The Old Pike. Thomas B. Searight
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