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For a detailed presentation of what our Father's simple Highway Common Law was like in that serene and tranquil era, before automotive technology contamination steamrolled our Common Law into the ground by way of an overriding contract, see: Treatise on the Law of Highways, by Joseph Angell [Little, Brown & Company (1868)], and its Second Edition, published in 1886; and Law of Roads and Streets, by Byron Elliott [Brown Merrill & Company (1890)] and its Second Edition published in 1900. Both books have thousands and thousands of Case citations. The Fourth Edition has two volumes and was co-authored by Byron and William Elliott [Bobbs-Merrill Company, Indianapolis (1926)]
Reasons: First, the factual setting that our Father's Common Law on free ingress and egress developed out on the King's Highways is not replicated today in the United States, since technology has changed the factual setting that our Father's Common Law used to operate on.
What technology has done to our Law on a factual setting of Government highways is the same that technology has done to the Law of Patent Property Rights:
"I have little doubt, in so far as I am entitled to express an opinion, that the vast transforming forces of technology have reduced obsolete much of our patent law." - Felix Frankfurter in Marconi Wireless vs. United States, 320 U.S. 1, at 63 (1942).
And just as technology rolled up its sleeves and went to work to convert our once quiescent highways over into a setting of high-powered vehicles, so too has technology gone to work on running our Patent Law into the ground; and now also privacy itself has also fallen by the wayside, as technological innovations make their appearance on the scene:
"Recent inventions and business methods call attention to the next step which must be taken for the protections of the person, and for securing to the individual what Judge Cooley calls the right `to be let alone.' Instantaneous photographs and newspaper enterprises have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that `what is whispered in the closet shall be proclaimed from the housetops [footnotes deleted]." - Samuel Warren and Louis Brandeis in The Right to Privacy, 4 Harvard Law Review 193, at 195 (1890).
Constitutions can very much be written to organically self-enlarge with the passage of time to be made to apply to factual settings then unknown at the time that Constitution was being written; but our Founding Fathers in 1787 did not do that.
Contemporary technology has very much changed the quiescent horse & buggy era and pedestrian highway factual setting our Father's Common Law grew up on. For a recent presentation of what technology will do to trigger the appearance of Highway regulatory lex where there had been none before, a view of Pitcairn Island in the South Pacific is revealing. Pitcairn Island is steeped in the allure of intrigue, as it was colonized by Fletcher Christian and his fellow mutineers from the HMS Bounty in 1790. It is a British Colony two square miles in area and is administered by an Island Council under the British High Commissioner Governor in New Zealand. For all of Pitcairn's history up until recent days, only pedestrians and wheelbarrows were even seen on its highways, but in 1965, things changed. A heavy Bristol crawler tractor made its appearance on the Island [see the Pitcairn Miscellany (the Island newspaper) for January 31, 1965]; and soon that tractor was followed by a second tractor [id., August 31, 1965]. Within a few months after the first tractor had arrived, a large number of imported bicycles were making their appearances, and so now the appearance of some lex was imminent for Pitcairn Island:
"With so many bikes here, traffic rules will be the next new thing to be introduced here." - Editorial, Pitcairn Miscellany, August 31, 1965.
Sure enough, the road lex soon followed in November, 1965 [id., November 30, 1965] by vote of the Island Council.
In the old horse and buggy days of England, highways were largely dirt paths acquired from the easement forfeiture from adjoining landowners. Here in the United States up until the 1940s or so, there was an extensive network of privately owned toll roads -- Government was just not "into" highways that much. In old England, the King never spent any money on those dirt paths called highways, as there was nothing to maintain; so when foul weather, even adverse weather lasting across an entire season made its appearance, then the roads simply ground to a standstill, and noting moved. Back in the old days, when highways became impassable, things drew to a standstill -- and society literally stopped and occasionally starved as well:
"Roads were so bad, and the chain of home trade so feeble, that there was often scarcity of grain in one part, and plenty in another part of the kingdom." - Encyclopedia Britannica under "Corn Laws" [Cambridge, England (1910)] 11th Edition.
But today, Government is spending incredible amounts of money, year in and year out, to build and maintain highways, so Right to Travel argument parallels that folks draw that try to disable the contemporary ability of the King to even ask for reciprocity back in return for benefits offered are incorrect -- since in the old days, the King was not offering a special benefit to begin with (except in some London streets constructed with cobblestone), and so to say that the King was once disabled back then from asking for reciprocity when the King never initially provided any benefits, is an incorrect parallel built upon disparate factual settings.
And today, high-powered technology routinely causes wholesale death and destruction when an operator does no more than momentarily lose absolute mental concentration on driving -- and in such a factual setting, an honest assessment by Highway Contract Protesters of the underlying legitimacy of the requirement that there be Evidence of Competency, would necessarily result in the conclusion that a Driver's License, so called, really isn't all that unreasonable, and is in fact, very reasonable.
"We agree that the States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed." - Delaware vs. Prouse, 440 U.S. 648, at 658 (1978).
So it is technology that is responsible for the Prince's Highway lex, and not the traffic density congestion that is created from the mere existence of other people in Society. In ancient times, metropolitan cities were frequently heavily congested with traffic. Long before the City of Paris leveled entire neighborhoods to widen some streets in the 1700s, in the First Century B.C., Julius Caesar banned wheeled traffic (not pedestrians) from the streets of Rome during peak daylight hours. The result was that to some extent the wheeled traffic waited until dusk to use the streets; pedestrians were free to use the streets during the daylight hours, causing wheeled vehicles to shift their street congestion into late night hours [see C.A.J. Skeel in Travel in the First Century After Christ, With Special Reference to Asia Minor, at 65; Cambridge University Press (1901)].
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