that Marshall extended the road which Hamilton opened. For the author of those fundamental principles of American constitutional law is neither Marshall nor Webster, but Alexander Hamilton. Marshall's orderly and comprehensive intellect adopted the principles which the creative genius of Hamilton had first formulated. With these principles, Marshall, as I have said, extended the road of constitutional interpretation, which his successors in the Supreme Court have followed; and through him the views of the contemporaries of the Constitution, as profoundly formulated by Hamilton, have become a part, for good or for ill, of the constitutional law of the United States. APPENDIX NO. I THE POWER OF CONGRESS TO CONSTRUCT OR ΤΗ INTERNAL IMPROVEMENTS HE suggestion in the body of this essay, that the leaders in the constitutional movement of 1787 intended to vest Congress with power to construct, and authorize the construction of highways of interstate commerce, accords with the principle settled by several decisions of the Supreme Court since the Civil War, that Congress possesses such power under the Constitution, as an incident of its control over commerce between the States. Several publications have, however, recently denied the existence of such a power; and have particularly denied that the history of the country in the years immediately preceding the adoption of the Constitution justifies the conclusion that the framers of that instrument intended to bestow such power on that body. It is, therefore, proper to state somewhat at length the reasons upon which my opinion is based. To them is added a summary of the opinions of later generations to the year 1860, as the same are to be gathered from the messages of the Presidents. The opinions of the Presidents have been selected as the most available and the most authoritative examples of the views of large numbers of the people at the dates of the several messages. For they have generally been heads of their parties, representing, upon all hotly debated questions, the average opinion of great masses of men. In their messages may be traced, perhaps more clearly than in any equal number of other documents, the history of opinion in the United States upon constitutional questions; and this, of the power of Congress over internal improvements, is one which has sometimes greatly divided the people. The messages of the Presidents respecting it have provided party platforms and have greatly influenced the development of popular opinion respecting the Constitution. If, therefore, we can accurately ascertain the views of successive Presidents we shall be able to trace quite correctly the development of opinion upon this question. I have closed my examination with the messages of President Buchanan, because after him came the Civil War, and the great change which it produced in public thinking concerning the relation of the States to the Union. The views of no President after Buchanan can essentially add to or detract from the reasonableness of any earlier interpretation of the powers of the national government under the Constitution. For another reason, also, it was unnecessary to pursue the inquiry beyond Buchanan's administration. After him, and after the Rebellion, came the successive decisions of the United States Supreme Court, which have taken the question out of the region of debate, and definitely settled it in favor of the larger power of Congress. Since the adoption of the Constitution, the power has been referred to different clauses of that instrument. Thus by Calhoun, in 1817, it seems to have been based rather on the authority to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the public defence and general welfare of the United States, than on that of regulating commerce1; while Mr. Bayard, in 1807, and Mr. Webster, in 1830, referred it to the latter power. But waiving consideration of the particular clause of the Constitution by which the power may be supported, and considering the broader historical question: Did the founders of the Republic intend to vest such a power in the general government under any provision of the Constitution?-the facts upon the whole, strongly support the conclusion that they did so intend, probably, however, under certain restrictions which will be hereafter noticed. From the formation of the Confederation, in 1781, to the end of the second administration of President Monroe, in 1825, the ideas expressed by public men upon this power of Congress develop with a certain consistency, which divides this term of years into two periods, the first ending approximately with the year 1800, the second terminating with Monroe's second administration. After Monroe, however, the opinions of one President are so diverse from those of another, that I have been able to reduce them to I Works of John C. Calhoun (Crallé), vol. ii., p. 192 et seq. As to Bayard, Elliot's Debates, vol. iv., p. 265 (Opinions, Ed. 1830); as to Webster, Works of Daniel Webster, vol. iii., p. 296 (edition 1890). |