The Madisonian. [volume] (Washington City [D.C.]) 1837-1845, 1839-02-02

nave no right elIner 10 keep over Qecp
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 acquieseed
IN Tor more than twenty years imposing penalties on
ferrymen for OBTAINING the mail and on other per-
sons for retarding or obStTuctng its passage. II
would be difficult 10 discover how this power OF inn
posing penalties can be supported either as an orgi.
nal or accessory power except upon principles OF
more liberal construction than those now advanced
There are, therefore, not few who believe thai,
under the authority 10 "esta6lih" post roads, Con-
gress have express power to lay out, construct and
1 Improve roads for the transportation ofthe mails.
| But, however this may be. the authority which is
conferred by the constitution TO make all laws which
shall be necessary and proper for carrying into
execution the enumerated powers, is believed 10 vest
in the general government all the means, which are
essential 10 the complete enjoyment OF the privilege
Of establishing post Offices and post roads" Even
without this clause of the constitution the same prIn-
cipe would have applied 10 its construction, since,
according TO common understanding the grant OF
power implies grant ofwhatever is necessary 10 its
enjoyment.
| Taking these principles for our guide, il may be
asked If under the narrow rules OF construction con-
tended for the right of transporting the mails would
not be held entirely the will Of the states respec-
lively; on the other hand, il the United States have
the privilege of establishing post roads, and ale I'M
der the corresponding obligation of transporting the
mails, is not essential to the performance OF this
duty and TO the enjoyment Of this power, that they
should have the right with the assent OF the respec
tive slates) 10 throw bridges over deep and rapid
streams, to remove embarrassing and dangerous OBJ
struclons in the roads which they have the privi-
lege OF using to level mountains which impede the
velocity Transportation and to render passable the
mofasses which intersect the roads through various
parts Of the union7 Can il be supposed, that The
convention, in comforting the power and imposing
the duty of Transporting the mails, Gin IFS nature
mater of national concern) intended 10 vest In Con-
gresS the authority designate the roads over
which il should be carried2 Can il be denied that
the right TO render road passable is necessary" to
he onf nf he DFiV nff q
mails; or can it be denied that such Improvement,
with the assent or the states, is "properW And II
necessary and proper" rs 1t not justified as an in
cidental powera
II is indeed from the operation of these words,
necessary and proper" in the clause of the cons-
tution which grants necessary powers, that the as
sent The respective states is conceived 10 be pre-
requisite TO the improvement even of post roads,
For, however necessary" such improvement might
be, it might be questioned how far interference
with the state jurisdiction over its SOIL against its
will might be "proper." Nor is this instance of an
imperfect right in the general government without
an analogy in the consitution-he power of exercis
ing jurisdiction forts, magazines arsenals and
dock yards depending upon previous purchase by
the United States, a0ith the consent Of the state
Admitting, then that the constitution confers only
right of acay, and that the rights Of soil and jurs
dction remain exclusively with the states respec-
lively yet there seems no sound objection 10 he inn
provemen of roads acih their assent For if by the
10th amendment, this right is reserved 10 the States
| IL IS WITHIN Inc power oil the STATE 10 grant u
unless the United States are incapable of receiving
such privilege. Butby various acts Of the govern
ment, whose validity has never been questioned, it
appears to possess not merely the power of receiving
so unimportant privilege as this but Of acquiring
4 territory ad lbitim The acquisition of Louisiana,
one of the happest events of our political history,
evnces the power oflhs government to acquire ter
rtory by treaty from foreign nations. The cession
of the northwest territory by Virginia, shows that,
under the strict principles of the old confederation,
which had SO few features of nationality the United
States were deemed to have the power of acquiring
lands even from the states Of the confederacy. The
Georgia cession, completed about the year 1902 is
finally decisive OF the practical and undisputed ex-
ercise of power in the general government TO re-
ceive cession of territory from any member in the
confederacy under the present constitution But If
the general government have the power to ,aggran-
die itself by the acquisition of territories can the i'm
feror privilege be denied them of receiving from
state the right Of making or repairing the roads
over which they are compelled 10 transport the mails
through the unipnI yf
Moreover, II seems to be admitted that the United
States have, since the Georgia cession, con-
stitutional right to make and repair roads in the
ceded territory. II then, by the transfer of the ter
ritory Georgia could give, and the United States
ceive the right to make roads within it, ii is difficult
to imagine substantial objection TO the validity
of grant to make road, without transfer OF the
territory.
q Your committee conceive that the general GO
vernment has the power of making and opening
military roads NTH the assent of the respective states,
with view to the common defence of the nation
The power Of opening road during actual hos
lies for the purpose of transporting military stores
and marching troops to points that are menaced has
never yet been called in question. In truth, with
out such power the United States must fall a prey
to foreign enemies so it seems fair to assume that
i whenever a military road becomes necessary for
the national safety il is in the power of the general
government TO construct it. OF this necessity that
government can be the only Judge; and if the power
Of Judging OF this necessity be in them, the constu
tiona power to act must of course be conceded In
the exercise of this discretion, very general sen-
ment at present prevails in favor of preparations
during peace for state of war. And If the power
Of Judging achent is necessary be admitted, the
stitutional right to do it at any lime must be al
4 lowed
1t is not proposed to enter upon the delicate inqui
rywhether this right be exercised blythe general
government sohout the assent ofthe respective Aates
/ through whose territories road is constructed in
time of peace, with view 10 military operations in
any future wars Leaving this question for discus
sion whenever the occasion NAV call ii forth, your
committee content in this report, to assert the
right to exercise this necessary" power Nth the
| assent of The states
Having taken this cursory view of the principles
the constitution in relation to the construction of
roads by the United States il may not be unimpor-
tan examine what has been the practice under its
provisions. The laws of the union and The acts of
the executive branch OF the government though they
cannot be relied on 10 support acknowledged error,
may safely be referred to in aid of our inquiries as
to the proper construction Of the constitution
Amongst the most conspicuous Of the analogies
afforded by the acts Of Congress in the establishment
Of the Cumberland road already mentioned. This
road has been constructed under the authority OF the
United States, with their funds and through several
OF the states with their assent 1t has received the
sanction of several distinct representative bodies
and OF two presidents Of the United States. In
short, If precedent alone we're wanting, this act
would furnish it,
Passing over the road from Nashville to Natchez,
and the road from Reynoldsburg to part of the late
territory of Mississippi directed by an act of the last
session OF Congress- both Of which afford precedents
no less strong we come to the military road lately
directed by the executive authority to be constructed
from Pittsburgh or its vicinity to Sacketts Harbor
This road Is not TO be constructed with any express
assent of the state through which passes nor by the
authority of Congress, but the president has deemed