It was necessary to obtain permission of each state through which the Cumberland Road was to be built; Pennsylvania, only, made any condition, hers being that the road touch the towns of Washington and Uniontown.[4]

The first contracts were let on the eleventh and the sixteenth of April, 1811, for building the first ten miles west of Cumberland, Maryland. These contracts were completed in the year following. More were let in 1812, 1813, and 1815; and two years later contracts for all the distance to Uniontown, Pennsylvania were let. In 1818, United States Mail coaches were running between Washington, D. C. and Wheeling, Virginia. The cost of the road averaged $9,745 per mile between Cumberland and Uniontown, and $13,000 per mile for the entire division from the Potomac to the Ohio. Too liberal contracts is the reason given for the heavy expense between Uniontown and Wheeling.

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A flood of traffic swept over the great highway immediately upon its completion. As early as the year 1822 it is recorded that a single one of the five commission houses at Wheeling unloaded one thousand and eighty-one wagons, averaging three thousand five hundred pounds each, and paid for freightage of goods the sum of ninety thousand dollars.

But the road was hardly completed when a specter of constitutional cavil arose, threatening its existence. In 1822 a bill was passed by Congress looking toward the preservation and repair of the newly-built road. It should be stated that the roadbed, though completed in one sense, was not in condition to be used extensively unless continually repaired. In many places only a single layer of broken stone had been laid, and, with the volume of traffic which was daily passing over it, the road did not promise to remain in good condition. In order to secure funds for the constant repairs necessary, this bill ordered the establishment of turnpikes with gates and tolls. The bill was immediately vetoed by President Monroe on the ground that Congress, according to his interpretation of the constitution, did not have the power to pass such a sweeping measure of internal improvement.

The President based his conclusion upon the following grounds, stated in a special message to Congress, dated May 4, 1822:

“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 the others 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 the opinion that Congress does 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 specially granted to the United States, or that it is incidental to some 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 defense and the 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.”[5]