To James Monroe
Montpellier Decr. 27. 1817
Your favor of the 22d. has been duly recd. I am so much aware that you have not a moment to spare from your public duties, that I insist on your never answering my letters out of mere civility. This rule I hope will be applied to the present as well as future letters.
My quere as to the expedition agst. Amelia Island turned solely on the applicability of the Executive Power to such a case. That relating to the right to Indian lands was suggested by the principle which has limited the claim of the U. S. to a right of pre-emption. It seemed also that an unqualified right of a civilized people to land used by people in the Hunter State, on the principle that the Earth was intended for those who would make it most conducive to the sustenance and increase of the human race, might imply a right in a people cultivating it with the spade, to say to one using the plow, either adopt our mode, or let us substitute it ourselves. It might also be not easy to repell the claims of those without land, in other Countries, if not in our own, to vacant lands within the U. S. likely to remain for a long period of years, unproductive of human food. The quere was not meant to contest the doctrine of the Message, under qualifications which were probably entertained without being specified.
The Cumberland road having been a measure taken during the administration of Mr. Jefferson, and as far as I recollect not then brought to my particular attention, I can not assign the grounds assumed for it by Congress, or which produced his sanction. I suspect that the question of Constitutionality was but slightly if at all examined by the former, and that the Executive assent was doubtingly or hastily given. Having once become a law, and being a measure of singular utility, additional appropriations took place of course under the same administration: and with the accumulated impulse thence derived, were continued under the succeeding one, with less of critical investigation perhaps than was due to the case. Be all this as it may, the case is distinguished from that now before Congress, by the circumstances 1. that the road was undertaken essentially for the accomodation of a portion of the Country, with respect to which Congress have a general power not applicable to other portions. 2. that the funds appropriated and which alone have been applied, were also under a general power of Congress, not applicable to other funds. As a precedent, the case is evidently without the weight allowed to that of the National Bank, which had been often a subject of solemn discussion in Congress, had long engaged the critical attention of the public, and had recd. reiterated and deliberate sanctions of every branch of the Govt: to all which had been superadded many positive concurrencies of the State Govts and implied ones by the people at large. The Bank case is analogous to that of the Carriage tax which was generally regarded by those who opposed the Bank as a direct tax and therefore unconstitutional, and did not receive their acquiescence, untill their objections were superseded by the highest Judicial as well as other sanctions. As to the case of post roads and military roads; instead of implying a general power to make roads, the constitutionality of them must be tested by the bona fide object of the particular roads. The Post cannot travel, nor troops march without a road. If the necessary roads can not be found, they must of course be provided.
Serious danger seems to be threatened to the genuine sense of the Constitution, not only by an unwarrantable latitude of construction, but by the use made of precedents which can not be supposed to have had, in the view of their authors, the bearing contended for, and even where they may have crept, thro’ inadvertence, into Acts of Congress, and been signed by the Executive at a Midnight hour, in the midst of a group scarcely admitting perusal, and under a weariness of mind as little admitting a vigilant attention.
Another and perhaps a greater danger is to be apprehended from the influence which the usefulness & popularity of measures may have on questions of their Constitutionality. It is difficult to conceive that any thing short of that influence could have overcome the constitutional and other objections to the Bill on roads and canals which passed the two Houses at the last Session.1
These Considerations remind me of the attempts in the Convention to vest in the Judiciary Dept. a qualified negative on Legislative bills.2 Such a controul restricted to constitutional points, besides giving greater stability and system to the rules of expounding the Instrument, would have precluded the question of a Judiciary annulment of Legislative Acts. But I am running far beyond the subject presented in your letter, and will detain you no longer that [sic] to assure you of my highest respect and sincerest regard.
RC (DLC: Monroe Papers); FC (DLC). RC docketed by Monroe. Minor differences between the copies have not been noted.
1. The bill entitled “An Act to set apart and pledge certain funds for internal improvement” was passed by the House on 8 Feb. 1817 and the Senate on 28 Feb. 1817. The bill was vetoed by JM on 3 Mar. 1817, and attempts to override the veto were unavailing (Annals of Congress description begins Debates and Proceedings in the Congress of the United States.… (42 vols.; Washington, 1834–56). description ends , 14th Cong., 2d sess., 190–91, 934, 1059–62).
2. Resolution 8 of JM’s Virginia Plan, as introduced by Edmund Randolph on 29 May 1787 in the Constitutional Convention, called for a council of revision made up of the executive and “a convenient number of the National Judiciary,” which would have the “authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection” (James Madison, Notes of the Debates in the Federal Convention of 1787 [Athens, Ohio, 1966], 32).