Графични страници
PDF файл
ePub

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 mail, 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

[ocr errors]

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 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.1 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 stateroad is made a post-road by an act of congress, the national government have acquired such an interest in

[blocks in formation]

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?1

14 Elliot's Debates, 356.

§ 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, 1792, ch. 7, (which is but a sample of the other acts,) declares, that "the following roads be established, as postroads, 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," &c. &c.; 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

« ПредишнаНапред »