The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1839-01-31

the double admission that roads may b. laid OUT
by Congress through the several states, with their
consent and thai The expenses OF constructing such
roads may eonslilulionally be betrayed oul oi the
| funds OF the United States The act was approved
by The President In office, in 1906 and other acls
confirming, amending, and enlarging H. were pasSea
by subsequent legislatures IN the years iolV ioii,
and 1915, and approved by the President ~ olhee'
at those periods nay, more The three lasi aedS eo
tanned appropriations 10 the amount o. zioooo uoi,
lars payable out OF any moneys in The treasury ou'
| reimbursabIe out of the Ohio fund-a fund which
mi ght or might not prove adequate, ana Which, ~
point of fact is believed hitherto to have been insai-
| iciebt "..,
similar TO this act in some Of its provisions and
| analogous In principle the acts Of April 2lst
1906 and oiihe Sd Of March, 1917, authorizing roads
| 10 be opened from Nashville and Reynoldsburg, in
the stale Of Tennessee, TO different points in The Mis-
sissppi territory But these acts go still further than
the former, in emitting 10 require The reriOas consent
Of the state Of Tennessee through whose territories
part OF the roads was 70 pass, and IN directing lhe
expenses OF making them TO be betrayed out OF the
public treasury OF The United States, without provid
| ing for It's reimbursement in any manner whatsoever.
But lest the influence 10 be derived from these adj
missions Should be deemed 10 be weakened by The
consideration that the collision Of opinion on the
constitutional question has arisen since the passage
of those laws your committee will beg leave 10 refer
TO the date Of the last act above mentioned and TO
certain transactions OF date Subsequent to the i'm
portant and well remembered difference of opinion
between the Executive and Legislature, al the last
session of Congress. Since that period, they have
satisfactory information that road has been direct
ed by THE Executive of the United States 10 be impro-
we'd, al the expense of the general government, and
doubtless for military purposes. This road is laid
out from Plasburg, or lis vicinity, in the state Of n.
i York 10 Sackett's Harbor, in the same state.
tits presumed, that il is to be constructed at the
expense Of The general government, and Is under
stood that The previous assent of the state has olbeen
procured rita.
From this act, therefore, of the Executive branch
Of the government, emanang from that source at a
late date IL would seem fair 10 inter, that The consi-
uion is admitted 10 have conferred upon The gene
raj government power, in some cases, 10 make roads,
and 10 deray the expense of their cons ruction out of
the funds Of the United States And as the power
is not denied in all your committee will at
tempt 10 show that Congress has the power,
/. To lay out, construct, and improve post roads
through the several states, with the assent of the res
pective states And,
2. To open, construct and improve military roads,
through the several states, with the assent of the res
pective states.
g. To cut canals through the several states, with
their assent for promoting and giving security TO in
ternal commerce, and for the more safe and econo-
mica transportation omilitary stores &c In time OF
war; leaving in all these cases the jurisdicional
right over the soil in the respective states.
In examining the suundness OF these positions, your
committee will not find il necessaryto resort to what
is called liberal construction of the constitution
They might indeed, contend that as the powers here
attributed 10 the United States are not in deIogalion
of slate rights, (s'ce they only be exercised by
their assen there is less reason for adhering to
treme rigor of construction. Where the authority
claimed bV the general government is oppressive in
lis character, or dangerous in its tendencies where
II is asserted without Difference 10 state assent and in
derogalion OF state power: where il is calculated 10
aggrandize the union, and to depress its members,
there may be so ne for holding the repreSen-
tatives OF the nation 10 the letter OF their authority
But where the powers ought To be exercised is benef-
cent in its effects, and only felt in the blessing
ers where II is not proposed 10 act except with the
assent Of the party which is TO be affected where the
naIn Cd ,,nr ~.
and the power of the state, Than to aggrandize The
union al It's expense, ii mi ht fairly be commended that
less rigorous construction Of the constitution would
be justiiable IL is neither Unprecedented or mpro-
per To construe the same instrument, bt rally where
the interests of the contracting parties will be thereby
promoted, and 10 adhere to greater strctness where
injury may arise TO either by an Interpretation too
laudinous. That the powers in question are neither
dangerous in their tendencies calculated to prove
injurious 10 the states would seem fairly inferabe
from the recommendation TO amend the constitution
and IRON the Importance so Justly attached TO these
objects all hands.
| But your committee, nevertheless d. not conceive
it necessary to call to their aid the liberal principles
OF construction which The occasion might justify.
They disavow any use of the general phrase in the
constitution TO provide for the common defence and
general welfare, applicable to the enumeration of
powers, or as extending the power of Congress be-
yond the specified powers; and they admit that to
support therPssitions must appear that the powers
commended for are expressly granted that they arc
both necessary and proper" for carrying into exc
cution some other express power.
That Congress, with the assent Of the states re.
speclively, may construct and improve their post
roads, under the power TO establish post Offices and
post roads, seems be manifest both from the ma
ture OF things, and from analogous constructions of
the constitution Ii has been commended indeed that
the word establish in this clause of the instrument,
comprehends nothing more than mere designation
of post roads But if this be true the important
powers conferred on the general government in re-
ation to the post office, might be rendered in great
measure inefficient and impracticable. In some
states power is vested in the inferior tribunals or
county courts 10 discontinue roads at their diScre-
ton; post road designated by Congress might thus
be discontinued to the great embarrassment Of the
post office establishment. II the power to establish
fconfers only the authority to designate, Congress
can have no right either TO keep ferry a deep
and rapid river, for the transportation Of the mails
or TO compel the owners OF ferry to perform that
service; and yet our laws contain an act acquesced
in for more than twenty years, imposing penalties on
ferrymen for OBTAINING the mail and on o,her per-
sons for relardng or obstructing its passage. 1t
would be difficult To discover how this power OF i'm
posing penalties can be supported, either origi.
nal or accessory power except upon principles of
! more liberal construction than those now advanced.
There are, therefore, not few who believe that,
| under the authority TO ESTABLISH" post roads, Con-
gresS have express power to lay out construct and
improve roads for the transportation of the mails.
| But, however this may be the authority which is
conferred by the constitution 10 make all laws which
shall be necessary and proper" for carrying into
| "Nioh 'h' PoWels 10 W vest
In the general government all the means, which are
essential to the complete enjoyment of the privilege
OF establishing post offices and post roads" Even
without this clause of the constitution the same prin-
cple would have applied TO its construction, since,
according to common understanding the grant of
power implies grant of whatever is necessary TO its
enjoyment
Taking these principles for our guide, it NAV be
asked II under the narrow rules OF construction con-
tended for the right of Transporting the mails would
not be held entirely al the will of The states respec-
lively; on the other hand, il the United States have
the privilege OF establishing post roads and are I'M
der the corresponding obligation of Transporting The