The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1839-01-31


lively, yet there seems sound objection 10 he inn
proyemen Of roads 'eih their assent For If by the
10Th amendment this right Is reserved to the states
il Is within the power Of the state TO grant il
unless the United States are incapable Of receiving
such privilege But by various acts Of the govern
ment, whose validity has never been questioned il
appears 10 possess merely the power OF receiving
SO unimporant privilege as this, but Of acquiring
territory ad ltbitnm. The acquisition Of Louisiana
one Of the happiest events of our political history,
evnces The power OF this government to acquire ter
ritoIy by treaty from foreign nations. The ceSsion
OF the northwest territory by Virginia, shows that
under The strict principles OF the old confederation,
which had so few features OF nationality, the United
States were deemed TO have the power Of acquiring
lands even from the states OF the confederacy. The
Georgia cesson, completed about the year 1902, Is
finally decisive of the practical and undisputed ex
eTcise OF power in the general government TO re-
ceye cession of terri cry from any member in the
coniederacy, under the present constitution But II
the general government have the power 10 aggran-
die itself by the acquisition Of territories can the in
ferior privilege be denied them Of receiving from
state the right of making or repairing the roads
over which they compelled 10 transport The mails
through the union 7 -~.
Moreover il seems to be admitted that the United
States have since the Georgia cession, con-
situtional right TO make and repair roads in the
coded territory II then, by the transfer Of the ter
ritory Georgia could give, and the United States
ceve the right 10 make roads within it, il is difficult
10 imagine substantial objection 10 the validity
Of grant 10 make road, without transfer OF the
territory. IT,. ..+
q Your committee conceive that the general GO
vernment has the power Of making and opening
iiary roads Nth The assent Of the respcetire states
with a view TO the common defence Of the nation.
The power Of opening road during actual hos
tties for the purpose OF transporting military stores
and marching troops To points that menaced has
never yet been called in question In truth, with
out such power the United States must fall prey
TO foreign enemies SO il seems fair TO assume, that
whenever a military road becomes necessary for
the national safety ii is in the power of the general
government 10 construct it. OF this necessity, hat
government can be the only Judge; and ii the power
OF Judging OF this necessity be in them, the consu-
tional power To act must Of course be conceded. In
the exercise Of this discretion, very general sent-
ment al present prevails in favor OF preparations
during peace for state of war. And il the power
Of judging rhen it is necessary be admitted the
sritutional right to do it at any time must be al
lowed '..". a.'
II is not proposed TO enter upon The delicate inqu-
rywheher this right can be exercised by the gene al
government cihoutt the assent othe respective states
through whose territories, road is constructed, in
time OF peace with view 10 military operations in
any future wars. Leaving this question for discus
sion whenever the occasion NAV call il forth, your
committee are content in this report to assert the
right to exercise this necessary" power lciM The
assent of The states. ......'
Having taken this cursory view of the principles
OF the constitution in relation to the construction of
roads by the United States il may not be unimpor-
ant To examine what has been the practice under its
provisions. The laws of the union and The acts Of
the executive branch OF the government though they
cannot be- relied on 10 support acknowledged error,
may safely be referred to in aid Of our inquiries as
TO the proper construction of the constitution.
Amongst The most conspicuous of The analogieS
afforded by the acs of Congress in The establishment
Of the Cumberland road already mentioned. This
road has been constructed under the authority Of the
United States, with their funds, and through several
OF the states, with their assent II has received the
sanction OF several distinct representative bodies
and of two presidents of the United States. In
snort, II precedent alone were wanting, this act
would furnish il. .@.
Passing over the road from Nashville to Natchez,
and the road from Reynold>burg TO apart of the late
territory OF Mississippi, directed by of the last
session OF Congress, both of which afford precedents
no less strong, we come TO the military road lately
directed by the executive authority be constructed
from Pittsburgh or its vicinity to Sackeus Harbor
This road IS not TO be constructed with any express
assent OF the state through which passes by the
authority of Congress, but the president has deemed
1t necessary military road and has ordered it
be made accordingly; a measure, the advantages
OF which are understood 10 be palpabe, TO have
road is made. Hence, however, the question results,
whether the exercise of this power by the president
is not an express admission of the right of the gene
raj government to open military roads even in time
OF profound peace, when they are believed 10 be ne
cessary; and, II the power OF judging Of this
sity possessed by the executive it cannot is pre-
sumed, be denied 10 the yet more important organ of
the nations wih-the legislature ofthe nation.
3. As to canals 1t will not be necessary to reca-
puate The arguments already used on the subject of
roads, some OF which will be found strongly applica-
BILE to canals. Ii may suffice TO add, that the power
10 make canals and roads, for the promotion and
safely OF internal commerce between the several
states may justly be considered less incidental
to the regulation OF internal commerce than many
OF the powers exercised under the authority to regu-
commerce
The embarraSsmenis of the nation during war from
the want of good roads and canals both in relation
to trade and the transportation of cannon and militia
ry stores have been loo recently and sensibly te to
be forgotten. Vested with the power of making war;
the constitution could never have intended the gene
raj government should make it under such diSadvan-
taseS II there be any part of that instrument which
demands liberal construction, it is that which
ferS on the federal government the power of making
war, and the duty Of protecting the union from TO-
reign hostility With navy yet insufficient to en-
sure the safe conveyance coaslwise of troops, of i'm
pemens OF war, and military stores, and destined
to contend with an enemy whose. command Of the
sea, enables them to asSai in rapid succession the
most distant positions, we have been compelled from
the want OF an internal water communication, to
counter the most waseful extravaganza in the trans
porat,on Of The means of defence. From the same
cause, the internal trade between the states has been
during war trammelled and embarrassed and even
cut off, and the productions of one portion OF the
community have rotted on their hands. while distant
parts OF the United States were suffering for the want
OF them.
1t is true that the wants of the union cannot confer
power under the constitution; but they may Justly be
touched upon as affording aid in its CONSTRUCTION
They must have been clearly foreSeen, and must
have been supposed TO be provided for If the power
TO carry ON war implies the necessary and pro-
per" means OF conducting it TO safe and prosperous
issue, and If, without the use of these means the
burdens, and he prvations, and the miseres of war,
are TO be indefinitely increased and its issue (always
doubfuD rendered yet more precarous and unpros-
TO have been contemplated as being vested in the ge-
neral government? are we not justified in asserting
this necessary" power--the power of constructing
roads and canals al least ,rithe assent of Tie states
q L.