t
J'
king roads and canals, and work--ever these 'circumstances do oc-
cur, it is, 1 say, proot positive, uidi
onc or both agencies have trans
cended their proper limits; be
cause, the very fundamental prin
ciple of the system is a separa
tion and preservation of the pow
ers to their own proper spheres.
We have, in the proper and strict
sense of the word, no concurrent
powers not even that of taxation,
or that other which is talked a
bout, a concurrency of jurisdiction
of the Federal and State Courts
over a certain class of cases. The
separate and distinct cases of
which class either of these judi
cial spheres may lake charge of,
separately, but certainly exclu
sively to the other. The power
of taxation in the two Govern
ments is similar, but not identical.
Taxation is the taking from the
general wealth of the country by
each Government, for its own pur
poses, in its own sphere, that mo
dicum or quantum which is neces
sary for carrying on its legitimate
operations; but these are not iden
tical: they surely are, tho' alike,
yet entirely different, separate, and
distinct; and, if the People of this
country understand their own in
terest and well-being, they will
take measures effectually to keep
them so: for, if there is any thing
of value in this system of Govern-
ment which we have adopted, that
ing on water courses, also to make
appropriations tor building or
constructing merchant vessels, to
facilitate and regulate the trade
between the United States and fo
reign countries, and the coasting
trade. And, for the same pur
pose, in relation to the commerce
among the States, carried on thro'
canals and over roads, we shall,
with the same propriety, be called
on to make appropriations for
building or constructing canal
boats, wa irons 'and other vehicles.
We should cut rather a singular
figure in debating an appropria
tion of fifty or a hundred thousand
dollars to build a fleet of pedlars'
wagons; but, in principle, it would
be the same thing. Gentlemen
must see, that, to push their doc
trine to its consequences, would
produce results of a most ludi
crous character. The subject, or
thing, to be regulated, is com
merce between the United States
and foreign nations, and among
the several States, and with the
Indian tribes. It is one, whole
and entire. The power given in
the Constitution to regulate, being
commensurate with the tiling to
be regulated, is also complete,
and therefore exclusive, extend
ing to the whole subject, and ex
cluding the interference or parti
cipation of any other power; and
HOUSE OF REPRESENTATIVES.
Feb. 26, 1828. The bill mak
ing appropriation for Internal Im
provements being still under con
sideration, together with the am
endment, oflered by Mr. Drayton:
Mr. HALL said, 1 rose for the
purpose of making an explanation
which I find necessary to place
my opinions in regard to the con
stitutionality of this bill, in a pro
per point of view. From the re
port of the debate which took
place on the 5th, it might bt in
ferred that I had, in yielding to
the request of the gentleman from
South-Carolina Mr. McDuffie to
withdraw my motion to strike out
the first section of the bill, admit
ted, what seemed to have been his
opinion, that the constitutional
question was not involved in the
bill. On the contrary, however, I
am decidedly of opinion, that the
whole bill, from one end to the
ether, in every part, is unconstitu
tional, and that all and every item
rests upon the same ground. It
so happened, when the gentleman
irom bourn-Carolina made the re
quest to withdraw the motion, and
accompanied it with a remark or
two, I was engaged in conversa
tion with a gentleman from New
York, who made the same re
quest. Had I have heard the re-! all the delegated and enumerated
mark of the gentleman from South 'powers of this government. They
Carolina, I should, at the time of are limited to and by the ob
withdrawing the motion to strike !jects for which they were granted,
out, have accompanied it with the and to which applied, and not
explanation now made. The 'properly transferable to other pur
withdrawal of that motion was r'n-lnn If w time tlint tlio Iwl
tirely the result of a spirit of ac-'ral Gnvnrnmnnt is nno nf limitm! 'limited- find illiniitnMr it Una it
commodation and civilitv to seve- rlMnomtivl :m,l rmiimnrnf rwl timr ll mi f fit intw imnn tin voru c'inm
ral others, and the gentleman from crs. It has none but granted .principle that all the powers of
Smith-Cirnl
formed, had made the request, cause granted; and, consequently, subsidiary or mean power by
which, as I have said, I did not any other than granted powers which all the granted powers are
hear. This explanation was due j which it should exercise, would be to be carried into effect. This
to myself, that my opinions might, usurpations, would be unconstitu- being its object and purpose, it is
not be misunderstood here orjtional powers. The regulation, limited by and to this object,
elsewhere. j therefore, of commerce, being ex-jThe use of money being the prin-
I will now make a remark or clusively vested in Congress, tho ! cipal means for carrying into exe
two in reference to an opinion ex-; State Governments cannot do orcution all the powers of the Gov
presscd by two other gentlemen, j participate in it. And thus we "eminent a means without which
tor whose accommodation the 'come to nmnf nnitivn ii,t thev
I l 7 -J "
I - J . , ..v. , - j 7-
this constitutes the just limits of value can only be supported by
maintaining in its integrity this
very principle of separation, and
not concurrency or collusion of
powers. As to that constructive
Pandora's Box, the appropriating
power, though said by some able
and distinguished men to be un-
withdrawal was made. They
seem to be of opinion that some
parts of the bill were within con
stitutional limits, under the power
given by the Constitution to Con
gress, to regulate commerce.
But, if the gentlemen would re
flect for a moment, they must see
to what singular results this doc
trine leads. The power to regu
late, that is, to make legal rules
and regulations, by which com
merce is to be governed, is surely
not a power to construct, to cre
ate, or to make. If the power to
regulate gives the power to con
struct any one of the adjuncts of
uie uiiii ruguiaiea, men it gives
the power to construct all the ad
juncts, of every description. If,
under this power, Congress can
construct roads and canals, and
perform the mechanical opera
tions necessary to the improving
rivers and harbors within the juris
dictional limits of the States if it
can create or construct the wavs.
then it may, by the same rule,
construct the vehicles; and thus,
m tune, we shall have here, with
the same propriety with which we
act on appropriation bills for ma-
Congress has not the power to ex
ecute a system of internal im
provements within the States, un
der the power to rcguN.te com
merce; because, if it has, then the
States have the same power, and
may participate with it in the per
formance of the same act, for the
same purpose: for no one will
pretend to say that the States
have not the right to execute
works of this description: and if
tlie uovernment of the United
States can do, or participate in
doing, the same acts, then the
power is a completely concurrent
one; and 1 undertake to deny that
any such powers exist nay, more,
that they are at war with our
whole system which is founded
upon the principle that the two
spheres of agency are distinct, se
parate, and independent of each
other each acting within its own
sphere, competently to its own
purposes. And I undertake to
say that there is no better proof
ot the unconstitutionality ol any
act, than the clashing or concur
rency, that is, the participancy jf
me two powers in one and the
same act anil purpose. When-
extending this mean power to
purposes to which it does not le
gitimately belong, is just as much
an act of usurpation as such
an extension of any other power
would be.
In the course of this debate, the
names of several distinguished
citizens of this country have been
mentioned, and their opinions, in
relation to the subject of Internal
Improvements, alluded to. It ap
pears to me, therefore, a mere act
of justice, that they should be
heard in their own proper lan
guage. Mr. Jefferson, in his In
augural Address oi March, 1805,
says: "that when the redemption
"of the public debt has been ef
fected, the revenue thereby libe
rated, may, by a just repartition
"among the States and a corres
ponding amendment to the Con
stitution, be applied, in time of
"peace, to rivers, canals, roads,
"arts, manufactures, education,
and other great objects, within
"each State." In his Message of
December 2d, 180G, he remarks,
that, "their patriotism would cer
tainly prefer its contin
"application to the great purposes I
"of the public education, road
"rivers, canals, and such other ob
"jects of public improvements
"may be thought proper to addlo
"the constitutional enumeration nf
"Federal powers." "The subjec
"is now proposed for the consider
"ation of Congress; because, if ap"
"proved by the time the State Le!
"gislaturcs shall have deliberated
"on this extension of the Federal
"trusts, and the laws be passed
"and other arrangements ma
"for their execution, the necessa
"ry funds will be on hand, and
"without employment. I suppoSfJ
"an amendment to the Constitu
"tion, by consent of the States
"necessary; because the objects
"now recommended are not am.
"ong those enumerated in
"Constitution, and to which it
"permits the public moneys to be
"applied."
In his Message to the House of
Representatives, of March 3d (
tow, iHr. lYiaaison savs: "flay.
"ing considered the bill this day
"presented to me, entitled 'An act
"to set apart and pledge certain
"funds for Internal Improvements;
"and which sets apart and pledges
"funds, 'for constructing roads and
"canals, and improving the navi
gation of water courses, in or
"der to facilitate, promote, and
"give security to the internal coin
"merce, among the several States,
"and to render more easy and less
"expensive the means and provi
sions for the common defence
"I am constrained, by the insupe
"rable difficulty I feel in reconci
ling the bill with the Constitu
tion of the United States, to re
"turn it, with that objection, to the
"House of Representatives, in
"which it originated.
"The legislative powers vested
"in Congress, are specific, and
"enumerated in the 8th section of
"the first article of the Constitu
tion, and it does not appear that
"the power proposed to be exer
cised by that bill, is among the
"enumerated powers, or that it
miis, uy any just inierpreiauuu,
"within the power to make law
it
necessary and proper for carry
"ing into execution those, or other
"powers, vested by the Constit
ution in the Government of tfr
"United States. The power to
"regulate commerce among tie
"several States, cannot include a
"power to construct roads and
"canals, and to improve the nan
"gation of water courses, in order
"to facilitate, promote, and sf
"cure, such a commerce, without
"a latitude of construction depart;
"ing from the ordinary import01
"the terms, strengthened by je
"known inconveniences tvl)i,J'
"doubtless, led to the grant of t
"remedial power to Congress
"To refer the powers in qucstio"
"to the clause 'to provide fortD'
"common defence and gcDC
"welfare,' would be contrary
"the established and cous
"rules of interpretation; as reflj
"dering the special and ca
"enumeration of powers vK
"follow the clause, nugatory a
"improper."
In a message of Mr. Monroe
the House of Represent
May 4th, 1822, we have the :t
lowing: "A power to cstab'j.
"turnpikes, with gates and to
"and to enforce the collects