A Compilation of the Messages and Papers of the Presidents. Volume 2, part 1: James Monroe

by Unknown

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.

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.