power to establish postoffices and postroads." What is the just import of these words, and the extent of the grant? The word "establish," is the ruling term; "postoffices and postroads" are the subjects on which it acts. The question, therefore, is, what power is granted by that word? The sense in which words are commonly used, is that in which they are to be understood in all transactions between public bodies and individuals. 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. If we were to ask any number of our most enlightened citizens, who had no connexion with public affairs, and whose minds were unprejudiced, what was the import of the word " establish," and the extent of the grant which it controls, we do not think that there would be any difference of opinion among them. We are satisfied that all of them would answer, that a power was thereby given to Congress, to fix on the towns, courthouses, 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.

The intention of the parties is supported by other proof, which ought to place it beyond all doubt. In the former act of government, the confederation, we find a grant for the same purpose, expressed in the following words: "The United States in Congress assembled, shall have the sole and exclusive right and power of establishing and regulating postoffices from one state to another, throughout the United States, and of exacting such postage on the papers passing through the same, as may be requisite to defray the expenses of said postoffice." The term "establish" was likewise the ruling one in that instrument, and was evidently intended, and understood, to give a power simply and solely to fix where there should be postoffices. By transferring this term from the confederation into the constitution, it was doubtless intended that it should be understood in the same sense in the latter that it was in the former instrument, and to be applied alike to postoffices and postroads. In whatever sense it is applied to postoffices, it must be applied in the same sense to postroads. But it may be asked, if such was the intention, why were not all the other terms of the grant transferred with it? The reason is obvious. The confederation being a bond of union between independent states, it was necessary, in granting the powers which were to be exercised over them, to be very explicit and minute in defining the powers granted. But the constitution, to the extent of its powers, having incorporated the states into one government, like the government of the states, individually, fewer words in defining the powers granted by it, were not only adequate, but, perhaps, better adapted to the purpose. We find that brevity is a characteristic of the instrument. Had it been intended to convey a more en

larged power in the constitution than had been granted in the confederation, surely the same controlling term 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 is a liberal construction of the powers granted in the constitution, by this term, to include in it all the powers that were granted in the confederation, by terms which specifically defined and (as was supposed) extended their limits. 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 the 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 can not be carried.

If we go back to the origin of our settlements and institutions, and trace their progress down to the revolution, we shall see that it was in this sense, and none other, that the power was exercised by all our colonial governments. Postoffices were made for the country, and not the country for them. They are the offspring of improvement; they never go before it. Settlements are first made; after which the progress is uniform and simple, extending to objects in regular order, most necessary to the comfort of man-schools, places of worship, courthouses, and markets; postoffices follow. Roads may, indeed, be said to be coeval with settlements. They lead to all the places mentioned, and to every other which the various and complicated interests of society require.

It is believed that not one example can be given, from the first settlement of our country to the adoption of this constitution, of a postoffice being established without a view to existing roads; or of a single road having been made by pavement, turnpike, &c., for the sole purpose of accommodating a postoffice. Such, too, is the uniform progress of all societies. In granting, then, this power to the United States, it was undoubtedly intended by the framers and ratifiers of the constitution, to convey it in the sense and extent only in which it had been understood and exercised by the previous authorities of the country.

This conclusion is confirmed by the object of the grant and the manner of its execution. The object is the transportation of the mail throughout the United States, which may be done on horseback, and was so done until lately, since the establishment of stages. Between the great towns, and in other places where the population is dense, stages are preferred, because they afford an additional opportunity to make a profit from passengers. But where the population is sparse, and on crossroads, it is generally carried on horseback. Unconnected with passengers and other objects, it can not be doubted that the mail itself may be carried in every part of our Union, with nearly as much economy and greater despatch, on horseback, than in a stage; and in many parts with much greater. In every part of the Union in which stages can be preferred, the roads are sufficiently good, provided those which serve for every other purpose will accommodate them. In every other part, where horses alone are used, if other people pass them on horseback, surely the mail-carrier can. For an object so simple and so easy in the execution, it would doubtless ex

cite surprise, if it should be thought proper to appoint commissioners to lay off the country on a great scheme of improvement, with the power to shorten distances, reduce heights, level mountains, and pave surfaces.

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.

From this view of the subject, I think that we may fairly conclude, that the right to adopt and execute a system of internal improvement, or any part of it, has not been granted to Congress under the power to establish postoffices and postroads; that the common roads of the country only were contemplated by that grant, and are fully competent to all its purposes.

The next object of inquiry is, whether the right to declare war includes the right to adopt and execute this system of improvement? The objections to it are, I presume, not less conclusive than those which are applicable to the grant which we have just examined.

Under the last-mentioned grant, a claim has been set up to as much of that system as relates to roads. Under this, it extends alike to roads and canals. We must examine this grant by the same rules of construction that were applied to the preceding one. The object was to take this power from the individual states, and to vest it in the general government. This has been done in clear and explicit terms-first, by granting the power to Congress, and, secondly, by prohibiting the exercise of it by the states. Congress shall have a right to declare war. This is the language of the grant. If the right to adopt and execute this system of improvement is included in it, it must be by way of incident only, since there is nothing in the grant itself which bears any relation to roads and canals. The following considerations, it is presumed, proved, incontestably, that this power has not been granted in that or any other manner.

The United States are exposed to invasion through the whole extent of their Atlantic coast, by any European power with whom we might be engaged in war; on the northern and northwestern frontier, on the side of Canada, by Great Britain, and on the southern by Spain, or any power in alliance with her. If internal improvements are to be carried to the full extent to which they may be useful for military purposes, the power, as it exists, must apply to all the roads of the Union, there being no limitation to it. Wherever such improvements may facilitate the march of troops, the transportation of cannon, or otherwise aid the operations, or mitigate the calamities of war, along the coast, or in any part of the interior, they would be useful for military purposes, and might therefore be made. The power following as an incident to another power can be measured, as to its extent, by reference only to the obvious extent of the power to which it is incidental. So great a scope was, it is believed, never given to incidental power.

If it had been intended that the right to declare war should include all the powers necessary to maintain war, it would follow that nothing would have been done to impair the right, or to restrain Congress from the exercise of any power which the exigencies of war might require. The nature and extent of this exigency would mark the extent of the power granted, which should always be construed liberally, so as to be adequate to the end. A right to raise money by taxes, duties, excises, and by loan; to raise and support armies and a navy; to provide for calling forth, arming, disciplining, and governing the militia, when in the service of the United States; establishing fortifications, and governing the troops stationed in them, independently of the state authorities, and to perform many other acts, is indispensable to the maintenance of war. No war with any great power can be prosecuted with success without the command of the resources of the Union in all these respects. These powers, then, would, of necessity, and by common consent, have fallen within the right to de clare war, had it been intended to convey, by way of incident to that right, the necessary powers to maintain war. But these powers have all been granted specifically, with many others, in great detail, which experience had shown were necessary for the purposes of war. By specifically granting, then, these powers, it is manifest that every power was thus granted which it was intended to grant, for military purposes; and that it was also intended that no important power should be included in this grant by way of incident, however useful it might be for some of the purposes of the grant.

By the sixteenth of the enumerated powers, article i., sect. 8, Congress are authorized to exercise exclusive legislation in all cases whatever over such district as may, by cession of particular states, and the acceptance of Congress, not exceeding ten miles square, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other useful buildings. If any doubt existed on a view of the other parts of the constitution respecting the decision which ought to be formed on the question under consideration, I should suppose that this clause would completely remove it. It has been shown, after the most liberal construction of all the enumerated powers of the general government, that the territory within the limits of the respective states belonged to them; that the United States had no right, under the powers gnted to them, with the exception specified in this grant, to any the smallest portion of territory within a state, all those powers operating on a different principle, and having their full effect without impairing, in the slightest degree, this right in the states; that those powers were, in every instance, means to ends, which, being accomplished, left the subject, that is, the property, in which light only land could be regarded, where it was before-under the jurisdiction, and subject to the laws, of the state governments.

The second number of the clause, which is applicable to military and naval purposes alone, claims particular attention here. It fully confirms the view taken of the other enumerated powers; for, had it been intended to include in the right to declare war, by way of incident, any right of jurisdiction or legislation over territory within a state, it would have been done as to fortifications, magazines, arsenals, dockyards, and other needful buildings. By specifically granting the right, as to such small portions of territory as might be necessary for these purposes, and on certain con

ditions, minutely and well defined, it is manifest that it was not intended to grant it, as to any other portion, on any condition, for any purpose, or in any manner whatsoever.

It may be said that, although the authority to exercise exclusive legislation in certain cases, within the states, with their consent, may be considered as a prohibition to Congress to exercise like exclusive legislation in any other case, although their consent should be granted, it does not prohibit the exercise of such jurisdiction or power, within a state, as would be competent to all the purposes of internal improvement. I can conceive no ground on which the idea of such a power over any part of the territory of a state can be inferred from the power to declare war. There never can be an occasion for jurisdiction for military purposes, except in fortifications, dockyards, and the like places. If the soldiers are in the field, or are quartered in garrisons without the fortifications, the civil authority must prevail where they are. The government of the troops by martial law is not affected by it. In war, when the forces are increased, and the movement is on a greater scale, consequences follow which are inseparable from the exigencies of the state. More freedom of action, and a wider range of power, in the military commanders, to be exercised on their own responsibility, may be necessary to the public safety; but, even here, the civil authority of the state never ceases to operate exclusive for all civil purposes.

It is also

Whether any power, short of that stated, would be adequate to the purposes of internal improvement, is denied. In the case of territory, one government must prevail for all the purposes intended by the grant. The jurisdiction of the United States might be modified in such manner as to admit that of the state in all cases and for all purposes not necessary to the execution of the proposed power. But the right of the general government must be complete for all the purposes above stated. to the seizure and condemnation of the property, if necessary; to the punishment of offenders for injuries to the roads and canals; to the establishment and enforcement of tolls, &c., &c. It must be a complete right, to the extent above stated, or it will be of no avail. That right does not exist.

It must extend

The reasons which operate in favor of the right of exclusive legislation in forts, dockyards, &c., do not apply to any other places. The safety of such works, and of the cities which they are intended to defend, and even of whole communities, may sometimes depend on it. If spies are admitted within them in time of war, they might communicate intelligence to the enemy which might be fatal. All nations surround such works with high walls, and keep their gates shut. Even here, however, three important conditions are indispensable to such exclusive legislation: First. The ground must be requisite for, and be applied to, those purposes. Second. It must be purchased. Third. It must be purchased by the consent of the state in which it may be. When we find that so much care has been taken to protect the sovereignty of the states over the territory within their respective limits, admitting that of the United States over such small portions, and for such special and important purposes only, the conclusion is irresistible, not only that the power necessary for internal improvements has not been granted, but that it has been clearly prohibited.

I come next to the right to regulate commerce, the third source from whence the right to make internal improvements is claimed. It is expressed in the following words: "Congress shall have power to regulate