It may further be noted that Article VII of the Constitution provides that "the ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same," and that Article III of that instrument vests judicial power in the Supreme Court and in such inferior courts as "the Congress may from time to time ordain and establish." Indeed, the use of the word "establish" in our constitutional legislation in its broad sense of "creating or making" antedates the Constitution itself. Thus it is four times used in the Articles of Confederation, once in article 6 speaking of such regulations of letters of marque and reprisals "as shall be established by the United States," etc., and three times in article 9, granting the power "of establishing rules as to captures on land and water," "of establishing courts of appeal in cases of capture," and "of establishing and regulating post offices from one State to another." Again, the proceedings of the convention of 1787, which framed the Constitution, give many instances of the use of the word " establish," going to show that when used in a grant of power it was the broadest and most comprehensive word in the legislative vocabulary: Thus, propositions were made and voted down to grant to the Federal Government power " to establish a university," "to establish seminaries for the promotion of literature and the arts and sciences," "to establish public institutions, rewards, and immunities for the promotion of agriculture," etc. And again the court said in the Dickey case:

"All the powers over post offices and post roads which the States ever possessed have been wisely transferred as one indivisible national power to the General Government, which now possesses of course all the authority in that respect which all the people of all the States, either aggregately or in separate State sovereignties, could possess and delegate. Under the plenary power to establish post roads Congress must, therefore, have as much right to make and repair roads as the States ever had for the purpose of having suitable post roads. The consent of a State is not indispensable; for if the Constitution gave the power, it exists without the concurrence of any State; and if the Constitution did not delegate the power to Congress, the consent of a State or of all the States could not give it without an amendment of that National Charter from which alone Congress derives or can derive legislative authority."

This quotation expresses the same doctrine as that declared by the United States Supreme Court in Ex parte Rapier (143 U. S., 134), where the power of the Congress to exclude lotteries from the mails was affirmed on the ground that:

"The States before the Union was formed could establish post offices and post roads, and in so doing could bring into play the police power in the protection of their citizens from the use of the means so provided for purposes supposed to exert a demoralizing influence upon the people. When the power to establish post offices and post roads was surrendered to the Congress, it was as a complete power, and the grant carried with it the right to exercise all the powers which made that power effective."

In Pensacola Telegraph Co. v. Western Union Telegraph Co. (96 U. S., 1), where the Supreme Court of the United States declared a State statute giving an exclusive right to a State telegraph company within certain of its territory void as against a foreign corporation acting under a Federal statute giving all companies complying with its terms the right to erect their poles and string their wires along any authorized military or post road, the court said:

"Post offices and post roads are established to facilitate the transmission of intelligence. Both commerce and the postal service are placed within the power of Congress because, being national in their operation, they should be under the protecting care of the National Government. The powers thus granted are not confined to the instrumentalities of commerce or of the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage coach, from the sailing vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate at all times and under all circumstances."

The above language was quoted with approval by the court in the Lottery case (188 U. S., 350).

The general opinion of the commentators on the Constitution is that under the post-road power the Congress may construct such roads. (Rawle on the

Constitution, p. 103; Hare's American Const. Law, Lecture XV; Sutherland, Notes on U. S. Constitution, 176.)

Even my beloved and devoted old friend, the Hon. John Randolph Tucker, the strictest of the strict constructionists, admits this proposition (Tucker on the Constitution, sec. 276), but apparently seeks to limit the power to cases where there are no State road, and says that to construct a post road for any other than postal purposes would be a fraud on the Constitution. Just so it was said that the United States Bank was a fraud on the Constitution because it was given general banking powers, and the organization of the national banks and of the Pacific railroads may with just as good reason be similarly denounced. I therefore maintain that, at this date in the history of the Constitution the proposition is impregnable that the Federal Government has the full and complete power to establish all over this country, and from each locality in it to every other locality in it, a system of post roads; that it may locate such roads and condemn property therefor in its discretion, subject only to the obligation of making compensation for property taken or damaged, and to the obligation of not interfering with the instrumentalities of the State governments; that these roads may be of any sort or kind the Congress may select-dirt roads, turnpikes, or railroads moved by steam, electricity, or any other power; that it may confine the use of these roads strictly to its own purposes, postal, governmental, and military, or it may permit their use for other purposes; that it may permit these uses for other purposes free of tolls and charges, or it may fix for such uses any tolls or charges it may thing proper.

There is, I submit, no just ground for the doubt expressed by Mr. Rawle as to the constitutional power in the Federal Government to charge tolls for the use of a post road, in case it should permit its use for other purposes. The sovereign and unlimited power to build, operate, and maintain post roads necessarily implies the right to permit their use and to charge tolls for such use, in order to lighten the burden on the general public of building and maintaining such roads and to distribute it among those who are most benefited. Such is the common practice of all governments. In order to facilitate the construction of the Panama Canal, the Government now owns and operates a line of vessels from New York to Colon and carries its own officers and materials, and also freight and passengers for hire. Is this unconstitutional?

If the Government should under the interstate commerce power construct an interstate highway, could it not charge tolls for the use of such highway? What possible objection could be urged against this right? The States have the right to improve the natural highways within their borders and to charge tolls for the use of the facilities furnished. The Federal Government having the supereminent right to improve such highways, and, as shown above in the Monongahela Navigation Co. case, to expropriate franchises and works authorized by the States in such streams, why can it not charge tolls for the facilities furnished by it? That it has not heretofore made any such charges is due to the wealth and generosity of the Government, and not to any want of power to make them.

If these premises are correct, then it follows, on the principles above shown to be settled beyond controversy, that the Congress may in its discretion organize corporations by general or by special act to aid, assist, and facilitate the execution of this express power. Such national post-road corporations would be like the Second Bank of the United States and the existing national banks, as described in the language of the Supreme Court in Davis v. Elmira Savings Bank (161 U. S., 283): "Instrumentalities of the Federal Government, created for a public purpose, and as such necessarily subject to the paramount authority of the United States."

If it should be claimed that these corporations could be authorized only to construct and maintain these national post roads and to carry only the mails, property, and officials of the United States, and that they could not be authorized to deal with individuals in the transportation of persons and property, the answer is twofold: First, that having itself the right to permit the use of such roads and to charge tolls therefor in the event that it owned and operated them, it can transfer such right to its own agents and instrumentalities; second, that just as the power to deal in money, notes, and bills of exchange with individuals for its own profit all over the United States was essential in the opinion of the Congress and of the Supreme Court of the United States, to the proper, efficient, and beneficial performance of the duties and functions of the Bank of the United States, as the fiscal agent of the Government, just so the power to deal in transportation must be held to be essential to the proper, effi

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cient, and beneficial operation of national post-road corporations. The unchal lengeable reasoning of Chief Justice Marshall in Osborn v. United States Bank settles this proposition. That reasoning is too closely kuitted together to be severed and too long to be quoted here. No valid distinction can be drawn between the vital necessity of the right to trade in money to a fiscal instrumentality of the Government and the vital necessity of the right to trade in transportation to a transportation instrumentality of the Government. If a bank is created to operate as the fiscal agent of the Government and is permitted to have but one customer, the Government itself, it is manifest that it would be lame and impotent for the purposes of its organization unless that one customer should submit to the inconveniences due to the restrictive sphere of its agents' operations and pay such an enormous price for the services performed for it as to make the burden of supporting the bank fall entirely on its shoulders. So, if a post-road corporation is created to operate as a postal transportation agent of the Government and is permitted to have but one customer, the Government itself, the cost of transportation to the Government would be so great and possibly the extent, celerity, and efficiency of the service so defective as to defeat the object for which the agency was created. The Federal Government has and must have the power to carry out to a perfect consummation all the great exclusive, express powers granted to it by the Constitution for national purposes. In regard at least to those exclusive, express powers, even the strictest constructionist concedes that it is undoubtedly sovereign, undoubtedly supereminent, and expressly authorized in the Constitution to make all laws necessary and proper to carry them into execution. What is necessary and proper for that purpose is left to the discretion of the Congress. There never has been, and, in my opinion, there never will be, any departure from the rule of construction laid down by the great Chief Justice in McCulloch v. Maryland, who said:

"The sound construction of the Constitution must allow to the National Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end. which are not prohibited, but consistent with the letter and spirit of the Constitution are constitutional."

The power to establish post offices and post roads" is a broad, unlimited, and unrestricted grant. It is confined only by those limitations in the Constitution which apply to all the granted powers of the Government.

The powers contained in this grant are fundamentally different from those vested in the Continental Congress by the Articles of Confederation. The post-office power under the confederation was strictly an interstate power, an exclusive power "of establishing and regulating post offices from one State to another throughout all the United States." (Articles of Confederation, art. 9.) To each State was left the right to regulate its own internal postal system, with its details of post offices, post roads, postal transportation, and postal charges. The genesis of the grant as it now stands appears in the proceedings of the convention of 1787. In Pinckney's proposed draft of a Constitution, which, together with all the general resolutions, presented and not considered, and presented and adopted, was referred to the committee of five, there were two distinct clauses, one granting power" to establish post offices' and one granting power “to establish post and military roads." In the draft of the Constitution reported by the committee of five on August 6 only the grant "to establish post offices" was retained. On August 16 the words "and post roads" were added on motion of Eldridge Gerry. There appears to have been no debate on this addition (at least none is reported by Madison), though it was carried by only six States to five. (Elliot's Debates, vol. 1, p. 245; the Madison Papers, 1343.)

At a later date, September 14, after the report of the committee on style had been presented, Benjamin Franklin moved to add after the words "post roads" a power "to provide for cutting canals where deemed necessary." This motion was seconded by James Wilson. Madison suggested an enlargement of the motion into a power "to grant charters of incorporation where the interest of the United States might require, and the legislative provisions of individual States may be incompetent." In support of this amendment he said: "His primary object was, however, to secure an easy communication between the States, which the free intercourse now to be opened seemed to

call for. The political obstacle being removed, a removal of the natural ones as far as possible ought to follow." Franklin's motion being modified at the suggestion of Madison and Col. Mason so as to make it cover a power to grant letters of incorporation of canals alone, it was lost. (Elliot's Debates, vol. 1, p. 310; the Madison Papers, p. 1576-1577.) I submit that the substance of Franklin's amendment, the clause in the Constitution of which it was to make a part and to which it was supposed to be germane, and the discussion had on it, show clearly that the framers of the Constitution understood that the power to establish post roads" meant the power to construct and operate them.

The only mention made of the post-road power in the Federalist is contained in No. 42, by Madison, who says:

"The power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency. Nothing which tends to facilitate intercourse between the States can be deemed unworthy of the public care."

How could such a power be used so as to be "productive of great public conveniency," and how could it tend to facilitate intercourse between the States" if it was exhausted by designating the roads, made and maintained by the States or their grantees, as post roads on which mail carriers might transport the mails, and did not extend, in the fullest measure, to the construction and maintenance of postal highways by the Federal Government itself or its grantees.

The grant as it stands to-day in the Constitution is now conceded to be exclusive in its nature. No postal power whatever remains in any of the States. As stated by the supreme court of Kentucky in the Diekey case, supra, and by the Supreme Court of the United States in the Rapier case, supra, the grant was a complete grant of all the power on that subject theretofore resident in the States, inclusive even of the police power, to the extent necessary to make the grant effective.

It is a grant for national purposes, and, as said by Judge Story, must be treated from the national point of view. That it has not been heretofore exercised to its full extent is no argument against its scope or its national character. If the people, in the Congress assembled, believe it to be wise to use this broad grant to establish a Government postal bank, a Government postal telegraph, or a Government postal express by land or water or both, and to permit the people, even as Congressmen, under the franking privilege, have been known to do under the existing system, to send their pianos, household furniture, and laundry through the mails, they have, I submit, the undoubted constitutional power so to do.

They have already set up the postal money-order system, which the strict constructionists might say is void because essentially a domestic exchange business. They have already laid the beginnings of the parcels post, by authorizing packages of merchandise, not weighing over 4 pounds, to be carried as mail matter, which the strict constructionist might also say is void because essentially a freight-carrying business.

Having all these powers, and discretion as to how they shall be exercised, and having the undoubted power to create corporations as instrumentalities to facilitate the execution of its powers, it appears to me that the conclusion is irresistible that the Federal Government has the right to establish national post-road corporations and to give them power to deal in the transportation of persons and things as a convenient, appropriate, efficient, and hence necessary and proper means to accomplish the purpose for which their governmental instrumentality is established.

This power to deal in transportation would not be derived from, nor be based upon, nor have any connection with, the interstate-commerce power of the Constitution, and therefore would not be bound by the limitations on that power.

The limited power of the Congress over interstate transportation, as the vehicle and instrument of interstate commerce, would not prevent the exercise of power over transportation as auxiliary to the express power to establish post offices and post roads. The principle that "power over a particular subject may be exercised as auxiliary to an express power, though there is another express power relating to the same subject, less comprehensive" was laid down in U. S. v. Marigold (9 How., 560), and was formulated by the court as above quoted in the Legal Tender cases (12 Wall., 544). (See also Shollen. berger v. Brinton, 52 Penn. St., 64.)

The claim that these national post-road corporations, with the powers suggested, would infringe upon the reserved rights of the States is without foundation. If the broad, exclusive, national grant is in the Constitution, how can there be any question of infringement on the reserved powers of the States? The reserved powers are those not granted at all. There is no just reason why State highways, and State corporations to build and operate State highways, and Federal postal highways, and Federal corporations to build and operate Federal postal highways, could not coexist in the same territory just as State banks and national banks exist, side by side, in the same cities and towns, competing with each other for the banking business of the people, interchanging business with each other, and acting together in matters pertaining to their mutual interests, as, for instance, in clearing-house associations. Of course, the power of the States to control these national post-road corporations would be limited, but the same limitations exist on the power of the State to control the national banks, or any other instrumentality of the Federal Government. These national post-road corporations may have many advantages over State transportation companies, just as the national banks may have many advantages over State banks, but these advantages are not only not an argument against their existence, but the very strongest argument for their creation. The superior advantages of the national banks over the existing State banks were conceived to be so great when the national banking system was created that provision was made in the national banking act whereby all State banks could transmute themselves into national banks. In Casey v. Galli (94 U. S., 673) it was held that no consent of the State, under whose laws a banking company was organized, was necessary to enable it to change its charter from a State to a Federal charter, because "it was as competent for Congress to authorize the transmutation as to create such institutions originally." On the same principle it would be competent for the Congress to authorize all State transportation companies, engaged in carrying the United States mails on post routes, adopted and designated as such by the Congress, to surrender their State charters and become national post-road corporations. Such change of corporate existence would have to be entirely voluntary, and could not, of course, be compelled by the Congress, but a strong compelling power would lie in the Congress by a provision that none but a Federal post-road corporation should carry the mails.

But, it is excitedly exclaimed, by those whose amusement and profit it is, in some of the States, to bait the transportation companies like bears, and under the pretense of reasonable regulation and taxation, practically to confiscate their property and franchises; if you give the State transportation companies any such opportunity they will all grasp it, and the States will lose control of all the existing highways now owned and controlled by such State corporations. What if they do? Is their power affected to build or to authorize the building of others? Are their just powers and privileges in any way injured or diminished? Did not such an exodus from State authority take place of State banks under the national-banking law? Has the general welfare of the people of any State or of the aggregate people of the Nation been thereby injured? From my point of view this exodus of State transportation companies from State authority and their incorporation under Federal authority is the very point to be accomplished by the establishment of the national post-road system. The transportation problem in these United States is one which most intimately affects the convenience, the comfort, the health, and the prosperity of all the people. The artificial highways of the Nation have long ago exceeded in number and in importance the natural highways which have already passed entirely under Federal control. These artificial highways are nearly all linked together in one great connected system like the arteries and veins of the human body, and ought to function in some similar way. They are now subject to the discordant control and regulation of 45 different independent legislative sovereigns, some conservative, some viciously redical. In some of these it is claimed that the transportation corporations dominate the legislatures, and are too strong for the people to handle. In others it is well known that the transportation companies are worse than pariahs, and are treated as such. The American people have fourteen and a half billions of capital invested in these great corporations. Their securities form the main investment of educational institutions, insurance companies, savings banks, trust companies, trust estates, and thousands of persons whose fortunes are involved in the integrity of these securities. The notion that the bulk of these securities are owned and controlled by half a dozen criminal millionaires is a falsehood, taught and propagated by yellow journalism, the strongest ally of anarchy and socialism.