The Debates and Proceedings in the Congress of the United States, Seventeenth Congress, Second Session Page: 85
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85
January, 1283
HISTORY OF CONGRESS.
86
Cumberland Road Bill.
Senate.
and superintendence, by the General Government,
as a national one.
In support of the first proposition, the defect of
power in Congress to appropriate money lor the
object contemplated by the bill, the honorable
gentleman set out with assuming the practicabil-
ity, if not the facility, with which the clear, strong,
and perspicuous lines of distinction were to be
drawn between the powers of the General and
the State governments; affirming that those lines
of distinction might be so clearly and distinctly
traced, by the mere process of reasoning by the
rules furnished by him, as to produce conviction
on the minds of all. If this assumption be found
correct, and this beautiful theory, in the abstract,
be justified by practical experiment, applying the
touchstonc furnished by the gentleman, to all
cases, of doubtful, nice, and difficult construc-
tions, as they arise, under our new and complica-
ted system of Federal Government, then, indeed,
will he deserve the imperishable wreath of im-
mortal glory—and the thanks and gratitude not
only of his countrymen of the present age, but of
their remotest posterity. Such a discovery would
be, indeed, the political panacea for ail the ills
which afflict the body politic; and a discovery not
inferior in importance or beneficial efficacy, to
that of the elixir of immortal life—the idle and
vain pursuit of dreaming philosophers. Could the
vain and fanciful ideas of the venerable gentle-
man be realized, the politician and statesman,
with his infallible standard of Constitutional con-
struction, like the mechanic with his square and
compass, might, almost as mechanically as the
workman plans and constructs his house, plan and
lay down his powers of Federal and State legis-
lation; and circumscribe, with the utmost precis-
ion, the exact limits of each; and say to the one
and to the other, thus far shalt thou go, and no
farther. But, a little experience in this most dif-
ficult of all sciences, Mr. President, has taught
me that nothing short of the most active, constant,
and vigilant exercise of the best talents of the
sagacious and experienced statesman, by success-
ive acts of legislation on cases as they arise or
present themselves, growing out of the real or ap-
parent conflict between Federal and State juris-
dictions, tested by a long succession of sage experi-
ence, and matured by the best talents to which
our liberal and enlightened forms of Government
shall give birth, can produce that desideratum
which the gentleman seems to flatter himself he
himself discovered, and with which he has favored
the Senate, in the speech to which we. have lis-
tened with so much pleasure.
But let us proceed briefly to test the correctness
of the rule, deemed so infallible and so clear, by
which the gentleman imagines the respective
Powers, with the limits properly to be assigned to
each, is to be circumscribed. This rule of the
honorable gentleman, if it was correctly under-
stood, was this: that National, or Federal legis-
lation, was limited to subjects of a general or for-
eign nature; those of the State Governments ex-
tending to^and embracing all subjects of a local or
internal kind ; the latter acting on, adapted to, and
governed by, the interests, the feelings, prejudices,
and sympathies, of those on whom they acted,
and whose affairs they were to govern and con-
trol.
But a slight degree of reflection must satisfy
the honorable gentleman himself, how unsatisfac-
tory and fallacious such an attempt at definition
or circumscribing the respective limits of national
and State authority is, as all such attempts at gen-
eral definition must be. For, let me but put it to
the honorable gentleman himself, to say, whether
acts of the Congress of the United States for the
erection of a fortification at one point, an armory
or lighthouse at another, acts, as coming within
the scope of the general power to regulate foreign
commerce, and to declare and prosecute war, and
of the systematic exercise of which, in such estab-
lishments, the gentleman himself cannot and will
not question, are not, in their very nature and es-
sence acts of local legislation, and acts, too, hav-
ing a direct and immediate bearing on the interests,
feelings, and sympathies, of those in the vicinity
of such erections, who are more immediately af-
fected by those acts of legislation.
Will the gentleman deny that the act, in virtue
of which the fortifications at the Rip Raps were
commenced, and which are now in progress to
completion, in which Virginia takes so deep an
interest, was an act of usurpation on the legiti-
mate and sovereign rights of this enlightened and
patriotic State, or is within the legitimate exer-
cise of the powers delegated, though, by implica-
tion, to the General Government, to declare and
carry on war against other nations? When the
gentleman shall be prepared to pronounce this, and
a thousand other acts of a similar character, to be
usurpations on the part of Congress on the sover-
eign powers of the States in which such erections
are. made, then, and not till then, will this favorite
principle be considered as a test by which to de-
fine and separate the powers of national from
those of State legislation.
The truth is, Mr. President, and a most obvious
one it is, that all legislation, either that of the
States, or of the nation, is either general, embrac-
ing the whole of the States or of the nation; or
embracing only a portion, or a particular point or
spot of the State or of the. nation; and is conse-
quently more or less local in its operation. Where-
fore, no principle can be more fallacious than that
furnished by the venerable gentleman as an infal-
lible test for defining the boundaries between the
Federal and the State sovereignties. Nor is it
within the scope of human wisdom to discover or
furnish to the politician, or legislator, any such
infallible and unerring guide to the immediate
solution of all the nice and delicate questions
which have arisen, and will arise, from the real
and apparent conflicts and collisions between our
Federal and State authorities; which, whenever
they do arise, will demand, and should rcceive,
the most close and attentive investigation, aided
by all the lights of past experience, and all the
skill and wisdom of the enlightened and phil-
osophical legislators who are called upon to de-
cide and act upon them. To such may, and must
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Gales and Seaton. The Debates and Proceedings in the Congress of the United States, Seventeenth Congress, Second Session, book, 1855; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc30367/m1/41/: accessed April 18, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.