JAN. 22, 1829.] Cumberland Road. [H. OF R. that of a territory, for example, this authority would not which the less-the grant or the incident-in the present necessarily be invested with the competency in question. argument? The grant assumed was of a power to conNow, this was the character of the political authority of the struct (roads) facilities of physical communication and Government of the United States. It was not endued with passage; the incident asserted, the right to levy tolls, the general, resulting, incidental attributes of an ordinary involved several elements. The gentleman from Pennpresiding political authority. These attributes, and this sylvania [Mr. BUCHANAN] had stated them with much character of political authority, resided, and was recog-clearness and force. This right involved, 1st, a power nized as residing, with the States only, and not in the to tax; 2d, to coerce for the payment of the tax; 3d, to General Government. The General Government was only punish for injuries to the road; 4th, to establish magisthe special grantee of defined powers, and the fair inci- trates and tribunals for the cognizance of these reguladents of such as had been so defined. How did the ordi- tions; 5th, to provide and maintain adequate force, (milinary presiding authority of a State get the power to open tary if need be) to give effect to these several branches or construct roads, and levy tolls on them? Roads were of jurisdiction. Nearly the entire of functions and powan essential part of social arrangement. It might be ne-ers entering into the composition of general political aucessary to turnpike, and then it would be just to impose thority were comprehended. Could this mass of superior tolls on them. There must be some authority to do this, powers be claimed as the incident of a power to construct as the incident of social community; and the authority a road? If it could, the grant of a power to construct a road must be that which presided over the community, with was out of all proportion to the magnitude which its aspect the general, resulting, essential powers of sovereignty; imported, equivalent to a grant to set up a distinct imperium that is to say, all powers appertaining to just political au- in a State, or as many of these imperio as there were roads. thority, which were not prohibited by the expressed pub- In such a mode of inference the fable was reversed, and lic will. The power to authorize a levy of tolls on a road, not the mouse of the mountain, but the mountain became therefore, belonged to the ordinary Government of a State, the offspring of the mouse. This reasoning [Mr. A. said] just in the same way as that to authorize the construction was not speculative merely. It had been decided by the of the road; not one as the attribute or incident of the courts that State officers and judicatures were not comother, but both as the attributes or incidents in common; pellable to take cognizance and give effect to legal proviand standing on the same footing, of its general undefined sions of the United States, as had been remarked by character of sovereignty. The community had a control the gentleman [Mr. BUCHANAN] from Pennsylvania. The superior to all property over its soil, as its members. This exercise of this jurisdiction, on the part of the State auultimate control its Government represented; and it was a thorities, could be voluntary only. part of this ultimate authority, to tax the use of roads, as The United States' regulations, then, in relation to these it was to open them; and to authorize their opening and roads, could not be left to this contingency for enforceconstruction, on the condition of their use being subject ment. The constancy and certainty of their operation to a tax. The two powers [Mr. A. repeated] stood on the was too essential. Interests and feelings might arise in the same precise footing as regarded their derivation, and not States, unfavorable to their enforcement, which must, in the power to tax the road as an incident to the power to such circumstances, be unequal, precarious, and irregular. authorize its construction, to which the first was in no re- But it had also been decided not to be in the competency spect subordinate. The power, then, to authorize the of State authorities, if in their option, to take cogniconstruction of roads, supposing it to reside in the General zance of offences against the laws of the United States; Government, did not carry with it the power to impose as it would be a solecism for one jurisdiction to entertain tolls on them, as its incident. If the General Government control of crimes against another. Then, for cognizance had this authority, it must be derived from some other of the turnpike regulations of the United States, (every source. The General Government could not derive it as one of them necessarily involving penalties) special mathe State did, as a resulting attribute of sovereignty. This gistrates and courts must be provided, or intolerable insource of authority, it had been seen, was not accessible convenience incurred, in attendance on those which were to the Government of the Union, being only the grantee subsisting, from their remoteness; and adequate force of specific powers and their incidents, under the constitu- (military, if the civil should be disaffected or indifferent) tion by which it was created. The only source of this ju- must be maintained: for the enforcement of this jurisdicrisdiction, then, to the General Government, must be one tion should in no instance be executed, unless accompanied of these specific powers. But it had no relation which by sufficient sanctions. It might be necessary to augment could be pretended to either of these, with the exception the army, when roads became multiplied as largely as of the power to "establish post roads," (which, it had was contemplated by those who contended for the power been seen, did not carry it) unless it were the general pow- to make them, to give a steady and uniform operation to er of taxation. In this last aspect it should presently be complicated turnpike regulations. considered. What Mr. A. had been endeavoring to show was, that it did not flow from the power to "establish" or construct roads, as had been argued. The right to exercise this jurisdiction by tolls, &c. was furthermore repelled by its incongruity with the just import of more than one provision of the constitution. Tolls It was to be remembered, then, that the Government were taxes. The power to levy them was, then, a power of the United States, in relation to its power to authorize to lay taxes. But the power of taxation had been subjectthe construction of roads, (as every other branch of its ju-ed to specific restrictions by the constitution. Direct tax risdiction) standing on the footing of a mere grantee, its es were to observe a rule of apportionment to population. claims of incidental jurisdiction were to be tested by the "All duties, imposts, and excises” were to be "uniform established principles of construction in reference to legal throughout the United States." Tolls were duties. Tolls grants. It was the first of these principles, that a grant of passage had been adduced as one of the examples of carried for its incidents only essential and not merely con- the duties subject to this rule of uniformity, in a case in venient facilities. Tried by this test, the right to levy the Supreme Court of the United States. But how was tolls could not be considered essential to the exercise or it possible for tolls to be levied uniformly. The tolls on use of a power to authorize the construction of roads. It this road (the Cumberland) would be like imposts laid was a profitable appendage, or accident, not an indispen- on one port only of the Union. Suppose a number of sable, inseparable incident. roads, and a general system of tolls, still the tolls could But neither could grants carry incidents of greater not be uniform, but must vary with a multiplicity of cirmagnitude and operation than themselves. The less could cumstances, affecting the cost of the roads and their cha not include the greater. Which was the greater and|racter. The rule of direct taxation, (of being propor VOL. V.-33 H. OF R.] Cumberland Road. [JAN. 22, 1829. tionate to population) to which, however, as being indi-lation was not exclusive, as the advocates of this authorect taxes, they would not owe conformity, they must vio- rity contended, but only paramount to the State jurisdielate invariably; as impositions of this character, to attain tion: that is to say, that it was still in the competency of these objects, must be augmented according to the sparse- the State authority to operate over, though not on, the subness, not the density, of population. ject, the soil of the road; were the inferences from the All the roads of the country were liable to be subjected argument varied materially? The United States must still to this jurisdiction. All were liable to be converted to prescribe regulations, denounce penalties, inflict punishpost roads. A large proportion had been already, to an ment, and must, in this event, find it necessary to estabextent of more than one hundred thousand miles. It was lish distinct officers, and judicatures, and force, to give ef to be hoped that the extension would be progressive every fect to its jurisdiction. The necessity of this had been alday. If tolls were to be levied on all these, every man ready shown, and was as indisputable, in relation to a mere going to market must experience the influence; and the turnpike jurisdiction, acting on, and for the road, as if the power to impose them amounted to a faculty of control of jurisdiction were entirely absorbent of every other, and internal commerce expressly withheld from this Govern- exclusive. That this last was its true character, the ineviment by the constitution. Congress was authorized to table result of the claim asserted, Mr. A. continued to in"regulate commerce with foreign nations, among the sev-sist, from the inherent nature of territorial jurisdiction. eral States, and with the Indian tribes," and no other. By And then see [he said] to what extent it might be made to the jurisdiction in question, a power of the most momen- reach. All public roads in the country might be subjecttous character and extensive operation, the most oppres-ed to it, existing, or as they came successively into existsive in its abuse, and explicitly denied by the constitution, ence. But "exclusive" jurisdiction was not lost over a subwould be acquired. It was said that the pressure and mis-ject which was abandoned, without express remunciation. chief of this jurisdiction might be avoided by the resort Relinquishment of the road would not operate relinquishto new roads, as those established were subjected to it. ment of the jurisdiction. This was an uncontested princiBut how did this suggestion elude the objection to a pow-ple in relation to the exclusive jurisdiction of the United er which could pursue their retreat at pleasure, and fasten States. The General Government might then pursue the its yoke on the new subjects as on the old Exemption acquisition of jurisdiction on the newly established roads, held by such a tenure was not enfranchisement and safety. as they came into being, without the loss of it on those This jurisdiction of the United States over the roads they ceased to use. The turnpiking operation gave the they might "establish," by construction or adoption, if it jurisdiction; its nature, as exclusive, made it permanent belonged to them, must be exclusive jurisdiction. A(unless renounced.) The General Government might great deal had been written and said, especially in the Su- then get, not in compact body, indeed, but in strips, an preme Court of the United States, on the subject of the extent of exclusive jurisdiction within the States, limited concurrent jurisdiction of the States and the United States. only by its discretion. Well, then, might the gentleman All this was entirely illusory. It had been decided, over from New York, [Mr. STRONG] refer this claim of jurisand over again, that where the two jurisdictions could not diction to the extensive authority over the territory and perfectly stand together, that of the State was to submit. property of the United States, given to Congress by the Was the same subject of taxation selected by both, for constitution. "Congress shall have power to dispose of, example, and found inadequate, the State demand was and make all needful rules and regulations respecting, the postponed to the Federal. This might be right; it was territory or other property belonging to the United States." not the present question] but it was evident that jurisdic-If the jurisdiction in contest be admitted, it may be added tion, in this predicament, had nothing of concurrent cha-that "Congress shall furthermore have power" to convert racter but the name; one of them was paramount, the portions of the soil of the States, ad libitum, into this chaother subaltern. At any rate, the jurisdiction asserted racter, of "territory and property belonging to the Unitfor the United States over the roads they might reduce ed States," and so bring them under this clause of disposto turnpike subjection, could be no other than exclusive. ing and arbitrary authority in the constitution. Congress The reason had been given, and illustrated by a happy will thus have a specific motive to make large acquisitions analogy, by his friend and colleague, who preceded him of this form of property, that they may "dispose of it,” if [Mr. BARBOUR.] This was a territorial jurisdiction, and their previous tax on it, in the way of tolls, should prove all territorial jurisdiction, from its nature, must be exclu- inadequate to their wishes or occasions. The only ansive, that is to say, incompatible with any other. Territo-swer to these consequences is, that such excesses in the rial jurisdiction operated not only over the soil, but on it. extension of its authority are not to be apprehended from Extraneous must, therefore, of necessity, be interfering Congress, from the directness of its responsibility to the regulation. Unless, therefore, all jurisdiction over the people; precisely the same safeguard which we should ensubject was to perish in this conflict of jurisdictions, that joy, if we had no constitution imposing limitations on the which prevailed must extrude that which conflicted, and authority of Congress. be exclusive. This, then, was the character of the ju- This authority, then, [said Mr. A.] claimed on behalf of risdiction claimed for this Government over the roads on the Government of the United States, to exercise a territowhich it should determine to levy tolls. The constitution rial jurisdiction on the roads which it had power to estabhad enumerated the subjects to which this exclusive au-lish, stood repelled by a just developement of its character thority should extend, even down to the very buildings and results. The general idea on which the claim rested over which it could be exerted-"all places purchased was, that the power to make a road vested a property in by the consent of the State in which the same shall be, for the soil which the road covered, involving authority to pre the erection of forts, magazines, arsenals, dock yards, and serve and repair it by the exercise (if need be) of a terriother needful buildings," &c. This subject of roads was torial jurisdiction. But this idea was fallacious. The pow not included. Though larger, not only than any of the er to make a road did not vest the ultimate domain of prosubjects enumerated, but the whole in mass, the doctrine perty in the soil, even where the road was made, by pubin discussion went, in its effect, to include them; and that lic authority, in Governments where that authority was without any condition of "purchase" "by the consent of most extensive. Mr. A. referred here to the known printhe State in which the same shall be," to which the acqui- ciple of civil and common law, that the ultimate property sition of jurisdiction of this character was bound to con- in the soil covered by a public highway resided in the conform by the law of its permission in the constitution. tiguous proprietors; the proof of which was, that, in the But suppose that the jurisdiction of the United States event of the change of the course of the highway, or reover the roads to which they should extend turnpike regu-linquishment, the contiguous proprietors-resumed their JAN. 22, 1829.] Cumberland Road. [H. OF R. "full" proprietary rights over the soil, without release or gument of a gentleman from New York, [Mr. STORRS] further concession, which could not be done if this full which had appeared to make some impression upon the proprietary right had been divested, and transferred to Committee. That gentleman had contended that the juthe public authority. The right which the public acquir-risdiction, as related to this particular road—the right to ed was precisely that which it acquired in a private build-set up gates, and levy tolls on it-belonged to the Going, of which the occupation was requisite during a siege; vernment, by a compact antecedent, and, therefore, parnot of ultimate, complete property, but of use, during the amount to the constitution. How did he make out the continuance of the occasion which demanded it. The dif- case? Virginia had, by compact, previous to the conference was, that the occasion, in the case of the road, was stitution, conveyed her western domain to the national of more continuing and enduring character, which gave authority, with the condition that it should be employed to the occupation the aspect of complete property. The for national purposes, which grant and condition had exercise of a territorial jurisdiction, therefore, for the pre-been accepted. The proceeds of a portion of this doservation and repair of the roads it might construct, (if on-main had been appropriated to the construction of this naly the result of a supposed property in the soil) could not tional road, and, therefore, the gentleman from New be claimed even for Governments of the largest authority. York drew the inference, not only that the construction When such a Government exerted this branch of its juris- of this road was authorized as a pursuance of the comdiction, it was on the same ground as that on which it ex- pact, but the exercise of the jurisdiction in question, to erted the function of construction of the road: that is to levy tolls on it, also. The first and obvious answer was, say, as a distinct independent attribute of its sovereignty, that this conclusion was not warranted by the premises. and not merely as an incidental consequences of this func- The obligation, however overruling, to make applications tion to construct. The earth, and stone, and timber, were of a fund to general, undefined purposes, imported no condemned and taken for the repair, by an exercise of the necessary sanction to any and every mode of application same character of authority by which they were condemn- of every part of the fund, independently of all other coned and taken, in the previous instance, for the construc-sideration. Still less could it be considered as sanctiontion of the road. The Government of the United States, ing and authorizing the exercise of political jurisdiction, it had been seen, could not claim the exercise of this form of any form, over the subject of the particular application of authority. It could only exert the function of construct- of the fund. An authority to disburse a fund, with no ing roads as a special grantee, and could not, therefore, definition of specific objects, did not sanction, in all events, condemn and take materials from the soil: that is to say, its application to the construction of a road, and, still exercise a territorial jurisdiction, for preservation and re-less, to the exertion of an authority to impose tolls on the pair, which was no incident of such a function. This dis- road. The gentleman from New York had fortified his tinction was recognized by invariable practice. The ma- argument, by a reference to the act of the Legislature of terials for the preservation and repair of the State high-Virginia, (of 1807) by which she gave consent to the pasways, made and kept up by the real sovereign Governments sage of this road through her limits. He had supposed of the soil, the States, were taken from the contiguous that this act contained expressions authorizing the partilands by legal authority. An incorporated company had cular exercise of the jurisdiction in question. For proof to obtain its materials for the same purposes, not by legal of the error of fact, into which he had fallen, in this reauthority, but by voluntary contract with the proprietors. spect, Mr. A. referred to the argument of his friend who The General Government, standing on this last footing, in had preceded him, [Mr. BARBOUR] who had explained the relation to its roads, had to resort to the same mode of ob- just import and interpretation of the language which had taining the materials of repair. The incidental right of been referred to in that statute. preservation and repair, which was asserted, was not deBut if the fact had been sustainable, the answer to the nied, and was incontestable; it was only denied that this principle of the reasoning was yet more decisive. If a right extended, in the hands of the General Government, compact, such as supposed, had been ratified, in the most to a territorial jurisdiction. The reason of the grant of specific form, either previously or subsequently to the a power to construct roads did not extend to the grant of constitution, it was void, as superseded by the constituthe same amount of authority for their reparation. The tion. As regarded the instance of previous compact, the authority was exhausted by exertion in the case of the con- principle was, that antecedent were superseded by substruction of the road. It would be continuous and unlimi- sequent inconsistent compacts between the same parties; ted as related to the reparation. I might be willing to grant and especially, when the subsequent compact was of parmy earth, and stone, and timber, once, but not indefinitely, amount character to every other, as the compact of Goas to time and amount, when they might have become scarce, vernment. It is only where the parties and subjects are and of greater value; and if the grant were to involve a con- not the same, that the antecedent can stand against the sequence so much larger than itself, the presumption would subsequent. Here the parties were the same--Virginia be, that the consequence, if foreseen, would have obviated contracting with the other States of the Federation, the grant. The separable character of a power to pre- through their common representative, the Government serve and repair, by the exercise of a territorial jurisdic-of the United States. The subject, too, was the same, tion, from that to construct roads, had been recognized in and the compacts inconsistent. What was the alleged relation to this very Cumberland road. A distinct act had subject of the compact of Virginia, referred to? A parbeen passed by the Legislature of Pennsylvania to give the ticular exercise of jurisdiction by the General Governpower to repair. This was evidence of the necessity of the separate grant of the power. Maryland and Virginia had not passed similar acts, however.* The power was not yet vested, therefore, in the General Government, supposing that it was within the competency of these States to vest it by their concession. ment, (the levy of tolls on this road.) And what was the general subject of the compact of the constitution? The ascertainment, by explicit and elaborate provision, of the entire amount and forms of the jurisdiction, of every kind, which might, thereafter, be exercised by the General Government. The subject of this larger, and more imBut was it in the competency of the State Govern-posing compact, comprehended that of the previous comments to vest such a jurisdiction, or any jurisdiction, not pact, and was inconsistent with its separate subsistence and given in the constitution, by separate and several conces-efficiency. A general precise definition of all jurisdicAnd this led to the notice [said Mr. A.] of an ar- tion, to be exercised prospectively, swallowed up the existent grant of a particular exercise, just as the pre-existent articles of confederation, containing large grants of jurisdiction, merged in the constitution. The argument sions? Mr. A. has recently been informed that a similar act has been passed by Maryland. pre H. OF R.] Cumberland Road. [JAN. 22, 1829. would be still stronger, in relation to compacts con- of the laws, when Philip was employed in oppressing the veying grants of jurisdiction, posterior in their formation co-members of the Grecian league, was no less at hand. to the constitution. The supremacy of the constitution, The modes were various in which undue power might be exin this respect, was not contested. How perilous, too, erted, through the forms and medium of regular authori was the character of this doctrine of the tolerance of se- ty, injuriously or destructively. This was the usual mode parate several compacts, for the transfer of jurisdiction, through which injustice or oppression were perpetrated between the Federal and State authorities. A union of on individuals, in Governments having the aspect of a refederation had two essential conditions--a fixed reparti- gular and legal character. The facility of doing this was tion and adjustment of jurisdiction, between the general one of the strongest groundworks of the strict limitation and constituent authorities; and the entire equality, as re- of power. As it could not be denied that the General lated to the amount and character, of jurisdiction retain- Government, if allowed to form compacts with the States ed by these constituent authorities. If no repartition of separately, for jurisdiction, might make accessions of pow jurisdiction were made, the union was not federal in its er, an essential safeguard was gone, in the recognition of character. If this were not fixed, or the constituent par- the authority to form these compacts. The dissolution of ties not left equal, in point of jurisdiction and authority, the constitution were of less evil import than such a rethis federal character could have no stability. If the par- cognition. No man [Mr. A. said] was more devoted than ties were at unrestricted liberty to make separate com- himself to the perpetuity of the Union, of which the con pacts, for the transfer of jurisdiction, the balance of juris- stitution was the instrument; yet, if obliged to elect bediction could not be fixed, nor the equality of the parties tween these evils, he must prefer its dissolution. There have any basis of permanence. The recognition, then, was no authority, however, on the part of the General of a power to make separate compacts with the States, Government, to form compacts of the kind supposed; nor, on the subject of jurisdiction, subverted the essential con- if it had been competent to form them, had any such ditions, and forming principle, of a federative compact. been, in fact, formed. This ground of the claim of jurisIt would be in the competency of every party, at plea- diction in question was altogether unsustainable. sure, to alter what the wisdom of all had concerted, and The General Government could no more yield than it to subvert what the determinations of all had consecrated could acquire jurisdiction over subjects, or in any other as inestimable. Nor was this the most perilous result of mode than was provided for in the constitution. Nor was such a power of forming compacts. A greater danger the amendment liable to objection on this score. What it than of the subversion of the system, was its abuse, by the proposed was not a cession, but renunciation of jurisdiction. pernicious employment of the jurisdiction and authority Even if it might rightfully retain, the Government of the which might be irregularly acquired. Jurisdiction, in United States might well be desirous of getting rid of this itself, or its effects, was power. If the compacts of the jurisdiction, and devolving it on the States, if allowable to States were allowed to vary its distribution and arrange- do so. This consideration opened the view of policy, or ment, by the constitution, power must be lost or gained of the relative advantages of this jurisdiction being exerby the General Government. If lost, the result might be cised by the General or the State Governments. What was inefficiency-if gained, it would be danger. By the de- designed or desired to be accomplished, in the event of the rangement, the parties to the constitutional compact jurisdiction remaining with this Government, as the bill would be left unequal. The stronger must be formida- proposed? The maintenance of the road by tolls, not disble--the weaker would become submissive. From the proportioned in amount to what was really requisite for moment that an unequal member [Philip]-unequal, not that object. And what did the amendment import? That merely in positive force, but political authority-was ad- the several sections of the road were to be surrendered to mitted into the confederacy which most resembled our the respective States in whose bounds they were, on these own, the Amphictyonic league, historians date the period very terms, namely: that they were to be kept in proper of its real dissolution. This disproportionate member order, and that the tolls were, at no time, to exceed what was at no difficulty in finding opportunities for the op- was essential for that purpose. The same ends were to pression of the co-members, through the instrumentality be attained in the one event as the other. Would they of the general authority. The danger was more obvious, not be attainable, with the same effect, in the one as the immediate, and greater, where the derangement of the other? Was the jurisdiction of the States less? Was it balance of jurisdiction, by State compacts, brought direct not better fitted for the then attainment? The authority of accession of power to the General Government. The the State was nearer to the subject, and occupied with head of the Government, in these circumstances, had a concerns far less distracting and momentous than that of resort in its provincial authority, thus acquired, where it the General Government. doubted, or was not cordially sustained, by its regular with authority so much less diffused, and more liable to be constitutional auxiliary authority. Every State which absorbed by extraneous concerns, found it advantageous had shorn itself, by compact, of jurisdiction, would be an to devolve this function of the construction and supervision arsenal, on which the head might draw, when it desired of artificial roads on incorporated companies, capable of an to arm itself for the exertion of irregular authority, or for attention more concentrated and efficient. the exercise, oppressively, (which was a thing very pos- How, then, must the case stand with the General Gosible) of that which was regular in its character. Sup-vernment, expanding over the surface--occupied with the pose-to present a mitigated example of this last dan- whole mass of the external, as well as a large share of the ger--that Georgia, on the subject of Indian lands, or more important internal concerns of a confederacy com South Carolina, in relation to the tariff, should manifest mensurate with half a continent? At the last session of symptoms of insurrectionary movements, and Congress, Congress alone, more than thirty reports, providing for trusting to reflection, and the patriotic feeling which, in the execution of projects of Internal Improvement, had those quarters, could never be long suspended, either by been made from the Committee on this subject. When passion or suffering, should be indisposed, or be suspect- these, and the countless series which was contemplated ed of being indisposed, to precipitate the crisis of con- by his friend, the Chairman of the Committee [Mr. Mrflict, what was to hinder an exasperated head of the Go-CER] and the other advocates of the system, had been acvernment from resorting to the States which had render-complished, what was to be our condition in relation to ed themselves provinces by compacts, for the means of the exercise of a due supervision on this subject, if supergratifying his passions, or crushing his adversaries? It vision were retained? Were Congress to sit as a board of would only be necessary to call the proceedings resorted public works, exclusively, neglecting all more essential to, an execution of the laws. This phrase, the execution functions of every kind, external and interior, capacity or Even the State Governments, JAN. 23, 1829.] Retrenchment. [H. OF R. time would not suffice for this duty. Every day, every [to construct roads] to this Government. The denial inhour, would be inadequate. Then, what is the conclu- volved, indeed, this present claim to set up a specific form sion? You have your road; a guarantee that it shall be of jurisdiction on the road, which must fall with the fall of adequately maintained in all time; that tolls shall not be the power. For the sake of argument, however, he had imposed beyond what is requisite for this object; that its conceded the power in the largest form in which it had been use for your occasions, of any and of every kind, shall in claimed by its advocates, viz: that to construct by the conno respect be obstructed: the proposition merely is, that demnation of the soil. What he denied was the ulterior you shall not retain a jurisdiction for which you are incon- and consequent claim of jurisdiction, asserted by the bill veniently situated--a supervision for the exercise of which--the right to shut up the roads which the Government you are totally, incurably, confessedly unfit; that you might make, from unrestricted use, and to levy tolls on should not do this, without a purpose to answer, as relates them. He denied that this ulterior jurisdiction was a conto the objects you profess to have in view. sequence to be inferred from the principal power. The Can any reason be given for retaining jurisdiction on United States had a power to make roads for military pursuch a subject, in such circumstances, by those who see no poses, uncontested in time of war, and, therefore, inconobjection as respects the competency to surrender it? testable as a provision for war in time of peace. But had Where, indeed, can any motive be found to retain, in this they a right to shut up these roads from the free and comview, unless it be in the extensive patronage connected mon use of the States and the people, by positive regulawith the exercise of the jurisdiction? With no wish to give tion to that effect, or by the equivalent mode of regulations offence, Mr. A. found himself obliged to charge the influ- of toll? If they had, there was nothing to hinder the exence of such a motive. And what a patronage! When tension of the same system to all roads, by their adoption roads came to cover the whole country-were extended as post roads (with the solitary reserve of compensation for from Maine to New Orleans as was proposed-how count- the infringement of private property) and to submit the less must be the host of agents employed! how impracti- transit of persons and property to unlimited regulation by cable, by one Government, the function of adequate super- this Government. Such a consequence of it frustrated vision and control of them! how unbounded the scope for the pretension. The right really passing to the United favoritism and intrigue in their appointment-in their re- States, under the power to make a road, was no more than moval! The remedy for all this, and the sole remedy, was, that which passed by the adoption of a post route--a right surrender of the roads to the States when we had execut- of way, not of regulation. The subject acquired was usued, or should execute, their proper function, in having fruct of the soil, not a property in it, conveying compemade roads. Mr. A. called, therefore, on all those who were tency to exclude others from participation in the use, or to adverse to the retention of this most abusive form of pa- charge that participation with a tax. What he asked tronage, with no countervailing benefit; on all who, admit-[Mr. A. said] was, that, in our legislation on this subject, we ting a power of Internal Improvement, by the expenditure should conform to this just view of it; which we should do of money only, were bound, in consistency with this prin- by the substitution of the amendment for the bill. By the ciple, to disallow the jurisdiction by gates and tolls, which adoption of this course, every practical advantage which was territorial in its character; on all who disclaimed the had been proposed would be realized, without the assumppower, and its consequences in every form, to unite in tion of an unwarranted, or, in any event, questionable ju denying the jurisdiction in question by the adoption of the risdiction by this Government, which was bound to a ciramendment, and rejection of the bill. cumspect, not to say jealous observance of the limits of its authority. [The committee then rose. e.] FRIDAY, JANUARY 23, 1829. on Retrenchment, on the 21st inst. by Mr. WICKLIFFE, The following resolution, reported from the Committee came up for consideration: His colleague [Mr. A. said] had stated an objection to the phraseology of the amendment, and objected entirely to the provisoes which stipulated the conditions on which the surrender of the sections of the road were to take effect, (the perpetual maintenance by tolls, not disproportionate, &c.) In this objection, Mr. A. thought his colleague refined too much. He [Mr. A.] had no objection to these conditions, nor any difficulty as respected the authority to require them. It was a recognized principle that improvements made by a party on the property of another, under an erroneous supposition of title, in which "Resolved by the Senate and House of Representatives of both parties concurred, were entitled to be compensated. the United States in Congress assembled, That the SecretaHere there had been a supposition of right, on the part of ry of the Senate and Clerk of the House of Representathe United States, to construct this road, evidenced by the tives shall prohibit the use of the stationary of the two consent of the States through which it passed. The im- Houses, in folding or endorsing any documents, pamprovement, the artificial road, had been made in this sup- phlets, or package, other than such as may have been printposition. For the cost of this improvement, then, the claimed by order of either House of Congress, or such manuto compensation was fair. The United States would pro- script documents as may relate to the business of the same. pose the liquidation of this claim in the stipulations of the Mr. WICKLIFFE briefly stated the object of the resoprovisoes to the amendment (in the event of its adoption.) lution, as intended to prevent the unwarrantable use, or Compensation for the improvement transferred was to be the abuse of the existing privilege of members in relation obtained, in a participation in its use, guarded by a guaran-to stationary, by enclosing, for the purpose of distribution, tee of its perpetual preservation, in a condition adapting matter which had no connexion with the business of the it for use. The proposition was fair. The acceptance was warranted. Without this stipulation, too, every body knew that the surrender of the road had no chance to take effect. Right permitted, expediency demanded, its adoption. Let, then, [said Mr. A.] this stipulation, the provisoes to the amendment, be retained, as the only effectual means of preventing the retention of the road, and the jurisdiction of it, which it was so important to defeat. Mr. ARCHER Concluded by saying, that it would be recollected that the view he had been endeavoring to press on the committee did not rest on the denial of the power House. 39 Mr. BARTLETT moved to amend the resolution by inserting the words "or printing." Mr. WICKLIFFE declined accepting this as a modification, (to do which, indeed, he had no right, the resolution being a joint one) inasmuch as he was not aware that any part of the public stationary had been used for the purpose of printing. Mr. BARTLETT said, if such were the case he would withdraw the amendment, and he withdrew it accordingly. The question was about to be put, when |