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

by Unknown

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.