A Compilation of the Messages and Papers of the Presidents. Volume 2, part 1: James Monroe

by Unknown

I have supposed an opposition to be made to the right in Congress by the owner of the land and other individuals charged with breaches of laws made to protect the works from injury, because it is the mildest form in which it can present itself. It is not, however, the only one. A State, also, may contest the right, and then the controversy assumes another character. Government might contend against government, for to a certain extent both the Governments are sovereign and independent of each other, and in that form it is possible, though not probable, that opposition might be made. To each limitations are prescribed, and should a contest rise between them respecting their rights and the people sustain it with anything like an equal division of numbers the worst consequences might ensue.

It may be urged that the opposition suggested by the owner of the land or by the States individually may be avoided by a satisfactory arrangement with the parties. But a suppression of opposition in that way is no proof of a right in Congress, nor could it, if confined to that limit, remove all the impediments to the exercise of the power. It is not sufficient that Congress may by the command and application of the public revenue purchase the soil, and thus silence that class of individuals, or by the accommodation afforded to individual States put down opposition on their part. Congress must be able rightfully to control all opposition or they can not carry the system into effect. Cases would inevitably occur to put the right to the test. The work must be preserved from injury, tolls must be collected, offenders must be punished. With these culprits no bargain can be made. When brought to trial they must deny the validity of the law, and that plea being sustained all claim to the right ceases.

If the United States possess this power, it must be either because it has been specifically granted or that it is incidental and necessary to carry into effect some specific grant. The advocates for the power derive it from the following sources: First, the right to establish post-offices and post-roads; second, to declare war; third, to regulate commerce among the several States; fourth, from the power to pay the debts and provide for the common defense and general welfare of the United States; fifth, from the power to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the Government of the United States or in any department or officer thereof; sixth and lastly, from the power to dispose of and make all needful rules and regulations respecting the territory and other property of the United States. It is to be observed that there is but little accord among the advocates for this power as to the particular source from whence it is derived. They all agree, however, in ascribing it to some one or more of those above mentioned. I will examine the ground of the claim in each instance.

The first of these grants is in the following words: "Congress shall have power to establish post-offices and post-roads." What is the just import of these words and the extent of the grant? The word "establish" is the ruling term; "post-offices and post-roads" are the subjects on which it acts. The question therefore is, What power is granted by that word? The sense in which words are commonly used is that in which they are to be understood in all transactions between public bodies and individuals. The intention of the parties is to prevail, and there is no better way of ascertaining it than by giving to the terms used their ordinary import. If we were to ask any number of our most enlightened citizens, who had no connection with public affairs and whose minds were unprejudiced, what was the import of the word "establish" and the extent of the grant which it controls, we do not think there would be any difference of opinion among them. We are satisfied that all of them would answer that a power was thereby given to Congress to fix on the towns, court-houses, and other places throughout our Union at which there should be post-offices, the routes by which the mails should be carried from one post-office to another, so as to diffuse intelligence as extensively and to make the institution as useful as possible, to fix the postage to be paid on every letter and packet thus carried, to support the establishment, and to protect the post-office and mails from robbery by punishing those who should commit the offense. The idea of a right to lay off the roads of the United States on a general scale of improvement, to take the soil from the proprietor by force, to establish turnpikes and tolls, and to punish offenders in the manner stated above would never occur to any such person. The use of the existing road by the stage, mail carrier, or postboy in passing over it as others do is all that would be thought of, the jurisdiction and soil remaining to the State, with a right in the State or those authorized by its legislature to change the road at pleasure.

The intention of the parties is supported by other proof, which ought to place it beyond all doubt. In the former act of Government, the Confederation, we find a grant for the same purpose expressed in the following words: "The United States in Congress assembled shall have the sole and exclusive right and power of establishing and regulating post-offices from one State to another throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office." The term "establish" was likewise the ruling one in that instrument, and was evidently intended and understood to give a power simply and solely to fix where there should be post-offices. By transferring this term from the Confederation into the Constitution it was doubtless intended that it should be understood in the same sense in the latter that it was in the former instrument, and to be applied alike to post-offices and post-roads. In whatever sense it is applied to post-offices it must be applied in the same sense to post-roads. But it may be asked, If such was the intention, why were not all the other terms of the grant transferred with it? The reason is obvious. The Confederation being a bond of union between independent States, it was necessary in granting the powers which were to be exercised over them to be very explicit and minute in defining the powers granted. But the Constitution to the extent of its powers having incorporated the States into one Government like the government of the States individually, fewer words in defining the powers granted by it were not only adequate, but perhaps better adapted to the purpose. We find that brevity is a characteristic of the instrument. Had it been intended to convey a more enlarged power in the Constitution than had been granted in the Confederation, surely the same controlling term would not have been used, or other words would have been added, to show such intention and to mark the extent to which the power should be carried. It is a liberal construction of the powers granted in the Constitution by this term to include in it all the powers that were granted in the Confederation by terms which specifically defined and, as was supposed, extended their limits. It would be absurd to say that by omitting from the Constitution any portion of the phraseology which was deemed important in the Confederation the import of that term was enlarged, and with it the powers of the Constitution, in a proportional degree, beyond what they were in the Confederation. The right to exact postage and to protect the post-offices and mails from robbery by punishing the offenders may fairly be considered as incidents to the grant, since without it the object of the grant might be defeated. Whatever is absolutely necessary to the accomplishment of the object of the grant, though not specified, may fairly be considered as included in it. Beyond this the doctrine of incidental power can not be carried.

If we go back to the origin of our settlements and institutions and trace their progress down to the Revolution, we shall see that it was in this sense, and in none other, that the power was exercised by all our colonial governments. Post-offices were made for the country, and not the country for them. They are the offspring of improvement; they never go before it. Settlements are first made, after which the progress is uniform and simple, extending to objects in regular order most necessary to the comfort of man—schools, places of public worship, court-houses, and markets; post-offices follow. Roads may, indeed, be said to be coeval with settlements; they lead to all the places mentioned, and to every other which the various and complicated interests of society require.

It is believed that not one example can be given, from the first settlement of our country to the adoption of this Constitution, of a post-office being established without a view to existing roads or of a single road having been made by pavement, turnpike, etc., for the sole purpose of accommodating a post-office. Such, too, is the uniform progress of all societies. In granting, then, this power to the United States it was undoubtedly intended by the framers and ratifiers of the Constitution to convey it in the sense and extent only in which it had been understood and exercised by the previous authorities of the country.

This conclusion is confirmed by the object of the grant and the manner of its execution. The object is the transportation of the mail throughout the United States, which may be done on horseback, and was so done until lately, since the establishment of stages. Between the great towns and in other places where the population is dense stages are preferred because they afford an additional opportunity to make a profit from passengers; but where the population is sparse and on crossroads it is generally carried on horseback. Unconnected with passengers and other objects, it can not be doubted that the mail itself may be carried in every part of our Union with nearly as much economy and greater dispatch on horseback than in a stage, and in many parts with much greater. In every part of the Union in which stages can be preferred the roads are sufficiently good provided those which serve for every other purpose will accommodate them. In every other part where horses alone are used if other people pass them on horseback surely the mail carrier can. For an object so simple and so easy in its execution it would doubtless excite surprise if it should be thought proper to appoint commissioners to lay off the country on a great scheme of improvement, with the power to shorten distances, reduce heights, level mountains, and pave surfaces.

If the United States possessed the power contended for under this grant, might they not in adopting the roads of the individual States for the carriage of the mail, as has been done, assume jurisdiction over them and preclude a right to interfere with or alter them? Might they not establish turnpikes and exercise all the other acts of sovereignty above stated over such roads necessary to protect them from injury and defray the expense of repairing them? Surely if the right exists these consequences necessarily followed as soon as the road was established. The absurdity of such a pretension must be apparent to all who examine it. In this way a large portion of the territory of every State might be taken from it, for there is scarcely a road in any State which will not be used for the transportation of the mail. A new field for legislation and internal government would thus be opened.

From this view of the subject I think we may fairly conclude that the right to adopt and execute a system of internal improvement, or any part of it, has not been granted to Congress under the power to establish post-offices and post-roads; that the common roads of the country only were contemplated by that grant and are fully competent to all its purposes.