States, and neglected or refused to serve; and they were to be punished by the infliction of the penalties prescribed by the act of congress, and such an act was held not to be repugnant to the constitution and laws of the United States. It was the lawful exercise of concurrent power, and could be concurrently exercised by the national and state courts-martial, as it was authorized by the laws of the state, and not prohibited by those of the United States. It would remain to be so exercised, until congress should vest the power exclusively elsewhere, or until the states should divest their

courts-martial of such a jurisdiction. This was the de*267 cision in the first instance, of the Supreme *Court of Pennsylvania;a and it was affirmed, on appeal, by the majority of the Supreme Court of the United States.

Powers of (7.) The authority of congress to appropriate public moneys to internal for internal improvements, has been much discussed on public

Congress as

improve

ments.

occasions, and between the legislative and executive branches of the government; but the point has never been brought under judicial consideration.

It has been contended, that, under the power to establish post offices and post roads, and to regulate commerce among the states, and to raise moneys to provide for the general welfare, and as incident thereto, congress have the power to set apart funds for internal improvements in the states, with their assent, by means of roads and canals. Such a power has been exercised to a certain extent. It has been the constant practice to allow to the new states a certain proportion of the proceeds arising from the sale of public lands, to be laid out in the construction of roads and canals within those states, or leading thereto. In 1806, congress authorized a road to be opened from Nashville, in Tennessee, to Natchez; and in 1809, they authorized the canal of Carondelet, leading from lake Ponchartraine, to be extended to the river Mississippi. So late as the 8th of August, 1846, congress granted lands to aid in the improvement of the Fox and Wisconsin rivers, and to connect the same by a canal, in the state of Wisconsin. The Cumberland road was constructed under the act of March 29th, 1806, and this road had been made under a covenant

• Moore v. Houston, 3 Serg. & Rawle, 169.

with the state of Ohio, by the act of April, 30, 1802, that a portion of the proceeds of lands lying within that state, should be applied to the opening of the roads leading to that state, with the consent of the states through which the roads might pass. But the expenditures on that road far exceeded the proceeds of sales of public lands in Ohio, and, in 1817, the President of the United States objected to a bill, on the ground that the constitution did not extend to making roads and canals, and improving water-courses through the different states; nor could the assent of those states confer the power. Afterwards, in 1822, the President objected to a bill appropriating money for repairing the Cumberland road, and establishing gates and tolls on it.

On these, and other occasions, there has been a great *and decided difference of opinion between congress *268 and the President on the constitutional question. President Jefferson, in his message of December 2d, 1806, and President Madison, in his message of December 3d, 1816, equally denied any such power in congress. On the other hand, it appears that congress claim the power to lay out, construct and improve post roads, with the assent of the states through which they pass. They also claim the power to open, construct and improve military roads on the like terms, and the right to cut canals through the several states, with their assent, for promoting and securing internal commerce, and for the more safe and economical transportation of military stores in time of war; and leaving, in all these cases, the jurisdictional right over the soil in the respective

states.a

In the case of Dickey v. Turnpike Road Co. 7 Dana R. 113, the Kentucky Court of Appeals decided, that the power given to congress by the constitution to establish post roads, enabled them to make, repair, keep open and improve post roads, when they should deem the exercise of the power expedient. But in the exercise of the right of eminent domain on this subject, the United States have no right to adopt and use roads, bridges and ferries, constructed and owned by states, corporations or individuals, without their consent, or without making to the parties concerned just compensation. If the United States elect to use such accommodations without the performance of such a previous condition, they stand upon the same footing, and are subject to the same tolls and regulations as private individuals. This important decision was well supported by sound reasoning.

In the inaugural address of President Adams, on the 4th of March, 1825, he alluded to this question, and his opinion seemed to be in favour of the constitutional right, and of the policy and wisdom of the liberal application of the national resources to the internal improvement of the country. He intimated, that speculative scruples on this subject would probably be solved by the practical blessings resulting from the application of the power, and the extent and limitations of the general government, in relation to this important interest, settled and acknowledged to the satisfaction of all. This declaration may be considered as withdrawing the influence of the official authority of the President from the side on which it has hitherto pressed, and adding it to the support of the preponderating opinion, in favour of the competency of the power claimed by congress.a

• In February, 1827, after an animated debate, the House of Representatives, by a vote of 101 to 67, voted to appropriate $30,000 for the continuation of surveys of routes for roads and canals. In April, 1830, on the bill, in the House of Representatives, to construct a road from Buffalo, in New-York, through Washington to New-Orleans, great objection was made to the constitutionality of the power, and the house, by a vote of 105 to 88, rejected the bill, though probably the vote was governed, in part, by other considerations; for other bills, for aiding the making roads and canals, passed into laws during that session, and their avowed purpose was the great object of internal improvement. President Jackson, in 1830, declared himself to be of opinion, that congress did not possess the constitutional power to construct roads and canals, or appropriate money for improvements of a local character; but he admitted that the right to make appropriations for such as were of a national character, had been so generally acted upon, and so long acquiesced in, as to justify the exercise of it, on the ground of continued usage. He objected, upon that distinction, to the bills authorizing subscriptions to the Maysville and Rockville Road Companies, as not being within the legitimate powers of congress. The great question concerning the power of congress to appropriate moneys for internal improvements within the states, remained still as unsettled as ever, as late as the 3d of August, 1846; for on that day President Polk objected to and defeated the bill, which had passed both houses of congress, for appropriating $1,378,450, for separate and distinct objects of internal improvement, in certain harbours, rivers and lakes in various parts of the United States. The President denied the existence of a constitutional power in the federal government to construct works of internal improvement within the states, or to appropriate moneys from the treasury for that purpose. He considered the absence of such a power to be a principle of construction well settled, and that the inexpediency of the power was demonstrated in the exercise of it in that case; for the bill contained appropriations of moneys for more than twenty objects of internal improvement, called, in the bill, harbours, at places which have never been declared by law either ports of entry or delivery, and at which there

has never been an arrival of foreign merchandise, and from which there has never been a vessel cleared for a foreign country. The constitutional scruples of the President went, in their application in this case, to interdict the necessary, and, in my opinion, the clearly constitutional jurisdiction and discretion of congress, “to regulate commerce with foreign nations and among the several states," as to the improvement of the navigation of the many rivers, harbours and great lakes within the United States, and on which waters is carried an immensely valuable commerce. This strict construction of the constitution is in striking contrast with that large construction which has been given to the constitution, in authorizing congress to admit new states into the Union, and to which we have already alluded in a preceding note. See ante, p. 259. The rightful power of the general government to direct the improvement of the navigation of the internal waters of the United States for the commercial use of the Union, and to apply the revenues thereof for that purpose, appears to me to result from a sound construction of the constitution. It is one of its great and essential objects. The Mississippi, for instance, with its millions of inhabitants, and great cities and towns on its banks, calls loudly for means to clear and remove obstructions to a safe navigation. The states cannot do it, and the improvement must come, if it comes at all, from the general government. The whole Union is deeply interested in the safe and easy navigation of the great rivers and lakes within the limits of the United States, and bordering on two or more states. It makes no difference in reason or policy in the necessary application of the power, whether the rivers or lakes are divided by two or more states. It is sufficient for the power, if the improvement to be called for be general in its object, and for national purposes, and for the regulation, safety and facility of commerce. All navigable waters, not land-locked within a state, whether they be rivers, harbours, gulfs, bays, lakes, or coasts of the ocean, are, and were intended to be, and ought to be, subservient to the power to regulate commerce with foreign nations, and among the several states. They fall within the congressional power, and are subject to the regulation of the United States, and they are entitled to the patronage, protection and pecuniary support of the general government. This power is justly to be applied to the erection of light-houses, buoys, piers, breakwaters, harbours, and for clearing obstructions, and deepening and widening navigable waters. The United States have the exclusive command of the revenues derived from commerce and navigation, and the reason, justice and policy of holding this power to exist in congress, and that it should be liberally and largely applied, strike me with obvious and decisive force. The grant of commercial power to congress is general, and must vest essentially in its application in the discretion of congress, and in its judgment as to the importance of this exercise of the power to the promotion and security of commerce among the states and with foreign nations. There does not appear to be any just ground for construing the power strictly and within straight and narrow lines. A grant of general power for great national objects ought to be liberally construed to be made adequate to all future exigencies within the scope of this power. There does not appear to be any colour in the constitution for prescribing arbitrary lines and limits to the power to regulate commerce.

Mr. Justice Story, in his Commentaries on the Constitution of the United States, vol. ii. pp. 429–440, and again, pp. 519–538, has stated, at large, the arguments for and against the proposition, that congress have a constitutional authority to lay taxes, and to apply the power to regulate commerce, as a means directly to encourage and protect domestic manufactures; and without giving any opinion of his own on that contested doctrine, he has left the reader to draw his own concluVOL. I. 19

sions. I should think, however, from a view of the arguments as stated, that every mind which has taken no part in the discussions, and felt no prejudice or territorial or party bias on either side of the question, would deem the arguments in favour of the congressional power vastly superior. The learned commentator I should apprehend to be decidedly of that way of thinking. He says, "that the commercial system of the United States has been employed sometimes for the purpose of revenue; sometimes for the purpose of prohibition; sometimes for the purpose of retaliation and commercial reciprocity; sometimes to lay embargoes; sometimes to encourage domestic navigation, and the shipping and mercantile interest, by bounties, by discriminating duties, and by special preferences and privileges; and sometimes to regulate intercourse, with a view to mere political objects, such as to repel aggressions, increase the pressure of war, or vindicate the rights of neutral sovereignty. In all these cases, the right and duty have been conceded to the national government by the unequivocal voice of the people." Mr. Hamilton, in his argument in the cabinet in February, 1791, on the national bank, considered that the regulation of policies of insurance, of salvage upon goods found at sea, the regulation of pilots and of foreign bills of exchange, as coming within the power to regulate commerce. Ibid. p. 519.