ELI WILLIAMS,THOMAS MOORE,JOSEPH KERR.
December 30, 1806.
Pennsylvania Grants Permission to Make the Road Through Her Territory—Uniontown Restored, Gist Left Out, and Washington, Pennsylvania, Made a Point—Simon Snyder, Speaker of the House—Pressly Carr Lane, a Fayette County Man, Speaker of the Senate, and Thomas McKean, Governor—A Second Special Message From President Jefferson, and a Second Report of the Commissioners—Heights of Mountains and Hills—On to Brownsville and Wheeling—An Imperious Call Made on Commissioner Kerr.
An Act authorizing the President of the United States to open a road through that part of this State lying between Cumberland, in the State of Maryland, and the Ohio river.
Whereas, by an Act of the Congress of the United States, passed on the twenty-ninth day of March, one thousand eight hundred and six, entitled “An act to regulate the laying out and making a road from Cumberland, in the State of Maryland, to the State of Ohio,” the President of the United States is empowered to lay out a road from the Potomac river to the river Ohio, and to take measures for making the same, so soon as the consent of the legislatures of the several States through which the said road shall pass, could be obtained: And whereas, application hath been made to this legislature, by the President of the United States, for its consent to the measures aforesaid: Therefore,
Section 1.Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania, in General Assembly met, and it is hereby enacted by the authority of the same, That the President of the United States be, and he is hereby authorized to cause so much of the said road as will be within this State, to be opened so far as it may be necessary the same should pass through this State, and to cause the said road to be made, regulated and completed, within the limits, and according to the intent and meaning of the before recited Act of Congress in relation thereto;Provided, nevertheless, That the route laid down and reported by the commissioners to the President of the United States, be so altered as to pass through Uniontown, in the county of Fayette, and Washington, in the county of Washington, if such alteration can, in the opinion of the President, be made, consistently with the provisions of an act of Congress passed March 29th, 1806, but if not, then over any ground within the limit of this State, which he may deem most advantageous.
Sec 2.And be it further enacted by the authority aforesaid, That such person or persons as are or shall be appointed for the purpose of laying out and completing the said road, under the authority of the United States, shall have full power and authority to enter upon the lands through which the same may pass, and upon any land near or adjacent thereto, and therefrom to take, dig, cut and carry away such materials of earth, stone, gravel, timber and sand as may be necessary for the purpose of completing, and for ever keeping in repair, said road;Provided, That such materials shall be valued and appraised, in the same manner as materials taken for similar purposes, under the authority of this Commonwealth are by the laws thereof, directed to be valued and appraised, and a certificate of the amount thereof shall, by the person or persons appointed, or hereafter to be appointed under the authority of the United States for the purpose aforesaid, be delivered to each party entitled thereto, for any materials to be taken by virtue of this act, to entitle him, her or them to receive payment therefor from the United States.
SIMON SNYDER,
Speaker of the House of Representatives.
P. C. LANE,
Speaker of the Senate.
Approved, the ninth day of April, one thousand eight hundred and seven.THOMAS M’KEAN.
TENTH CONGRESS—FIRST SESSION.Communicated to Congress February 19, 1808.
To the Senate and House of Representatives of the United States:
The States of Pennsylvania, Maryland and Virginia having, by their several acts consented that the road from Cumberland to the State of Ohio, authorized by the act of Congress of March 29, 1806, should pass through those States, and the report of the commissioners communicated to Congress with my message of January 31, 1807, having been duly considered, I have approved of the route therein proposed for the said road as far as Brownsville, with a single deviation since located, which carries it through Uniontown.
From thence the course to the Ohio, and the point within the legal limits at which it shall strike that river, is still to be decided.
In forming this decision, I shall pay material regard to the interests and wishes of the populous parts of the State of Ohio, and to a future and convenient connection with the road which is to lead from theIndianboundary near Cincinnati, by Vincennes, to the Mississippi, at St. Louis, under authority of the act of April 21, 1806. In this way we may accomplish a continuous and advantageous line of communication from the seat of the General Government to St. Louis, passing through several very interesting points, to the Western country.
I have thought it advisable, also, to secure from obliteration the trace of the road so far as it has been approved, which has been executed at such considerable expense, by opening one-half of its breadth through its whole length.
The report of the commissioners herewith transmitted will give particular information of their proceedings under the act of March 29, 1806, since the date of my message of January 31, 1807, and will enable Congress to adopt such further measures, relative thereto, as they may deem proper under existing circumstances.
TH. JEFFERSON.
February 19, 1808.
The undersigned, commissioners appointed under the law of the United States, entitled “An act to regulate the laying out and making a road from Cumberland, in the State of Maryland, to the State of Ohio,” in addition to the communications heretofore made, beg leave further to report to the President of the United States that, by the delay of the answer of the Legislature of Pennsylvania to the application for permission to pass the road through that State, the commissioners could not proceed to the business of the road in the spring before vegetation had so far advanced as to render the work of exploring and surveying difficult and tedious, from which circumstance it was postponed till the last autumn, when the business was again resumed. That, in obedience to the special instructions given them, the route heretofore reported has been so changed as to pass through Uniontown, and that they have completed the location, gradation and marking of the route from Cumberland to Brownsville, Bridgeport, and the Monongahela river, agreeably to a plat of the courses, distances and grades in which is described the marks and monuments by which the route is designated, and which is herewith exhibited; that by this plat and measurement it will appear (when compared with the road now traveled) there is a saving of four miles of distance between Cumberland and Brownsville on the new route.
In the gradation of the surface of the route (which became necessary) is ascertained the comparative elevation and depression of different points on the route, and taking a point ten feet above the surface of low water in the Potomac river at Cumberland, as the horizon, the most prominent points are found to be elevated as follows, viz.:
The law requiring the commissioners to report those parts of the route as are laid on the old road, as well as those on new grounds, and to state those parts which require the most immediate attention and amelioration, the probable expense of making the same passable in the most difficult parts, and through the whole distance, they have to state that, from the crooked and hilly course of the road now traveled, the new route could not be made to occupy any part of it (except an intersection on Wills mountain, another at Jesse Tomlinson’s, and a third near Big Youghiogheny, embracing not a mile of distance in the whole) without unnecessary sacrifices of distances and expense.
That, therefore, an estimate must be made on the route as passing wholly through new grounds. In doing this the commissioners feel great difficulty, as they cannot, with any degree of precision, estimate the expense of making it merely passable; nor can they allow themselves to suppose that a less breadth than that mentioned in the law was to be taken into the calculation. The rugged deformity of the grounds rendered it impossible to lay a route within the grade limited by law otherwise than by ascending and descending the hills obliquely, by which circumstance a great proportion of the route occupies the sides of the hills, which cannot be safely passed on a road of common breadth, and where it will, in the opinion of the commissioners, be necessary, by digging, to give the proper form to thirty feet, at least in the breadth of the road, to afford suitable security in passing on a way to be frequently crowded with wagons moving in opposite directions, with transports of emigrant families, and droves of cattle, hogs, etc., on the way to market. Considering, therefore, that a road on those grounds must have sufficient breadth to afford ways and water courses, and satisfied that nothing short of well constructed and completely finished conduits can insure it against injuries, which must otherwise render it impassable at every change of the seasons, by heavy falls of rain or melting of the beds of snow, with which the country is frequently covered; the commissioners beg leave to say, that, in a former report, they estimated the expense of a road on these grounds, when properly shaped, made and finished in the style of a stone-covered turnpike, at $6,000 per mile, exclusive of bridges over the principal streams on the way; and that with all the information they have since been able to collect, they have no reason to make any alteration in that estimate.
The contracts authorized by, and which have been taken under the superintendence of the commissioner, Thomas Moore (duplicates of which accompany this report), will show what has been undertakenrelative to clearing the timber and brush from part of the breadth of the road. The performance of these contracts was in such forwardness on the 1st instant as leaves no doubt of their being completely fulfilled by the first of March.
The commissioners further state, that, to aid them in the extension of their route, they ran and marked a straight line from the crossing place on the Monongahela, to Wheeling, and had progressed twenty miles, with their usual and necessary lines of experiment, in ascertaining the shortest and best connection of practical grounds, when the approach of winter and the shortness of the days afforded no expectation that they could complete the location without a needless expense in the most inclement season of the year. And, presuming that the postponement of the remaining part till the ensuing spring would produce no delay in the business of making the road, they were induced to retire from it for the present.
The great length of time already employed in this business, makes it proper for the commissioners to observe that, in order to connect the best grounds with that circumspection which the importance of the duties confided to them demanded, it became indispensably necessary to run lines of experiment and reference in various directions, which exceed an average of four times the distance located for the route, and that, through a country so irregularly broken, and crowded with very thick underwood in many places, the work has been found so incalculably tedious that, without an adequate idea of the difficulty, it is not easy to reconcile the delay.
It is proper to mention that an imperious call from the private concerns of Commissioner Joseph Kerr, compelled him to return home on the 29th of November, which will account for the want of his signature to this report.
All of which is, with due deference, submitted, this 15th day of January, 1808.
ELI WILLIAMS,THOMAS MOORE.
Note.—It will be observed that Keyser’s Ridge, which is unquestionably the highest point on the road, is not mentioned by the commissioners. This is, no doubt, because, at the date of their report, the locality did not bear the name Keyser’s Ridge, and was known as a peak of Negro mountain. Soon after the location of the road, one Keyser acquired the property at the ridge, and it took its name from him. It will also be observed that the measurement of heights by the commissioners was made from “a point ten feet above the surface of low water in the Potomac at Cumberland.” A table of heights given in a subsequent chapter, the authority for which is not ascertainable, differs from that in the commissioners’ report, but their report must be accepted as accurate from their point of measurement. The other table referred to gives the heights above the Atlantic and above Cumberland, and embraces more hills than the commissioners’ report.
Albert Gallatin, Secretary of the Treasury, called upon for Information respecting the Fund Applicable to the Roads mentioned in the Ohio Admission Act—His Responses.
TENTH CONGRESS—FIRST SESSION.
Communicated to the House of Representatives March 8, 1808.
Treasury Department.March 3, 1808.
Sir: In answer to your letter of the 1st instant, I have the honor to state:
1st. That the 5 per cent. reserved by the act of 30th April, 1802, on the net moneys received for public lands in the State of Ohio, sold since 1st July, 1802, has amounted to the following sums, viz:
And that the said 5 per cent. will henceforth probably amount to $30,000 a year.
3d. That contracts have been made for opening one-half of the breadth of said road, which, as verbally informed by one of the commissioners, will require about $3,000, leaving, probably, about $12,000 of the appropriation for the further improvement of the road.
4th. That the portion of the road actually located and confirmed, no part of which exceeds an angle of five degrees, extends from the navigable waters of the Potomac, at Cumberland, to the navigable waters of the Monongahela, at Brownsville (Red Stone Old Fort), and it is stated, though no official report has been made to me, at about seventy miles.
5th. That that road can be considered as a national object only ifcompleted as a turnpike, whereby all the flour and other produce of the western adjacent countries may be brought to a market on the Atlantic shores; and the transportation of all the salt and other commodities and merchandise whatever, imported from the Atlantic ports to the western country generally, may be reduced probably one dollar per cwt.
And, Lastly, that the expense of completing that part of the road in such manner, is estimated at $400,000.
I have the honor to be, respectfully, sir, your obedient servant,ALBERT GALLATIN.
Hon. John Montgomery, of Maryland, Chairman, etc., in Congress.
Committee Room, Dec. 22, 1808.
Sir: The committee appointed on the message of the President, transmitting a report of the commissioners concerning a road from Cumberland to Ohio, have directed me to request that you would cause to be laid before them such information as may be in possession of the Treasury Department respecting the fund applicable by law to “the laying out and making public roads leading from the navigable waters emptying into the Atlantic, to the Ohio,” etc. (1) The unexpended balance of the $30,000 appropriated by the act of the 29th of March, 1806; (2) The amount of moneys, exclusive of the above, now in the treasury, and in the hands of the receiver of public moneys, applicable to that object; and (3) an estimate of the probable amount of moneys that will accrue to the fund within the two succeeding years.
I have the honor to be, very respectfully, sir, your obedient servant,
JEREMIAH MORROW.
To the Hon. Secretary of the Treasury.
TENTH CONGRESS—SECOND SESSION.
Cumberland Road.
Communicated to the House of Representatives, February 16, 1809.
Treasury Department, Dec. 29, 1808.
Sir: In answer to your letter of the 22d instant. I have the honor to state, for the information of the committee:
1st. That the unexpended balance of the appropriation, made by the act of March 29, 1806, for opening a road from Cumberland, on the Potomac, to the river Ohio, amounts to $16,075.15; part of which sum will probably be wanted in order to complete the location and opening of the road. It is probable that about $13,000 will remain applicable to making the road.
3dly. That the probable receipts on account of that fund may, for the two ensuing years, be estimated at $22,500 a year, if calculated at the rate of 5 per cent., and at $9,000 a year, if calculated at the rate of 2 per cent. on the sales of lands.
I have the honor to be, respectfully, sir, your obedient servant,
ALBERT GALLATIN.
Hon. Jeremiah Morrow, Chairman of the Land Committee.
P.S.—Amount of the 2 per cent. of the net proceeds of the lands within the State of Ohio:
The sum of $30,000 appropriated per act of 29th of March to be paid therefrom; of which $13,924.85 seems to have been paid.
A. G.
The Life of the Road Threatened by the Spectre of a Constitutional Cavil—President Monroe Vetoes a Bill for its Preservation and Repair—General Jackson has Misgivings—Hon. Andrew Stewart comes to the Rescue.
SPECIAL MESSAGE.
May 4, 1822.
To the House of Representatives:
Having duly considered the bill, entitled “An act for the preservation and repair of the Cumberland Road,” it is with deep regret (APPROVING, AS I DO, THE POLICY), that I am compelled to object to its passage, and to return the bill to the House of Representatives, in which it originated, under a conviction that Congress do not possess the power, under the Constitution, to pass such a law. A power to establish turnpikes, with gates and tolls, and to enforce the collection of the tolls by penalties, implies a power to adopt and execute a complete system of internal improvements. A right to impose duties to be paid by all persons passing a certain road, and on horses and carriages, as is done by this bill, involves the right to take the land from the proprietor on a valuation, and to pass laws for the protection of the road from injuries; and if it exist, as to one road, it exists as to any other, and to as many roads as Congress may think proper to establish. A right to legislate for one of these purposes, is a right to legislate for the others. It is a complete right of jurisdiction and sovereignty for all the purposes of internal improvement, and not merely the right of applying money under the power vested in Congress to make appropriations (under which power, with the consent of the States through which the road passes, the work was originally commenced, and has been so far executed). I am of opinion that Congress do not possess this power—that the States individually cannot grant it; for, although they may assent to the appropriation of money within their limits for such purposes, they can grant no power of jurisdiction of sovereignty, by special compacts with the United States. This power can be granted only by an amendment to the Constitution, and in the mode prescribed by it. If the power exist, it must be either because it has been specifically granted to the United States, or that it is incidental to some power, which has been specifically granted. If we examine the specific grants of power, we do not find it among them, nor is it incidental to any power which has been specifically granted. It has never been contended that the power was specifically granted. It is claimed only as being incidentalto some one or more of the powers which are specifically granted. The following are the powers from which it is said to be derived: (1) From the right to establish post offices and post roads; (2) From the right to declare war; (3) To regulate commerce; (4) To pay the debts and provide for the common defence and general welfare; (5) From the power to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the government of the United States, or in any department or officer thereof; (6) And lastly, from the power to dispose of and make all needful rules and regulations respecting the territory and other property of the United States. According to my judgment, it cannot be derived from either of these powers, nor from all of them united, and in consequence it does not exist. Having stated my objections to the bill, I should now cheerfully communicate at large the reasons on which they are founded, if I had time to reduce them to such form as to include them in this paper. The advanced stage of the session renders that impossible. Having, at the commencement of my service in this high trust, considered it a duty to express the opinion that the United States do not possess the power in question, and to suggest for the consideration of Congress the propriety of recommending to the States an amendment to the Constitution, to vest the power in the United States, my attention has been often drawn to the subject since, in consequence whereof, I have occasionally committed my sentiments to paper respecting it. The form which this exposition has assumed is not such as I should have given it had it been intended for Congress, nor is it concluded. Nevertheless, as it contains my views on this subject, being one which I deem of very high importance, and which, in many of its bearings, has now become peculiarly urgent, I will communicate it to Congress, if in my power, in the course of the day, or certainly on Monday next.
JAMES MONROE.
General Jackson, in his famous veto of the Maysville Road bill (May 27, 1830), refers to the Cumberland Road, and to the above message of President Monroe, in the following terms;
“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 theORIGINAL 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 theLATTER CASEmay 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 and a half 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. The views of Mr. Monroe upon this subject were not left to inference. During 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 ofthe 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 except in the performance of acts authorized by the other specific grants of power, according to a strict construction of them; but that on further reflection and observation his mind had undergone a change; that his opinion then was: ‘that Congress had an unlimited power to raise money, and that in its appropriation they have a discretionary power, restricted only by the duty to appropriate it to purposes of common defence and of general, not local, National, not State benefit;’ and this was avowed to be the governing principle through the residue of his administration.”
HON. ANDREW STEWART.
HON. ANDREW STEWART.
On the 27th of January, 1829, the Hon. Andrew Stewart, of Pennsylvania, in a vigorous speech on the floor of Congress, repelled the proposition that the general government was lacking in power and authority to make and preserve the road, from which the following extracts are taken:
“Mr. Stewart expressed his regret that gentlemen had deemed this a fit occasion to draw into discussion all the topics connected with the general power over the subject of internal improvements. If repeated decisions, and the uniform practice of the government could settle any question, this, he thought, ought to be regarded as settled. The foundation of this road (the National or Cumberland) was laid by a report made by Mr. Giles, the present Governor of Virginia, in 1802, and was sanctioned the next session by a similar report, made by another distinguished Virginian (Mr. Randolph), now a member of this House—it was the offspring of Virginia, and he hoped she would not now abandon it as illegitimate. Commenced under the administration of Mr. Jefferson, it had been sanctioned and prosecuted by every president, and by almost every Congress, for more than a quarter of a century.* * * *
“Without roads and canals, of what avail was it to the people of the West to possess a country, abounding with all the essential elements of wealth and prosperity—of what avail was it to have a country abounding with inexhaustible mines of coal and ore; to possess a fruitful soil and abundant harvests, without the means of transporting them to the places where they were required for consumption? Without a market, the people of the West were left without a motivefor industry. By denying to this portion of the Union the advantages of internal improvements, you not only deprive them of all the benefits of governmental expenditures, but you also deprive them of the advantages which nature’s God intended for them. Possessing the power, how, he asked, could any representative of the interior or western portions of this Union vote against a policy so essential to the prosperity of the people who sent him here to guard their rights, and advance their interests? * * * *
“The right of this government to construct such roads and canals as were necessary to carry into effect its mail, military, and commercial powers, was as clear and undoubted as the right to build a post office, construct a fort, or erect a lighthouse. In every point of view the cases were precisely similar, and were sustained and justified by the same power.” * * * *
The power, said Mr. S., “to establish post offices and post roads,” involves the power and duty of transporting the mail, and of employing all the means necessary for this purpose. The simple question, then, was this: Are roads necessary to carry the mail? If they were, Congress had expressly the right to make them, and there was an end to the question. Roads were, he contended, not only necessary to carry into effect this power, but they were absolutely and indispensably necessary; you cannot get along without them, and yet we are gravely told that Congress have no right to make a mail road, or repair it when made! That to do so would ruin the States and produce consolidation—ruin the States by constructing good roads for their use and benefit; produce consolidation by connecting the distant parts of the Union by cheap and rapid modes of inter-communication. If consolidation meant to confirm and perpetuate the Union, he would admit its application, but not otherwise. But we are told that theStateswill make roads to carry the mails. This was begging the question. If the States would make all the roads required to carry into effect our powers, very well; but if they did not, then we may undoubtedly make them ourselves. But it was never designed by the framers of the Constitution that this government should be dependent on the States for the means of executing its powers: “its means were adequate to its ends.” This principle was distinctly and unanimously laid down by the Supreme Court in the case already referred to: “No trace,” says the Chief Justice, “is to be found in the Constitution of an intention to create a dependence of the government of the Union on the States for the execution of the powers assigned to it—its means are adequate to its ends. To impose on it the necessity of resorting to means it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint the most important designs, and is incompatible with the language of the Constitution.” And this was in perfect harmony with the constant and uniform practice of the government. * * *
Mr. S. begged gentlemen to turn their attention for a moment to the statute book, and see what the practice of the government had been; what had been already done by Congress in virtue of this power of “establishing post offices and post roads.” In 1825 an act had been passed, without a word of objection, which went infinitely further than the bill under consideration. His colleague (Mr. Buchanan) was then a member of this House, and, no doubt, voted for it. His eloquence was then mute—we heard nothing about States rights, spectres, and sedition laws. This bill, regulating the post office establishment, not only created some thirty or forty highly penal offences, extending not only over the Cumberland Road, but over every other road in the United States, punishing with severest sanctions, even to the taking away the liberty and the lives of the citizens of the States, and requiring the State courts to take cognizance of these offences and inflict these punishments. This was not all: this act not only extended over all the mail roads, but all other roads running parallel with them, on which all persons are prohibited, under a penalty of fifty dollars, from carrying letters in stages or other vehicles performing regular trips; and authorizing, too, the seizure and sale of any property found in them for the payment of the fines. The same regulations applied to boats and vessels passing from one town to another. Compare that bill with the one under debate. This bill had two or three trifling penalties of ten dollars, and was confined to one road of about one hundred and fifty miles in extent, made by the United States, while the other act, with all its fines and forfeitures, pains and penalties, extended not only to all the mail roads in the United States, but also to all parallel roads; yet no complaint was then heard about the constitutionality of this law, or the dreadful consequences of carrying the citizens hundreds of miles to be tried. Under it no difficulties had ever been experienced, and no complaint had ever been heard. There had been no occasion for appointing United States Justices and creating federal courts to carry this law into effect, about which there was so much declamation on this occasion: this was truly choking at gnats and swallowing camels. To take awaylifeby virtue of the post office power for robbing the mail, is nothing; but to impose a fine of ten dollars for wilfully destroying a road which has cost the government a million of dollars, is a dreadful violation of State rights! An unheard of usurpation, worse than the sedition law; and went further towards a dissolution of the Union than any other act of the government. Such were the declarations of his colleague; he hoped he would be able to give some reason for thus denouncing this bill, after voting for the act of 1825, which carried this same power a hundred times further than this bill, both as regards the theatre of its operations, and the extent of its punishments. * * * *
Having thus established, and, as he thought, conclusively, the right to construct roads and canals for mail and military purposes, he came next to say a few words on the subject of those which appertained to the express power of “regulating commerce with foreign nations andamong the several States.” This power carried with it, as a necessary incident, the right to construct commercial roads and canals. From this grant Congress derived exactly the same power to make roads and canals that it did sea-walls, light-houses, buoys, beacons, etc., along the seaboard. If the power existed over the one it existed over the other in every point of view; the cases were precisely parallel; it was impossible to draw a distinction between them. This power was essential to every government—there was no government under the sun without it. All writers on national law and political economy considered the right to construct roads and canals as belonging to the commercial power of all governments. * * *
There were great arteries of communication between distant divisions of this extensive empire, passing through many States or bordering upon them, which the States never could and never would make. These works were emphatically national, and ought to be accomplished by national means.
He instanced the road now under consideration—it passed through Maryland, Pennsylvania and Virginia, yet neither of these States would have given a dollar to make it. It passed mostly through mountainous and uninhabited regions. He adverted to the Potomac, Ohio, and Mississippi rivers. Important as these were to all the States, yet they were the internal concerns of none—they were mere boundaries to which the States would give nothing, while they had so many objects exclusively internal requiring all their means. For these reasons he was utterly opposed to the project of dividing the surplus revenue of the general government among the several States; this would be to surrender the national means which the people had confided to this purpose to mere local and sectional objects, while those truly national would remain forever unprovided for. He did not claim for this government the power to make roads and canals for all purposes. The powers of this government and of the States were distinct and well defined. To the national government belonged, under the Constitution, the power of making national roads and canals for national purposes. To the States belonged the power of providing for state and local objects. The roads and canals projected and executed by the States and private companies were often highly important in a national point of view; and to such, in his opinion, this government ought always to afford aid in a proportion corresponding with the interest the nation had in their accomplishment. When individuals were willing to go before and vest millions of their private funds in works strictly and truly national, connecting the remote sections of the Union together (of which we had two distinct examples, one in this district and the other in a neighboring city, Baltimore), could this government, charged with the care and guardianship of all the great interests of the nation, look on with cold indifference? Was it not our duty to lend a helping hand to encourage, to cheer, and to sustain them in their noble and patriotic efforts? * * * *
Mr. Stewart said he would now proceed to answer, as briefly as possible, some leading arguments urged by gentlemen in opposition to the bill under consideration. His colleague (Mr. Buchanan) had said that this bill proposed a greater stretch of power than the sedition law. This was an argument “ad captandum vulgus.” He would not do his colleague the injustice to suppose that he was so ignorant of the Constitution of his country as seriously to address such an argument to the understanding of this House. The bill under consideration was necessary to carry into effect the express power of transporting the mail. What power of this government was the sedition law intended to carry into effect? None. It was therefore not only clearly unconstitutional on this ground, but it went directly to abridge the freedom of the press, and, of course, was a plain and palpable violation of that provision in the Constitution, which declares that “Congress shall make no law abridging the freedom of speech or of the press.” Now, if his colleague could show any provision in the Constitution in the slightest degree impugning the right of Congress to pass this bill, then he might have some excuse for offering such an argument, otherwise he had none. The gentleman had, in a very labored effort, endeavored to prove that this government had no kind of jurisdiction or control whatever over this road. Yet his own amendment recognized the existence of the very power which he denies. By his amendment he proposes what? That this government shall cede the roads to the States, with the power to erect gates and collect as much toll as was necessary to keep it in repair. But his whole argument went to prove that Congress did not possess the very power which his amendment assumed and proposed to the States. The gentleman’s amendment, and his speech therefore, were at open war with each other, and would perhaps both perish in the conflict. Certainly, both could not survive—one or the other must fall.
The gentleman, proceeding in his argument, had assumed premises which nobody would admit, and then, with an air of great triumph, he drew conclusions which even his own premises would not support. He takes for granted that this government, with all its mail, military, and commercial powers, has no more right to make a road to carry these powers into effect, through a State, than any individual possessing none of these powers would have. Thus, having assumed what was utterly inadmissible, he triumphantly inquires whether an individual, having obtained leave to make a road through another’s land, could put up gates and exact toll? The gentleman says, surely not. But he said, surely yes, unless expressly prohibited by the contract. Suppose, by permission, I build a mill, said Mr. S., upon that gentleman’s estate, and construct a bridge and turnpike road to get to it, have not I as much right to demand toll at the bridge as at the mill? Most undoubtedly; so that the gentleman’s premises and his conclusions were alike fallacious and unsound. This position had been taken by both the gentlemen from Virginia (Mr. Barbour and Mr. Archer), to whom he would make the same reply.A most extraordinary argument had been advanced against military roads: the public enemy may get possession of them in war!! Was it possible that an American statesman could, at this time of day, urge such an argument? It might be addressed to a set of timid savages, secure in the midst of the wilderness. The enemy get possession of our roads, and therefore not make them! Such cowardly arguments would deprive us of every possible means of defence. The enemy, it might be said with equal propriety, may get our ships, our forts, our cannon, our soldiers, and therefore we ought not to provide them. What would the brave freemen of this country say to the men who would deny them roads to travel on, lest the enemy might take them from us in war? They would reply, with Spartan magnanimity, “Let them come and take them.” * * *
A great deal has been said on the subject of jurisdiction; that, if it existed at all, it must be exclusive; that it could not attach to soil, and much metaphysical refinement of this sort, which had little to do with the subject. On this point, the only sound and practical rule was, that this government had a right to assume such jurisdiction over their roads as was necessary for their preservation and repair by such means as should be deemed most expedient, leaving everything beyond that to the States. Thus far the Constitution declared the legislation of Congress to be “the supreme law of the land, anything in the constitution and laws of any State to the contrary notwithstanding.” This left to the laws of the States, the right to punish all offences and other acts committed upon the road, in the same manner as though they had occurred in any other part of their territory. Such had been the uniform practice of the government in executing all its powers up to the present time, and no complaint had ever been made or inconvenience experienced.
It has been universally conceded on all hands in this debate, that the consent of the States could not confer any jurisdiction or powers on this government beyond what it had derived from the Constitution. This was too clear a proposition to admit of doubt. Yet the names of Jefferson, Madison, Monroe, and Gallatin, were introduced and relied on. Did gentlemen forget that Mr. Gallatin was the very first man that ever suggested the plan for making the Cumberland road, and that it had been sanctioned and actually constructed under the administrations of Jefferson, Madison, and Monroe? Their opinions were thus reduced to practice, which was the best evidence in the world—“By their fruits shall ye know them.”
State Authority prevails—The Road surrendered by Congress—The erection of Toll Gates authorized—Commissioners appointed by the States to receive the Road—They wrangle over its bad condition, and demand that it be put in thorough repair by Congress, before the States will accept it—Old and familiar names of the Commissioners—The Road accepted by the States.
At the session of the year 1831, the Pennsylvania Legislature passed a bill, which was approved April 4th, of that year, by George Wolf, governor, the preamble to, and the first, and part of the second, and all of the tenth sections of which read as follows:
“Whereas, that part of the Cumberland Road lying within the State of Pennsylvania is in many parts in bad condition for want of repairs, and as doubts have been entertained whether the United States have authority to erect toll gates on said road, and collect toll; and as a large proportion of the people of this commonwealth are interested in said road, and its constant continuance and preservation; therefore,
Section 1.Be it enacted by the Senate and House of Representativesof the commonwealth of Pennsylvania, in general assembly met, and itis hereby enacted by authority of the same; That as soon as the consent of the government of the United States shall have been obtained, as hereinafter provided,William F. Coplan,David Downer, of Fayette county,Stephen Hill,Benjamin Anderson, of Washington county, andThomas Endsley, of Smithfield, Somerset county, shall be, and they are hereby appointed commissioners, a majority of whom shall be sufficient to transact business, who shall hold their offices for three years after the passage of this act, after which the right of appointing said commissioners shall vest in the governor of this commonwealth, to build toll houses, and erect toll gates at suitable distances on so much of the Cumberland Road as lies within the State of Pennsylvania;Provided, that if any one or more of the commissioners should die, resign, or refuse to serve, the Governor shall appoint one or more other commissioners to fill the vacancies so happening;And provided, also, that nothing herein contained shall be construed to prevent the Governor from re-appointing the commissioners named in this act, if he thinks proper.
Sec. 2.That for the purpose of keeping so much of the said road in repair as lies within the State of Pennsylvania, and paying the expense of collection and other incidental expenses, the commissionersshall cause to be erected on so much of the road as passes within this State at least six gates, and that as soon as said gates and toll-houses shall be erected, it shall be the duty of the toll collectors, and they are hereby required to demand and receive for passing the said gates, the tolls hereafter mentioned; and they may stop any person riding, leading or driving any horses, cattle, sulky, chair, phæton, cart, chaise, wagon, sleigh, sled or other carriage of burden or pleasure from passing through the said gates, until they shall respectively have paid for passing the same, that is to say: (Here follow the rates).
Sec. 10.That this act shall not have any force or effect, until the Congress of the United States shall assent to the same, and until so much of the said road as passes through the State of Pennsylvania, be first put in a good state of repair, and an appropriation made by Congress for erecting toll-houses and toll-gates thereon, to be expended under the authority of the commissioners appointed by this act:Provided, The legislature of this State may at any future session thereof, change, alter or amend this act, provided that the same shall not be so altered or amended, as to reduce or increase the rates of toll hereby established, below or above a sum necessary to defray the expenses incident to the preservation and repair of said road, for the payment of the fees or salaries of the commissioners, the collectors of tolls, and other agents.And provided further, That no change, alteration, or amendment, shall ever be adopted, that will in any wise defeat or affect, the true intent and meaning of this act.”
Ohio was a little in advance of Pennsylvania in accepting the road, and less exacting in her terms. The legislature of that State, on the 4th of February, 1831, passed an act authorizing the acceptance, without requiring that the road should be put in repair as a condition precedent. On the 23d of January, 1832, Maryland, by an act of her legislature, agreed to accept the road upon the same condition required by Pennsylvania, and on the 7th of February, 1832, Virginia accepted in an act similar to that of Ohio. On the 3d of July, 1832, Congress declared its assent to the above mentioned laws of Pennsylvania and Maryland in these words: “To which acts the assent of the United States is hereby given, to remain in force during the pleasure of Congress,” and on the 2d of March, 1833, assented to the act of Virginia with a similar limitation.