to the Supreme Court which the 25th section authorizes, Virginia, (6 Wheaton, 264,) by which the affirmative of these laws would thus be entirely annulled, and could not these propositions is clearly established. It may be proper, be executed without a resort to force. however, that we should make a few observations upon This position may be illustrated by a few striking ex- this part of the question. Those who have argued in favor amples. Suppose the Legislature of one of the States, of these positions, assert that the general words of the believing the tariff laws to be unconstitutional, should de- constitution, extending the judicial power of the Union termine that they ought not to be executed within its lim-"to all cases, in law and equity," arising under the conits. They accordingly pass a law, imposing the severest stitution and laws of the United States, ought, by construcpenalties upon the collector and other custom-house offi- tion, to be restricted to such cases, in law and equity, as cers of the United States within their territory, if they may originate in the courts of the Union. They would should collect the duties on the importation of foreign mer- thus establish a limitation at war with the letter, and, in chandise. The collector proceeds to discharge the duties our opinion, equally at war with the spirit of the instru of his office under the laws of the United States, and he is ment. Had such been the intention of the framers of the condemned and punished before a State court for violating constitution, they well knew in what language to express this State law. Repeal this section, and the decision of that intention. Had it been their purpose to restrict the the State court would be final and conclusive; and any meaning of the general language which they had used in State could thus nullify any act of Congress which she the first clause of the section, they could have done so deemed to be unconstitutional. with much propriety in the second. This clause, after

The Executive of one of the States, in a message to the providing that, in all cases affecting ambassadors, other Legislature, has declared it to be his opinion, that the land public ministers, and consuls, and those in which a State belonging to the United States within her territory is now shall be a party, the Supreme Court shall have original the property of the State, by virtue of her sovereign au- jurisdiction," proceeds to declare “that, in all the other thority. Should the Legislature be of the same opinion, cases before mentioned, the Supreme Court shall have apand pass a law for the punishment of the land officers of pellate jurisdiction, both as to law and fact, with such exthe United States who should sell any of the public lands ceptions, and under such regulations, as the Congress within her limits, this transfer of property might be virtu- shall make." On the supposition contended for, it is ally accomplished by the repeal of the 25th section of the wholly unaccountable that the framers of the constitution judicial act. Our land officers might then be severely did not limit the natural effect of the words used in the first punished, and thus prohibited by the courts of that State clause, by making the second to read "that, in all the from performing their duty under the laws of the Union, other cases before mentioned," arising in the inferior courts without the possibility of redress in any constitutional or of the United States, "the Supreme Court shall have aplegal form. In this manner, the title of the United States pellate jurisdiction." But no such restriction exists; and, to a vast domain, which has cost the nation many millions, from the fair import of the words used in both clauses, and which justly belongs to the people of the several the Supreme Court possess the power of finally deciding States, would be defeated or greatly impaired. "all cases, in law and equity," arising under the constitution, the laws, and the treaties of the United States, no matter whether they may have originated in a federal or in a State court, and no matter whether States or individuals be the parties.

Another illustration might be introduced. Suppose the Legislature of Pennsylvania, being of opinion that the charter of the Bank of the United States is unconstitutional, were to declare it to be a nuisance, and inflict penalties upon all its officers for making discounts or receiving de- But it is not our intention to enter into a protracted conposites. Should the courts of that State carry such a law stitutional argument upon the present occasion, because into effect, without the 25th section there would be no this question has long since been put at rest, if any conappeal from their decision; and the Legislature and courts stitutional question can ever be considered as settled in of a single State might thus prostrate an institution estab- this country. The Federalist, which is now considered a lished under the constitution and laws of the United text-book in regard to the construction of the constitution, States. and deservedly so, as well from the great merit of the

In all such cases, redress can now be peaceably obtain- work, as the high character of its authors, is clear and exed in the ordinary administration of justice. A writ of plicit on this subject. After reasoning upon it at some error issues from the Supreme Court, which finally decides length, the author of the 83d number of that production the question whether the act of Congress was constitution- arrives at the following conclusion: "To confine, thereal or not; and if they determine in the affirmative, the fore, the general expressions which gave appellate jurisjudgment of the State court is reversed. The laws are diction to the Supreme Court to appeals from the suborthus substituted instead of arms, and the States kept within dinate federal courts, instead of allowing their extension their proper orbits by the judicial authority. But if no to the State courts, would be to abridge the latitude of such appeal existed, then, upon the occurrence of cases the terms, in subversion of the intent, contrary to every of this character, the General Government would be com- sound rule of interpretation." pelled to determine whether the Union should be dissolv- The Federalist, it will be recollected, was written beed, or whether there should be a recurrence to force-an tween the formation of the constitution and its adoption by awful alternative, which we trust may never be presented. the States. Immediately after its adoption, Congress, by We will not attempt further to portray the evils which passing the 25th section of the judicial act, now sought to might result from the abandonment of the present judicial be repealed, fully confirmed this construction. This spsystem. They will strike every reflecting mind. pellate jurisdiction has ever since been exercised by the

It has of late years been contended, that this section of Supreme Court in a great variety of cases; and we are the judicial act was unconstitutional, and that Congress do not aware that the constitutionality of its exercise has ever not possess the power of investing the Supreme Court with been questioned by the decision of any State court, except appellate jurisdiction in any case which has been finally in a single instance, which did not occur until the year decided in the courts of the States. It has also been con- 1815. And even in that case, (Hunter vs. Fairfax,) the tended, that, even if they do possess this power, it does judgment of the Supreme Court was carried into effect not extend to cases in which a State is a party. On this according to the existing law, without endangering the branch of the question, we would refer the House to the peace of the country.

very able and conclusive argument of the Supreme Court The last topic to which we would advert is, the claim of the United States, in the cases of Martin vs. Hunter's which has been set up to exempt the judgments obtained lessee, (1st Wheaton, 304,) and Cohens vs. the State of by the States of this Union, before their own courts, in

civil and criminal suits, prosecuted in their name, from amendment is, that it was intended for those cases, and being reviewed by the Supreme Court of the United States for those only, in which some demand against a State is upon a writ of error. Much stress has been laid by those made by an individual in the courts of the Union. If we who sustain this claim, upon the general proposition that consider the causes to which it is to be traced, we are cona sovereign independent State cannot be sued, except by ducted to the same conclusion. A general interest might its own consent. But does this proposition apply, in its well be felt, in leaving to a State the full power of conextent, to the States of this Union? That is the question sulting its convenience in the adjustment of its debts, or for discussion. of other claims upon it; but no interest could be felt in We have in this country an authority much higher than so changing the relation between the whole and its parts, that of sovereign States. It is the authority of the sov-as to strip the Government of the means of protecting, ereign people of each State. In their State conventions by the instrumentality of its courts, the constitution and they ratified the constitution of the United States; and so laws from active violation. The words of the amendment far as that constitution has deprived the States of any of appear to the court to justify and require this constructhe attributes of sovereignty, they are bound by it, because tion. such was the will of the people. The constitution, thus call"To commence a suit, is to demand something by the ed into existence by the will of the people of the several institution of process in a court of justice; and to proseStates, has declared itself, and the laws and treaties which cute the suit, is, according to the common acceptation of should emanate from its authority, to be "the supreme language, to continue that demand. By a suit commenced law of the land;" and the judges in every State shall be by an individual against a State, we should understand a bound thereby, any thing in the constitution or laws of process sued out by that individual against the State, for any State to the contrary notwithstanding.

the purpose of establishing some claim against it by the Why, then, should a State, who has obtained a judg- judgment of a court; and the prosecution of that suit is ment in her own courts against an individual, in violation its continuance. Whatever may be the stages of its proof this " supreme law of the land," be protected from gress, the actor is still the same. Suits had been comhaving her judgment reversed by the Supreme Court of menced in the Supreme Court against some of the States the United States? Is there any reason, either in the con- before the amendment was introduced into Congress, and stitution or in natural justice, why judgments obtained by others might be commenced before it should be adopted a State in her own courts should be held sacred, notwith-by the State Legislatures, and might be depending at the standing they violated the constitution and laws of the time of its adoption. The object of the amendment was Union, which would not apply, at least with equal force, not only to prevent the commencement of future suits, in favor of individual plaintiffs? The constitution subjects but to arrest the prosecution of those which might be to the review of the Supreme Court all cases in law or commenced when this article should form a part of the equity arising under itself, or the laws of the Union. It constitution. It therefore embraces both objects; and Whether the its meaning is, that the judicial power shall not be conparty be a State or an individual, all must alike bow to the strued to extend to any suit which may be commenced, Sovereign will of the people, expressed in the constitu- or which, if already commenced, may be prosecuted against a State, by the citizens of another State.

excepts no case bearing this character.

tion of the United States.

If a

In suits brought by a State against an individual in her suit, brought in one court, and carried by legal process to own courts, there is much greater danger of oppression, a supervising court, be a continuation of the same suit, considering the relative power and influence of the par- then this suit is not commenced nor prosecuted against a ties, than there would be in controversies between indi-State. It is clearly, in its commencement, the suit of a viduals. And are these to be the only cases selected, in State against an individual, which suit is transferred to which the citizen shall not be permitted to protect him- this court, not for the purpose of asserting any claim self by the constitution and laws of the Union before the against the State, but for the purpose of asserting a conSupreme Court of the United States? Is it not sufficient stitutional defence against a claim made by a State. that, under the constitution, the States cannot be sued as defendants, without adding to this, by a strained and unnatural construction, the additional privilege that the judgments which they may obtain as plaintiffs or prosecutors before their own courts, whether right or wrong, shall in all cases be irreversible?

We will not repeat the considerations which have been already urged to prove, that, unless this provision of the constitution applies to the States, the rights of individuals will be sacrificed, all uniformity of decision abandoned, and each one of the States will have it in her power to set the constitution and laws of the United States at defiance.

"Under the judiciary act, the effect of a writ of error is simply to bring the record into court, and submit the judgment of the inferior tribunal to re-examination. It does not, in any manner, act upon the parties; it acts only on the record." It removes the record into the supervising tribunal. Where, then, a State obtains a judgment against an individual, and the court rendering such judgment overrules a defence set up under the constitution, or laws of the United States, the transfer of this record into the Supreme Court, for the sole purpose of inquiring whether the judgment violates the constitution or laws of the United States, can, with no propriety, we think, be denominated a suit commenced or prosecuted against the State, whose judgment is so far re-examined. Nothing is demanded from the State. No claim against it, of any description, is asserted or prosecuted. The party is not to be restored to the possession of any thing. Essentially, it is an appeal on a single point; and the defendant who appeals from a judgment rendered against him, is never said to commence or prosecute a suit against the plaintiff, who has obtained the judgment. The writ of Chief Justice Marshall, in delivering the opinion of the error is given rather than an appeal, because it is the more court in the case of Cohens vs. Virginia, has given so usual mode of removing suits at common law; and beclear, and, in our opinion, so correct an exposition of the cause, perhaps, it is more technically proper, where a true construction of the amendment, that we shall, in con- single point of law, and not the whole case, is to be reclusion, present to the House a few extracts from that examined. But an appeal might be given, and might be opinion, instead of any argument of our own. He says so regulated, as to effect every purpose of a writ of error. that "the first impression made on the mind by this The mode of removal is form, not substance. Whether

The eleventh amendment to the constitution of the United States interferes in no respect with the principles for which we have contended. It is in these words:

"The judicial power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State."

it be by writ of error or appeal, no claim is asserted, no tages of each, is believed to fall within the scope of the demand is made by the original defendant; he only asserts the constitutional right to have his defence examined by that tribunal whose province it is to construe the constitution and laws of the Union.

"The only part of the proceeding which is in any manner personal, is the citation. And what is the citation? It is simply notice to the opposite party that the record is transferred into another court, where he may appear, or decline to appear, as his judgment or inclination may determine. As the party who has obtained a judgment is out of court, and may, therefore, not know that his cause is removed, common justice requires that notice of the fact should be given him; but this notice is not a suit, nor has it the effect of process. If the party does not choose to appear, he cannot be brought into court, nor is his failure to appear considered as a default. Judgment cannot be given against him for his non-appearance; but the judgment is to be re-examined, and reversed or affirmed, in like manner as if the party had appeared and argued his

cause.

appropriate duties of the committee, and is indispensable to a full developement of the reasons which have induced them to come to the conclusions at which they have arrived. They propose, therefore, as briefly as they can, to ex amine these various modes, as well in regard to their constitutionality as to their expediency, for the purpose of being enabled to present more distinctly and clearly the views which they entertain upon the particular proposition submitted by the President, and referred to their consideration by the House.

Before they do so, however, it may not be improper to state, that they fully concur with the President in recommending, for the present, "a rigid application of that portion of the public funds which might otherwise be applied to different objects, to that highest of all our obligations, the payment of the public debt;" and that, until the debt shall be finally extinguished, no money should be appropriated from the Treasury, to be applied either directly by the United States to objects of internal improvement, or to be distributed among the States, to be applied by them to such objects.

It may be proper to state, also, that, when the debt shall have been paid off, they are of opinion that the taxes should be either wholly repealed or greatly reduced upon many articles, especially upon such as are not produced in the United States, or, if produced, but to a limited extent; and upon such as may be considered necessaries of life, consumed by the poor as well as by the rich, and the duties on which impose onerous burthens on all classes.

These preliminary considerations, which the committee have deemed it proper to state in this place, will be more fully noticed in a subsequent part of this report.

"The point of view in which this writ of error, with its citation, has been considered uniformly in the courts of the Union, has been well illustrated by a reference to the course of this court in suits instituted by the United States. The universally received opinion is, that no suit can be commenced or prosecuted against the United States; that the judiciary act does not authorize such suits; yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favor of the United States into a superior court, where they have, like those in favor of an individual, been re-examined, and affirmed or reversed. It has never been suggested that such writ of error was a suit against the United States, and therefore not within the jurisdiction of the appellate court. "It is, then, the opinion of the court, that the defendant who removes a judgment rendered against him by a. ist. To construct works of internal improvement within State court into this court, for the purpose of re-examin- the limits of the States, assuming jurisdiction over the tering the question whether that judgment be in violation of ritory which they occupy, with a power to preserve them the constitution or laws of the United States, does not when constructed, and to punish offences committed on commence or prosecute a suit against the State, whatever them. may be its opinion, where the effect of the writ may be to restore the party to the possession of a thing which he

demands."

All which is respectfully submitted.

JAMES BUCHANAN,
WM. W. ELLSWORTH,
E. D. WHITE.

DISTRIBUTION OF SURPLUS FUNDS.

HOUSE OF REPRESENTATIVES, JANUARY 28, 1831.

Attempts have been made to exercise a power on the part of the Federal Government over objects of internal improvement in three modes:

2d. "To appropriate money from the national treasury, in aid of such works when undertaken by State authority, surrendering the claim of jurisdiction;" and,

3d. To aid in the construction of such works by "subscribing to the stock of private associations" or incorporated companies.

On a question so often and so ably discussed as that of the constitutional power of the General Government to construct or aid in the construction of works of internal improvement within the limits of the States, in any of these modes, the committee do not propose to make an extended argument, but simply to state the principles and autho

Mr. POLK, from the select committee to which was refer-rities on which they rest their opinion. red so much of the President's message as relates to the

In Mr. Madison's celebrated report of December, 1799, "distribution of the surplus funds which may at any (a production believed to contain the soundest exposition time remain in the Treasury after the national debt shall of the true principles of the Federal Government extant,) have been paid, among the States, in proportion to the rule is laid down, which the committee adopt as a sound number of their representatives, to be applied by them one, by which to determine whether a given power is to objects of internal improvement," have had the sub-granted by the constitution or not. ject under consideration, and submit the following report:

That rule is this: "Whenever a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the constitution. If it be, the The proposition to distribute the surplus revenue among question is decided. If it be not expressed, the next inthe States for purposes of internal improvement, submit- quiry must be, whether it is properly an incident to an exted by the Executive to the consideration of Congress, is pressed power, and necessary to its execution. If it be, so intimately connected with the whole subject of internal it may be exercised by Congress. If it be not, Congress improvement, in whatever form, or with whatever modi- cannot exercise it." Let, then, the power claimed be fications, power over the subject has been heretofore at- tested by this rule. It is not pretended that the power to tempted to be exercised by the Federal Government, that make roads and canals is to be "found among the powers a comparative view of the whole subject, as well of the expressly vested in the Congress." If, then, it is not found objections to each mode as heretofore attempted to be among the powers expressed in the constitution, "is it propractised on, as to the plan proposed, and of the advan-perly an incident to an express power, and necessary to

its execution?” Is it an incidental power, without the aid lidate the States into one sovereignty," says Mr. Madison, of which any of the express powers cannot be executed. in his report before referred to, "nothing more can be Incidental powers are confined in the constitution to the wanted than to supersede their respective sovereignties, authority to make all laws which shall be necessary and in the cases reserved to them, by extending the soveproper for carrying into execution" the enumerated pow-reignty of the United States to all cases of the 'general ers; but under this power it cannot be claimed to do any welfare;' that is to say, to all cases whatever." thing which, in the opinion of Congress, might indirectly "That the obvious tendency and inevitable result of a tend or remotely lead to such a result. A power, to be consolidation of the States into one sovereignty would be incidental, must not be exercised for ends which make it to transform the republican system of the United States a principal or substantive power, independent of the prin- into a monarchy, is a point which seems to have been sufcipal power to which it is an incident. To be an incident ficiently decided by the general sentiment of America. to a principal expressed power, “necessary and proper" to In almost every instance of discussion relating to the conthe execution of that principal expressed power, it must solidation in question, its certain tendency to pave the way be "accessorial and subordinate to," and "obviously flow to monarchy seems not to have been contested. The from" that expressed power. It must be a power ap-prospect of such a consolidation has formed the only topic pertaining to or following another, as more worthy or prin- of controversy." cipal." It must be "derivative, not primary and indepen- To guard, therefore, against the assumption of all dent." By applying these rules of construction to the powers which encroach upon the reserved sovereignty of constitution, the committee came irresistibly to the con- the States, and, consequently, tend to consolidation, is the clusion, that the incidental power to make roads and ca- duty of all the true friends of our political system. The nals is not necessary to the execution of any of the granted assumption and the exercise, by the Federal Government, or express powers; that each of them may be carried into of constructive and far-fetched incidental powers, are the full effect without the aid of such an incident; and that, passes through which, if ever, our liberties may be intherefore, if assumed, it must be as a principal or substan-vaded. In a Government like ours, there is less danger tive and distinct power of itself, no where to be found from an open enemy to our system, who unmasks himself, among the enumerated powers of the constitution; and that and boldly avows his purpose, than from the gradual, siit results, therefore, that no such power exists. lent, and almost imperceptible encroachments by the Fe

66

As the Federal Government possesses no other powers deral Government. Our experience has shown, it is than those specifically granted to it by the constitution, believed, the continually manifested propensity of the deand as by the tenth amendment of the constitution, "the partments of the General Government to amplify and powers not delegated to the United States by the consti- strengthen its powers at the expense of the reserved sotution, nor prohibited by it to the States, are reserved to vereignties of the States. And who can doubt, if all the the States respectively, or to the people," those who af- incidental and constructive powers which have at different firm the existence of any particular power, whether ex- times been claimed, (each resting on no worse foundation press or implied, must produce the constitutional autho-than the one in question,) had been assumed and exercised, rity under which it is claimed, and that authority should that the whole character of our Government would have be so clear as to leave no reasonable doubt of the fact of been radically changed? And yet each, when considered its existence, before its exercise can be justified; for the separately and by itself, did not seem likely to portend committee lay it down as a sound rule of legislative action, such consequences. The committee would not, if they that, in all cases of well founded constitutional doubt, it could, excite any unjust odium against the opinions (hois safest and wisest for all the functionaries of the Govern-nestly entertained, they have no doubt,) of those who ment to abstain from exercising the doubtful power. By differ with them in regard to the existence and tendency acting affirmatively, they would assume the exercise of a of the particular power in question; yet they must say doubtful power, which may not exist, and may thereby that the general course of reasoning by which the power exceed their authority, and produce an infraction of the to pass the "alien law," and also the "sedition law," was constitution. Have the advocates of the particular power defended, is substantially of the same character as that in question produced the clear and undoubted constitu- employed to sustain the power in question. Let this be tional authority under which it is claimed? They all claim illustrated according to the rule which they have adopted it as an incident to some one or other of the enumerated as a sound one. There is no express power granted in or granted powers, but have not been able to agree among the constitution authorizing Congress to pass either of themselves to which of the granted powers it is properly those obnoxious laws. It was claimed by its advocates as incidental. It is obvious, therefore, that it does not ne- a power incidental to some of the granted or express cessarily "appertain to" or "obviously flow from" either powers, "necessary and proper" to carry such express of them. They may all be executed and carried fully power into execution. The power to pass the "alien into effect without its aid. That clause of the constitu- law" was claimed as an incident, by a committee of Contion, in regard to the "general welfare," has, it is be-gress, in a report to the House of Representatives of lieved, been very generally abandoned, even by the February 21, 1799, in the following terms: "The right of advocates of the broadest construction of the constitution, removing aliens, as an incident to the power of war and as containing no enlargement of the specific granted peace, according to the theory of the constitution, belongs powers. Have those, it is repeated, who maintain the ex- to the Government of the United States." The power to istence of this power, produced the clear and undoubted pass the "sedition law" was claimed by one of the States constitutional authority under which it is claimed? or have [Massachusetts,] in her response to the Virginia resolu they not rather, at the same time that they differ in opinion with each other as regards the sources from which it is to be derived, by implication and forced construction, as sumed its exercise without any practicable limitations, and thus made it a principal power, no where to be found in the constitution?

tions, in the following terms: "Whenever, therefore, it becomes necessary to effect any of the objects designated, it is perfectly consonant to all just rules of constructionto infer that the usual means and powers, necessary to the attainment of that object, are also granted." Thus, by construction, the constitutional power to pass the "sediA construction of the constitution so broad as that by tion law" was claimed, as the particular power now in which the power in question is defended, tends imper- question is, as an incidental power, or, what is precisely ceptibly to a consolidation of all power in a Government the same thing, as the “usual means and powers" necessary intended by its framers, and so declared by the parties to to the execution of some of the granted powers. it, to be one of limited and specific powers. "To conso-true that the "sedition law" was a palpable violation of

It is

that article of the constitution which provides that "Con-provements within the territory and jurisdictions exclu. gress shall make no law abridging the freedom of speech sively belonging to the several States," "has not been or of the press;" but that does not change the nature of given to that branch [the General Government] by the the argument by which these constructive and incidental constitutional compact, but remains to each State among powers are claimed; for it was gravely maintained that the its domestic and unalienated powers, exercisable within "sedition law" was no "abridgment of the freedom of itself and by its domestic authorities alone;" and also with speech or of the press," but was a punishment inflicted for the abuse of this license.

It is no part of the purpose or of the duty of the committee, in this place, to discuss the constitutionality of the "alien and sedition laws." Their object was simply to bring to the notice of the House the general reasoning by which the power to pass them was gravely claimed by their advocates, as illustrative of the danger of departing from the plain sense and intention of the constitution, and resorting to vague constructions and inferences, on which to exercise power. The moment we resort to these loose generalities on which to found powers, they become the chief or principal powers, restrained only by the discretion or accidental will of Congress; render nugatory all the limitations of power in the constitution; and make the Government, in fact, one of unlimited powers.

him to "declare to be most false and unfounded the doc trine, that the compact, in authorizing its federal branch to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States, has given them thereby a power to do whatever they may think or pretend would promote the general welfare, which construction would make that of itself a complete government without limitation of powers; but that the plain sense and obvious meaning were, that they might levy the taxes necessary to provide for the general welfare, by the various acts of power therein specified and delegated to them, and by no others."

It has been urged that this power must exist, and is fairly to be inferred, because of the necessity which existed for the exercise of such a power at the time of the adop There is no want of patriotism or attachment to our free tion of the constitution, and from the supposed fact that institutions among our citizens; but the great misfortune these avenues and highways are indispensable to connect under which the country labors on the subject of internal together distant parts, and bind in indissoluble chains the improvement is, the difficulty of rousing the attention of union of the States. If such artificial ligaments were inour people to the great importance of adhering to the dispensably necessary for the prosperity of the country or written constitution. The usurpation of the power to the preservation of the Union, it is but reasonable to suppass the "alien and sedition laws" shocked the public on pose that the constitution would have contained an express points on which they were sensitive-the "liberty of the grant of a power conceived to be so important. None such person," and the "freedom of speech and of the press;" was granted; but, on the contrary, propositions to confer and by one general sentiment it was arrested, and its ad- it were more than once expressly refused by the federal vocates hurled from power. The cause of the different convention which framed the constitution. One of these effects upon public sentiment, produced by the exercise propositions, made in the convention, and which they reof the power thus usurped and promptly arrested, and the fused to adopt as a part of the constitution, was, to esta power now claimed to carry on a system of improvement, blish the office of Secretary of Domestic Affairs," and by means of roads and canals, constructed by the General to make it his duty to "attend to matters of general poGovernment, within the territorial jurisdiction of the lice, the state of agriculture and manufactures, the openStates, is not that they are powers of a different genus, for ing of roads and navigations, and the facilitating commu both are derived as incidents, and sustained by the same nications through the United States." The federal conlatitudinous mode of construction; but the difference is, vention, then, having the subject expressly before them, that, in the latter case, the usurpation is sweetened and failed to insert in the constitution a grant of a power now rendered palatable by addressing itself to the selfish in-claimed to be so indispensable; and the inference, thereterests of sections; the promises it holds out of individual fore, is conclusive, that they intended to confer no such benefit and national prosperity are so seductive as to power.

blind us to the fatal tendency of the principles by which it is

The committee, without attempting to adduce all the sustained. Large amounts of the people's money are pro- arguments or authorities upon the question, come to the mised to be expended in unequal proportions, in particular conclusion with the President, that the power to construct sections of country, and its recipients are very naturally roads and canals within the States has not been conferred reluctant to turn from their real or supposed immediate by the constitution; and they are also of opinion, that the interests, and to examine the dry and abstract, but at the power to appropriate money to aid in their construction, same time vital, question--does the constitution confer up- although sanctioned to some extent by usage, is of too on the Government of the United States the power to tax doubtful a character to justify its exercise without a prethe whole people of the Union for our local and sectional vious amendment of the constitution. They agree with advantage? Thus, very many honestly acquiesce in the him, that "the successful operation of the federal system usurpation of the power, who, if they could examine it can only be preserved by confining it to the few and apart from the influence of its connexion with their im- simple, but important, objects for which it was designmediate interests, would not only admit the alarming ten-ed." They agree with him, too, in the conviction of dency of the principles on which alone it can rest, but the importance of sustaining the State sovereignties, as come to the conclusion that there was no constitutional far as is consistent with the rightful action of the Federal warrant for its exercise, and that it was important to the success of the great experiment which we are making for the world, as to the capacity of man for self-government, and the value of written constitutions, that it should not be usurped.

The committee think that such an examination, if the public mind could be roused from the apparent lethargy and false security in which it reposes, and induced to make it, would result in satisfying all disinterested men of all parties, in the language of Mr. Jefferson, in the last communication which he ever made on the subject, (that to Mr. Madison, of December 24th, 1825,) that the "right to construct roads, open canale, and effect other internal im

Government, and of preserving the greatest attainable harmony between them;" and "that the political creed which inculcates the pursuit of these great objects as a paramount duty, is the true faith, and one to which we are mainly indebted for the present success of the entire system, and to which we must alone look for its future sta bilty."

The committee having thus arrived at the conclusion that the power to prosecute works of internal improve. ment, in either of the three modes stated, has not been conferred by the constitution on the Federal Government,

*Journal of the Federal Convention, page 265.