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."

Among enlightened citizens, Monroe went on, there would be no difference of opinion; "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 postoffices; the routes by which the mails should be carried from one postoffice 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 postoffices 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 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."

This interpretation, the message went on to declare, was supported by the modification of the postal grant in the Articles of Confederation, as it appeared in the Constitution. “Had it been intended to convey a more enlarged power in the Constitution," said Monroe, "than had been granted in the Confederation, surely the same controlling term [establish] 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 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 postoffices 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." Monroe then enters upon a consideration of what the colonists and framers of the Constitution understood to be comprehended in the postal power, and concludes:

"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."50

50 The validity of Monroe's argument is treated below, p. 81. Perhaps it may not be amiss to add that I have not attempted an exhaustive consideration of congressional activity in respect to road construction. This has been done by Nelson, Presidential Influence on the Policy of Internal Improvements, and Young, A Political and Constitutional Study of the Cumberland Road. There are also excellent and less specialized accounts in Babcock, The Rise of American Nationality, ch. xv, Turner, The Rise of the New West, ch. xiii (American Nation, vols. 13 and 14), and Schouler, History of the United States, vol. iii. My sole purpose has been to treat congressional action and presidential opinion from their constitutional aspects in relation to the power to establish postoffices and postroads.

While the President's attitude stopped Congress from actually constructing roads, frequent appropriations were granted to be applied under the direction of the states. Perhaps the most important of these was in the act passed in 1824 to have surveys made of such roads and canals as in the opinion of the President were of value for military, commercial and postal purposes.51

Conflict over the constitutional problem, and the distinction between appropriation and construction, were, however, abandoned by John Quincy Adams who was a stanch advocate of federal aid,52 but the discussion was revived by Jackson, who vetoed six bills,53 the most important of which provided for a government subscription of $150,000 to purchase stock in the Maysville, Washington, Paris and Lexington Turnpike Company, a Kentucky corporation. The action of the President did not come as a surprise for in his first annual message he had told Congress that the mode of internal improvements, "hitherto adopted, has by many of our fellow citizens been deprecated as an infraction of the constitution, while by others it has been viewed as inexpedient. All feel that it has been employed at the expense of harmony in the legislative councils."54

Furthermore, Jackson thoroughly disapproved of the government's becoming a minority stockholder in a semi-private enterprise which would receive profits through the payment of tolls. He held it to be not only "highly expedient, but indispensably necessary, that a previous amendment of the Constitution, delegating the necessary power and defining and restricting its exercise with reference to the sovereignty of the states, should be made."55 Otherwise there would be a continuance of congressional uncertainty as to the existence of the power. He considered the general question in

51 4 Stat. L. 71; for the list of appropriations, see Nelson, p. 57; see also Lalor, Cyclopaedia of Political Science (Internal Improvements), vol. ii, p. 568.

52 Richardson, vol. ii, p. 281.

53 Mason, The Veto Power, pp. 143, 145.

54 Richardson, vol. ii, p. 452.

55 Ibid., vol. ii, p. 492.

two aspects: (1) as "to the power of making internal improvements within the limits of a state, with the right of territorial jurisdiction, sufficient at least for their preservation and use" and (2) as to the power of "appropriating money in aid of such works when carried on by a state or by a company in virtue of state authority, surrendering the claim of jurisdiction."56 He believed Congress could appropriate directly for national, not local, purposes; the other power he firmly denied.

After Jackson there were other vetoes of internal improvement bills, but they were based largely upon the distinction between national and local objects. Road construction, moreover, gave way to river and harbor development, and there was little, if any, discussion of the meaning of the postal clause. Congress asserted a broad power over postroads designated by it, and there was little objection; on the few occasions that the matter came before the courts, the power was sustained. In 1862 Congress gave the President authority when in his judgment the public safety required its exercise, to take possession of all railroads and telegraphs and to place their employees under military control, so that the lines would be “considered as a postroad and a part of the military establishment of the United States, subject to all the rules and restrictions imposed by the rules and articles of war."57 Any interference with the exercise of this authority was made a crime. Compensation to the railroad and telegraph companies was to be fixed by three commissioners, subject to approval by Congress. This authorization, however, was based upon the war, as well as on the postal power, and when Congress came to charter railroads and bridge companies, it based its right largely on the commerce clause, with the postal and war grants as ancillary sources.58

Recent evidences of congressional action, based upon the

56 Richardson, vol. iii, p. 119; Bassett, Life of Andrew Jackson, vol. ii, pp. 483-495.

57 12 Stat. L. 334.

58 See also Act of July 1, 1862; 12 Stat. L. 489.

postroads clause, are to be seen in the good roads movement, and in 1912 Congress appropriated five hundred thousand dollars for "improving the condition of roads to be selected by them [the secretary of agriculture and the postmaster general] over which rural delivery is or may hereafter be established, such improvement to be for the purpose of ascertaining the increase in the territory which could be served by each carrier as a result of such improvement, the possible increase of the number of delivery days in each year," etc. But it is provided that the state in which the improvements are to be made "shall furnish double the amount of money for the improvement of the road or roads so selected."59 The results of the scheme have not been very satisfactory, but proposals are made for other, and more extensive federal undertakings. Finally it is possible, in some measure at least, to base upon the postal power the Act of March 12, 1914, which authorizes "the president of the United States to locate, construct and operate railroads in the Territory of Alaska.”61

60

4

Judicial Determinations.-The power of Congress to construct roads and canals did not, in the early days of its assertion and denial, come before the Supreme Court of the United States; in fact, the question has never been directly passed upon by the Court, and long before it was incidentally considered, largely in the cases upholding the right of eminent domain and its delegation to railroad corporations with federal charters, the constitutional problem, as Madison said in rejecting the bank bill of 1814, was "precluded by repeated recognitions, under varied circumstances, of the validity of the exercise of a power to establish a bank by Congress, in acts of the legislative, executive, and judicial branches of the government, accompanied by indications in 59 37 Stat. L. 552.

60 Sloane, Party Government in the United States of America, p. 316.

61 Public, No. 69, 63d Congress; Act of March 12, 1914. See also 63d Cong., 1 Sess., S. Rept. No. 65; 63d Cong., 2d Sess., H. Rept. No. 341, and Weems, "Government Railroads in Alaska," North American Review, April, 1914.