reported to the House affirming the power of Congress to appropriate moneys for the construction of roads and canals, and others affirming our power to construct post roads and military and commercial roads and canals. The House sustained the one, affirming the power of appropriation; but rejected all those which affirmed the power of construction. At an after time, a bill passed Congress authorizing the erection of toll gates on this Cumberland road, which was rejected by the then President [Mr. MONROE] upon the ground that it was unconstitutional. Thus we have the opinion of one House of Representatives, and two Presidents, against the power now claimed: for it is obvious that the denial of the power to construct involved the denial of that to erect gates; and yet now the power is gravely contended for. Precedents, it seems, are to have great weight, when they support power; but when they deny it, they are to be utterly disregarded.

Without farther remark, I come directly to the question before us. We are told by the advocates of this bill that it may be supported upon two grounds: First, that the constitution, per se, gives us the power of erecting toll gates. And secondly, that if it did not, we are authorized to do it by compact. Let us examine these grounds separately, in the order in which they have been stated. My promise to the Committee will preclude me from discussing this subject upon the old ground of constitutional objection, to some of which I have already merely alluded; but I beg leave to offer some new views, in this aspect of the question, which seem to me, of themselves, to be decisive of it. The bill proposes to erect turnpike gates, and to collect toll from those who use the road. Toll thus collected would be a tax: not only is it embraced by the just definition of the word tax, but the best writers on political economy call it a tax: nor can there be a possible doubt upon the subject; for every requisition of money by the Government from the people is a tax, and this bill makes such a requisition. The constitution gives to Congress power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defence and general welfare; but it imposes these two limitations: First, that all duties, imposts, and excises, shall be uniform throughout the United States. Secondly, that every capitation or direct tax shall be in proportion to the census or enumeration which it directs to be made of the people. Now, the tolls required to be paid by this bill are not in conformity with either of these limitations: it is neither apportioned upon the people of the United States according to the census, nor can it be pretended to be uniform throughout the United States; for the obvious reason that it is required only of those who pass one single road, and for the liberty of using it. A tax for the use of a road surely could not be uniform unless it was required, to the same amount, of those who passed all the roads in the United States. To illustrate this by example: suppose that Congress, in consideration of a great expenditure upon a particular harbor, should require the ships entering that harbor only to pay a tonnage duty, or to pay a larger tonnage duty in one port than in another; or suppose that we were to require postage upon this road only, or a larger postage upon this than any other road, is there a member of this Committee who would say that the constitution would not be violated in either case? And if it would, then it follows that this toll cannot be imposed.

[JAN. 21, 18:29.

which to decide in what cases the sovereignty of the States has been alienated to the Federal Government, is this: that the States retain all the sovereignty which the constitution has not delegated exclusively to the United States. This exclusive delegation, says the same authority, only exists in three cases: 1st, where the constitution in express terms grants an exclusive authority to the Union, as, for example, the exclusive legislation over the Seat of Government, &c.; secondly, where it grants an authority to the Union, and prohibits the States from exercising a like authority; as, for example, the power to coin money, which is granted to Congress, and prohibited to the States; thirdly, where it grants an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory, and repugnant. One example which is given, is the power to establish an uniform rule of naturalization, throughout the United States; this, it is said, must be exclusive, because, if each State had power to prescribe a distinct rule, there could be no uniform rule. Except in these three clases of cases, it is said, that, as the State sovereignty is not alienated, Congress have not exclusive power, and consequently the State Governments have a concurrent power with them. The third branch of this rule, that is, the one which declares the power of the Federal Government to be exclusive, where an authority is granted to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant, has a direct and important bearing upon the present question. Where the powers of the Federal Government expend their force upon persons and things, there may be many instances in which, under this principle, the States may claim a concurrent power, because the operation of the Federal Government upon them does not necessarily exhaust the power. Even in the very strong case of taxation, it is said the States have this concurrent power; though there may be inconvenience in the action of the Federal and State Governments upon the same subject, yet there is no necessary contradiction and repugnancy, because, though the one Government should consume a portion of the property of the citizens by taxation, a portion would still remain for the demands of the other. But, sir, this cannot be the case where the Federal Government claims to exercise a direct jurisdiction over the soil, even in regard to mere property, though different persons may, at the same time, own a joint interest; or, one may own a present, and another a future interest; or, there may be other possible circumstances producing modifications of interest; yet, it is a proposition which cannot be denied, that two different persons cannot, at the same time, and in the same subject, possess distinct and independent rights, each embracing the whole interest in that subject; this would be legally as impossible as it would be physically for two different masses of matter, at the same time, to occupy the same space. If this would be the case in regard to property, how much stronger is the proposition when applied to jurisdiction.

the right of soil having exhausted the whole subject, and expended the whole power over it. Accordingly with a view to prevent this necessary collision of jurisdiction, in the clause relating to the Seat of Government, &c. the jurisdiction or legislation is, totidem verbis, declared to be exclusive; and, in the other, to dispose of, and make all needful rules as to the public land, it must be exclusive, from the necessity of the case; because no other power can exercise jurisdiction, inasmuch as that implies the ownership in the domain, which is in the General Government alone. We are told, however, that Congress have passed laws to punish robberies of the mail, &c. and that this power is no stronger. I answer, that, without stopping to inquire whether they rightfully had power to pass such laws, there is no analogy in the cases; because, there the power acts upon persons, but here it proposes to act directly upon the soil as its subject. No one can doubt but that the erection of toll gates and demanding toll is an exercise of jurisdiction which can be founded only on a right to, and power over, the soil. If so, and the principle be true that the jurisdiction in the Federal Government, in its direct action upon the soil, must, where it exists at all, be exclusive, then it results that the States have not, in this respect, concurrent power-that is, that they cannot turnpike any road which is declared to be a post road-thus giving to the General Government exclusive jurisdiction over one hundred and fourteen thousand miles of post road, which we now have, without the assent of the States, though the constitution requires that assent before it can be divested of its jurisdiction, in the small surface which is the Seat of Government, and the other inconsiderable places which it enumerates. Again, sir. See to what lengths this principle would carry us. If Congress have a right to turnpike roads, then they have a right to adopt the accustomed means of doing it; but one of the most usual means is the incorporation of companies; and thus we might have every road in the Union in the hands of incorporated companies, demanding tolls of the people, which Congress must make high enough to yield them a dividend upon their stock. This is not all: We are told that the right to create implies the right to preserve. Upon this principle, Congress might, with a view to preservation, prohibit any citizen from passing it, unless his wheels were of a given width: and, indeed, in this very bill, it is provided that those whose wheels exceed six inches in width shall be exempt from toll.

The gentleman from New York, finding that the power in question cannot be derived from the constitution, has attempted to derive it from another source-that is, from compact; and having, as he thinks, proven that Mr. Jefferson rested it upon that ground, he asks with an air of triumph, what new light has burst upon us of the present day? Sir, I claim to be guided not by any new light, but by an ancient one, which is placed upon a high hill, and shineth afar of. I am endeavoring to follow the light of reason, which, like that of the sun, is constant, uniform, and steady; and not that of fancy, which, we are told, is like a meteor, of bright but transitory lustre, irregular in its motion, and delusive in its direction. In the sequel of this discussion, it will be for the Committee to decide whether we are setting up a new light, or whether, in the language of the Book, "the light shineth in darkness, and the darkness comprehendeth it not."

But let us examine this power, which is claimed as flowing from compact. And here, at the threshold, the Committee will bear in mind that, in this view of the subject, the constitution is utterly out of the question: for, if the con. stitution gave the power, we have no need of a compact; and if it did not, then the compact, as I shall attempt to prove, cannot do it. The gentleman has, to-day, corrected the chronology of the compact, acknowledging that it was not antecedent to the constitution. I should not have cared if it had been for even then his conclusion would

[H. OF R.

have been altogether inconsequent. But we will examine this alleged compact, exactly as it is.

Congress, by an act in 1802, authorized the people of that part of the Northwestern Territory, now the State of Ohio, to form a constitution and State Government. In that act they offered certain propositions to the people of Ohio, amongst which was this: that five per cent of the sales of public lands in that territory should be applied to making roads in the State, and leading to the State, upon condition that the State would not tax certain lands for a given period. The State of Ohio accepted this proposition, with this condition. Congress then declared, by another act, that three of the five per cent. should be paid to the State of Ohio, to be laid out in roads within the State, leaving the remaining two per cent. to be applied to the making of roads leading to the State. These roads were to be laid out, under the authority of Congress, with the assent of the States through which they were to pass. In 1806, Congress authorised this Cumberland road to be laid out and made under the direction of the President, as soon as the assent of the three States, Maryland, Virginia, and Pennsylvania, could be obtained; which being procured, the road was accordingly made. This, sir, is the state of facts in relation to this alleged compact, from which gentlemen now attempt to derive the power to erect toll gates and to collect toll.

It is not necessary now to inquire into the authority of the United States and the people of Ohio to make their compact; but, for the present, conceding it for the sake of argument, to that compact Virginia and the othor States were not parties; all that they have done is, to give their assent to the making the road within their respective territories; and the question is, whether, by giving that assent, they have alienated their jurisdiction? I have had no access to the laws of the other States, but that of Virginia is before me; referring to the act of Congress, it authorizes the President to cause the road, as far as it is within her limits, to be made, regulated, and completed, according to the provisions of that act of Congress, or any future one, which might be passed.

The compact between Congress and the people of Ohio, like all other contracts, consists of reciprocal stipulations. The people of Ohio stipulate, on their part, that they will abstain from the taxation of certain lands for a certain time; and Congress stipulates, on its part, that, upon that condition, the proposition which they had offered to Ohio should be forever obligatory on them, to wit: that five per cent. of the sales of the public lands should be applied to the making of roads, as I have already stated. Now, sir, no party to a compact can ever be under any greater obligations arising out of it, than its stipulations impose, and as right and obligation are always correlative, the one party can have no right beyond the extent of the obligation on the other; if, then, Congress shall have performed its stipulations, then the people of Ohio can have no farther right, nor can Congress be under any farther obligation. Have we not performed our stipulations? Yes, sir, we have gone far beyond them. Let it be remembered that three of the five per cent. were paid over to Ohio, to be expended within the State; of course, Congress only remained bound for the application of the remaining two per cent. Now, sir, we have been told that we have expended upwards of one million seven hundred thousand dollars on this road, which is equal to two per cent. upon between eighty and ninety millions of dollars; and, it is believed, that the whole amount of sales of the public lands is less than thirty millions of dollars; thus we have already gone an immeasurable length beyond our contract, and expended, from the Treasury, what we can never recall; the stipulation then, on our part, being more than performed, the compact is executed; it is at an end; and consequently, no right, even now, can be derived from it, and still less, power on our

H. OF R.]

[JAN. 21, 1829.

Sir, is it not a solecism in language, is it not calculated to produce a confusion of ideas to say, that, from a stipulation which imposed upon us an obligation, we can derive a power? If it were the case of individuals, no man on earth can doubt that an agreement by one man to expend money upon the lands of another gives the first any right in, or power over the soil of that other, is a proposition which needs but to be stated to be refuted. The confusion arises in this case from Congress being a sovereign power; but let it be remembered that, in this instance, they were acting as a party to a contract, and that the stipulation in question imposed an obligation, and then the difficulty vanishes. But did Virgiina intend to transfer her jurisdiction? I answer she did not; we are to gather her intentions from her words, and the universal principle is, that a party did not intend to do what he has not stipulated to do. Now, what was asked of Virginia? Why, that this road should be made through her soil; with this request, and this only, she complied. At the time of making and granting this request she had jurisdiction; she was not asked to surrender it, she did not surrender it, nor did she intend to do it. Is is certainiy true, that no government can grant the right to construct a road without itself possessing a jurisdiction over the soil; but it is equally clear, that the grant of this right does not carry with it the jurisdiction, as is proven by the cases which have been put, of such a right being granted to a corporation, or even a State; nor is the answer at all satisfactory, that the State cannot erect toll-gates by its authority, because the road is beyond its jurisdictional limits; because, though the Federal powers extend over the whole United States, yet not to any object which is not granted to them; and I have endeavored to show, that jurisdiction over the soil, with the exceptions stated, has not been granted.

Sir, when it has been intended to make this surrender, the States have known how to express that intention. Look at the cessions of territory to this Government by Massachusetts, Connecticut, New York, Virginia, South Carolina; they contain an explicit alienation of the right of soil and jurisdiction. It has, however, been argued, that the word regulate, in the Virginia law, authorized legislation by Congress. It will be seen that the assent of Virginia is, that the road may be made, regulated, and completed; now, that the term regulated has no such meaning as is attributed to it, is apparent from its being used before the word completed; because, it would be natural to complete a road before toll-gates should be regulated. But I need not rely upon this; its meaning is clearly explained by other considerations: the act of Congress, whose title is referred to in the Virginia statute, is an act to regulate the laying out and making a road, &c. Now, sir, in that act there are many regulations, such as a prescription of the width of the road, the setting up directors, &c.; but what is conclusive is, that it authorizes the President to cause the road to be made, regulated, completed, &c.: the President had no legislative, but an executive power; and though it authorizes it to be made, regulated, &c. according to the then act of Congress, or any future one, that had reference only to such regulations as I have before stated, concerning the manner and form of its being laid out and made. But Virginia could not, if she would, surrender her jurisdiction. If the constitution has not given that jurisdiction to Congress, can it be necessary, by argument, to prove that it is not competent for a few States to grant it? Sir, a single proposition must settle this question. The giving a new power to Congress, which it had not before, is surely, in effect, an amendment of the constitution; and to produce that effect a mode is pointed out, which requires the consent of threefourths of all the States.

Another gentleman from New York has told us, that

We have been told by the last gentleman from New York, that cessions of territory have been made to the United States, by several of the States, ever since the present constitution, and we have been asked how those cases differ from the present; the cession, as it is called, from Georgia, has been given as an example; other cases have been stated by the gentleman: one answer may be given to them all-that they utterly fail in analogy. Take, for instance, the Georgia case; that transaction was, to all substantial purposes, a settlement of uncertain, undefined limits between Georgia and the United States; commissioners were appointed by the two Governments avowedly for the purpose of settling those limits; they did adjust them, and the compact reciprocally ceded, each to the other, all pretensions without the boundary established. Now, sir, it will be remembered that, by the treaty of peace with Great Britain, the Mississippi was the western boundary of the United States; whatever land, then, lay between the western limits of Georgia and that river belonged to the United States. The great purpose of this compact was to settle and adjust that western limit, which being done, the United States established a territorial government in the territory lying beyond that line.

But, sir, I affirm the proposition, and I call upon gentlemen to refute it if they can, that, with the exception of the cases provided for in the constitution, of a seat of Government, the sites of forts, magazines, &c., it is not competent for the General Government to exercise jurisdiction, or to acquire by purchase, jurisdiction and property, in and over one square foot of territory in one of the States. Let me not be misunderstood; I speak not here of our public lands lying within any of the States; our power over them results from a substantive and distinct provision of the constitution. But my proposition applies to those States, in all the soil of which the State Governments have the right both of soil and jurisdiction: such, for example, as the State of Massachusetts. In such a case as this, I repeat, that I defy a refutation of my proposition.

I have two objections to the amendment, which I would desire to have obviated. They are these: I would prefer that the language should be all the right which we claim to have, rather than as it is, all the right which we may have; the other is the proviso, which proposes to attach certain conditions to the surrender. I would prefer an absolute unqualified surrender of all our pretensions, expressed in terms which could not, by implication even, be tortured into any admission that we had claim; but if these

objections cannot be removed, I will vote for the amendment in its present form, as the nearest attainable approximation to what I think ought to be done. [Here the debate closed for this day.]

THURSDAY, JANUARY 22, 1829.

LAKE PONTCHARTRAIN CANAL, &c.

The House resumed the consideration of the resolutions moved by Mr. GURLEY, on the 20th instant, the debate on which was terminated yesterday by the lapse of the hour assigned for reports and resolutions

Mr. BARTLETT moved to amend the first resolution by adding thereto the following:

"And of making grants of a like amount of public lands to the several States who have not received such grants, in proportion to their representation, for such works of Internal Improvement as the States shall direct, and the Congress of the United States shall approve."

Mr. GURLEY objected to this amendment, as going to embarrass the resolution by mixing up with it a subject which was sure to divide the House, and which had already agitated Congress for these ten or twelve years past.

Mr. BARTLETT disclaimed any such intention, and thought the amendment was likely rather to aid the resolution than otherwise, inasmuch as it would relieve it from the objection of being partial in its character.

Mr. DAVIS, of Massachusetts, opposed the amendment as throwing a needless obstacle in the way of a measure interesting to the public, and in which not only Louisiana, but all the commercial States of the Union, had a direct concern. So deep was the solicitude of Louisiana on the subject, that her Legislature had directed it to be brought before Congress, and it was in obedience to such direction that the present resolution had been brought forward. It would certainly betray a want of courtesy on the part of this House to refuse to the request of a sovereign State the ordinary civility of submitting it to one of the Committees of the House-a civility every day extended to the petitions of the humblest individual in the land. He thought it due to the State of Louisiana not only to refer the subject, but to present it distinctly and alone to the Committee, without embarrassing it with other questions. Should the Committee view it with favor, and even report a bill, and that bill pass the House and become a law, it would not necessarily follow that Congress had given any thing away; because it might happen, if the canal should prove as important as had been represented, that Government would gain more than it lost. Such had been the result in several of the States. At all events, he thought it no more than courteous to allow the investigation.

Mr MERCER, after passing by conjecture a high compliment on the speech of Mr. DAVIS, expressed his regret, that, owing to the construction of the Hall, he had not been able distinctly to hear one word of it; and, indeed, the gentlemen in his vicinity, on that side of the House, had had thoughts of appointing a minister resident, on the other side of the hall, to acquaint them, from time to time, of what was doing there. The subject had proved an embarrassing one to the Committee of Roads and Canals, and must be embarrassing to the House. He had lately read in the papers, he did not now remember where, a charge directed against that Committee and the House, of vast expenditures on works of this kind, and it was a charge which ever besets the friends of Internal Improvement, when they recommend any object of national utility and importance to the parental care of this Government. The Committee had determined to restrain their recommendations, made in any one year, to the amount of a million of dollars, and, at the last session, they had fallen short of that amount by two hundred thousand dollars, an amount which had purposely been reserved to meet the expected exigencies of the New Jersey Canal, and the

H. OF R.

canal to unite the Connecticut river with the harbor of Boston. Yet the public seemed to be impressed with the idea that the Committee and the House had been lavishing millions. This impression had been occasioned, in part, by the practice of the House, in referring subjects, substantially the ame, but presented in different aspects, to different Standing Committees, by which means reports were multiplied in relation to the same work of improvement, and thus the expenditure proposed was unduly magnified in the public eye

Mr. M. here discussed the importance of the New Orleans Canal, as forming a component part of the great line of sea-board communication proposed by the Board of Engineers, and heretofore in a course of adoption by Congress. This was strictly a national work; and why should the consideration of it be embarrassed by a proposition to divide the proceeds of the public lands among the individual States? Was it proper that the national domain, which was the common treasure of the whole Union, reserved for objects of general importance, should be parcelled out among the States, to be by them applied to their various local undertakings? In his judgment it was not, and he should be as much opposed to such a policy, as he was in favor of applying the public domain to objects of a legitimate character. Every one of the objects which the Government had fostered, had thus far happily prospered; in confirmation of which remark, he referred to the Portland Canal, that between the Delaware and Chesapeake, the Dismal Swamp Canal, and the Ohio and Chesapeake The Committee of Roads and Canals had had the subject of the present resolution under its consideration at the last session, and should have reported it to the House but for the enormous amount of the estimate made by the Board of Engineers. These gentlemen, though profoundly skilled in their profossion, were unacquainted with its practical application to the circumstances and habits of the people of this country, from which circumstance, it had come to pass, that their estimates, in some cases, were three-fold in amount to that which similar works had actually cost in the execution. An enormous estimate of this kind it was which had long hung as a dead weight on the incipient prospects of the Chesapeake and Ohio Canal, until its incorrectness had been proved by fact and experience.

The Pontchartrain Canal was to be but six miles in length, and yet the estimate was over a million of dollars, and little short of two hundred thousand dollars a mile. Such an estimate was utterly incredible; and his own conviction, from all that he had been able to learn on the subject of canals, was, that it conld be completed for half the money. A delay had unavoidably occurred, in an examination of this route, ordered last season by the Department, and yet, until such examination should be made, the exact length, as well as the best site for the canal, could not be ascertained. Whether it would be better if made above the city of New Orleans, or below it, was a point not yet determined. Mr. M disavowed all desire to draw subjects before the House within the jurisdiction of the Committee to which it belonged, but he was opposed to the reference of matters to one Committee which legitimately pertained to another; and thought that the order. of business imperiously required that all subjects of the same kind should be referred to the same organ of the House. If this were sent to the Committee on the Public Lands, that Committee could form no judgment as to the expense of the canal, or what appropriation would be requisite to complete it; and if it were sent to another Committee, that on Roads and Canals ought, in justice, to be exempt from the blame of any delay which might thus result.

Mr. ISACKS, Chairman of the Committee on Public Lands, subscribed to the general position taken by the Chairman of the Committee on Roads and Canals, [Mr. MERCER] and had no desire that matters pertaining to the dimensions, character, location, or expense of the canal

In

now proposed to be provided for, should be referred to the Committee on the Public Lands. Inquiries of this kind did not fall within their province, and he was not more desirous than the gentleman from Virginia to accumulate business in the Committee to which he belonged. But he feared that, if it was the settled policy of the Committee on Roads and Canals not to recommend objects for the expenditure of the Government amounting to more than one million of dollars in any one year, it would be a long time before they would reach the State of Louisiana. the mean while, the government had other resources applicable to such works, besides the mere appropriation of money, and he believed the gentleman would agree with him in opinion, that our public lands furnished a resource which might simultaneously be employed, with greater advantage, in furthering the internal improvement of the country, especially where those lands lay in the immediate vicinity of the works to be accomplished. He was far from desiring that the Committee on Roads and Canals, or the very able gentleman at its head, should be held responsible for any extravagant and ill-judged expenditures which had been, or might at any time be, recommended by the Committee on the Public Lands. Gentlemen had all offences enough of their own to answer for

[Here Mr. MERCER asked leave to explain, and reminded the gentleman from Tennessee that he had himself advanced no such charge against the Committee on the Public Lands, but had, in the outset, referred only to charges thrown out in the public papers.]

Mr. ISACKS resumed, and said that the charge, from whatever quarter it proceeded, could have no injurious effect on that Committee, inasmuch as, with a single exception, (having reference to a donation of land for the Ohio Canal-a canal already in progress, and needing only this aid for its completion) the Committee on the Public Lands had recommended none of the objects, the expense of which created so much alarm in the minds of many. Mr. I. concluded by suggesting to the mover of the resolution the propriety of moving that so much of it as referred to the proposed canal and its cost should be referred to the Committee on Roads and Canals, and that so much as referred to a donation of land. as furnishing a means for its completion, should go to the Committee on the Public Lands

After a brief explanation by Mr. BARTLETT, and a few remarks in vindication of the propriety of his amendment, the question was put, and the amendment was adopted-Ayes 80, noes 58.

Mr. VINTON now moved to striks out the words "on the Public Lands," and insert the words "of Roads and Canals:" Whereupon,

Mr. WILLIAMS moved to lay the resolution, as amended, on the table; which motion prevailed-Ayes 90, noes 61.

CUMBERLAND ROAD.

The House then went into Committee of the Whole on the State of the Union, and resumed the consideration of the bill for the preservation and repair of the Cumberland road.

Mr. ARCHER said that, at this session, dedicated to inertness, he could only have been induced by very serious considerations to trouble the Committee. They were to be found in the interest taken, in his quarter of the country, in all the questions presented here in relation to the great subject of internal improvement; in the real importance of the present question in his estimation; and the opinion he entertained, that mistaken conclusions were likety to be adopted, from the question never having been heretofore discussed. Whatever the diversity of opinion, as to the character of the course of proceeding it recommended, the amendment must be allowed to present the true point of attention and debate, in reference to the legislation of Congress on the subject of this road. The ex

[JAN. 22, 1829.

penditure on this road had already amounted to more than two millions two hundred thousand dollars. An hundred thousand in addition had just been voted for repairs. The same object must be a source of expense continually accruing. Two propositions seemed then indisputable; that it was a duty to adopt immediate measures for the preservation of a work of so much cost; and that the fund for its preservation and maintenance should be derived from impositions on its use, as the continuing burthen would at once be inequitable, and too heavy, as a charge on the general treasury. In these points all would agree. The only question related to the authority by which the necessary tolls should be imposed. The bill recognized this function as belonging to the General Government; the amendment proposed to assign it to the States through which the road passed, as pertaining properly and exclusively to their jurisdiction. The question was strictly one of power, though a consideration of policy might not inaptly be combined. It was not required, however, fortunately, to re-open the much vexed and undetermined question, of the power of the General Government to construct, or authorize the construction of roads. A remark, in connection with this subject, was, however, appropriate. All who rejected the power in every form, denied, of course, the jurisdiction which must be exerted in the imposition of tolls, which depended on it. But, neither could the whole number of those who asserted the power affirm this jurisdiction. A portion, without contending for a power in this Government directly to execute the construction of roads, by authorizing the condemnation and use of the soil and materials, only maintained an authority to make appropriations of money in aid or procurement of their construction. This last class could with no consistency contend for the territorial jurisdiction, implied in the right to erect gates and levy tolls, as no form of a territorial jurisdiction could result from a mere authority to make applications of money. But Mr. A. hoped that this class of the advocates, combined with the general opponents of the power to make roads, formed a majority of the House; unless, therefore, the votes of gentlemen should be in inconsistency with their principles, (which was not to be presumed) the amendment must triumph, and the important claim of jurisdiction be frustrated, which it was the purpose of the present bill to carry into practical operation.

Let the form of the argument be varied as it might, said Mr. A.] this claim of a right of jurisdiction on the part of the Governinent of the United States, which authorized it to levy the tolls proposed, had but one ground; that such a right was the supposed necessary incident of the power which had been exerted to construct the road. This was the point in issue: whether the power to construct roads did involve, as an incident, the power to shut them up, and levy tolls on them. The power to construct, for the sake of argument, should be conceded. In the ordinary exercise of the power, wherever it was not exerted directly by public authority, this incident was not pretended to attach to it. An incorporated company, which was the usual instrument of construction of the more artificial and expensive kind of roads, even a subaltern political authority, like the Government of one of our territories, derived from the grant of a power to open or construct a road no competency to stop it up by gates, and to levy impositions on the use of it, unless this privilege were given by separate, distinct, positive expression. This proposition would not be contested, that the power to construct carried this competency to impose tolls, (not given expressly) only where the power was exerted by the public presiding authority of the community. Then it was an attribute, not of the power to construct inevitably, but of the presiding character of public authority. If there were a form of public authority, therefore, which was not invested with the general attributes of this presiding character, (such as