The daily union. [volume] (Washington [D.C.]) 1845-1857, 1846-04-02
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CON G. II Es SION AL.
SPEECH OF Mr.. BAYLY,
OF VIRGINIA.


Mr.. BAYLY rose and said have very little to
saw, Mr.. Chairman, upon the bill before the COM
i mitlse The subject Is one with which the coun-
trV for a loaz lillle has been familiar, and thu
opinions Of most persons made up IN reference
/ tot | have never thought that this government
bad power 10 carry on system OF internal improve
ments; aud have always been OF opinion that II
l would be inexpedieut, IL the power existed.
The government Of the United States Is one Of
delegated powers; and by the provisions OF the con-
stitulon Itself, is declared that all powers not
delegated are reserved to the States and the people
l The constitution not only contains delegation OF
4 DoweTs but also Of means TO execute themj and
he delegation OF one class Of means, according to
the most familiar rules Of construction, excludes the
idea Of an intention TO delegate any other. These
are positions which no republican, who understands
the first principles Of his creed, will dispute. Then
the inquiry arises, Is the power 10 carry on sys-
tenn Of internal improvements 10 he found among the
powers expressly granted To Congress- This is not
l pretended Is il enumerated among the specified
means to execute the granted powers Neither is
this pretended. IL is not granted in express terms
either as end or means. And it was not mad
yerence that il is so. On the contrary, motion
vas made m the convention which framed the con-
sutution to grant the power, and it failed. And now
gsnuemen seek to confer upon the government, by
construction, what the convention refused TO confer
by express gr mt
But gentlemen do not contend that the power TO
carry on Ol Internal improvements Is
isrred by express grant They claim il i'm
Piled power. There are two tests Of implied pow
srs either Of which is fatal in this case Upon every
principle OF construction applicable to consttu-
uon, an implied power must not be distinct, indie
PENDENT and substantive prerogative but it must be
secondary, such as II Is fair 10 presume was meant
TO be conferred by implication. Is the power in
question Of that secondary characteri Is it not a
distinct, independent, and substantive prerogatiye
It seems TO me that there cannot be two opinions on
this point The second test to which refer is this:
power claimed by implication, a means Of exc
cuung power expressly granted, must, in its IA
mre be inferior or subordinate TO means expressly
granted to execute the same power. For you can
not suppose when the convention granted expressly
inferior means, that they meant 10 confer by impli-
aiion those IN their character superior. To show
that the power in question is not OF this last class
have nothing TO do but to refer 10 the constitution,
which is fun Of enumerated means Of executing
granted powers, ofa vast deal less consequence than
the one now claimed
Let US examine this question little more in de-
tail The power in que ston IL sought TO be derived
fom various sources. In the language Of Mr..
\ Clay, at Is II vagrant power"-now seeking a
haNtation in one clause Of the constitution, in
another, and In truth, having legitimate home in
none. Not to detaln the committee in an examine
ton fall the fanclful sources from which gentle.
men attempt to derive this power, let US examine
the TWO from which it is most generally thought to
l fow.
The fret is the power Ito lay and collect taxes,
duties, mposls, to pay the debts, and provide for
I the common defence and general welfare Of the
United States; but all duties, imposts, and excuses,
shall be uniform throughout he United States.'
IL Is insisted that under this clause Congress can
do anything that can be done by money, which in
It's opinion will provide for the general welfare In
other words, the power is sought to be derived I'M
der what is well known as "the general well
fare" doctri.e. There is a very short an
swer to this whole doctrine, which is perfect
ly conclusive. The constitution was designed az a
restraint Congress; to etter discretion to confne
within narrow and prescribed limits in a word
as an exact measure Of the powers of Congress
But this doctrine makes ''the discretion of Congress
and not the constitution, the measure Of its power "
II this doctrine is true, nearly every other clause Of
the constitution is surplusage for there very little
pertaining to government which may not be done
under the sweeping power to provide for the gene.
n welfare. But there Is nothing superfuous in the
constitution. The words in question, SO far from
being designed as an enlargement of the powers Of
Congress, were designed as restriction. Congress
not only may not do whatever it NAV fancy will
provide for the general welfare, but it may not even
exercise the powers expressly granted for any Other
purpose than to promote THE GENERAL welfare. The
powers granted are not to be used for special but
general purposes--not for State, but for national
purposes. This view alone is fatal to the bill before
the House, as it will be to any one which will be
introduced with any prospect Of success. Local ap.
preparations will have to be made to secure strength
j enough to carry any bill.
Theinterhal improvement power is also claimed
under the clauses authorizing Congress "to regulate
commerce with foreign nations, and among the sew.
| ra States, and with the Indian tribes;n and etc
/ make all laws which shall be necessary and proper
for carrying into execution the foregoing powers
i The word commerce, at the time it was used in
the constitution, had received and recognised mean
ing. 1t meant "tradc, traffic" in enlarged sense
| ,-,tha than a.. I.
business of commerce, and not the means by which
Il is carried on, which Congress has right to regu
\ late. Under the power to regulate commerce. Con
gress may prescribe the terms upon which trade
may be conducted with foreign nations, but it can
not prescribe the medium through which it is car
ried on 1t cannot say to a merchant that he shal
export his goods in sloop and not in schoonerir
s,il-vessel and not in a steamboat But il it wer
otherwise, ] would still deny the power in thi
case. The provision of the constitution confer
4 power only over things in existence; and 50, if WI
concede TO II the utmost latitude Of regulation,
does not give the power Of creation, deny tina
Congress can regulate the means of commerce. Bu
suppose il can, that confers no DO yer to Great
them. may admit, for the argument, that Con
sress may regulate the Shipping Of merchants; Eu
does 1t thereby acquire the power to furnish then
with shipping at It's own expenseI | deny tina
Congress has the authority to furnish ships ant
wagons to carry produce TO market; but it ha
az much power to do that as it has To furnish cana
and boats, railroads and cars. Gentlemen ais,
claim the power in question under the clause au
thorizlng Congress ito make all laws which shall
be Necessary and proper for carrying iato erecution
the granted powers. A stronger argument agains
this whole doctrine Of power by implication cour
not be devised than from this provision of the con
shtution IL there Is any principle of universal up
Phcation, his, that where power il explicitly dele
gated, the means necessary for its execution il
delegated also; and yet so sverse was the conven
ton which framed the consultation TO powers h,
Implication, that in this case thew rrsor,eJ 4
express grants. Now, cir, in all the discussions re
lave to the clause under consideration il seems Il
me that there is great confusion Of ideas. Tn
Arguments advanced tend to show that the exerrs
otthe power claimed is necessary for the welfare
the people, for the government This might b
admitted, and yet il would not advance them an
step in the argument To get power to pass law
under the clause we are discussing, you mu,
SHOW that they are necessary 10 the po,oty; and III,
I w hout them the power cannot be- executed
J Whenever you can do that--whenever you ca
4 snow thai the passage of any particular law
necessary to give vitality 20 a granted powe
without the passage Of which IL would be doTman