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Speech in Congress.
Chancellor Kent's Commentaries.
upon this question ? Why, as to improvements, magnify the evil, and stoutly refuse to see any good in them ?
“Mr. Chairman, on the third position of the message (the Constitutional question) I have not much to say. Being the man I am, and speaking when I do, I feel that in any attempt at an original, Constitutional argument, I should not be, and ought not to be, listened to patiently. The ablest and the best of men have gone over the wbole ground long ago. I shall attempt but little more than a brief notice of what some of them bave said. In relation to Mr. Jefferson's views, I read from Mr. Polk's veto message:
“President Jefferson, in his message to Congress in 1806, recommended an amendment of the Constitution, with a view to apply an anticipated surplus in the treasury 'to the great purposes of the public education, roads, rivers, canals, and such other objects of public improvements as it may be thought proper to add to the Constitutional enumeration of the Federal powers.' And be adds : 'I suppose an amendment to the Constitution, by consent of the States, necessary, because the objects now recommended are not among those enumerated in the Constitution, and to which it permits the public moneys to be applied.' In 1825, he repeated, in bis published letters, the opinion that no such power had been conferred upon Congress.'
“I introduce this, not to controvert, just now, the Consti tutional opinion, but to show, that on the question of expediency, Mr. Jefferson's opinion was against the present President—that this opinion of Mr. Jefferson, in one branch at least, is, in the bands of Mr. Polk, like McFingal's gun:
" "Bears wide and kicks the owner over.'
“But, to the Constitutional question. In 1826, Chancellor Kent first published his Commentaries on American Law. He devoted a portion of one of the lectures to the question of the authority of Congress to appropriate public moneys for
Speech in Congress.
Justice Story's Commentaries.
internal improvements. He mentions that the question had never been brought under judicial consideration, and proceeds to give a brief summary of the discussions it had undergone between the legislative and executive branches of the Government. He shows that the legislative branch bad usually been for, and the executive against, the power, till the period of Mr. J. Q. Adams' administration ; at which point he considers the executive influence as withdrawn from opposition, and added to the support of the power. In 1844, the Chancelor published a new edition of his Commentaries, in which be adds some notes of what had transpired on the question since 1826. I have not time to read the original text, or the notes, but the whole may be found on page 267, and the two or three following pages of the first volume of the edition of 1844. As what Chancellor Kent seems to consider the sum of the whole, I read from one of the notes :
Mr. Justice Story, in his Commentaries on the Constitution of the United States, vol. 2, page 429-440, and again, page 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 bis own on the contested doctrine, he has left the reader to draw his own conclusion. I should think, however, from the arguments as stated, that every mind which has taken no part in the discussions, and felt no prejudice or territorial bias on either side of the question, would deem the arguments in favor of the Congressional power vastly superior.'
“It will be seen, that in this extract, the power to make improvements is not directly mentioned; but by examining the context, both of Kent and of Story, it will appear that the power mentioned in the extract and the power to make improvements, are regarded as identical. It is not to be denied that many great and good men have been aguinst the
Speech in Congress.
power; but it is insisted that quite as many, as great, and as good, have been for it; and it is shown that, on a full survey of the whole, Chancelor Kent was of opinion that the arguments of the latter were vastly superior. This is but the opinion of a man; but who was that man ? He was one of the ablest and most learned lawyers of his age, or of any
It is no disparagement to Mr. Polk, nor, indeed, to any one who devotes much time to politics, to be placed far behind Chancelor Kent as a lawyer. His attitude was most favorable to correct conclusions. He wrote coolly and in retirement. He was struggling to rear a durable monument of fame; and be well knew that truth and thoroughly sound reasoning were the only sure foundations. Can the party opinion of a party President, on a law question, as this purely is, be at all compared or set in opposition to that of such a man, in such an attitude as Chancelor Kent ?
"This Constitutional question will probably never be better settled than it is, until it shall pass under judicial consideration; but I do think that no man who is clear on this question of expediency need feel his conscience much pricked
"Mr. Chairman, the President seems to think that enough may be done in the way of improvements, by means of tonnage duties, under State authority, with the consent of the General Government. Now, I suppose this matter of tonnage duties is well enough in its own sphere. I suppose it may be efficient, and perhaps sufficient, to make slight improvements and repairs in harbors already in use, and not much out of repair. But if I have any correct general idea of it, it must be wholly inefficient for any generally beneficent purposes of improvement. I know very little, or rather nothing at all, of the practical matter of levying and collecting ton. nage duties; but I suppose one of its principles must be, to lay a duty, for the improvement of any particular harbor, v.pon the tonnag' coming into that harbor. To do otherwise
Speech in Congress.
-to collect money in one barbor to be expended in improvements in another-would be an extremely aggravated forni of that inequality which the President so much deprecates. If I be right in this, how could we make any entirely new improvements by means of tonnage duties? How make road, a canal, or clear a greatly obstructed river? The ide that we could, involves the same absurdity of the Irish bul about the new boots : 'I shall never git 'em on,' says Patrick, 'till I wear 'em a day or two, and stretch 'em a little.' We shall never make a canal by tonnage duties, until it shall already have been made awhile, so the tonnage can get into it.
“After all, the President concludes that possibly there may be some great objects of improvements which can not be effected by tonnage duties, and wbich, therefore, may be expedient for the General Government to take in hand. ACcordingly, he suggests, in case any such be discovered, the propriety of amending the Constitution. Amend it for what? If, like Mr. Jefferson, the President thought improvements expedient but not Constitutional, it would be natural enough for him to recommend such an amendment; but hear what he says in this very message:
“In view of these portentous consequences, I can not but think that this course of legislation should be arrested, even were there nothing to forbid it in the fundamental laws of our Union.'
“For what, then, would he have the Constitution amended ? With him it is a proposition to remove one impediment merely to be met by others, which, in his opinion, can not be removed—to enable Congress to do what, in his opinion, they ought not to do if they could."
[Here Mr. Meade, of Virginia, inquired if Mr. L. under stood the President to be opposed, on grounds of expeaiency to any and every improvement ?
To which Mr. Lincoln answered : “In the very part of his
Speech in Congress.
Amending the Constitution
message of which I am now speaking, I understand bim as giving some vague expressions in favor of some possible objects of improvement; but, in doing so, I understand him to be directly in the teeth of his own arguments in other parts of it. Neither the President, nor any one, can possibly
pecify an improvement, which shall not be clearly liable to one or another of the objections he has urged on the score of expediency; I have shown, and might show again, that no work—no object-can be so general, as to dispense its benefits with precise equality; and this inequality is chief among the portentous consequences' for which he declares that improvments should be arrested. No, sir; when the President intimates that something in the way of improvements may properly be done by the General Government, he is shrink ing from the conclusions to which his own arguments would force him. He feels that the improvements of this broad and goodly land are & mighty interest; and he is unwilling to confess to the people, or perhaps to himself, that he has built an argument which, when pressed to its conclusion, entirely annibilates this interest.
“I have already said that no one who is satisfied of the expediency of making improvements need be much uneasy in his conscience about its Constitutionality. I wish now to submit a few remarks on the general proposition of amending the Constitution. As a General rule, I think we would do much better to let it alone. No slight occasion should tempt us to touch it. Better not take the first step, which may lead to a habit of altering it. Better rather habituate our*selves to think of it as unalterable. It can scarcely be made better than it is. New provisions would introduce new difficulties, and thus create and increase appetite for further change. No, sir; let it stand as it is. New hands have never touched it. The men who made it have done their work, and have passed away. Who shall improve on what they did ?