The Old Pike / A History of the National Road, with Incidents, Accidents, and Anecdotes Thereon

by Thomas B. Searight

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.”