Secretary of War, had a number of those objects of Internal Imrovement examined and surveyed, before the passage of the law of 1824. not by authority of any law, but by virtue of his inherent power, as Secretary of War, and which were called national objects.

The term national, was a new word that had crept into our political vocabulary, and growing pretty much into use. It was a term nnknown to the origin and theory of our Government. The first article of the confederation says, "The style of this Confederacy shall be, the United States of America." A part of the Federal Convention styled it a National Government. It was, however, made a question, and Mr. Elsworth moved to expunge the word national, and place in the room of it, "Government of the United States."(2) which was agreed to by the unanimous vote of the Convention. Mr. Elsworth, who was a distinguished patriot, and an eminent statesman, saw the bearing of the word national, and therefore moved, not in the ordinary phraseology to strike out, but to expunge it! However, all that guarded precaution is now exploded, and the word has become technical.

Although he denied the legitimacy of the term, and considered it an insiduous word, when used as descriptive of our Government, he would nevertheless adopt it upon this occasion. And without wishing to impugn the private or political character of any functionary of the Government, he would ask, who clothed the Secretary of War, or the President of the United States, with power to designate any road a national road, or any canal a national canal? Or he would ask, by what rule an agent of the Government can distinguish between roads and canals that are national, and roads and canals that are not national? The Senator from Delaware, (Mr. M.Lane,) strenuously argues, that there is manifestly a clear distinction, and that the Break-water in Delaware Bay is a national object, and the road to be constructed between the city of Baltimore and the city of Philadelphia, is a national road. Mr. Smith said, he would ask any gentleman learned on this subject, to inform him where the nationality of a road begins, or where its nationality ends? He would test the question in this way. Suppose the road that is to lead from Baltimore to Philadelphia to be a national road, as the gentleman supposes, would it lose its national character, were it to deviate and pass two degrees west of Philadelphia? If it would not, would it do so were it to deviate ten degrees west of Philadelphia? If it would, at what point between two and ten degrees did it lose that national character? If a road be national that leads from one point to another, and not national if it leads from a different point, at what shade of deviation does it become denationalized ?

This question is susceptible of but one definition. A road, canal, breakwater, river, or creek, becomes national, or not national, in the ratio of its supporters, and the influence of those who ask it. The Senator from Delaware, (Mr. M Clean,) says he will support none of those objects, unless they are national objects; and that the Delaware Break-water, for which you have appropriated the large sum of $2,326,000 is a national object, because it is for the benefit of the community at large. How will he estimate Cunningham creek, in Ohio, for which this bill appropriates only $1,517? Is that a national object? A petty creek! Still that gentle

(2) Yates' Secret Debates, 142.

man votes for it, although we have not heard a word of its utility to any body. He thought, with the gentleman from Massachusetts, (ir. Webster,) that one road was a much national as another, if made for the use of the community.

Until Congress became road-makers, every portion of the community made their own roads. And are one portion to be relieved of this burden, and the others left to bear it? And if the Constitution has transferred the power from the community, to Congress, to construct commercial roads, has not every man an equal claim to a portion of them? And is not the road over which the poor farmer travels, with his one-horse cart, but twenty miles, to look a market for the small product of his yearly labour, as much a national road, as the road from the western frontier of Missouri to the confines of Mexico, over which the rich capitalists of that State are to travel, in quest of the gold and silver bullion, and the dollars of their Spanish neighbours'? The more you investigate this subject, the more abstruse it appears; and every step you advance, adds new proofs of its absurdity.

Mr. Smith here left this part of the subject, and said he would now examine the bearings of the Constitution upon this question. The Constitution was formed at a time, and under circumstances, that forbid a belief that any power was left to chance or construction. Is was formed too, by an assemblage of Patriots, whose talents would have graced a Roman Senate, in times of its meridian splendour, and whose virtues were yet untainted by intrigue or ambition. Their object was to confer certain powers on the general Government, but to fix a permanent limit to those powers, not to form a Constitution that should be a plaything in the hands of Congress, to be applied as convenience or interest should dictate. It was the first written Constitution the world ever saw, except that given from Heaven to the people of Israel. But, in less than thirty years from its adoption, it has been thrown aside among the rubbish, as not understood; or, if understood at all, not by any two politicians in the same way. Gentleman are weary of the Constitution. It has become too unfashionable, and not easily defined. Every other art and science, and every calling and profession among civilized men, are understood by those who pursue them, and are understood in the same way, because they have their appropriate and technical means of being understood. protection is denied to the Constitution. It had been stript of all the ordinary rules of construction, by which alone the meaning of this or any other instrument can be perpetuated. But, however unfashionable it may be, or however unavailing the result, he would endeavour, by the ordinary rules of construction, and the fair import of the words employed in the constitution itself, to demonstrate that the construction contended for by the advocates of this power, was erroneous and dangerous to this Govern

ment.

This

Among those who attempt to derive this power from the Constitution, some of them have relied upon that clause which gives Congress the power" to regulate commerce with foreign nations, and among the several States, and with the Indian tribes"

Nothing can be more foreign to the common and universally received import of the words, "to regulate commerce," than to suppose they contain a positive power to egress, to construct roads and canals, or piers and

break-waters. The power is given to regulate, not to create commerce. Commerce has a definite signification. It means the ordinary buying and selling, and bartering between the citizens of the same country, and the citizens of one country, with the citizens of another country-and it means no more. Universal usage has fixed its boundaries so permanently, they cannot be shaken by any artificial or sophistical argument. It needs no foreign aid; if it did, every thing said upon the subject supports this definition. Mortimer's Commercial Dictionary defines it to be "the interchange of commodities for other articles, or some representative of value for which other commodities can be procured." But he connects no roads or canals, piers or break-waters with it. That addition has been exclusively a work of Congress.

Chancellor Kent, of New-York, one of the ablest jurists of the age, in his Commentaries upon the Laws of the United States, as well as of his own State, has treated largely on the powers of Congress to regulate commerce, in his remarks upon the decision of the Court of the United States, in the case of Gibbons vs. Ogden, (3) in which he confines it entirely to a power to regulate traffic and intercourse. But the Commentator says, in treating further upon the opinions of the Court :—

"It was admitted, that inspection laws relative to the quality of articles to be exported, and quarantine laws, and health laws of every description, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. were component parts of an immense mass of legislation, not surrendered to the General Government." (4)

This is the opinion of the Supreme Court of the United States, upon the very point in question, in which they say, the right is not surrendered to the General Government. If you have this power, why not grasp the whole subject, and regulate the turnpike road and ferries, and regulate the inspection laws? They are more intimately connected with commerce, than roads and canals. Sir, as well might we say Congress had the power to furnish the boats, as to make the canals on which they are to ply. As well might we say, Congress shall provide the wagons and teams, as to construct, and keep in repair, the road on which they are to travel. It can be done for much less money, and it equally concerns trade and

commerce.

If he was permitted to construe this clause of the Constitution from the context, which was sanctioned by the known and established rules of construction, he thought he could give a new view of the subject, which had not heretofore been broached by any body, and one which he considered conclusive against the power.

It is only necessary to state the case, to render it self evident. This clause contains three distinct paragraphs. The first," to regulate commerce with foreign nations ;"-the second, " to regulate commerce among the several States ;"—the third, "to regulate commerce with the Indian tribes." The very same powers, precisely, are conferred on Congress, by each paragraph. They are so minutely the same, that the most subtle casuist cannot discriminate between them. Will you then carry through your scheme. and whilst you are constructing the national road from the Western frontier of Missouri, to the confines of Mexico, continue that na

(3) Kent's Com. 1 vol. p. 409. (4) Kent's Com. 1 vol. p. 410

tional road through the Spanish province to the city of Mexico? Or, will you, whilst constructing the road from Mattawamkeag to Mars Hill, in Maine, continue it on through the British province to Montreal or Quebec ? If you have the power under the second paragraph to construct a road in Maine or Missouri, you clearly have it under the first, to construct a road in Mexico or Canada. For it would never have been intended by the Convention, to form any part of the Constitution, in the same words, to be applied to the same objects, and to produce the same results, without a shade of difference, wherein it was more than evident, that one part should be executed, and the remainder could not, under any possible circumstanCan sophistry itself obviate this palpable absurdity. ?

ces.

But it is said, that under the power given to Congress," to establish postoffices and post-roads," the power is unlimited. But here, the power, as in the case of regulating commerce, must depend upon the phraseology of the sentence, and the practicability of the object to be accomplished. If neither of them justify this implied construction, the power cannot exist. It is said the word "establish means to construct. When a majority of a politicel assembly were bent upon their object, they could give such definition to a word as best suited their purpose. But the word " establish," as settled by all lexicographers, means nothing more than to fix, to settle, to make permanent And Congress itself, in all its post-road laws, had confirmed that definition And surely their own legal definitions are good authority. The title of the Bill now before the Senate for that purpose, is, "A Bill to alter and establish Post-roads." The act for that purpose, of the second of March, 1827, by its title, is, "An Act to establish sundry Post-roads." Its enacting section is, "That the following be established as Post-roads " This act establishes 270 new Post-roads; some of them more than 300 miles in length. And, taken altogether, not less than 10,000 miles in length. When Congress pass a law to construct a road, they say so in so many words; as in an act of the same date of the above, the title of which is, " An Act to authorize the laying out and opening certain roads."

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This was also an object totally beyond the capacity of the Government to accomplish, and must have been known to the Convention to be so ; therefore, could never have entered into the plan of "establishing postoffices and post-roads," to leave an implied power that must consume annually, three times the amount of your revenue. Because, if to "estabiish,” signifies to construct, it then becomes imperative on Congress to construct every post-road in the Union. And to show that it was a work far beyond the resources of this Government to execute, it was only necessary to say, there were already 7000 post offices, all of which the Government must build, and 100,000 miles of post roads to construct; which, according to the cheapest estimates of the post-roads heretofore constructed, would cost the Government $500,000,000, with an average increase of $5,000 annually. (5) It would cost four times as much, annually, as the whole expense of administering this Government, including every department in it, army, navy, and all It is utterly impossible, Sir, to imagine, that a deliberative assembly, like that Convention, could have dreamed of leaving such a formidable power concealed within another power, and to be drag

(5) Document from Generat Post-Office.

ins of

ged out only by implication, when some thirty or forty years thereafter, the majority of Congress should think fit to call it into action. The enormity of this power is none the less, because Congress have not, hitherto, constructed all the roads they claim the power over But the exercise of that power is now about to commence its operation in its most extravagant form. It has been argued by the friends of this measure, that, without this implied construction, Congress could not carry on the ordinary operati the Mail. It might, they say, be impeded by the States. But if it were possible that any State, or any people, could be so lost to their own interest as to obstruct the Mail, you have already passed laws more than sufficient, to punish such wanton temerity. You have given, by law, the superiority of the roads and high-ways, to the mail carriers, and every body is obliged to give the road. If any person obstructs the passage of the Mail, he is punishable by fine and imprisonment. If the Mail is robhed, it is made a penitentiary offence. If, in robbing the Mail, the mail-carrier is put in fear of his life, you punish the offender with death. And surely the power you hold over the purse, over the pers nal liberty, and over the life and death of the offender, who shall dare to obstruct the passage of the Mail, is as ample as it would be safe to place in the hands of Congress

The power given by the Constitution of the United States, " to declare war," has been greatly relied on, as giving, by implication, the power to construct military roads, which we are told can be used, in times of peace, for post-roads and commercial roads. You have passed through two bloody wars successfully. without a military road. Is it to be supposed your enemy is to meet yon at the end of your military road, or is he to use it as well as you who make it. You must be prepared to meet your enemy wherever you find him, not where you would wish War roads, when necessary, can only be made for the occasion, and that must be left to the discretion of the commander of your army Can any thing be more ridiculous, than Congress constructing military roads, without knowing where the operations of war are to rage? The universal consent of mankind has established it, without repeal,that the operations of war provide their own roads. It is a rule of construction, never to be departed from, that, in reconciling a doubtful law, it is only necessary to ascertain the intention of the lawgiver, and that will settle the construction. The intention of the Convention, on that occasion, is so palpable, as to leave no doubt whatever. Various propositions were submitted, by different members of that Convention; among them was vir. Charles Pinckney, of South-Carolina. One of Mr. Pinckney's propositions was, "That Congress should have power to establish military roads." Although many of Mr. Pinckney's other propositions were adopted, they rejected this one to establish military, roads. Rejecting it, is a demonstration, that the power was not given, and therefore, cannot be implied, without violating the settled principles of construction

ted.

Besides, it is a power by no means essential to either raising or supporting an army. Nor did the Convention believe so, or they must have adopted it; and, more especially, as the proposition was directly submitThe evidence is abundant from the Constitution itself. They gave Congress "power to declare war," which would irresistibly have implied a power to raise and support armies. They might have declared war, but how were they to carry it on without an army? They did carry on a prosperous war without constructing a single road Raising an army would also irresistibly imply the power to support an army. Yet they are

4