University of Virginia Library

TO JAMES MONROE.

Dear Sir 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 agts. 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 & 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 repel 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 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 cannot 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 accommodation of a portion of the Country
with respect to which Congs. have a general power
not applicable to other portions. 2. that the funds
appropriated, & which alone have been applied,
were also under a general power of Congs. 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 Congs. had long engaged
the critical attention of the public, and had received
reiterated & deliberate sanctions of every branch
of the Govt., to all which had been superadded many
positive concurrences of the States, 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 & therefore unconstitutional, and did not receive
their acquiescence untill these objections were
superseded by the highest Judicial as well as other
sanctions. As to the case of post roads & 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 cannot 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 cannot 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 Congs. & been
signed by the Executive at a midnight hour, in the
midst of a group scarcely admitting perusal, &
under a weariness of mind as little admitting a
vigilant attention.

Another & 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 cd. have
overcome the constitutional and other objections
to the Bill on roads & Canals which passed the 2
Houses at the last Session.

These considerations remind me of the attempts
in the Convention to vest in the Judiciary Dept.
a qualified negative on Legislative bills. Such a
Controul, restricted to Constitutional points, besides
giving greater stability & 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 than to assure you of my highest respect &
sincerest regard.