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Governments, or is it a concurrent power ? Gentlemen say we have, by the Constitution, power to establish post-roads; and, having established post-roads, we should be much obliged to you to allow us therefore the power to construct roads and canals into the bargain. If I had the physical strength, sir, I could easily demonstrate to the committee that, supposing the power to exist on our part, of all the powers
that can be exercised by this House, there is no power that would be more susceptible of abuse than this very power. Figure to yourself a committee of this House determining on some road, and giving out the contracts to the members of both Houses of Congress, or to their friends, &c. Sir, if I had strength, I could show to this committee that the Asiatic plunder of Leadenhall street has not been more corrupting to the British Government than the exercise of such a power as this would prove to us.
" I said," continued Mr. R., “that this Government, if put to the test—a test it is by no means calculated to endure—as a government for the management of the internal concerns of this country, is one of the worst that can be conceived, which is determined by the fact that it is a government pot having a common feeling and common interest with the governed. I know that we are told—and it is the first time the doctrine has been openly avowed—that upon the responsibility of this House to the people, by means of the elective franchise, depends all the security of the people of the United States against the abuse of the powers of this Government.
But, sir, how shall a man from Mackinaw, or the Yellow Stone River, respond to the sentiments of the people who live in New Hampshire? It is as great a mockery—a greater mockery than it was to talk to these colonies about their virtual representation in the British Parliament. I have no hesitation in saying that the liberties of the colonies were safer in the custody of the British Parliament than they will be in any portion of this country, if all the powers of the States, as well as of the General Government, are devolved on this House; and in this opinion I am borne out, and more than borne out, by the authority of Patrick Henry himself.
" It is not a matter of conjecture merely, but of fact, of notoriety, that there does exist on this subject an honest difference of opinion among enlightened men ; that not one or two, but many States in the Union see, with great concern and alarm, the encroachments of the General Government on their authority. They feel that they have given up the power of the sword and the purse, and enabled men, with the purse in one band and the sword in the other, to rifle them of all they hold dear.” “ We now begin to perceive what we have surrendered; that, having given up the power of the purse and the sword, every thing else is at the mercy and forbearance of the General Government. We did believe there were
some parchment barriers—no! what is worth all the parchment barriers in the world—that there was, in the powers of the States, some counterpoise to the power of this body; but, if this bill passes, we can believe so no longer.”
“ There is one other power," said Mr. R., “which may be exercised, in case the power now contended for be conceded, to which I ask the attention of every gentleman who happens to stand in the same unfortunate predicament with myself—of every man who has the misfortune to be, and to have been born, a slaveholder. If Congress possess the power to do what is proposed by this bill, they may not only enact à sedition law—for there is precedent-but they may emancipate every slave in the United States, and with stronger color of reason than they can exercise the power now contended for. And where will they find the power? They may follow the example of the gentlemen who have preceded me, and hook the power upon the first loop they find in the Constitution. They might take the preamble, perhaps the war-making power, or they might take a greater sweep, and say, with some gentlemen, that it is not to be found in this or that of the granted powers, but results from all of them, which is not only a dangerous, but the most dangerous doctrine. Is it not demonstrable that slave labor is the dearest in the world, and that the existence of a large body of slaves is a source of danger ? Suppose we are at war with a foreign power, and freedom should be offered them by Congress, as an inducement to them to take a part in it; or, suppose the country not at war, at every turn of this federal machine, at every successive census, that interest will find itself governed by another and increasing power, which is bound to it neither by any common tie of interest or feeling. And if ever the time shall arrive, as assuredly it has arrived elsewhere, and, in all probability, may arrive here, that a coalition of knavery and fanaticism shall, for any purpose, be got up on this floor, I ask gentlemen who stand in the same predicament as I do, to look well to what they are now doing, to the colossal power with which they are now arming this Government. The power to do what I allude to is, I aver, more honestly inferable from the war-making power than the power we are now about to exercise. Let them look forward to the time when such a question shall arise, and tremble with me at the thought that that question is to be decided by a majority of the votes of this House, of whom not one possesses the slightest tie of common interest or of common feeling with us."
The debate on this important question was kept up ten days longer. On the 10th of February, Mr. Randolph moved that the bill be indefinitely postponed. The motion was overruled, and the bill was passed by a majority of 115 to 86. So soon as the vote was
announced, it was moved that the House go into committee of the whole on the state of the Union, with a view of taking up the bill for a revision of the tariff. Mr. Randolph exclaimed, “Sufficient for the day is the evil thereof," and hoped that the House would do no such thing; they, however, did go into committee, and made some progress in the bill.
The measure above adopted by the House, was sanctioned by the President, thus furnishing another instance of a most extraordinary and flagrant abandonment of first principles, on a vital point of the Constitution. Mr. Madison's arguments as to the unconstitutionality of the Bank, stand unanswered and unanswerable ; yet, in 1816, Mr. Madison, under the pressure of circumstances, the plea of necessity, and the force of precedent, signed the Bank bill.
No man argued more clearly and conclusively than Mr. Monroe the unconstitutionality of a system of internal improvement; yet, under the influence of a yielding complacency, that was reluctant to oppose the encroaching spirit of the times, he sanctioned a measure that adopted the system in its broadest sense, and swept away every barrier of the Constitution.
SUPREME COURT—DULL DINNER-HUDDLESFORD'S OAK.
About the time the Roads and Canals bill was discussed in the House, a case was argued before the Supreme Court, involving the same principles. Aaron Ogden, under several acts of the Legislature of the State of New York, claimed the exclusive navigation of all the waters within the jurisdiction of the State, with boats moved by fire or steam. Gibbons employed two steamboats in running between Elizabethtown, New Jersey, and New York, in violation of the exclusive privilege. He was enjoined by the Chancellor of New York, and in his answers stated, that the boats were enrolled and licensed, to be employed in carrying on the coasting trade, under the acts of Congress—and insisted on his right, in virtue of such licenses, to navigate the waters between Elizabethtown and the city of New York, the acts of the legislature of the State of New-York to the contrary notwithstanding.
The question was, whether the laws of Congress, passed in virtue of the clause of the Constitution which confers on them the power to regulate commerce among the several States, shall contravene and supersede the laws of New-York, granting a monopoly to certain individuals to navigate steam vessels on the waters within the jurisdiction of that State.
The whole controversy turned on the interpretation of this clause of the Constitution—“ Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."
The Chief Justice, to arrive at his conclusions, took the broadest latitude of construction. “ It has been said, argues he, that these powers" (powers enumerated in the Constitution) " ought to be construed strictly. But why ought they to be so construed ? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized to make all laws which shall be necessary and proper' for the purpose.” With this broad principle as his rule of construction, he then goes on to argue that the power to regulate commerce with foreign nations, is full and absolute—and that it embraces the right to regulate navigation. The next step is to prove that the power to regulate commerce among the States is as broad and comprehensive as the power to regulate it with foreign nations.
6 Commerce among the States," says he, “cannot stop at the external boundary line of each State, but may be introduced into the interior." genius and character of the whole Government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally." “ Commerce among the States must, of necessity, be commerce with the States. In the regulation of trade with the Indian tribes, the action of the law, especially when the Constitution was made, was chiefly within a State. The power of Congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the
several States." ... “This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution."
“ The power of Congress, then, comprehends navigation within the limits of every State in the Union, so far as that navigation may be, in any manner, connected with commerce with foreign nations, or among the several States, or with the Indian tribes.'"
He goes on to apply these principles—self evident axioms as he called them—to the case before the Court, and decided against the exclusive privilege of navigation granted by the laws and sustained by the Judiciary of New York.
In conclusion, the Chief Justice says: “Powerful and ingenious minds, taking, as postulates, that the powers expressly granted to the government of the Union, are to be contracted by construction into the narrowest possible compass, and that the original powers of the States are retained, if any possible construction will retain them, may, by a course of well-digested, but refined and metaphysical reasoning, founded on these premises, explain away the Constitution of our country, and leave it, a magnificent structure indeed to look at, but totally unfit for use."
But the Chief Justice did not perceive, that, by pursuing the broad doctrines laid down by him, the several departments of gove ernment, especially the one over which he presided—the Judiciary, whose business it is to construe and interpret-might, step by step, absorb all the powers reserved to the States, and to the people, and make the government a magnificent structure indeed, not merely to look at, but one wielding all the concentrated powers of a consolidated empire. The true rule is to go neither to the one extreme nor to the other, but to give to each and to all that which rightfully belongs to them.
This opinion of the Chief Justice gave great umbrage to the States-rights men. They said he travelled out of the record, to make an elaborate argument in behalf of those principles which were then urged in Congress as a justification of a general system of internal improvement among the States.
Mr. Randolph says to Dr. Brockenbrough, the 3d of March : “ The Chief Justice yesterday delivered a most able opinion in the