say that there must be an absolute necessity to justify the exercise of an implied power, who is to define that absolute necessity, and then to apply it? Who is to be the judge? Where is the security against transcending that limit? The rule the gentleman contends for has no greater security than that insisted upon by us. It equally leads to the same discretion, a sound discretion, exercised under all the responsibility of a solemn oath, of a regard to our fair fame, of a knowledge that we are ourselves the subjects of those laws whichwe pass, and, lastly, of the right of resisting insupportable tyranny. And, by way of illustration, if the sedition act had not been condemned by the indignant voice of the community, the right of resistance would have accrued. If congress assumed the power to control the right of speech, and to assail, by penal statutes, the greatest of all the bulwarks of liberty, the freedom of the press, and there were no other means to arrest their progress, but that to which I have referred, lamentable as would be the appeal, such a monstrous abuse of power, I contend, would authorize a recurrence to that right.
If, then, the gentlemen on the other side and myself differ so little in our general principles, as I think I have shown, I will proceed, for a few moments, to look at the constitution a little more in detail. I have contended, that the power to construct post-roads is expressly granted in the power to establish post-roads. If it be, there is an end of the controversy; but if not, the next inquiry is, whether that power may be fairly deduced, by implication, from any of the special grants of power. To show that the power is expressly granted, I might safely appeal to the arguments already used, to prove that the word establish, in this case, can mean only one thing—the right of making. Several gentlemen have contended, that the word has a different sense; and one has resorted to the preamble of the constitution, to show that the phrase ‘to establish justice,’ there used, does not convey the power of creation. If the word ‘establish’ is there to be taken in the sense which gentlemen claim for it, that of adoption or designation, congress could have a choice only of systems of justice preëxisting. Will any gentleman contend, that we are obliged to take the Justinian code, the Napoleon code, the code of civil, or the code of common or canon law? Establishment means in the preamble, as in other cases, construction, formation, creation. Let me ask, in all cases of crime, which are merely malum prohibitum, if you do not resort to construction, to creating, when you make the offence? By your laws denouncing certain acts as criminal offences, laws which the good of society requires you to pass, and to adapt to our peculiar condition, you do construct and create a system of rules, to be administered by the judiciary. But gentlemen say, that the word cannot mean make; that you would not say, for example, to establish a ship, to establish a chair. In the application of this, as of all other terms, you must be guided by the nature of the subject; and if it cannot properly be used in all cases, it does not follow that it cannot be in any. And when we take into consideration, that, under the old articles of confederation, congress had over the subject of post-roads just as much power as gentlemen allow to the existing government, that it was the general scope and spirit of the new constitution to enlarge the powers of the general government, and that, in fact, in this very clause, the power toestablish post-offices, which was alone possessed by the former government, I think that I may safely consider the argument, on this part of the subject, as successfully maintained. With respect to military roads, the concession that they may be made when called for by the emergency, is admitting that the constitution conveys the power. And we may safely appeal to the judgment of the candid and enlightened, to decide between the wisdom of these two constructions, of which one requires you to wait for the exercise of your power until the arrival of an emergency, which may not allow you to exert it, and the other, without denying you the power, if you can exercise it during the emergency, claims the right of providing beforehand against the emergency.
One member has stated what appeared to him a conclusive argument against the power to cut canals, that he had understood that a proposition, made in the convention to insert such a power, was rejected. To this argument more than one sufficient answer can be made. In the first place, the fact itself has been denied, and I have never yet seen any evidence of it. But, suppose that the proposition had been made and overruled, unless the motives of the refusal to insert it are known, gentlemen are not authorized to draw the inference that it was from hostility to the power, or from a desire to withhold it from congress. May not one of the objections be, that the power was fairly to be inferred from some of the specific grants of power, and that it was therefore not necessary to insert the proposition; that to adopt it, indeed, might lead to weaken or bring into doubt other incidental powers not enumerated? A member from New York, (Mr. Storrs,) whose absence I regret on this occasion, not only on account of the great aid which might have been expected from him, but from the cause of that absence, has informed me, that, in the convention of that state, one of the objections to the constitution by the anti-federalists was, that it was understood to convey to the general government the power to cut canals. How often, in the course of the proceedings of this house, do we reject amendments, upon the sole ground that they are not necessary, the principle of the amendment being already contained in the proposition.
I refer to the Federalist, for one moment, to show that the only notice taken of that clause of the constitution which relates to post-roads, is favorable to my construction. The power, that book says, must always be a harmless one. I have endeavored to show, not only that it is perfectly harmless, but that every exercise of it must be necessarily beneficial. Nothing which tends to facilitate intercourse among the states, says the Federalist, can be unworthy of the public care. What intercourse? Even if restricted on the narrowest theory of gentlemen on the other side, to the intercourse of intelligence, they deny that to us, since they will not admit that we have the power to repair or improve the way, the right of whichthey yield us. In a more liberal and enlarged sense of the word, it will comprehend all those various means of accomplishing the object, which are calculated to render us a homogeneous people—one in feeling, in interest, and affection; as we are one in our political relation.
Is there not a direct and intimate relation between the power to make war, and military roads and canals? It is in vain that the convention have confided to the general government the tremendous power of declaring war; have imposed upon it the duty to employ the whole physical means of the nation to render the war, whatever may be its character, successful and glorious; if the power is withheld of transporting and distributing those means. Let us appeal to facts, which are sometimes worth volumes of theory. We have recently had a war raging on all the four quarters of the union. The only circumstance which gave me pain at the close of that war, the detention of Moose Island, would not have occurred, if we had possessed military roads. Why did not the union, why did not Massachusetts, make a struggle to reconquer the island? Not for the want of men; not for the want of patriotism, I hope; but from the want of physical ability to march a force sufficient to dislodge the enemy. On the northwestern frontier, millions of money, and some of the most precious blood of the state from which I have the honor to come, was wastefully expended for the want of such roads. My honorable friend from Ohio (General Harrison), who commanded the army in that quarter, could furnish a volume of evidence on this subject. What now paralyses our arms on the southern frontier, and occasioned the recent massacre of fifty of our brave soldiers? What, but the want of proper means for the communication of intelligence, and for the transportation of our resources from point to point? Whether we refer to our own experience, or that of other countries, we cannot fail to perceive the great value of military roads. Those great masters of the world, the Romans, how did they sustain their power so many centuries, diffusing law and liberty, and intelligence, all around them? They made permanent military roads; and among the objects of interest which Europe now presents are the remains of those Roman roads, which are shown to the curious inquirer. If there were no other monument remaining of the sagacity and of the illustrious deeds of the unfortunate captive of St. Helena, the internal improvements which he made, the road from Hamburgh to Basle, would perpetuate his memory to future ages. In making these allusions, let me not be misunderstood. I do not desire to see military roads established for the purpose of conquest, but of defence; and as a part of that preparation which should be made in a season of peace for a season of war. I do not wish to see this country ever in that complete state of preparation for war, for which some contend; that is, that, we should constantly have alarge standing army, well disciplined, and always ready to act. I want to see the bill reported by my friend from Ohio, or some other, embracing an effective militia system, passed into a law; and a chain of roads and canals, by the aid of which our physical means can be promptly transported to any required point. These, connected with a small military establishment to keep up our forts and garrisons, constitute the kind of preparation for war, which, it appears to me, this country ought to make. No man, who has paid the least attention to the operations of modern war, can have failed to remark, how essential good roads and canals are to the success of those operations. How often have battles been won by celerity and rapidity of movement! It is one of the most essential circumstances in war. But, without good roads, it is impossible. Members will recall to their recollection the fact, that, in the senate, several years ago, an honorable friend of mine (Mr. Bayard), whose premature death I shall ever deplore, who was an ornament to the councils of his country, and who, when abroad, was the able and fearless advocate of her rights, did, in supporting a subscription which he proposed the United States bank should make to the stock of the Delaware and Chesapeake canal company, earnestly recommend the measure as connected with our operations in war. I listened to my friend with some incredulity, and thought he pushed his argument too far. I had, soon after, a practical evidence of its justness. For, in travelling from Philadelphia, in the fall of 1813, I saw transporting, by government, from Elk river to the Delaware, large quantities of massy timbers for the construction of the Guerriere or the Franklin, or both; and, judging from the number of wagons and horses, and the number of days employed, I believe the additional expense of that single operation would have gone very far to complete that canal, whose cause was espoused with so much eloquence in the senate, and with so much effect, too; bills having passed that body more than once to give aid, in some shape or other, to that canal. With notorious facts like this, is it not obvious, that a line of military canals is not only necessary and proper, but almost indispensable to the war-making power?
One of the rules of construction which has been laid down, I acknowledge my incapacity to comprehend. Gentlemen say, that the power in question is a substantive power; and that no substantive power can be derived by implication. What is their definition of a substantive power? Will they favor us with the principle of discrimination between powers which, being substantive, are not grantable but by express grant, and those which, not being substantive, may be conveyed by implication? Although I do not perceive why this power is more entitled than many implied powers, to the denomination of substantive, suppose that be yielded, how do gentlemen prove that it may not be conveyed by implication? If the positions were maintained, which have not yet been proved,that the power is substantive, and that no substantive power can be implied, yet I trust it has been satisfactorily shown that there is an express grant.
My honorable friend from Virginia, (Mr. Nelson,) has denied the operation of executive influence on his mind; and has informed the committee, that from that quarter he has nothing to expect, to hope, or to fear. I did not impute to my honorable friend any such motive; I knew his independence of character and of mind too well to do so. But I entreat him to reflect, if he does not expose himself to such an imputation by those less friendly disposed towards him than myself. Let us look a little at facts. The president recommends the establishment of a bank. If ever there were a stretch of implied powers conveyed by the constitution, it has been thought that the grant of the charter of the national bank was one. But the president recommends it. Where was then my honorable friend, the friend of state rights, who so pathetically calls upon us to repent, in sackcloth and ashes, our meditated violation of the constitution; and who kindly expresses his hope, that we shall be made to feel the public indignation? Where was he at that awful epoch? Where was that eloquent tongue, which we have now heard with so much pleasure? Silent! Silent as the grave!
[Mr. Nelson said, across the house, that he had voted against the bank bill when first recommended.]
Alas! my honorable friend had not the heart to withstand a second recommendation from the president; but, when it came, yielded, no doubt most reluctantly, to the executive wishes, and voted for the bank. At the last session of congress, Mr. Madison recommended, (and I will presently make some remarks on that subject,) an exercise of all the existing powers of the general government, to establish a comprehensive system of internal improvements. Where was my honorable friend on that occasion? Not silent as the grave, but he gave a negative vote, almost as silent. No effort was made on his part, great as he is when he exerts the powers of his well-stored mind, to save the commonwealth from that greatest of all calamities, a system of internal improvement. No; although a war with all the allies, he now thinks, would be less terrible than the adoption of this report, not one word then dropped from his lips against the measure.
[Mr. Nelson said he voted against the bill.]