Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/37

§ 1125. The grounds, upon which the other opinion is maintained, are as follows: This is not a question of implied power; but of express power. We are

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it has been thought (as will be hereafter seen) to surrender the substance of the argument. It will be most satisfactory to give it in the very words of its most distinguished advocate:
"The first of these grants is in the following words: 'Congress shall have power to establish post-offices and post-roads.' What is the just import of these words, and the extent of the grant? The word 'establish' is the ruling term; 'post-offices and post-roads' 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 connection 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, court-houses, and other places, throughout our Union, at which there should be post-offices; the routes, by which the mails should be carried from one post-office 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 post-offices 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 post-boy, 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 post-offices from one state to another, throughout the United States, and of exacting such postage on the papers passing through the same, as