OMITTED SPEECH. [The following speech of Mr. BUCHANAN, of Pennsylvania, on the preservation and repair of the Cumberland Road, not having been received in time for insertion in its proper place, page 351, is appended here.] IN THE HOUSE OF REPRESENTATIVES, FEBRUARY 12, 1829. Mr. BUCHANAN addressed the Chair as follows: I know that the committee are anxious to dispose of the question now under discussion as speedily as possible. It is natural they should feel this desire, because it has already occupied too much of their time. I shall therefore confine myself to as brief a reply as possible. I am anxious that the question should this day be decided in Committee of the Whole. If there be other gentlemen | desirous of taking part in the debate, I would suggest to them the propriety of deferring their remarks until the bill shall have come into the House. roll back the tide of public opinion which now runs so strongly in favor of internal improvements, and endangers the whole system. I protest against the doctrine of the gentleman. I protest against any idea going abroad, that, because either we cannot or we will not erect toll-gates upon the Cumberland road, therefore we have abandoned all power in relation to internal improvements. This would be placing its existence upon a fearful cast. The principles for which I contend will carry the power of this Government to the point at which exclusive State jurisdiction commences. Beyond that limit it ought never to pass. All the beneficial effects of this power would thus be conferred upon the people, whilst there could be no danger from collision between State and United States authority. The gentleman from Virginia, [Mr. MERCER,] instead of complaining, ought to congratulate himself on the course which this debate has taken. In opening it, I confined myself strictly to the questions of the power and the policy of erecting toll-gates on the Cumberland road, If the power to erect toll-gates were written in sununder the authority of this Government. But the subject, beams on the face of the constitution, still true policy against my wishes, has since expanded, and the debate would forbid its exercise. If necessary, I should be wilhas extended over the whole doctrine of internal improve-ling to rest this argument on the ground of policy alone. ments. A wide field has thus been opened to the gentleman, from which I should have excluded him; and he has made a brilliant and sometimes an argumentative speech on the general question of our power to construct roads and canals. I shall not follow him in this discursive range, but shall confine myself to the two questions which I raised at the commencement of the debate, and shall reply only to such of his arguments as had a bearing upon these questions. This will be an easy task, as the gentleman gave them but passing notices. The gentleman has warned us, that the Committee on Roads and Canals have placed this bill in the front of the battle, so that if it passed it might be a guide to their future conduct. It must, then, be their intention inseparably to connect with the construction of roads and canals the erection of toll-gates by Congress for their preservation and repairs. Permit me, then, to make some remarks on the policy of such a principle, apart from the power. As a What is the authority which we must necessarily exerThe extension of this debate beyond its due limits has cise upon this road, should we assume the jurisdiction given the gentleman another advantage. It has enabled over it contemplated by the bill? It is that of exclusive him to sound the alarm, and to operate upon the fears of legislation, for the purpose of preserving it from injury, the friends of internal improvements. He has called upon of repairing it, of collecting the necessary tolls upon it, them to stand firm and united against the amendment, and of punishing all offences committed against the police and has endeavored to create the belief that its adoption which we may establish. Considered as a road, or would prostrate the whole system. He has denounced right of way, our jurisdiction necessarily becomes exmy open defection from the cause, and the secret deser-clusive. This results from the nature of things. tion of two other friends, [Mr. STEWART and Mr. SMITH,] road, the States through which it passes must lose all merely because they declared that they would still vote power over it. Distinct sovereignties cannot act, at the for the bill, even if the amendment should prevail. Is same time and in the same manner, upon the same obthis fair? Can the gentleman be serious when he declares ject, more than two solid bodies can, at the same moment, that upon the vote on this amendment hangs the fate of occupy the same space. internal improvements? Will he really vote against this bill, a bill which appropriates $100,000 for the repair of the Cumberland road, should a majority of the committee, upon the whole, think it better that the collection of tolls necessary for its future preservation and repair should be made under State rather than under United States authority? If so, instead of being a great friend to internal improvements, he would become their greatest enemy. I admit the correctness of the doctrine maintained by the gentleman from Virginia, that this exclusive legisla tion does not necessarily extend to the punishment of crimes committed on the road, which are not connected with the right of way; much less would it embrace the jurisdiction over contracts. But still, although thus limited, there must remain to Congress an exclusive jurisdiction, for the purpose of preserving and repairing it, and collecting the necessary tolls. The gentleman seems determined that the whole ques- The present bill is grossly defective even for these purtion in relation to internal improvements shall depend poses. Whether its defects were the result of mere inupon the single point-our right to erect toll-gates. The advertence, or whether the committee apprehended danentire system is to be arrested, so far as his influence ger to the bill from inserting those penalties essentially may extend, unless my amendment shall be defeated. necessary to the existence and preservation of any turnAnd why? Can the gentleman point to a single beneficial purpose which will not be equally accomplished without the aid of this power? Can its abandonment interfere with your subscriptions of stock, or your appropriations of money to construct roads and canals? No, sir, so far from it, that I do most solemnly believe the exercise of this dangerous and unconstitutional power would VOL. V. pike, I shall not pretend to determine. It is possible that it may have been deemed expedient to establish the principle of erecting toll-gates, by one bill; and to reserve the infliction of such penalties as might startle the fears of the timid, for a supplement. This is the usual march of power. The gentleman has informed us that there are but three H. OF R.] • penalties in the bill. This is very true: and for any effi- be inflicted both upon the owner of the soil, and the pas cient purpose the committee might as well have followed the example of their predecessors, and reported the bill without any penalty. It is a curious fact in the history of this matter, that the first bill reported to erect tollgates on the Cumberland road provided no remedy, no fine, no penalty, in any case whatever; and even in the present bill no penalty is denounced against the traveller who refuses to pay the toll. This is left entirely within his own discretion. What are the three penalties contained in this bill? The first is against the omission to set up directors on the road, cautioning drivers of carriages to pass on the left of each other. Against whom is this penalty denounced? Is it against the President of the United States, the superintendent of the road, or the toll-gatherers? On this subject we are left in utter darkness by the bill. So far as any inference can be drawn from its provisions, I am rather inclined to believe the President would be the object of the penalty; and yet I cannot think such was the intention of the committee. A penalty, without designation of the person on whom it is to be inflicted, is something new in legislation. The second penalty is against toll-gatherers who may unreasonably delay or hinder the passage of travellers through the gates, or who shall demand or receive more toll than is due; the third, against persons who may wilfully injure the road, or obstruct its passage. These are all. senger who shall in this manner avoid the turnpike gates. But this question does not now remain open: it has Present this bill to any man who has ever been a mem-already been decided by the State courts; and it is not ber of the Legislature, either of Pennsylvania or Ohio, probable they will be driven from their course by the where the subject is well understood, and he will inform denunciations of the gentleman from Virginia. It would you that its provisions are wholly inadequate to effect the be but a poor consolation for a citizen who was dragged purposes for which they ought to have been intended. from the extreme verge of Alleghany county in MaryI shall point out a few of its most glaring defects, which, land, to be tried for some trifling misdemeanor committed should it become a law, must be immediately remedied against the police of this road, to be informed that in the by a supplement. My sole purpose in pursuing this opinion of the gentleman it was a daring act in the State course is to enable the committee to appreciate the pow-tribunals to have refused to take jurisdiction of the of ers which they are actually granting, and which must follow in the train of this measure. And first, as I have already stated, this bill inflicts no penalty on any traveller either for attempting to pass or for actually passing the gates, without the payment of the toll: a most wonderful omission. fence. On this subject their decisions have been uniform, as may be seen by a reference to Sergeant's Constitutional Law, pages 271, 2, and 3: and this, notwithstanding the jurisdiction may have been expressly given them by act of Congress. In Ohio, in New York, in Virginia, in Kentucky, and in Maryland, the question is settled; and that upon constitutional principles, which, in my humble judgment, cannot be controverted. Again: for the repair of this road, the right of eminent domain must be exercised. It cannot be supposed that all the owners of the soil along its course and all the But let me direct the gentleman to an authority for contractors will be reasonable men; and even if they which he will probably entertain a higher respect than were, they might honestly differ in their estimate of the for the judgments of State tribunals. I refer to the opinvalue of the materials necessary for its repair. What ion of Mr. Justice Story-an able and accomplished then is to be done? These materials are of such a pon-judge, but one who has certainly never been suspected derous nature, that they cannot, without a ruinous ex-of a desire to curtail the legitimate authority of the Fedpense, be transported a great distance. You must follow eral Government. In delivering the opinion of the court the example of the States, and authorize them to be in the case of Martin vs. Hunter's lessee, he uses the foltaken against the consent of the owner. And in order lowing language: "Congress cannot vest any portion of to exercise this power, you must establish a tribunal to assess their value. On this subject the bill is altogether silent; and this very silence would be the greatest encouragement for extortion. But again: the traveller who pays the toll has his rights as well as the Government which receives it. Suppose the road is suffered to become ruinous, and so much out of repair, that it would be unjust to demand toll upon it. What then? In such a case the States have established tribunals to decide this fact, and then the gates are thrown open. This bill contains no such provision. the judicial power of the United States, except in courts ordained and established by itself." And again: "No part of the criminal jurisdiction of the United States can, consistently with the constitution, be delegated to State tribunals." I refer the gentleman from Virginia to the whole opinion, which he will find reported in 1 Wheaton, 323. Vide, also, Wheaton's Digest, 109, p. 103, '4, '5, '6. Such would be the inconvenience, and such the oppression, of having this new code of laws executed by the courts of the United States, that I declare most solemnly, I would not, by my vote, accept a road for the Again: suppose any of the citizens along this turnpike people of the district which I have the honor, in part, of should make a road upon his own land around the turn- representing, if its grant were subjected to such condipike gates, and thus evade the payment of the toll; what tions, even if I believed we possessed the constitutional is your remedy by this bill? Nothing. You are left com-power to pass the bill. The free exercise of this power, pletely at the mercy of all the owners of the soil near which the Committee of Roads and Canals contemplate, each gate, throughout the whole extent of the road. This would soon render the whole system of internal improvedefect must be immediately remedied. Penalties must ments odious. FEB. 12, 1829.] Cumberland Road. [H. OF R. What necessity, I ask again, is there for the passage of On the 13th of March, 1818, the three resolutions rethis bill? Cannot turnpike gates be as well estab-ported by the Committee of the Whole, affirming the lished by the States through which this road passes? May power of Congress to construct roads and canals for milinot the provisions of this bill be as well enacted by the tary and for commercial purposes, and for carrying the Legislatures of Maryland, Pennsylvania, and Virginia, as mail, were all negatived. And why? The reason must by the Congress of the United States? Why not ask have been that the House did not believe we possessed them to do so? Should they refuse, it will then be time the power of assuming jurisdiction for these purposes enough for Congress to adopt this doubtful and dangerous over the territory of the States. This is made manifest measure. "Nec Deus intersit nisi nodus vindice dignus." by the passage of the resolution, at the same time, which No one doubts the power of the States: and whether the asserted an existing power in Congress to appropriate toll be collected and the road be preserved under State money for all these purposes. Thus it appears that the or United States authority, must be a matter of indiffer- very distinction for which I am contending was adopted ence to those interested." by this House in 1818. Here, then, is an authority directly in my favor. I confess, therefore, I was astonished to hear the gravity and solemnity with which the gentleman from New York Afterwards, in 1822, when the bill passed both Houses [Mr. STORRS] treated this part of the subject. He says for erecting toll-gates upon this road, it was rejected by this is a most grave question. Ohio has a vested right in the President, and his objections were sustained by a mathe road. We cannot, we dare not, transfer it to the jority of the House. It is true that, since that period, a States. He asks, shall we give away this road? I answer, bill similar to the one now before the committee has by no means. No person ever thought of such a gift. passed this House, after a resort to the previous question; The road is now going to ruin; and for the benefit of but it was suffered to sleep in the Senate. Where, then, Ohio, we transfer a naked trust to the States through are the precedents of the gentlemen to sustain this meawhich it passes, on condition that they will keep it in re- sure? The weight of authority is clearly on the other side. pair. We consign this trust to the only persons who I come now to notice some of the remarks of my colhave the power of executing it with advantage for the league [Mr. ANDERSON] who first addressed the combenefit of Ohio and the other States. No beneficial in-mittee, which indicated a state of feeling towards myself terest will pass by this transfer. Maryland, Pennsylva- I ought not to have expected. He thought proper to nia, and Virginia will be trustees; but with full power, say, (I wish to quote his very words,)"This is the first according to the admission of all, to erect toll-gates, and time I have ever heard that the power to make roads, keep the road in repair. By the amendment we leave it to be inferred, either that we have not the power ourselves to execute the trust, or that its exercise would be inconvenient; and we commit the road to the State Legislatures, where this power can be exercised in the most efficient and beneficial manner. We have already redeemed our pledge over and over again to Ohio. We have already appropriated to the construction of this road far more than we were bound to do by our contract. But still I do not desire to stop at this point. I am willing to make appropriations to carry the road to the Mississippi, provided the States through which it may pass will Where, then, said Mr. B., has the gentleman resided? agree to accept it when completed, and undertake to keep In what benighted part of the world has been his abode? it in repair. Without this preliminary, for one, I shall now I have always understood there was as much intelligence stop: and I shall never vote another dollar, if toll-gates and information in the vicinity of the gentleman, as in any are to be erected under the authority of Congress. Here other portion of the Union. Had he never heard that, I take my stand on the doctrine of internal improve-seven years ago, the President of the United States had ments. Thus far have I gone. I shall go no further. My taken this very distinction, and maintained it in an argulast limit is the point where the power of appropriation ends, and jurisdiction commences. and the power to keep them in repair by erecting tollgates, could be distinguished. Such a distinction appears to me to be absurd." The gentleman ought to know that this is not language to be used on this floor. When I was laboring to establish the distinction, a distinction which he could not doubt I sincerely believed to exist, he might have used a little more courtesy than to have denounced it as absurd. [Mr. ANDERSON here explained. He said he had not used the word "absurd." He had said it was the first time he had ever heard such a doctrine.] over it as sovereign, within the dominion of the States, for the purpose of collecting tolls and keeping it in repair. No distinction between expending money, and the exercise of sovereign power. ment of sixty pages, and that this House had yielded their assent to the distinction? Had he never heard that, since And now, sir, allow me to make a remark, in reply, on that period, humble as I am, upon all proper occasions, I the subject of the precedents which have been cited by have been endeavoring, upon this floor, to sustain and gentlemen. It might be sufficient for me to say, that no enforce the same distinction? Yet he has informed the precedent exists to sustain the principle, and the only House, this is the first time that he ever heard there was principle now in contest-the power to erect toll-gates. a distinction between the simple power of appropriating But I shall not rest satisfied here. The proceedings on and advancing money as a mere proprietor to construct the celebrated bill which passed both Houses of Congress or preserve a road, and the assumption of jurisdiction in 1817, and which was returned by Mr. Madison with his objections, far from being an authority against the position for which I contend, is one decidedly in my favor. The bonus to be paid by the Bank of the United States for its charter, and the dividends upon our stock, were to I admit that Congress had the power to apply the mobe applied by this bill for constructing such roads and ney in the public treasury to the construction of this road. canals only, "in each State, as Congress, with the assent What then follows? Merely that Congress possess the of such State, shall by law direct." Here the mere sim-power, if they think proper to exercise it, of applying ple power of appropriation, and nothing more, was claim- money from the same source to keep it in repair. I have ed; and that was to be exercised only with the assent of several times voted for such appropriations. But does the States. Yet the bill was rejected by the President. it follow that we have the power to raise the tolls necesMr. Monroe having in the mean time become President, sary for this purpose, by assuming a local jurisdiction recommended, in his message at the commencement of over the soil of the States, never contemplated by the the next session, an amendment to the constitution, grant- constitution? ing to Congress the power over internal improve- But the gentleman thinks he has perceived in my ments. The subject was referred to a committee of this amendment the nucleus of a system to distribute the House, and upon their report it was solemnly considered surplus funds of the Union among the several States. and debated. H. OF R.] Cumberland Road. [FEB. 12, 1829. penalties in the bill. This is very true: and for any effi-be inflicted both upon the owner of the soil, and the pascient purpose the committee might as well have followed senger who shall in this manner avoid the turnpike gates. the example of their predecessors, and reported the bill But I shall not detain the committee and weary myself without any penalty. It is a curious fact in the history by enumerating the other defects of the bill. The truth of this matter, that the first bill reported to erect toll- is, that the code of laws necessary to preserve such a gates on the Cumberland road provided no remedy, no road, and to collect toll upon it, must contain many minute fine, no penalty, in any case whatever; and even in the provisions, and many penalties for the commission of present bill no penalty is denounced against the traveller trifling offences, which can only, without the greatest who refuses to pay the toll. This is left entirely within inconvenience, be carried into execution by the local his own discretion. jurisdictions of the States. The machinery of the GeWhat are the three penalties contained in this bill? neral Government is not calculated to give effect to such The first is against the omission to set up directors on the provisions. It was never intended for such a purpose. road, cautioning drivers of carriages to pass on the left It would be monstrous and intolerable oppression to of each other. Against whom is this penalty denounced? permit the gate-keepers along the road to take a citizen Is it against the President of the United States, the su- of the United States to Baltimore, or Pittsburg, or Clarksperintendent of the road, or the toll-gatherers? On this burg, to be tried before a circuit or district court for such subject we are left in utter darkness by the bill. So far an offence as that of defacing a milestone. as any inference can be drawn from its provisions, I am But the gentleman from Virginia has insisted that this rather inclined to believe the President would be the ob-necessity does not exist; that State courts and State ject of the penalty; and yet I cannot think such was the magistrates ought to take cognizance of such offences; intention of the committee. A penalty, without desig- and he has even gone so far as to express his astonishnation of the person on whom it is to be inflicted, is ment that State judges have dared to decide that they something new in legislation. would not enforce the criminal and penal laws of the The second penalty is against toll-gatherers who may United States. On this question, however, we have, in opunreasonably delay or hinder the passage of travellers position to his opinion, the authority of the gentleman through the gates, or who shall demand or receive more from Kentucky, [Mr. BUCKNER;] and, without disparagetoll than is due; the third, against persons who may wil-ment, I may say he is a higher authority on a point of fully injure the road, or obstruct its passage. These are law than the gentleman from Virginia. all. But this question does not now remain open: it has Present this bill to any man who has ever been a mem- already been decided by the State courts; and it is not ber of the Legislature, either of Pennsylvania or Ohio, probable they will be driven from their course by the where the subject is well understood, and he will inform denunciations of the gentleman from Virginia. It would you that its provisions are wholly inadequate to effect the be but a poor consolation for a citizen who was dragged purposes for which they ought to have been intended. from the extreme verge of Alleghany county in MaryI shall point out a few of its most glaring defects, which, land, to be tried for some trifling misdemeanor committed should it become a law, must be immediately remedied against the police of this road, to be informed that in the by a supplement. My sole purpose in pursuing this opinion of the gentleman it was a daring act in the State course is to enable the committee to appreciate the pow-tribunals to have refused to take jurisdiction of the of ers which they are actually granting, and which must follow in the train of this measure. And first, as I have already stated, this bill inflicts no penalty on any traveller either for attempting to pass or for actually passing the gates, without the payment of the toll: a most wonderful omission. fence. On this subject their decisions have been uniform, as may be seen by a reference to Sergeant's Constitutional Law, pages 271, ̊2, and '3: and this, notwithstanding the jurisdiction may have been expressly given them by act of Congress. In Ohio, in New York, in Virginia, in Kentucky, and in Maryland, the question is settled; and that upon constitutional principles, which, in my humble judg ment, cannot be controverted. Again: for the repair of this road, the right of eminent domain must be exercised. It cannot be supposed that all the owners of the soil along its course and all the But let me direct the gentleman to an authority for contractors will be reasonable men; and even if they which he will probably entertain a higher respect than were, they might honestly differ in their estimate of the for the judgments of State tribunals. I refer to the opinvalue of the materials necessary for its repair. What ion of Mr. Justice Story-an able and accomplished then is to be done? These materials are of such a pon-judge, but one who has certainly never been suspected derous nature, that they cannot, without a ruinous ex-of a desire to curtail the legitimate authority of the Fedpense, be transported a great distance. You must follow eral Government. In delivering the opinion of the court the example of the States, and authorize them to be in the case of Martin vs. Hunter's lessee, he uses the foltaken against the consent of the owner. And in order lowing language: "Congress cannot vest any portion of to exercise this power, you must establish a tribunal to assess their value. On this subject the bill is altogether silent; and this very silence would be the greatest encouragement for extortion. But again: the traveller who pays the toll has his rights as well as the Government which receives it. Suppose the road is suffered to become ruinous, and so much out of repair, that it would be unjust to demand toll upon it. What then? In such a case the States have established tribunals to decide this fact, and then the gates are thrown open. This bill contains no such provision. the judicial power of the United States, except in courts ordained and established by itself." And again: "No part of the criminal jurisdiction of the United States can, consistently with the constitution, be delegated to State tribunals." I refer the gentleman from Virginia to the whole opinion, which he will find reported in 1 Wheaton, 323. Vide, also, Wheaton's Digest, 109, p. 103, '4, '5, '6. Such would be the inconvenience, and such the oppression, of having this new code of laws executed by the courts of the United States, that I declare most solemnly, I would not, by my vote, accept a road for the Again: suppose any of the citizens along this turnpike people of the district which I have the honor, in part, of should make a road upon his own land around the turn-representing, if its grant were subjected to such condipike gates, and thus evade the payment of the toll; what tions, even if I believed we possessed the constitutional is your remedy by this bill? Nothing. You are left com-power to pass the bill. The free exercise of this power, pletely at the mercy of all the owners of the soil near which the Committee of Roads and Canals contemplate, each gate, throughout the whole extent of the road. This would soon render the whole system of internal improvedefect must be immediately remedied. Penalties must ments odious. |