Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1824-01-24


the general power Ia the particular act, was
by NO means as strong in the one case as the
other. But, he thought that full answer
was 10 be- found in the constitution itself, viz.
IN that clause which gives To Congress excln.
siSe legislation over " all places purchased
with the consent of the states, for the erection
of forts, magazines, arsenals, dock yards, and
other needful buildings" taken IL connection
with the course of legislation upon the sub
ject for, upon reference to the laws of the u.
States, we find "A long list of cessions, by the
states, of sites for lighthouses, beacons, sc.
which clearly proves, that Congress egslated
under the idea that they derived the power
from that source. Whether, therefore, the
power TO make roads and canals is sought to
be established under this clause of the con-
stituion, by consulting its express terms,
or relyisg on the above analogy, or resuriins
to the declarations and illustrations of itsau-
thors, speaking in the Federalist, the attempt
must prove equally unavailing.
The next clause resorted to, is that which
gives 10 Congress power 10 raise and sup
port armies !" whence il is argued, that they
have an incidental power To make military
roads. Here, he should take occasion to make
some remarks on incidental powers in gene
rail- 1t was utterly unsafe and inadmissible,
TO infer an incidental power from "a power ex-
pressly granted, merely on the ground of lis
remote convenience, or conduciv-ness, in
carrying the granted power into effect: 10 be
incidental, il must have an immediate, direct,
and appropriate relation to the granted pow
er. Ii, when "a power is expressly granted,
every other power which, in however distant
and remote degree, may be convenient or
conducive to ITS exercise, is held also To be
granted, as Incidental tn the first where is
power to stop There is no end To the long
chain of cause and effect. The constitution
gives you, SAID Mr.. b. "power To provide and
maintain navy y TO do this, ship timber is
requisite; will ii be held. that the granted
power To provide navy, contains, as All in
cldental power, authority To forbid the people
from cutting and using the timber on their
own farms In other words, from clearing
their lands He could multiply examples uf
the same kind. 1fpowers, however remotely
conducting to the granted power, he held incl
dental Ia It, the grant was of ilimitable extent.
Nothing like an immediate and appropriate
relation was TO he found betw cen raising armies
and making roads.
The next clause relied on, was that which
confers power " 10 establish Post Offices and
Post Roads" The view he had always en-
tertained of the meaning of this clause was
that il only authorizes Congress To designate
the route in which the mail shall travel, the
places where Post Offices shall be located, and
To secure 10 the mail the right uf passing I'M
molested. The" Federalis,," speaking al this
power, calls it "a harmless" one. AS he
construed il, it was so but, if the opposite
construction prevailed, it ceased to be so
harmless" OF inconsiderable. The authors
of the constitution thought that the consent
of state was necessary, before the general
government could get jurisdiction over even
SO much ground as was required 10 build a
fort but thr construction now coniended for
gives them an extended jurisdiction indeed.
According To u late report from the Post Of
lice Department, there are, in the u. States,
10000 miles of post road hut if Congress
may incorporate company. and set toll gates
upon one of these roads. il may On all of them.
Here then is ii jurisdiction over 10000 miles
of road, with the patronage of all the officers
with them "A sndss Of power which
can hardly be called " harmless" in the sense
of the /" Frderast" Mr. b. said he was not
much IN the habit Of referring, on such sub :
iects, 10 legislative authority; but, as far as
was inferrible from the acts on the subject of
post roads, the sense Of Congress had been "a
gainst the power now commended for. In all
the laws on the subject, the act merely de5ig-
mates the route 70 be pursued, though the IT,
tie is, to establish post roads" Ii WAS very
true, that the legislatures Ofthe States cannot
stop the mail but the question now in dis
cussion IS the question of power To make a
road. If Congress has jurisdiction over pos,
roads, what becomes Ofthat Jurisdiction when
post route las happens every day. is d;scon
tInued! Does 1t revert To the particular
state2 And when the general government
obtains jurisdiction over road, does the state
jurisdiction thereon cease ? or have the two
governments concurrent jurisdiction If they
b.V 81 II. a
rate "A company 10 make the same road, must
one yield and which one ? Must the state
government yield to the general government
ITS soil and Jurisdiction Where, asked Mr..
Il. is there IA solitary instance To he found, Of
the general governments obtaining, under the
constitution, any soil except that which it is
authorized, by the constitution to- purchase,
that which II holds as a national territory, or
that which is coded for a seat of government ?
On the one construction there is no collision
no Incompatible or conflicting jurisdiction all
is harmony. But, on the other, al is conflict.
The one construction leaves to Congress ex-
elusive Jurisdiction within us limits, and 10
the state governments exclusive jurisdiction
within Tiers. The opposite, exposes both TO
all the Inconvenience and dangers OF codiDg
jurisdictions.
Mr. g. next proceeded to examine the clause
which gives the power - to Law aud collect
taxes, duties imposis and excises TO pay the
debts ard provide for the common defence
and general welfare Of tie United Siates."--
However gentlemen might differ rs to the
construction Of different parts Of the Consti-
tuition, there was one point on which all agfer,
VIZ lhat the Federal Government of this
country is limited government, a govern
ment subject To restrictions. But, though
this he SO, snl the Constitution prescribrs the
limits, if you interpret the above clause of hat
instrument so as 10 say that Congress may DO