Cobb in the United States Senate (February 23, 1825)

February 23, 1825.

Having said thus much concerning the nature of the Federal Government, the limitations of its powers, the rule by which the Constitution should be expounded, I proceed to the inquiry, From what clause in that instrument can the power to construct roads and canals be derived? I admit there is no clause prohibiting the exercise of such a power — but it is equally plain that there is no clause containing an express grant of the right, as a distinct and independent power. May we not go somewhat farther, and say, that, in addition to the fact of no such express grant of power being found in the Constitution, there is a strong presumption that such a grant was intended to be denied to the General Government? This presumption is established from the Journal of the Convention, as I will read: On the 14th Sept. (Journal of Convention, p. 376,) it was proposed to add to the enumeration of powers contained in the 8th sec, 1st. art. the following: "To grant letters of incorporation for canals," &c. It was rejected, three states only voting for it, viz: Pennsylvania, Virginia, and Georgia. There is a slight difference in words, between the amendment thus rejected, and the bill under consideration. The amendment proposed to invest Congress with power to "grant letters of incorporation for canals," &c. The bill presupposes that Congress possesses the power to construct roads and canals. But every one will at once see that there is no difference in principle. For if the power to grant letters of incorporation for canals, &c, had been conferred on Congress, it would have carried with it a grant of power to Congress itself, to construct them, inasmuch as the letters of incorporation could confer only such powers as vested in the person or body politic by whom they were to be granted. What, then, is the presumption to be drawn from the refusal by the Convention to confer this power? It can be only one of two: 1st, That the Convention intended to deny the power to Congress, and if so, the question as to our power to pass the bill under consideration is settled: we can have no such power. 2d, The other presumption is, that the Convention refused to adopt the amendment, because they believed the power was conferred in some other clause or grant. If this last presumption were correct, we should have had some evidence, somewhere, of its truth. We should have had some hint, either from the early expositors of the Constitution, or from the declarations of some member of the Convention, that such was the opinion entertained by that body. Consult the Letters of Publius, published under the title of the Fœderalist — that work was principally written by two distinguished members of the convention, one of whom1 was at his post when the vote was taken on the amendment. Does that work any where insinuate that such power was vested expressly or impliedly, in Congress, by the Constitution? Nay, has not the distinguished individual alluded to, when subsequently President of the United States, in a solemn message to Congress, denied that any such power was conferred by the Constitution? Surely it would not have been unknown to him, if the Convention had ever intended to delegate the power. Consult, also, the work recently published by Mr. Yates, another member of the Convention, and nothing will be found favorable to the presumption. At the present moment, we have in this very body a distinguished member of that Convention.2 He was present, and voted on the amendment I have read from the Journal. Doubtless he will be able to inform us whether the rejection of the amendment proceeded from a belief in the Convention that the power was conferred in some other clause of the Constitution.3 This second presumption, then, is fallacious, and, consequently, Congress have no power, either express or implied, over the subject of roads and canals.

[Footnotes as included or written by Farrand]