CHAPTER III THE POWER OF CONGRESS TO ESTABLISH POSTROADS Legislative Action.-Apart from the postoffice, problems of road construction and internal improvements, by the necessities of development, almost immediately confronted the new nation, which scanned the delegated powers in the Federal Constitution, and not finding any specific authorization of congressional action, asserted the right upon several clauses, among them being the one to establish postroads. By 1793 there were only one hundred and ninety-five postoffices throughout the country1 and communication was in a deplorable condition, what roads there were being little more than paths and quite impassable for wheeled vehicles. Yet communication was of the utmost importance, and especially was this true in respect to the West, it being thought that commercial and political development, if not actual retention, was impossible without easier means of access. Some road construction had been accomplished by private initiative with state aid, but the problem was not really attacked, and when in 1792 Congress established a postroute between Richmond, Va., and Danville, Ky., and later one between Philadelphia, Pittsburgh, and Louisville,2 the West became jealous of the facilities accorded the East. This feeling was encouraged by the Atlantic States being permitted by Congress to levy tonnage duties in order to effect the improvement of rivers and harbors. Appropriations had also been made by Congress for lighthouses, etc., and soon the demands of the Western States were too strong to be resisted. In 1806 Congress was forced to take definite action.⭑ 1 American State Papers, vol. xv (Postoffice), p. 28. 21 Stat. L. 233. 3 Lalor, Encyclopaedia of Political Science, vol. ii, p. 556. 41 Stat. L. 251. The constitutional problem, however, had for some time engaged the attention of the leading statesmen; all admitted the necessity for federal aid, but the power of Congress was seriously questioned. In his first annual address Washington urged the encouragement of "intercourse between the distant parts of our country by a due attention to the postoffice and postroads," and repeated this recommendation in later addresses. Chief Justice Jay had in 1790 given Washington his opinion, certainly entitled to great weight, that "the Congress have power to establish postroads. This would be nugatory unless it implied a power to repair these roads themselves, or compel others to do it. The former seems to be the more natural construction. Possibly the turnpike plan might gradually and usefully be introduced." But there were also many who held to a stricter construction of the Constitution. Jefferson was doubtful. Writing to Madison in 1796 he asked: “Does the power to establish postroads given you by Congress, mean that you shall make the roads, or only select from those already made those on which there shall be a post?" The one construction would give Congress enormous powers; the other, if inadequate, could be referred to the states for action.8 The question of federal power was first definitely raised in 1806 when the demands of the Western States became irresistible and Congress began the construction of the Cumberland Road, the famous highway which was to figure in the economic and political history of the United States for the next half century, and to arouse acute discussion as to the meaning of the postal clause. Ohio was admitted as 5 Richardson, vol. i, p. 66. • Ibid., pp. 83, 107. 7 Correspondence and Public Papers of John Jay (Ed. Johnston), vol. iii, p. 407. 8 Jefferson, Writings (Ed. Ford), vol. vii, p. 63. In the discussion of this undertaking and its relation to the postoffice clause of the Constitution, I have derived much assistance from Professor J. S. Young's "A Political and Constitutional Study of the Cumberland Road (University of Chicago Press, 1904), although this only incidentally considers the inquiry which my essay attempts. a state in 1802 and the opportunity was seized to make a mutually advantageous arrangement by which the United States would retain the same rights as to the public domain which it possessed while Ohio was yet a territory (control of lands as yet unpaid-for and suspension of state taxes), and on the other hand, as a quid pro quo, a percentage of the proceeds derived from the sale of certain of the lands, should be applied to defray the cost of road construction under the auspices of the general government. Such an arrangement was first proposed by Gallatin10 who urged "that one tenth part of the net proceeds of the lands hereafter sold by Congress shall, after deducting all expenses incident to the same, be applied towards laying out and making turnpike roads . . . under the authority of Congress, with the consent of the several states through which the same shall pass."11 The next action came three years later when Congress authorized the President to appoint a commission to lay out the road;12 consent to the construction had already been given by the legislatures of Maryland and Virginia, but not by that of Pennsylvania.1 Maryland's authorization for the improvement of postroads within the state was given in 1803 and contained a limitation to the effect that Congress was not thereby given the power "to cut down or use the timber or other material of any person or persons against his, her, or their consent,"1-an explicit denial of the right of eminent domain in connection with the postal power. In January, 1807, Jefferson received the report of the commission appointed to locate the road, but the President withheld either acceptance or disapproval until he should re 10 Gallatin, Writings (Ed. Adams), vol. i, p. 76; Letter to William B. Giles, chairman of the House of Representatives Committee for admitting the North Western Territory into the Union. 11 The proposed road fund of 10 per cent., however, was by the act which Congress passed on March 3, 1803, reduced to 5 per cent. with some restrictions as to expenditure within the state. 2 Stat. L. 226. 12 2 Stat. L. 357; Act of March 29, 1806. ceive "full consent to a free choice of route through the whole distance."15 When Pennsylvania acted, its legislature detailed the powers which the United States might exercise, and stipulated that persons whose property should be taken must be given compensation; but this was sufficient for the "full consent" which Jefferson demanded before the undertaking could be begun. Even with these limitations congressional action as to postroads had not been taken without some doubts as to its constitutionality; yet the demands for federal aid were so great and the responses so meagre that serious objection was not made. In spite of the fact that he had sanctioned appropriations for the improvement of a canal in Louisiana and a road from the Georgia frontier to New Orleans,16 Jefferson thought that the postal clause did not grant adequate power for the construction of roads by Congress.17 In his sixth annual message (after the passage of the Cumberland Road bill) he urged that the treasury's surplus should be applied "to the great purposes of the public education, roads, canals, and such other objects of public improvement as it may be thought proper to add to the constitutional enumeration of federal powers," but supposed that a constitutional amendment would be necessary.18 Two years later the growing surplus led him to return to the same theme. "Shall the revenue be reduced?" he asked. shall it rather be appropriated to the improvement of roads, canals, rivers, education, and other great foundations of prosperity and union, under the powers which Congress may already possess, or such amendment of the Constitution as may be approved by the states. While uncertain of the course of things the time may be advantageously employed "Or 15 Miscellaneous State Papers, vol. i, p. 474; Young, The Cumberland Road, p. 41. 16 2 Stat. L. 397, 516. 17 On August 31, 1806, Jefferson wrote to Gallatin, commenting on the latter's plan for internal improvements, with a word of suggestion as to branches, "if it be lawful and advisable to extend our operations to them." Jefferson, Writings (Ed. Ford), vol. viii, p. 466. 18 Richardson, vol. i, p. 409; Jefferson, vol. viii, p. 494. in obtaining the powers necessary for a system of improvement should that be thought best."19 It was not, however, until during Madison's administration that the question was to become an acute one. Under Washington and Adams there had been no appropriations for roads; under Jefferson Congress had given money for the Cumberland Road, for a route from the frontier of Georgia to New Orleans and a canal in Louisiana.20 But under Madison eleven acts were passed by Congress21 and these caused an exhaustive and sometimes acrimonious discussion of the constitutional principles involved, with the intervention of the President through admonitory messages and one veto, on the day before he was to give up his office. Madison's opinion as to whether the Constitution had given Congress the power to undertake the construction of roads seems not to have been absolutely consistent. Writing in The Federalist, he had urged as one of the advantages that the adoption of the Constitution would insure the fact that "intercourse throughout the union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travellers will be multiplied and meliorated; . . . The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete."22 On February 5, 1796, in the House, Madison offered a resolution authorizing the President to have made a survey of the postroad from Maine to Georgia, the expense being borne by the United States.23 Two good effects, said 19 Richardson, vol. i, p. 456; Jefferson, vol. ix, p. 224. 20 2 Stat. L. 357, 397. 21 A convenient list of these and of later laws is to be found in E. C. Nelson, “Presidential Influence on the Policy of Internal Improvements," Iowa Journal of History and Politics, vol. iv, App. A (p. 53 ff). 22 The Federalist, No. 14. 23 Annals of 4th Congress, Ist Sess., pp. 297, 314. A bill authorizing the survey passed the House on May 20. Ibid., p. 1415. |