if jurisdiction of the territory which they may occupy be claimed as necessary to then preservation and use; the second, as asserting the simple right to appropriate money from the national treasury in aid of such works when undertaken by state authority surrendering the claim of jurisdiction. In the first view, the question of power is an open one, and can be decided without the embarrassment attending the other, arising from the practice of the government.
Although frequently and strenuously attempted, the power, to this extent, has never been exercised by the government in a single instance. It does not, in my opinion, possess it, and no bill, therefore, which admits it, can receive my official sanction.
But, in the other view of the power, the question is differently situated. The ground taken at an early period of the government was, "that, whenever money has been raised by the general authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress. If it be, the money requisite for it may be applied to it; if not, no such application can be made." The document in which this principle was first advanced is of deservedly high authority, and should be held in grateful remembrance for its immediate agency in rescuing the country from much existing abuse, and for its conservative effect upon some of the most valuable principles of the Constitution. The symmetry and purity of the government would, doubtless, have been better preserved, if this restriction of the power of appropriation could have been maintained without weakening its ability to fulfil the general objects of its institution—an effect so likely to attend its admission, notwithstanding its apparent fitness, that every subsequent administration of the government, embracing a period of thirty out of the forty-two years of its existence, has adopted a more enlarged construction of the power.
In the administration of Mr. Jefferson, we have two examples of the exercise of the right of appropriation, which, in the consideration that led to their adoption, and in their effects upon the public mind, have had a greater agency in marking the character of the power, than any subsequent events. I allude to the payment of fifteen millions of dollars for the purchase of Louisiana, and to the original appropriation for the construction of the Cumberland Road; the latter act deriving much weight from the acquiescence and approbation of three of the most powerful of the original members of the confederacy, expressed through their respective legislatures. Although the circumstances of the latter case may be such as to deprive so much of it as relates to the actual construction of the road of the force of an obligatory exposition of the Constitution, it must, nevertheless, be admitted that, so far as the mere appropriation of money is concerned, they present the principle in its most imposing aspect. No less than twenty-three different laws have been passed through all the forms of the Constitution, appropriating upwards of two millions of dollars out of the national treasury in support of that improvement, with the approbation of every President of the United States, including my predecessor, since its commencement.
Independently of the sanction given to appropriations for the Cumberland and other roads and objects, under this power, the administration of Mr. Madison was characterized by an act which furnishes the strongest evidence of his opinion extant. A bill was passed through both houses of Congress, and presented for his approval, "setting apart and pledging certain funds for constructing roads and canals, and improving the navigation of watercourses, in order to facilitate, promote, and give security to internal commerce among the several states; and to render more easy, and less expensive, the means and provision for the common defence." Regarding the bill as asserting a power in the federal government to construct roads and canals within the limits of the states in which they were made, he objected to its passage, on the ground of its unconstitutionality, declaring that the assent of the respective states, in the mode provided by the bill, could not confer the powers in question; that the only cases in which the consent and cession of particular states can extend the power of Congress are those specified and provided for in the Constitution; and superadding to this avowal his opinion, that "a restriction of the power 'to provide for the common defence and general welfare,' to cases which are to be provided for by the expenditure of money, would still leave within the legislative power of Congress all the great and most important measures of government, money being the ordinary and necessary means of carrying them into execution." I have not been able to consider these declarations in any other point of view than as a concession that the right of appropriation is not limited by the power to carry into effect the measure for which the money is asked, as was formerly contended.
The views of Mr. Monroe upon this subject were not left to inference. Durirg his administration, a bill was passed through both houses of Congress, conferring the jurisdiction, and prescribing the mode by which the federal government should exercise it in the case of the Cumberland road. He returned it, with objections to its passage, and, in assigning them, took occasion to say that, in the early stages of the government, he had inclined to the construction that it had no right to expend money,
