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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 incidental to 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 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 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 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 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.

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 motive for 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 the States will 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 away life by 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 and among 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.”