Commentaries on the Constitution of the United States, by Joseph Story, 1833
Volume 1, Chapter 6, POWER TO ESTABLISH POST OFFICES AND POST-ROADS
§ 1119. The next power of congress is, “to establish post-offices and post-roads.” The nature and extent of this power, both theoretically and practically, are of great importance, and have given rise to much ardent controversy. It deserves, therefore, a deliberate examination. It was passed over by the Federalist with a single remark, as a power not likely to be disputed in its exercise, or to be deemed dangerous by its scope. The “power,” says the Federalist, “of establishing post-roads must, in every view, be a harmless power; and may, perhaps, by judicious management, become productive of great public conveniency. Nothing, which tends to facilitate the intercourse between the states, can be deemed unworthy of the public care.”1 One cannot but feel, at the present time, an inclination to smile at the guarded caution of these expressions, and the hesitating avowal of the importance of the power. It affords, perhaps, one of the most striking proofs, how much the growth and prosperity of the country have outstripped the most sanguine anticipations of our most enlightened patriots.
§ 1120. The post-office establishment has already become one of the most beneficent, and useful establishments under the national government.2 It circulates intelligence of a commercial, political, intellectual, and private nature, with incredible speed and regularity. It thus administers, in a very high degree, to the comfort, the interests, and the necessities of persons, in every rank and station of life. It brings the most distant places and persons, as it were, in contact with each other; and thus softens the anxieties, increases the enjoyments, and cheers the solitude of millions of hearts. It imparts a new influence and impulse to private intercourse; and, by a wider diffusion of knowledge, enables political rights and duties to be performed with more uniformity and sound judgment. It is not less effective, as an instrument of the government in its own operations. In peace, it enables it without ostentation or expense to send its orders, and direct its measures for the public good, and transfer its funds, and apply its powers, with a facility and promptitude which, compared with the tardy operations, and imbecile expedients of former times, seem like the wonders of magic. In war it is, if possible, still more important and useful, communicating intelligence vital to the movements of armies and navies, and the operations and duties of warfare, with a rapidity, which, if it does not always ensure victory, at least, in many instances, guards against defeat and ruin. Thus, its influences have become, in a public, as well as private view, of incalculable value to the permanent interests of the Union. It is obvious at a moment’s glance at the subject, that the establishment in the hands of the states would have been wholly inadequate to these objects; and the impracticability of a uniformity of system would have introduced infinite delays and inconveniences; and burthened the mails with an endless variety of vexatious taxations, and regulations. No one, accustomed to the retardations of the post in passing through independent states on the continent of Europe, can fail to appreciate the benefits of a power, which pervades the Union. The national government is that alone, which can safely or effectually execute it, with equal promptitude and cheapness, certainty and uniformity. Already the post-office establishment realizes a revenue exceeding two millions of dollars, from which it defrays all its own expenses, and transmits mails in various directions over more than one hundred and twenty thousand miles. It transmits intelligence in one day to distant places, which, when the constitution was first put into operation, was scarcely transmitted through the same distance in the course of a week.3 The rapidity of its movements has been in a general view doubled within the last twenty years. There are now more than eight thousand five hundred post-offices in the United States; and at every session of the legislature new routes are constantly provided for, and new post-offices established. It may, therefore, well be deemed a most beneficent power, whose operations can scarcely he applied, except for good, and accomplish in an eminent degree some of the high purposes set forth in the preamble of the constitution, forming a more perfect union, providing for the common defence, and promoting the general welfare.
§ 1121. Under the confederation, (art. 9,) congress was invested with the sole and exclusive power of “establishing and regulating post-offices from one state to another throughout 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.”4 How little was accomplished under it will be at once apparent from the fact, that there were but seventy-five post-offices established in all the United States in the year 1789; that the whole amount of postage in 1790 was only $37,935; and the number of miles travelled by the mails only 1875.5 This may be in part attributable to the state of the country, and the depression of all the commercial and other interests of the country. But the power itself was so crippled by the confederation, that it could accomplish little. The national government did not possess any power, except to establish post-offices from state to state, (leaving perhaps, though not intended, the whole interior post-offices in every state to its own regulation,) and the postage, that could be taken, was not allowed to be beyond the actual expenses; thus shutting up the avenue to all improvements. In short, like every other power under the confederation, it perished from a jealousy, which required it to live, and yet refused it appropriate nourishment and sustenance.6
§ 1122. In the first draft of the constitution, the clause stood thus, “Congress shall have power to establish post-offices.” It was subsequently amended by adding the words “and post-roads,” by the vote of six states against five; and then, as amended, it passed without opposition.7 It is observable, that the confederation gave only the power to establish and regulate post-offices; and therefore the amendment introduced a new and substantive power, unknown before in the national government.
§ 1123. Upon the construction of this clause of the constitution, two opposite opinions have been expressed. One maintains, that the power to establish post-offices and post-roads can intend no more, than the power to direct, where post-offices shall be kept, and on what roads the mails shall be carried.8 Or, as it has been on other occasions expressed, the power to establish post-roads is a power to designate, or point out, what roads shall be mail-roads, and the right of passage or way along them, when so designated.9 The other maintains, that although these modes of exercising the power are perfectly constitutional; yet they are not the whole of the power, and do not exhaust it. On the contrary, the power comprehends the right to make, or construct any roads, which congress may deem proper for the conveyance of the mail, and to keep them in due repair for such purpose.
§ 1124. The grounds of the former opinion seem to be as follows. The power given under the confederation never practically received any other construction. Congress never undertook to make any roads, but merely designated those existing roads, on which the mail should pass. At the adoption of the constitution there is not the slightest evidence, that a different arrangement, as to the limits of the power, was contemplated. On the contrary, it was treated by the Federalist, as a harmless power, and not requiring any comment.10 The practice of the government, since the adoption of the constitution, has conformed to this view. The first act passed by congress, in 1799, is entitled “an act to establish post-offices and post-roads.” The first section of this act established many post-offices as well as post-roads. It was continued, amended, and finally repealed, by a series of acts from 1792 to 1810; all of which acts have the same title, and the same provisions declaring certain roads to be post-roads. From all of which it is manifest, that the legislature supposed, that they had established post-roads in the sense of the constitution, when they declared certain roads, then in existence, to be post-roads, and designated the routes, along which the mails were to pass. As a farther proof upon this subject, the statute book contains many acts passed at various times, during a period of more than twenty years, discontinuing certain post-roads.11 A strong argument is also derivable from the practice of continental Europe, which must be presumed to have been known to the framers of the constitution. Different nations in Europe have established posts, and for mutual convenience have stipulated a free passage for the posts arriving on their frontiers through their territories. It is probable, that the constitution intended nothing more by this provision, than to enable congress to do by law, without consulting the states, what in Europe can be done only by treaty or compact. It was thought necessary to insert an express provision in the constitution, enabling the government to exercise jurisdiction over ten miles square for a seat of government, and of such places, as should be ceded by the states for forts, arsenals, and other similar purposes. It is incredible, that such solicitude should have been expressed for such inconsiderable spots, and yet, that at the same time, the constitution intended to convey by implication the power to construct roads throughout the whole country, with the consequent right to use the timber and soil, and to exercise jurisdiction over them. It may be said, that, unless congress have the power, the mail-roads might be obstructed, or discontinued at the will of the state authorities. But that consequence does not follow; for when a road is declared by law to be a mail-road, the United States have a right of way over it; and, until the law is repealed, such an interest in the use of it, as that the state authorities could not obstruct it.12 The terms of the constitution are perfectly satisfied by this limited construction, and the power of congress to make whatever roads they may please, in any state, would be a most serious inroad upon the rights and jurisdiction of the states. It never could have been contemplated.13
§ 1125. The grounds, upon which the other opinion is maintained, are as follows: This is not a question of implied power; but of express power. We are not now looking to what are properly incidents, or means to carry into effect given powers; but are to construe the terms of an express power. The words of the constitution are, “Congress shall have power to “establish post-offices and post-roads.” What is the true meaning of these words? There is no such known sense of the word “establish,” as to “direct,” “designate,” or “point out.” And if there were, it does not follow, that a special or peculiar sense is to be given to the words, not conformable to their general meaning, unless that sense be required by the context, or, at least, better harmonizes with the subject matter, and objects of the power, than any other sense. That cannot be pretended in the present case. The received general meanings, if not the only meanings of the word “establish,” are, to settle firmly, to confirm, to fix, to form or modify, to found, to build firmly, to erect permanently.14 And it is no small objection to any construction, that it requires the word to be deflected from its received and usual meaning; and gives it a meaning unknown to, and unacknowledged by lexicographers. Especially is it objectionable and inadmissible, where the received and common meaning harmonizes with the subject matter; and if the very end were required, no more exact expression could ordinarily be used. In legislative acts, in state papers, and in the constitution itself, the word is found with the same general sense now insisted on; that is, in the sense of, to create, to form, to make, to construct, to settle, to build up with a view to permanence. Thus, our treaties speak of establishing regulations of trade. Our laws speak of establishing navy-hospitals, where land is to be purchased, work done, and buildings erected; of establishing trading-houses with the Indians, where houses are to be erected and other things done. The word is constantly used in a like sense in the articles of confederation. The authority is therein given to congress of establishing rules in cases of captures; of establishing courts of appeal in cases of capture; and, what is directly in point, of establishing and regulating post-offices. Now, if the meaning of the word here was simply to point out, or designate post-offices, there would have been an end of all further authority, except of regulating the post-offices, so designated and pointed out. Under such circumstances, how could it have been possible under that instrument (which declares, that every power not expressly delegated shall be retained by the states) to find any authority to carry the mail, or to make contracts for this purpose? Much more to prohibit any other persons under penalties from conveying letters, despatches, or other packets from one place to another of the United States? The very first act of the continental congress on this subject was, “for establishing a post,” (not a post office;) and it directed, “that a line of posts be appointed under the direction of the postmaster general, from Falmouth, in New-England; to Savannah, in Georgia, with as many cross-posts, as he shall think fit;” and it directs the necessary expenses of the “establishment” beyond the revenue to be paid out by the United Colonies.15 Under this, and other supplementary acts, the establishment continued until October, 1782, when, under the articles of confederation, the establishment was re-organized, and, instead of a mere appointment and designation of post-offices, provision was made, “that a continued communication of posts throughout the United States shall be established and maintained,” etc.; and many other regulations were made wholly incompatible with the narrow construction of the words now contended for.16
§ 1126. The constitution itself also uniformly uses the word “establish” in the general sense, and never in this peculiar and narrow sense. It speaks in the preamble of one motive being, “to establish justice,” and that the people do ordain and establish this constitution. It gives power to establish an uniform rule of naturalization and uniform laws on the subject of bankruptcies. Does not this authorize congress to make, create, form, and construct laws on these subjects? It declares, that the judicial power shall be vested in one supreme court and in such inferior courts, as congress may, from time to time, ordain and establish. Is not a power to establish courts a power to create, and make, and regulate them? It declares, that the ratification of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same.17 And in one of the amendments, it provides, that congress shall make no law respecting an establishment of religion. It is plain, that to construe the word in any of these cases, as equivalent to designate, or point out, would be absolutely absurd. The clear import of the word is, to create, and form, and fix in a settled manner. Referring it to the subject matter, the sense, in no instance, can be mistaken. To establish courts is to create, and form, and regulate them. To establish rules of naturalization is to frame and confirm such rules. To establish laws on the subject of bankruptcies is to frame, fix, and pass them. To establish the constitution is to make, and fix, and erect it, as a permanent form of government. In the same manner, to establish post-offices and post-roads is to frame and pass laws, to erect, make, form, regulate, and preserve them. Whatever is necessary, whatever is appropriate to this purpose, is within the power.
§ 1127. Besides; upon this narrow construction, what becomes of the power itself? If the power be to point out, or designate post-offices, then it supposes, that there already exist some offices, out of which a designation can be made. It supposes a power to select among things of the same nature. Now, if an office does not already exist at the place, how can it be designated, as a post-office? If you cannot create a post-office, you can do no more, than mark out one already existing. In short, these rules of strict construction might be pressed still farther; and, as the power is only given to designate, not offices, but post-offices, the latter must be already in existence; for otherwise the power must be read, to designate what offices shall be used, as post-offices, or at what places post-offices shall be recognised; either of which is a departure from the supposed literal interpretation.
§ 1128. In the next place, let us see, what upon this narrow interpretation becomes of the power in another aspect. It is to establish post-offices. Now, the argument supposes, that this does not authorize the purchase or erection of a building for an office; but it does necessarily suppose the authority to erect or create an office; to regulate the duties of the officer; and to fix a place, (officina) where his business is to be performed. It then unavoidably includes, not merely a power to designate, but a power to create the thing intended, and to do all other acts to make the thing effectual; that is, to create the whole system appropriate to a post-office establishment. Now, this involves a plain departure from the very ground of the argument. It is no longer a power to designate a thing, or mark out a route; but it is a power to create, and fix every other thing necessary-and appropriate to post-offices. The argument, therefore, resorts to implications in order to escape from its own narrow interpretation; and the very power to designate becomes a power to create offices and frame systems, and institute penalties, and raise revenue, and make contracts. It becomes, in fact, the very thing, which the other argument supposes to be the natural sense, viz. the power to erect, and maintain a post-office establishment.
§ 1129. Under any other interpretation, the power itself would become a mere nullity. If resort be had to a very strict and critical examination of the words, the power “to establish post-offices” imports no more, than the power to create the offices intended; that done, the power is exhausted; and the words are satisfied. The power to create the office does not necessarily include the power to carry the mail, or regulate the conveyance of letters, or employ carriers. The one may exist independently of the other. A state might without absurdity possess the right to carry the mail, while the United States might possess the right to designate the post-offices, at which it should be opened, and provide the proper officers; or the converse powers might belong to each. It would not be impracticable, though it would be extremely inconvenient and embarrassing. Yet, no man ever imagined such a construction to be justifiable. And why not? Plainly, because constitutions of government are not instruments to be scrutinized, and weighed, upon metaphysical or grammatical niceties. They do not turn upon ingenious subtleties; but are adapted to the business and exigencies of human society; and the powers given are understood in a large sense, in order to secure the public interests. Common sense becomes the guide, and prevents men from dealing with mere logical abstractions. Under the confederation, this very power to establish post-offices was construed to include the other powers already named, and others far more remote. It never entered into the heads of the wise men of those days, that they possessed a power to create post-offices, without the power to create all the other things necessary to make post-offices of some human use. They did not dream of post-offices without posts, or mails, or routes, or carriers. It would have been worse than a mockery. Under the confederation, with the strict limitation of powers, which that instrument conferred, they put into operation a large system for the appropriate purposes of a post-office establishment.18 No man ever doubted, or denied the constitutionality of this exercise of the power. It was largely construed to meet the obvious intent, for which it was delegated. The words of the constitution are more extensive, than those of the confederation. In the latter, the words to establish “post-roads” are not to be found. These words were certainly added for some purpose. And if any, for what other purpose, than to enable congress to lay out and make roads?19
§ 1130. Under the constitution congress has, without any questioning, given a liberal construction to the power to establish post-offices and post-roads. It has been truly said, that in a strict sense, “this power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post-road from one post-office to another. And from this implied power has been again inferred the right to punish those, who steal letters from the post-office, or rob the mail. It may be said with some plausibility, that the right to carry the mail, and to punish those, who rob it, is not indispensably necessary to the establishment of a post-office and a post-road. This right is indeed essential to the beneficial exercise of the power; but not indispensably necessary to its existence.”20
§ 1131. The whole practical course of the government upon this subject, from its first organization down to the present time, under every administration, has repudiated the strict and narrow construction of the words above mentioned.21 The power to establish post-offices and post-roads has never been understood to include no more, than the power to point out and designate post-offices and post-roads. Resort has been constantly had to the more expanded sense of the word “establish;” and no other sense can include the objects, which the post-office laws have constantly included. Nay, it is not only not true, that these laws have stopped short of an exposition of the words sufficiently broad to justify the making of roads; but they have included exercises of power far more remote from the immediate objects. If the practice of the government is, therefore, of any weight in giving a constitutional interpretation, it is in favour of the liberal interpretation of the clause.
§ 1132. The fact, if true, that congress have not hitherto made any roads for the carrying of the mall, would not affect the right, or touch the question. It is not doubted, that the power has been properly carried into effect, by making certain state roads post-roads. When congress found those roads suited to the purpose, there could be no constitutional reason for refusing to establish them, as mail-routes. The exercise of authority was clearly within the scope of the power. But the argument would have it, that, because this exercise of the power, clearly within its scope, has been hitherto restrained to making existing roads post-roads, therefore congress cannot proceed constitutionally to make a post-road, where no road now exists. This is clearly what lawyers call a non sequitur. It might with just as much propriety be urged, that, because congress had not hitherto used a particular means to execute any other given power, therefore it could not now do it. If, for instance, congress had never provided a ship for the navy, except by purchase, they could not now authorize ships to be built for a navy, or à converso. If they had not laid a tax on certain goods, it could not now be done. If they had never erected a custom-house, or court-house, they could not now do it. Such a mode of reasoning would be deemed by all persons wholly indefensible.
§ 1133. But it is not admitted, that congress have not exercised this very power with reference to this very object. By the act of 21st of April, 1806, (ch. 41,) the president was authorized to cause to be opened a road from the frontier of Georgia, on the route from Athens to New-Orleans; and to cause to be opened a road or roads through the territory, then lately ceded by the Indians to the United States, from the river Mississippi to the Ohio, and to the former Indian boundary line, which was established by the treaty of Greenville; and to cause to be opened a road from Nashville, in the state of Tennessee, to Natchez, in the Mississippi territory. The same remark applies to the act of 29th of March, 1806, (ch. 19,) “to regulate the laying out and making a road from Cumberland, in the state of Maryland, to the state of Ohio.” Both of these acts were passed in the administration of President Jefferson, who, it is well known, on other occasions maintained a strict construction of the constitution.
§ 1134. But passing by considerations of this nature, why does not the power to establish post-offices and post-roads include the power to make and construct them, when wanted, as well as the power to establish a navy-hospital, or a custom-house, a power to make and construct them? The latter is not doubted by any persons; why then is the former? In each case, the sense of the ruling term “establish” would seem to be the same; in each, the power may be carried into effect by means short of constructing, or purchasing the things authorized. A temporary use of a suitable site or buildings may possibly be obtained with, or without hire. Besides; why may not congress purchase, or erect a post-office building, and buy the necessary land, if it be in their judgment advisable? Can there be a just doubt, that a power to establish post-offices includes this power, just as much, as a power to establish custom-houses would to build the latter? Would it not be a strange construction to say, that the abstract office might be created, but not the officina, or place, where it could be exercised? There are many places peculiarly fit for local post-offices, where no suitable building might be found. And, if a power to construct post-office buildings exists, where is the restraint upon constructing roads?
§ 1135. It is said, that there is no reason, why congress should be invested with such a power, seeing that the state roads may, and will furnish convenient routes for the mail. When the state-roads do furnish such routes, there can certainly be no sound policy in congress making other routes. But there is a great difference between the policy of exercising a power, and the right of exercising it. But, suppose the state-roads do not furnish (as in point of fact they did not at the time of the adoption of the constitution, and as hereafter, for many exigencies of the government in times of war and otherwise, they may not) suitable routes for the mails, what is then to be done? Is the power of the general government to be paralyzed? Suppose a mail-road is out of repair and founderous, cannot congress authorize the repair of it? If they can, why then not make it originally? Is the one more a means to an end, than the other? If not, then the power to carry the mails may be obstructed; nay, may be annihilated by the neglect of a state.22 Could it have been the intention of the constitution, in the exercise of this most vital power, to make it dependent upon the will, or the pleasure of the states?
§ 1136. It has been said, that when once a state-road is made a post-road by an act of congress, the national government have acquired such an interest in the use of it, that it is not competent for the state authorities to obstruct it. But how can this be made out? If the power of congress is merely to select or designate the mail-roads, what interest in the use is acquired by the national government any more, than by any travellers upon the road? Where is the power given to acquire it? Can it be pretended, that a state may not discontinue a road, after it has been once established, as a mail-road? The power has been constantly exercised by the states ever since the adoption of the constitution. The states have altered, and discontinued, and changed such roads at their pleasure. It would be a most truly alarming inroad upon state sovereignty to declare, that a state-road could never be altered or discontinued after it had once become a mail-road. That would be to supersede all state authority over their own roads. If the states can discontinue their roads, why not obstruct them? Who shall compel them to repair them, when discontinued, or to keep them at any time in good repair? No one ever yet contended, that the national government possessed any such compulsive authority. If, then, the states may alter or discontinue their roads, or suffer them to go out of repair, is it not obvious, that the power to carry the mails may be retarded or defeated in a great measure by this constitutional exercise of state power? And, if it be the right and duty of congress to provide adequate means for the transportation of the mails, wherever the public good requires it, what limit is there to these means, other than that they are appropriate to the end?23
§ 1137. In point of fact, congress cannot be said, in any exact sense, to have yet executed the power to establish post-roads, if by that power we are to understand the designation of particular state-roads, on which the mails shall be carried. The general course has been to designate merely the towns, between which the mails shall be carried, without ascertaining the particular roads at all. Thus, the Act of 20th of February, 1799, ch. 7, (which is but a sample of the other acts,) declares, that “the following roads be established, as post-roads, namely, from Wiscasset in the District of Maine to Savannah in Georgia, by the following route, to wit: Portland, Portsmouth, Newburyport, Ipswich, Salem, Boston, Worcester,” etc. etc.; without pointing out any road between those places, on which it should be carried. There are different roads from several of these places to the others. Suppose one of these roads should be discontinued, could the mail-carriers insist upon travelling it?
§ 1138. The truth is, that congress have hitherto acted under the power to a very limited extent only; and will forever continue to do so from principles of public policy and economy, except in cases of an extraordinary nature. There can be no motive to use the power, except for the public good; and circumstances may render it indispensable to carry it out in particular cases to its full limits. It has already occurred, and may hereafter occur, that post-roads may be important and necessary for the purpose of the Union, in peace as well as in war, between places, where there is not any good state-road, and where the amount of travel would not justify any state in an expenditure equal to the construction of such a state-road.24 In such cases, as the benefit is for the Union, the burthen ought to be borne by the Union. Without any invidious distinction, it may be stated, that the winter mail-route between Philadelphia, and Baltimore, and Washington, by the way of the Susquehannah and Havre de Grace, has been before congress under this very aspect. There is no one, who will doubt the importance of the best post-road in that direction; (the nearest between the two cities;) and yet it is obvious, that the nation alone can be justly called upon to provide the road.
§ 1139. Let a case be taken, when state policy or state hostility shall lead the legislature to close up, or discontinue a road, the nearest and the best between two great states, rivals perhaps for the trade and intercourse of a third state, shall it be said, that congress has no right to make, or repair a road for keeping open for the mail the best means of communication between those states? May the national government be compelled to take the most inconvenient and indirect routes for the mail?25 In other words, have the states a power to say, how, and upon what roads the mails shall, and shall not travel? If so, then in relation to post-roads, the states, and not the Union, are supreme.
§ 1140. But it is said, that it would be dangerous to allow any power in the Union to lay out and construct post-roads; for then the exercise of the power would supercede the state jurisdiction. This is an utter mistake. If congress should lay out and construct a post-road in a state, it would still be a road within the ordinary territorial jurisdiction of the state. The state could not, indeed, supercede, or obstruct, or discontinue it, or prevent the Union from repairing it, or the mails from travelling on it. But subject to these incidental rights, the right of territory and jurisdiction, civilly and criminally, would be complete and perfect in the state. The power of congress over the road would be limited to the mere right of passage and preservation. That of the state would be general, and embrace all other objects. Congress undoubtedly has power to purchase lands in a state for any public purposes, such as forts, arsenals, and dock-yards. So, they have a right to erect hospitals, custom-houses, and courthouses in a state. But no person ever imagined, that these places were thereby removed from the general jurisdiction of the state. On the contrary, they are universally understood for all other purposes, not inconsistent with the constitutional rights and uses of the Union, to be subject to state authority and rights.
§ 1141. The clause respecting cessions of territory for the seat of government, and for forts, arsenals, dockyards, etc. has nothing to do with the point. But if it had, it is favourable to the power. That clause was necessary for the purpose of ousting the state jurisdiction in the specified cases, and for vesting an exclusive jurisdiction in the general government. No general or exclusive jurisdiction is either required, or would be useful in regard to post-roads. It would be inconvenient for congress to assemble in a place, where it had not exclusive jurisdiction. And an exclusive jurisdiction would seem indispensable over forts, arsenals, dock-yards, and other places of a like nature. But surely it will not be pretended, that congress could not erect a fort, or magazine, in a place within a state, unless the state should cede the territory. The only effect would be, that the jurisdiction in such a case would not be exclusive. Suppose a state should prohibit a sale of any of the lands within its boundaries by its own citizens, for any public purposes indispensable for the Union, either military or civil, would not congress possess a constitutional right to demand, and appropriate land within the state for such purposes, making a just compensation? Exclusive jurisdiction over a road is one thing; the right to make it is quite another. A turnpike company may be authorized to make a road; and yet may have no jurisdiction, or at least no exclusive jurisdiction over it.
§ 1142. The supposed silence of the Federalist26 proves nothing. That work was principally designed to meet objections, and remove prejudices. The post-office establishment in its nature, and character, and purposes, was so generally deemed useful and convenient, and unexceptionable, that it was wholly unnecessary to expound its value, or enlarge upon its benefits.
§ 1143. Such is a summary of the principal reasoning on each side of this much contested question. The reader must decide for himself, upon the preponderance of the argument.
§ 1144. This question, as to the right to lay out and construct post-roads, is wholly distinct from that of the more general power to lay out and make canals, and military and other roads. The latter power may not exist at all; even if the former should be unquestionable. The latter turns upon a question of implied power, as incident to given powers.27 The former turns upon the true interpretation of words of express grant. Nobody doubts, that the words “establish post-roads,” may, without violating their received meaning in other cases, be construed so, as to include the power to lay out and construct roads. The question is, whether that is the true sense of the words, as used in the constitution. And here, if ever, the rule of interpretation, which requires us to look at the nature of the instrument, and the objects of the power, as a national power, in order to expound its meaning, must come into operation.
§ 1145. But whatever be the extent of the power, narrow or large, there will still remain another inquiry, whether it is an exclusive power, or concurrent in the states. This is not, perhaps, a very important inquiry, because it is admitted on all sides, that it can be exercised only in subordination to the power of congress, if it be concurrent in the states. A learned commentator deems it concurrent, inasmuch as there seems nothing in the constitution, or in the nature of the thing itself, which may not be exercised by both governments at the same time, without prejudice or interference; but subordinate, because, whenever any power is expressly granted to congress, it is to be taken for granted, that it is not to be contravened by the authority of any particular state. A state might, therefore, establish a post-road, or post-office, on any route, where congress had not established any.28 On the other hand, another learned commentator is of opinion, that the power is exclusive in congress, so far as relates to the conveyance of letters, etc.29 It is highly improbable, that any state will attempt any exercise of the power, considering the difficulty of carrying it into effect, without the co-operation of congress.
1. The Federalist, No. 42.
2. 1 Tuck. Black. Comm. App. 265; Rawle on the Const. ch. 9, p. 103.
3. In the American Almanac and Repository published at Boston, in 1830, (a very valuable publication,) there is, at page 217, a tabular view of the number of post-offices, and amounts of postage, and net revenue and extent of roads in miles travelled by the mail for a large number of years between 1790 and 1828. In 1790 there were seventy-five post-offices, and the amount of postage was $37,935. and the number of miles travelled was 1875. In 1828 there were 7530 post-offices, and the amount of postage was $1,659,915, and the number of miles travelled was 115,176. See also American Almanac for 1839, p. 134. And from Dr. Lieber’s Encyclopedia Americana, (article Posts,) it appears, that in 1831, the amount of postage was $1,997,811, and the number of miles travelled 15,468,692. The first post-office, ever established in America, seems to have been under an act of parliament, in 1710. Dr. Lieber’s Encyc. Amer. article Posts.
In Mr. Professor Malkin’s introductory Lecture on History, before the London University, in March, 1830, he states, (p. 14,) “It is understood, that in England the first mode adopted for a proper and regular conveyance of letters was in 1649, weekly, and on horseback to every part of the kingdom. The present improved system by mail-coaches was not introduced until 1782.”
4. There is, in Bioren and Duane’s Edition of the Law of the United States, (Vol. 1, p. 649, &c.) an account of the post-office establishment, during the revolution and before the constitution was adopted. Dr. Franklin was appointed in July, 1775, the first Postmaster General. The act of 1782 directed, that a mail should be carried at least once in every week to and from each stated post-office.
5. American Almanac, 1830, p. 217; Dr. Lieber’s Encyc. Amer. article Posts, ante, vol. iii. p. 24, note.
6. See Sergeant on Const. Introduction, p. 17, (2d Edition.)
7. Journal of Convention. 220, 256, 257, 261, 357.
8. 4 Elliot’s Debates, 279.
9. 4 Elliot’s Debates, 354; Ibid. 233.
10. The Federalist, No. 42.
11. 4 Elliot’s Debates, 354.
12. 4 Elliot’s Debates, 354, 355.
13. Aware of the difficulties attendant upon this extremely strict construction, another has been attempted, which is more liberal, but which it has been thought (as will be hereafter seen) to surrender the substance of the argument. It will be most satisfactory to give it in the very words of its most distinguished advocate:
“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 connexion 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, that 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-offices and mails from robbery, by punishing those, who should commit the offence. 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 end 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 post-boy, 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 the United States, and of exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said post-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 most 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 cannot 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 he 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. &c. 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 horse-back, 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 cross roads, it is generally carried on horseback. Unconnected with passengers and other objects, it cannot be doubted, that the mail itself may be carried in every part of our Union, with nearly as much economy, and greater despatch, 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 the 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.” President Monroe’s Message, of 4th May, 1822, p. 24 to 27.
14. Johnson’s Dict. ad verb.; Webster’s Dict. ibid.
15. Ordinance of 26th July 1775; 1 Journal of Congress, 177, 178.
16. Ordinance, 18 Oct. 1782; 1 U. S. Laws, (Bioren & Duane,) 651; 7 Journ. of Congress, 503.
17. See 4 Elliot’s Debates, 356.
18. See Act of 18th of October, 1782.
19. 4 Elliot’s Debates, 356.
20. M’Culloch v. Maryland, 4 Wheat. R. 316, 417.
21. See the laws referred to in Post-Master-General v. Early, 12 Wheat. R. 136, 144, 145.
22. 4 Elliot’s Debates, 356.
23. 4 Elliot’s Debates, 356.
24. See Rawle on the Constitution, ch. 9, p. 103, 104.
25. 4 Elliot’s Debates, 356.
26. No. 42.
27. See Rawle on the Constitution, ch. 9, p. 104.
28. 1 Tuck. Black. Comm. App. 265.
29. Rawle on the Constitution, ch. 9, p. 103, 104.
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