Article 1, Section 8, Clause 7
[Volume 3, Page 20]
House of Representatives, Post Office Bill6--7 Dec. 17913, 5 Jan. 1792Annals 3:229--41, 303--10
[6 Dec. 1791]
Mr. Livermore observed that the Legislative body being empowered by the Constitution "to establish post offices and post roads," it is as clearly their duty to designate the roads as to establish the offices; and he did not think they could with propriety delegate that power, which they were themselves appointed to exercise. Some gentlemen, he knew, were of opinion that the business of the United States could be better transacted by a single person than by many; but this was not the intention of the Constitution. It was provided that the Government should be administered by Representatives, of the people's choice; so that every man, who has the right of voting, shall be in some measure concerned in making every law for the United States. The establishment of post roads he considered as a very important object; but he did not wish to see them so diffused as to become a heavy charge where the advantage resulting from them would be but small; nor, on the other hand, for the sake of bringing a revenue into the Treasury, consent to straiten them so as to check the progress of information. If the post office were to be regulated by the will of a single person, the dissemination of intelligence might be impeded, and the people kept entirely in the dark with respect to the transactions of Government; or the Postmaster, if vested with the whole power, might branch out the offices to such a degree as to make them prove a heavy burden to the United States. In many instances the expense is productive of a benefit sufficient to counterbalance it; in others, no public benefit arises, but some individuals reap a private advantage from the institution, whilst it is injurious to others. The most material point, in his opinion, was to determine the road itself; if the House gave up that, they might as well leave all the rest of the business to the discretion of the Postmaster, and permit him to settle the rates of postage, and every other particular relative to the post office, by saying, at once, "there shall be a Postmaster General, who shall have the whole government of the post office, under such regulations as he from time to time shall be pleased to enact."
Mr. Sedgwick felt himself by no means disposed to resign all the business of the House to the President, or to any one else; but he thought that the Executive part of the business ought to be left to Executive officers. He did not, for his part, know the particular circumstances of population, geography, &c., which had been taken into the calculation by the select committee, when they pointed out the roads delineated in the bill; but he would ask, whether they understood the subject so thoroughly as the Executive officer would, who being responsible to the people for the proper discharge of the trust reposed in him, must use his utmost diligence in order to a satisfactory execution of the delegated power? As to the constitutionality of this delegation, it was admitted by the committee themselves who brought in the bill; for if the power was altogether indelegable, no part of it could be delegated; and if a part of it could, he saw no reason why the whole could not. The second section was as unconstitutional as the first, for it is there said, that "it shall be lawful for the Postmaster General to establish such other roads as post roads, as to him may seem necessary."
Congress, he observed, are authorized not only to establish post offices and post roads, but also to borrow money; but is it understood that Congress are to go in a body to borrow every sum that may be requisite? Is it not rather their office to determine the principle on which the business is to be conducted, and then delegate the power of carrying their resolves into execution? They are also empowered to coin money, and if no part of their power be delegable, he did not know but they might be obliged to turn coiners, and work in the Mint themselves. Nay, they must even act the part of executioners, in punishing piracies committed on the high seas. In the delegation of power, the whole purpose, in his opinion, is answered, when the rules by which the business is to be conducted are pointed out by law; nor could he discover anything in the Constitution to restrict the House from adopting this mode of conducting business.
Mr. Hartley.--I cannot agree with the gentleman from Massachusetts, that as often as this business had been agitated, there had been a majority in the House in favor of leaving it to the Executive to designate the post roads. Nay, so far as my recollection (which is perhaps not so good as that gentleman's) serves me, we uniformly have had a majority for Congress to point out the post roads.
The Constitution seems to have intended that we should exercise all the powers respecting the establishing post roads we are capable of; but the gentleman says we are not competent to this duty, that it must be intrusted to the Executive.
Sir, in many questions concerning the property or geography of the United States, we had full information on this floor from every quarter. The people's interests and circumstances have been known, however distinctly or differently situated.
On the subject of the post office there has been much discussion. Almost the whole of the roads here stated have appeared in bills before, and though the gentleman (who made the motion for striking out) may not perfectly understand all the roads, yet if he will be so good as to attend [Volume 3, Page 21] to the gentlemen who represent the different parts of the Union, he ought to be satisfied. Unless they are prejudiced, they can certainly give the best information. If it were left to the President or Postmaster General, neither is acquainted with all the roads contemplated; they must depend in a great measure on the information of others.
We represent the people, we are constitutionally vested with the power of determining upon the establishment of post roads; and, as I understand at present, ought not to delegate the power to any other person.
A General Post Office is intended to be established by the bill, and the collection of the revenue is put under the superintendence of a Postmaster General; the minutiae is submitted to him. I should imagine there ought to be a limitation of the law in point of time, say three, four, or five years; when we come to the proper place, a motion to that purpose may be made. No one in the United States has a greater respect for the President than myself, and I hold that the several Departments are filled with gentlemen of the first abilities and fitness, but we are not to confine ourselves to a view of the moment. This bill has the complexion of a perpetual law; we must have some regard to consequences. If the amendment takes place, the office as well as revenue will be thrown into the power of the Executive, who may increase the roads and offices as far as the revenues go. The revenue of the post office is at present not great, but if proper seeds are now sown, it may hereafter be productive. In Great Britain, much has been obtained from the post office, and most of the European nations count upon it as a considerable branch of revenue. Will it be prudent for us to grant this power to the Executive, in the latitude contended for? We must not suppose that this country will always remain incorrupt; we shall share the fate of other nations. Through the medium of the post office a weighty influence may be obtained by the Executive; this is guarded against in England by prohibiting officers in the Post Office Department from interfering at elections. There is no such guard or caution in the present bill. By the amendment, we are unnecessarily parting with our revenues, and throwing an improper balance into the Executive scale, and which our constituents do not expect from us. The Senate heretofore have disagreed with us, but if they will take the same pains we have, the means of information is within their reach; upon a review, they may probably change their sentiments. This is a law of experiment, let us try it a few years. If, upon experience, we find ourselves incompetent to the duty, we must (if the Constitution will admit) grant the power to the Executive; or, if the Constitution will not allow such a delegation, submit the article for amendment in a constitutional way. I am against the amendment.
Mr. B. Bourne was in favor of the amendment, which he thought both expedient and constitutional. In speaking of post offices and post roads, the Constitution, he observed, speaks in general terms, as it does of a mint, excises, &c. In passing the excise law, the House, not thinking themselves possessed of sufficient information, empowered the President to mark out the districts and surveys; and if they had a right to delegate such power to the Executive, the further delegation of the power of marking out the roads for the conveyance of the mail, could hardly be thought dangerous. The Constitution meant no more than that Congress should possess the exclusive right of doing that, by themselves or by any other person, which amounts to the same thing. The business he thought much more likely to be well executed by the President, or the Postmaster General, than by Congress. He had himself been of the committee who framed the bill, but could not tell whether the roads marked out in it were better than any other, except so far as relates to the State which he represents; and he imagined the other members of the committee were in a similar predicament. The President having opportunities of obtaining information from the different members of the House, from the Postmaster General, and from others, will be more competent to determine the proper road. It will be occasionally necessary to change the route, and lay out new roads, and he could see no inconvenience from intrusting either the President or the Postmaster General with the necessary powers for these purposes. At all events, the House could guard against any apprehended danger, by the insertion of such a clause as had been proposed, [by Mr. Hartley,] limiting the operation of the bill to three, four, or five years. At the expiration of that term, the power would revert to Congress, and they might then retain the exercise of it in their own hands, if they found that any improper use had been made of it.
Mr. White made several observations on the expediency and constitutionality of the measure. No individual could possess an equal share of information with that House on the subject of the geography of the United States. He disapproved of the amendment for many other reasons, and particularly its approximation to the custom of England. Such advances towards Monarchy, if not checked in season, he was apprehensive would tend to unhinge the present Government. If this Government retains its present Republican form, it will be owing to the members of this House. It is easy to see what hand could be made of the post offices, if ever they are under the direction of an improper person. At the time of a general election, for instance, how easy would it be for this man to dictate to particular towns and villages, "If you do not send such a man to Congress, you shall have no post office; but if you elect my friend, you shall have a post office, and the roads shall be run agreeably to your wishes." Another improper use may be made of this power by the interception of letters, and checking the regular channel of information throughout the country. Upon the whole, he was clearly for rejecting the motion for striking out the words in the bill.
Mr. Laurance observed, that the revenues arising from the post office would not, perhaps, produce a sufficient sum to defray the expenses of the establishment. If this should be the fact, he would prefer the amendment, but if the revenue should increase from time to time, he should have no objection to the addition of posts and roads in proportion to such increase. The consequence of establishing so extensive a system all at once, as was contemplated in the bill, might be, that the revenue would fall short, and then additional taxes must be laid to pay off the deficiency; [Volume 3, Page 22] however, upon the whole, if he could be satisfied that the revenues of the Department would be sufficient to defray the expenses of it, he would be against striking out the clause in the bill.
Mr. Page.--If the motion before the committee succeeds, I shall make one which will save a deal of time and money, by making a short session of it; for if this House can, with propriety, leave the business of the post office to the President, it may leave to him any other business of legislation; and I may move to adjourn and leave all the objects of legislation to his sole consideration and direction. But how the President should be better acquainted with the proper places for post offices and post roads than the Representatives of the people, I cannot conceive. In Virginia, for instance, cannot the ten Representatives say, with more certainty, what post roads would be proper in that State than any one man? I look upon the motion as unconstitutional, and if it were not so, as having a mischievous tendency, which I am willing to believe the member who made it is not aware of.
In reply to Mr. Sedgwick, he said, he heard but two arguments on which any stress was laid, viz: that the President's greater responsibility pointed him out as the proper person to be intrusted with the important business of establishing post offices and post roads, and that his superior knowledge of this subject ought to induce the committee to leave it to him alone; but as to the responsibility, how that can be greater than the responsibility of the members of this House, when he is appointed by Electors for a longer term than they are; and they elected by the people themselves, and accountable to them every two years, is to me inconceivable; and as to his superior knowledge, granting that he possessed it, which I cannot grant, can there be a greater paradox than the assertion that the President's knowledge alone is greater than that very knowledge, aided by the united information of both Houses of Congress, collected and presented to him in the bill? Sir, if the clause which it is said we should strike out, instead of communicating the sense of this House to the President, took away his right of approving or rejecting it, there might be some weight in the argument drawn from the supposition of his superior knowledge; but as this is not, and cannot be the case, and so far from it, that the clause submits the matter to the most mature deliberation of the President and Senate, it must be paradoxical to say that we lose the advantage of superior wisdom and knowledge of the subject, if we do not leave it to the President alone. But we are told that the motion is not unconstitutional. I think it is; but who is there that denies it is contrary to the interest and spirit of a free Government? The people, however, may think with the member who made the motion, that the President (that is, the man who is now their President) understands this matter, and can do it better than their Representatives; and they may think the whole business of Government might be safely intrusted to him; but they are too wise to make the experiment, and understand the nature of their Government so well as to complain that Congress too often commits to Heads of Departments what the Constitution requires at their hands. The President himself, if I mistake not, views the subject before us in the light I do, or he would not so repeatedly have called on us to make it a peculiar object of our deliberation.
Mr. Steele would not take up the time of the House in considering whether the motion was constitutional or not; but he was apprehensive it would be burdensome to impose the duty on the President, who must feel very disagreeable to hear that after he had exerted his utmost abilities to give satisfaction, discontents had taken place. He hoped the gentleman from New York, who had hitherto shown himself so staunch a friend to the present Constitution, would not oppose the diffusion of knowledge and information amongst the people, upon an idea of a supposed deficiency in the revenue of the Post Office, for it might very soon increase to a sum more than sufficient for the expenses of the establishment.
Mr. Vining said, that since this subject had been before the last House, during the recess, he had seen many lights thrown on it, and he was convinced that the members were as fully competent to judge of the matter as any one man could be; this, he thought a fact not now to be disputed, as well as that more satisfaction would be given to the country in general. There is no analogy between the United States and Great Britain, when the subject of the post roads and post offices are to be considered. This country, from its great extent and uncultivated state, as well as from a thousand other causes, is not at all similar to the situation of Great Britain; therefore, any attempt to imitate their regulations would be improper. With regard to the regulation being given to the President, two things should be considered; to a good President it would be a burden; to a bad President, a dangerous power of establishing offices and roads in those places only where his interest would be promoted, and removing others of long standing, in order to harrass those he might suppose inimical to his ambitious views. The Constitution has certainly given us the power of establishing posts and roads, and it is not even implied that it should be transferred to the President; his powers are well defined; we create offices, and he fills them with such persons as he approves of, with the advice of the Senate. Having thus far stated his opinion, he would vote against the amendment to the bill; and when the first section was got over, he would propose a clause to be inserted in the second section, which he hoped would meet the ideas of the gentleman from New York, viz: that the cross-roads and offices should be so regulated as not to exceed the surplusage of the revenue of the general establishment. The doubt of the bill's not passing the Senate, should have no weight in his mind; he would rather fifty bills should be lost than shrink from his trust; and he hoped the House of Representatives would show their firmness in the present instance; and if the Senate should afterwards reject the bill, as they had done before, let them be answerable for their own conduct: they can do these things more gracefully than this House, as they are not seen in the act. Mr. V. concluded, by drawing another argument from that part of the Speech of the President, at the opening of the present session, which respects the post office and post roads, wherein he so warmly recommends it to the Legislature to [Volume 3, Page 23] up the subject. This expression is as strong an argument as can possibly be adduced, to show that he had no other conception of the matter than that it was the peculiar privilege of the Legislature.
Mr. Barnwell was not surprised that a diversity of opinions should prevail on such a subject; but that there should be any question respecting the constitutionality of the amendment astonished him. It was very natural to suppose members from the same State would differ in opinion, and this showed the greater degree of necessity there was to vest the power in the hands of a high responsible officer to determine upon it; for, by doing so, there would be less partiality exhibited in the delineation of the roads, &c. But, if left to the House, it would be almost impossible to reconcile any line to all parties; for the members from each State would probably be guided more by the principle of domestic convenience than by a sense of general good. In reply to Mr. V.'s argument, that it would be a burden to a good President, he thought it would be a pleasure to him to render service to his country. Upon the whole, he was in favor of Mr. Sedgwick's motion.
Mr. Gerry took a general view of most of the arguments in favor of the motion; replied to each; and concluded, by asking why the commercial interest only should be accommodated, and the inland inhabitants excluded from the advantages of post roads? Why one class of citizens should be preferred to another? The diffusion of knowledge and information is as necessary to one as to the other; and the revenue from the post office would increase from year to year, to defray the expense of the additional post roads which are proposed in the bill.
Mr. Steele defended the committee who had reported the bill, and explained the grounds on which they had proceeded in laying out the roads for the general advantage of the United States, rather than to accommodate a few trading places only on the sea coast; and with regard to the route to Charleston, to which Mr. Barnwell had objected, he said it would cause letters to arrive there four or five days sooner than by the old route.
Mr. Benson observed, that the constitutionality of the amendment is denied, and it is said that the Legislature alone is competent to establish post offices and post roads; notwithstanding this, there is not a single post office designated by the bill. Much has been observed respecting the Legislative and Executive powers, and the committee are cautioned against delegating the powers of the Legislature to the Supreme Executive. Without attempting a definition of their powers, or determining their respective limits, which he conceived it was extremely difficult to do, he would only observe that much must necessarily be left to the discretion of the Legislature. He was very doubtful whether it would ever be in the power of the House to form any bill that would give satisfaction. This he spoke from experience; for it had been often tried in the old Congress, and was as often defeated by the partial and local clauses proposed by the different members. For these reasons, he believed it would be better to delegate the power, and let the regulations be made by the President, than to be enacting supplementary laws year after year, at the instance of individual members.
Mr. White observed, that there was a necessity for changing many of the present routes of the post, and although gentlemen have said that information on the subject cannot be so well obtained from this House as from the Executive, because no one member knows all the roads, yet it must be allowed that every road is known to some of the members. The people of the United States have suffered too long under the present establishment; four hundred and eighty-six thousand inhabitants, on the western side of the river Potomac, in the State of Virginia, are deprived of the benefit of a post road: will any gentleman say that nearly half a million of persons shall not have the privilege of a post office, or the means of information? He would not go into any lengthy observations, as the subject had been so fully discussed yesterday. He declared his opinion that the House had a right to send a person to lay out the post roads, agreeably to their directions, and therefore hoped the amendment would be negatived, and that the bill would be gone through with, with such reasonable amendments as might be suggested.
Mr. Livermore said, that gentlemen had drawn arguments from the second clause of the bill before it was yet under consideration, from which they endeavored to prove an absurdity in the first clause, and thus take an uncandid advantage of the liberality of the committee in leaving the appointment of the deputy postmasters and branching offices to the Postmaster General. If, however, there be any defect in the second clause, it can be amended when we come to it; but to attempt to bring forward this section as a bar to the adoption of the first, is an unfair mode of proceeding, and seems as if intended to throw the bill out at any rate. With regard to what has been said of the responsibility of a high Executive officer, he did not deny the wisdom and integrity of the President, who would, no doubt, conduct this as well as he had always done any subject committed to his care; but this would be a very troublesome business to impose upon him, and those who are desirous of doing it, are not acting a friendly part. The Constitution has pointed out one certain mode for the Legislature to proceed in, and it is more proper for the House to determine on the subject than any one man; let the experiment be made for three years, or for ten years, and it will always be found in our power to amend the defects in the system as they arise to our view.
Mr. Madison said, that the arguments which are offered by the gentlemen who are in favor of the amendment, appear to be drawn rather from theory than any line of practice which had hitherto governed the House. However difficult it may be to determine with precision the exact boundaries of the Legislative and Executive powers, he was of opinion that those arguments were not well founded, for they admit of such construction as will lead to blending those powers so as to leave no line of separation whatever. The greatest obstacle to the due exercise of the powers vested in the Legislature by the bill, which has been mentioned, is the difficulty of accommodating the regulations to the various interests of the different parts of the Union; and this is said to be almost impracticable. But it may be remembered, that similar embarrassments [Volume 3, Page 24] appeared when the impost and tonnage bills were under consideration; on those subjects, the members were obliged to be governed, in a great degree, by mutual information and reciprocal confidence. In respect to the establishment and arrangements of the different ports of entry and clearance, and other objects, that was a business of much greater importance and difficulty than this; but it was accomplished. The Constitution has not only given the Legislature the power of creating offices, but it expressly restrains the Executive from appointing officers, except such as are provided for by law. As has been well observed by the gentleman from Delaware, the President is invested with the power of filling those offices; but does it follow that we are to delegate to him the power to create them? The reference to the appointments and arrangements made by the Executive, pursuant to the powers delegated to the Executive by the excise law, cannot be considered as a parallel case; no similar exigency exists to justify a similar delegation. The danger of infringing on the powers of the Executive, which has been suggested, and the caution to the House against touching on the appointment of officers, is a species of reasoning on the subject, which may be carried so far as to say that we ought not to make any appointments by law; and yet this has been done as in the instance of the appointment of the Commissioners for purchasing in the public debt, all of whom were appointed by the act making provision for the reduction of the public debt. Where is the necessity of departing from the principles of the Constitution in respect to the post office and post roads, more than in all other cases? The subject is expressly committed to Legislative determination by the Constitution. If the second section of the bill requires amendment, it can be rectified when it comes before us; and with respect to future cases, should there be a necessity for additional post roads, they can be provided for by supplementary laws; and therefore no reason on that account can be urged for delaying the provision proposed by the bill. He concluded by saying, that there did not appear to be any necessity for alienating the powers of the House; and that if this should take place, it would be a violation of the Constitution.
Mr. Sedgwick would make a few observations, which he felt himself obliged to submit to the consideration of the Committee, as well to defend himself as his motion, from the unwarrantable attacks which gentlemen had made on both.
The powers of the Constitution, he was sorry to say, were made in debate to extend or contract, as seemed, for the time being, to suit the convenience of the arguments of gentlemen. The member from Virginia, [Mr. Madison] had discovered an additional quality of unconstitutionality involved in the motion under consideration. It was that the creation of offices was by the Constitution confined solely to the Legislature. This position was undoubtedly just, if by it was meant that the powers and duties of offices must be defined by law. But he understood the gentleman to extend his meaning much further, and to have declared, in substance, that all offices, however subordinate and dependent, must be numerically provided for by law. The gentleman had, with his usual accuracy and precision, foreseen the application of his principle to the power which, on the same subject, had been delegated by the excise law, by which the Executive was authorized to parcel the whole country into districts, and to appoint the various officers necessary to execute the law. Nothing more was in that instance done, than to define the powers and duties annexed to the offices, but the limits to which their authority was to extend, and their number, was very properly left with the Executive. In that instance, such a delegation was indispensably necessary; nor was it, in his opinion, less necessary in the multifarious arrangements of post offices. That gentleman had supposed this necessity had in that instance justified the expedients; if so, the same conclusion might be drawn on the present occasion. But, for his part, if he should assume that member's opinions, he should be incapable of deriving consolation from the same source; for that there never has as yet been, and probably never would exist in the administration of this Government, a necessity so urgent as to authorize an usurpation of power. The motion before the committee was constitutional, or the reverse; if the latter, the same was true of the existing act in the instance alluded to. That in either instance, a supposed necessity could not justify the infraction of a Constitution which the members were under every obligation of duty, and their oaths, solemnly pledged, to support. Gentlemen should be very cautious how, on slight grounds, they assent to principles, which, if they were true, would evince that the Government had scattered through the whole country, officers who are daily seizing on the property of the citizens, by the assumption of unconstitutional powers. It was true, as had been observed by his friend from New York, [Mr. Benson] that it was impossible precisely to define a boundary line between the business of Legislative and Executive; but from his own experience, as a public man, and from reflection, he was induced to believe, that as a general rule, the establishment of principles was the peculiar province of the former, and the execution of them, that of the latter. He would, therefore, at least, generally, as much as possible, avoid going into detail. In adopting this as a general rule of conduct, he was not influenced by considerations which gentlemen in opposition to his motion had suggested--the preeminently great and good character of the MAN who was now called by unanimous suffrage to administer the Executive--for he had always considered that, with sagacious minds, that should be the season of political caution, when the Executive was in the hands of one to whom all hearts justly bowed. From the nature of the business to be transacted, he had drawn his conclusion; he thought an Executive officer, responsible to the public for the performance of an important and interesting trust, would inquire with more scrupulous caution, and decide with more justice, than could be expected from a popular assembly, who, from the nature of things, would be more remiss than consisted with a just determination; and he appealed to those gentlemen who were members of the last House, for a recollection of that apathy and torpor which prevailed on a former attempt to demark the post roads. He observed that the opposition to his motion on the ground of unconstitutionality, came with an ill grace from the gentleman who had reported the bill; for, by one [Volume 3, Page 25] section, the Postmaster General was expressly authorized to establish post roads not provided for by the bill, upon a condition that does not at all affect the present question; and by another section, the same officer was authorized to appoint, unrestrained, all his deputies, each of whom is to establish and keep an office. This, in his opinion, was not only expedient but indispensably necessary. It was, however, a delegation of power, attended by all those circumstances which rendered, in the opinion of that gentleman, the present motion unconstitutional. He said, no gentleman had contended for carrying into execution the principles they attempted to establish, to an extent to which they would go. That no road can be a post road but such as shall be established by law. The bill establishes the road from place to place, leaving the intermediate distance untouched; as for instance, from Boston to Worcester. Between those two points is, or is not, a post road, if the bill should become a law, established? If the former part of the dilemma is embraced, then also by the motion, if adopted, will a post road be established from Maine to Georgia. For he supposed it impossible to make any well-founded distinction between the one case and the other. His motion then would as effectually establish a post road in the intermediate space as the bill in its present form; and all the objections which had been made to the former, would apply with equal force to the latter. Gentlemen had spoken in strong terms of the disinterestedness, information, and respectability of the members of the House, and of the popular confidence which resulted therefrom. No man had a more respectable opinion of the Representatives of the people than himself; he need not, however, observe to them, that they were men, subject to like passions and imperfections with their fellow-citizens. It could not have escaped the reflection of the committee, that the gentlemen who composed it, had a very important interest in establishing the directions of the post; that on the declarations of men thus interested, we must rely for the justness of our ultimate conclusions; on evidence of interested individuals, individuals who are, by their relation to the subject of inquiry, excluded, on principles of law, from all credit, must we rely for a knowledge of those facts which are to direct our judgment.
Mr. Boudinot and Mr. Gerry made some remarks, and then the question being taken, Mr. Sedgwick's motion was negatived.
[3 Jan. 1792]
A motion was made by Mr. Fitzsimons to allow the proprietors of stages employed in conveying the mail, to carry passengers also, without being liable to molestation or impediment, on any of the post roads.
Against this motion it was urged, that the General Government has no right to make any such provision; and that even if it possessed the power, such an exertion of it would be unjust, as it would interfere with the private rights of individuals, who, under the laws of some States, (Maryland and Virginia, for instance) enjoy the exclusive privilege of driving stages for the conveyance of travelers. Under the faith of the State laws, which were in existence before the establishment of the present Government, and have not yet been abrogated, these citizens vested a considerable property in this business, in hopes of reaping an adequate advantage from their undertaking. In many instances, it was made a condition in the contract, that they should make and repair the roads at their own private expense: the terms they complied with; but they would not have thus expended their money, or established the stages at all, if they had not obtained a monopoly to secure them in the exclusive enjoyment of the benefits; and to this monopoly the public are indebted for the cheap and easy conveyance which those stages at present afford for private passengers and the mail of the United States. Many of the original proprietors have made transfers of their right, for considerable sums of money; nor can the right, thus acquired by the present proprietors, be impaired, without an open violation of private contracts, and the invasion of a property lawfully purchased, and guaranteed by the State Legislatures,--a property, which Congress have no right to take for the public use, without making an adequate compensation.
That clause of the Constitution which empowers the Federal Government to establish post offices and post roads, cannot, it was said, be understood to extend farther than the conveyance of intelligence, which is the proper object of the Post Office establishment. It gives no power to send men and baggage by post. The State Governments have always possessed the power of stopping or taxing passengers; that power they have never given up; and the proposition now made to wrest it from them, might be viewed as an attempt to lay the State Legislatures prostrate at the feet of the General Government, and will give a shock to every State in the Union.
If, by the construction of that clause of the Constitution, which authorizes Congress to make all laws necessary for carrying into execution the several powers vested in them, they should establish the proposed regulations for the conveyance of the mail, they may proceed farther, and so regulate the post roads, as to prevent passengers from traveling on them; they may say what weights shall be carried on those roads, and at what seasons of the year; they may remove every thing that stands in their way--they may level buildings to the ground, under pretence of making more convenient roads; they may abolish tolls and turnpikes; they may, where an established ferry has been kept for a hundred years past in the most convenient place for crossing a river, give the post-rider authority to set up a new one beside it, and ruin the old establishment; they may say, that the person who carries the mail shall participate in every privilege that is now exclusively enjoyed by any man or body of men, and allege, as a reason for these encroachments, that they are only necessary encouragements to carry the mail of the United States. In short, the ingenuity of man can not devise any new proposition so strange and inconsistent, as not to be reducible within the pale of the Constitution, by such a mode of construction. If this were once admitted, the Constitution would be an useless and dead letter; and it would be to no purpose, that the States, in Convention assembled, had framed that instrument to guide the steps of Congress: as well might they at once have said, "There shall be a Congress, who [Volume 3, Page 26] shall have full power and authority to make all laws, which to their wisdom shall seem meet and proper."
But the States will never submit to this new regulation; nor will the individuals concerned tamely suffer an invasion of those rights, which they enjoy under the State laws. A contest will undoubtedly ensue; and the present proprietors of the stages will not fail to stop any new stage-wagons that carry passengers along their roads, whether they carry the mail or not. It would be unwise in Congress to enter into a contest where the advantage is but trifling, and the risk much greater perhaps than they are aware of. It is easy to blow a small spark into an extensive flame; and prudence ought to caution them against raising a ferment, which may be productive of the most serious consequences.
In favor of the motion it was urged that the Constitution, in authorizing Congress to establish post offices and post roads, and to make all laws necessary for carrying into execution the several powers intrusted to them, has conferred on them ample powers respecting the point in question. If the post roads belong to the United States, then every citizen of the United States has as good a right to use them, under the regulations of Congress, as the citizens of any particular State, through which they happen to run. If they belong to the individual States, and are subject to their regulation, the same authority that limits the use of them to particular wagons, may also say that those wagons shall carry nothing else but passengers, and thus even the mail itself may be prevented from passing.
It was thought hard that a citizen of the United States should be prevented from traveling through an individual State in a stage-wagon, unless the wagon belonged to that State. If a right exists in the State Legislature to impose a tax in this instance, they may farm it out at a high rate, and make it amount to what they please: they may proceed further, and oblige every citizen of the United States who travels within their boundaries, to purchase a certificate to entitle him to pass.
If the House meant to establish the post office at all, and to have the roads free, it was thought necessary to make such a provision as the one under consideration. If not, the Postmaster General may be obliged to adopt the less convenient mode of having the mail carried every where on horseback; even in this case, the State Legislatures may subject the post-horses to a tax, upon the same principle as the post-carriages.
The question, it was said, could not involve any controversy between the United States and the individual States. It was merely a judicial question, and determinable in a Court of Law, whether a State has a right to grant and support such a monopoly. Other monopolies had existed before the establishment of the General Government, but had been since done away; the duty of tonnage, for instance, which had been granted in some States for the improvement of navigation.
As to the infringement of contracts made before the adoption of the Constitution, if the different Conventions had agreed upon that ground, the Constitution itself would never have been adopted, as it abrogated not only several private contracts, but even certain parts of the State Constitutions themselves. But the evil, in the present case, would be great indeed, if the States were allowed a power of repealing or annulling the principles of the Constitution, under cover of acts that existed previous to its formation.
The laws of the United States must be general: they must operate equally throughout the Union, nor be clogged with any incumbrances or restrictions in any one State more than another. The power of barely establishing post roads would prove a mere nullity, unless accompanied with a power of making them useful. The stages are a public convenience to the citizens of the United States traveling along those roads; and if the State Legislatures exercise the power of stopping and taxing those carriages at their pleasure, the utility of this mode of conveyance, together with that of the roads themselves, will be in a great measure destroyed. If, to prevent this evil, and the better to accommodate the citizens of the United States, and to facilitate the conveyance of the public mail, Congress found it necessary to establish turnpike-roads from one end of the Continent to the other, the Constitution gave them full power to make such regulations and it hoped they would soon adopt the measure.
A motion was made and seconded further to amend the said bill, by inserting, after the section, the following clause:
Mr. Clark objected to the proposition. He thought it would give rise to a contest between the State and General Governments, which he conceived was unnecessary, and had better be avoided.
Mr. Seney also objected to it. Before such a clause was agreed to, it certainly was incumbent on the gentlemen in favor of it to show that the regulations in the several States which would be affected by it, had or would obstruct the transportation of the mail. Except this was made to appear, it ought to be well considered how far the interference with those privileges would tend to disturb the tranquility of the Government.
Mr. Livermore said he had no doubts on this subject. The right of Congress to send the mail in that way which will be most for the public advantage, cannot be controverted. Let gentlemen consider what would be the consequence, if similar monopolies existed in all the other States; it would entirely render nugatory the power of Congress to establish post offices and post roads. The consequences of this are easily to be conceived. It is said, that the persons vested with these exclusive privileges have contracted on as easy terms as the Postmaster General could have contracted with any other persons; but it does not follow that they will not extort in future--it certainly [Volume 3, Page 27] destroys all competition, and leaves the United States entirely in the power of these persons. He hoped that the House would not hesitate to adopt the proposition.
Mr. Seney replied to Mr. Livermore, in a few remarks, in which he justified the States of Maryland and Virginia for granting the monopolies in question.
Mr. Gerry said he was in favor of the proposition. He asserted that the power to establish post roads was coeval with that of establishing post offices; if the former power is not in Congress, they have already proceeded too far in exercising the latter power. It has been said, that the States had a right to grant these monopolies--to this he conceded that they had, previous to the adoption of the Constitution; but, in consequence of that event, all such laws are null and void of course. It is become necessary for Congress to carry their power in this respect into execution; for he had been informed, from good authority, that the Postmaster General could not contract with these persons upon the same terms that he could with others. He instanced other inconveniences and disadvantages resulting from this situation of things, especially by an unnecessary detention of the mail for two days every week. Congress ought to define and declare their powers, that those States which have passed laws incompatible therewith may repeal them. With respect to the power of establishing post offices, none of the States claim a participation of that power; and as to the establishing post roads, if the States possess any power in that case, Congress certainly possesses concurrent power; and therefore this Government may certainly make the necessary regulations, where the States have either made improper regulations, or no regulations at all. He conceived that justice to individuals, and to the United States, rendered it absolutely necessary for Congress to exercise the power.
Mr. Niles inquired, what is the import of the present question? Is it not, sir, whether you may carry your mail through any of the States, on foot, on horseback, or in a stage coach? It is not contended that any law of any State can, constitutionally, prevent this. The States, by adopting the Constitution, have ceded their right to you, and of course divested themselves of all right to prevent you from exercising it. But, sir, the question is simply, whether Congress have a right to authorize the carrier of the mail to carry passengers, on hire, through those States where an exclusive right of carrying passengers for hire has been granted by the State Government, and still exists. You are empowered by the Constitution to establish post offices and post roads, and to do whatever may be necessary and proper to carry that power into effect. Now, sir, is it necessary, in order to the transportation of your mail, that you should erect stage-coaches for the purpose of transporting passengers? What has your mail to do with passengers transported for hire? Why, sir, nothing more than this--by granting to the carrier of your mail a right to carry passengers for hire, the carriage of the mail may be a little less expensive. Does this consideration render it necessary and proper for you to violate the laws of the States? If not, you will, by so doing, violate their rights, and overleap the bounds of your own. This matter may occasion a legal adjudication, in order to which the Judiciary must determine, whether you have a constitutional right to establish this regulation, and this will depend on the question whether it be necessary and proper. A curious discretionary law question! Such a one as I presume never entered the thought of the States when they adopted the Constitution. But, sir, if the trifling pecuniary saving proposed by this regulation, entitles it to the character of a necessary one, or, in the sense of the Constitution, a proper one, and so a constitutional one, what may not Congress do under the idea of propriety? It may be proper, for the sake of a more advantageous contract for carrying the mail, to authorize the carrier to erect ferry-boats, for the transportation both of the mail and of passengers--or to grant the right of driving herds of cattle over toll bridges and turnpike roads, toll free, in violation both of legal and prescriptive rights--to erect posthouses under peculiar regulations, and with exclusive right. What, sir, may not be construed as proper to be done by Congress? Under this idea, the whole powers vested in Congress by the Constitution will be found in the magic word proper; and the States might have spared, as nugatory, all their deliberations on the Constitution, and have constituted a Congress, with general authority to legislate on every subject, and in any manner it might think proper. What rights, then, remain to the States? None, sir, but the empty denomination of Republican Governments. I consider the proposition as an attack upon the rights of the States, and shall therefore give my vote against it.
Mr. Barnwell said he had no doubt of the constitutionality of the proposition; but he was of opinion that the present was not the most eligible time to exercise the power. Still he was of opinion that Congress ought now to declare that it would exercise it at the expiration of the contracts which at present exist between particular States and individuals, and he moved a proviso to that effect, as follows:
Mr. Laurance was in sentiment with Mr. Barnwell, and seconded his motion for adding a proviso, as above.
Mr. Clark objected to the proviso; it was legislating on a subject of which the House was entirely ignorant. We do not know how long those contracts are to exist; why should we, then, interfere in a business which we ought not to do any thing about. We may set aside the law, or the State may abrogate it, but in either case the proprietors would be entitled to a full indemnification. For his part, he thought the House was getting into a maze--the bill has long been under consideration, and we seem to make no progress. I could wish that the whole bill was buried, and that we might hear no more of post offices and post roads.
Mr. Venable controverted the constitutionality of an interference on the part of Congress in respect to these monopolies. [Volume 3, Page 28] He observed, that the Constitution was totally silent on the subject of passengers; it simply relates to the transportation of letters. And he conceived that the operation of the proposition would be to create monopolies on the part of the United States.
[It was here contended that the proviso was not in order. The Speaker said it was not in order. An appeal was then made to the House, which voted that the proviso was in order, and it was then discussed.]
Mr. Wadsworth said he was opposed to both the clause and the proviso; he conceived there was no occasion for either. The State of Connecticut has granted exclusive privileges to run stages in that State, but has reserved to itself the power to annihilate those contracts at pleasure; and, whenever the General Government shall make provision for transporting the mail on those roads, those exclusive privileges will cease; and he did not know but that this was the case in other States.
Mr. Livermore said the proviso was the most extraordinary one he had ever heard in his life--we in the first place, in effect, abrogate certain laws of particular States, and then by a proviso confirm those very laws.
Mr. Laurance contended that, however extraordinary the proviso may appear, it was strictly proper. Contracts are not to be violated--once formed, they are sacred. The States had a right to form those contracts, and to grant those privileges, and therefore the persons enjoying them cannot be deprived of them; and though the General Government has undoubtedly a right to take the most eligible methods for the transportation of the mail, yet the rights of these people ought not to be violated.
Mr. Gerry opposed the proviso. It recognised the right of the respective States to pass such laws as the first part of the clause intends to abrogate, not only before, but subsequent to the adoption of the Constitution, which he conceived involved an absurdity. On the general subject, he said, that these monopolies were a tax, not only on the citizens of other States, but of every State in the Union. He conceived that no State possesses the power of taxing the people of the United States.
Mr. Benson remarked, that the proviso was improper and unnecessary. Should any consequences result from agreeing to the first part of the clause, they will arise between the individual claiming the privileges and the State which granted them, and must be settled by a judicial decision.
Mr. Sturges said he should vote in favor of the proviso, though he conceived that Congress had a right to make such a law as would, in its operation, entirely supercede these contracts.
Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.
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