CHAPTER XIV.

The Cumberland Road.

Speech of Hon. Andrew Stewart of Pennsylvania, in Reply to James Buchanan, Afterwards President of

the United States.

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 Cumberland 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 sanetioned 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.

Note: The following is too good to lose, hence printed here:

WILLING TO COMPLY.

"It is said that Chief Justice Marshall used to narrate with great glee the following correspondence on a point of honor between Governor Giles of Virginia and Patrick Henry:

"Sir," wrote the governor, "I understand that you have called me a bobtail politician. I wish to know if it is true, and, if true, your meaning.-W. R. Giles."

Patrick Henry's reply came promptly: "Sir, I do not recall calling you a bobtail politician at any time, but I think it probable that I have. I can't say what I did mean; but if you will tell me what you think I meant, I will tell whether you are correct or not."

"This was leaving it to Giles with a vengeance, but as there was no further correspondence the governor of Virginia must have read somewhere between the lines the meaning of Henry's brilliantly equivocal reply.

"With 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? Note: (But they did when they voted to substitute the Federal Aid Act for the Townsend Bill.)

"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 postoffice, 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.

66

"The power," said Mr. Stewart, "to establish postoffices 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 has 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 farmers of the Constitution that this government should be dependent on the States for the means of executing its power. '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 restoring 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. Stewart begged gentlemen to turn their attention for & 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 postoffices 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 postoffice establishment, not only created some thirty or forty highly penal offenses, 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 of fenses 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 oc

casions 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 postoffice 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 antions 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, lighthouses, 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 give a dollar to make it. It passed mostly through mountainous and uninhabited regions. He adverted to the Potomac, Ohio and Mississippi rivers. Important as they 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

At the

Twenty-two miles east of Cumberland, Md., before rebuilding. time of rebuilding, the state engineer, in reply to my question, wrote that there was a saving of at least 50 per cent in the above foundations.

IMPRESSIONS OF ENGLISH HIGHWAYS.-By A. B. Fletcher, Con sulting Highway Engineer, United States Bureau of Public Roads. Examina tion made 1924, closing paragraph of which follows:

"It is doubtful if we can hope to equal the bituminous roads of England, until we pay more attention to the foundations. We should either follow somewhat after the English method or develop a substitute, possibly less costly, which will be as effective."