Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/38

not now looking to what are properly incidents, or means to carry into effect given powers; but are to construe the terms of an express, power. The words of

---

may be requisite to defray the expenses of the said post-office.' 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 post-offices. 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 post-offices and post-roads. In whatever sense it is applied to post-offices, it must be applied in the same sense to post-roads. 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 enlarged 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 that 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 post-offices 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 cannot 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 in none other, that the power was exercised by all our