places as he may judge best, and expedite the mail as frequently, on established routes, as the public interest may require.

§ 161. The power to establish Post-offices and Post-roads being given, the consequential powers necessary to carry it into execution are likewise given; as, for example, the power to secure the safety and speedy transportation of the mail.1 Congress have accordingly made the robbery of the mail a felony, and prohibited, under high penalties, the obstruction of the mail. Under this act the Supreme Court2 have decided, that even a stolen horse, found in the mail stage, could not be seized, and that the driver could not be arrested on civil process in such a way as to obstruct the mail. But it was subsequently decided, that this was not to be carried so far as to endanger the public peace by interfering with criminal process. Thus, a felon may be arrested in the mail stage, or the driver, if he had committed murder.

§ 162. Under the power to establish Post-roads has arisen the question of Internal Improvements. Though much agitated, it is not settled, and I shall give here merely the different authorities upon the subject, whether Legislative, Executive, or Judicial.

§ 163. 1st. Of the Legislative opinions upon the subject. By the Act of March 3d, 1803, Congress concluded a compact with the state of Ohio, by which three per cent. of all the moneys derived from the sale of public lands within the State of Ohio were reserved for the construction of roads within that state. The consideration was, that the lands of the United States in that state should not be taxed. Whether by inadvertence or intention, this act clearly acknowledged the power of the general government to make Internal Improvements; for the appropriation was made by the Act of April, 1810. 31 Peters' Rep. 390.

23 Hall's Law Journal.

United States, and the funds were derived from the property of the United States. It could be no objection to this, reasoning that the work was to be done by the state; for it is an established principle, that "he who acts by another, acts by himself." Neither is it an argument to say there was a consideration; for, "what one cannot do directly he cannot do indirectly." This was so understood by Congress, for in several subsequent acts they authorized the construction of roads within the North-west Territory.

§ 164. The next step taken by Congress' was the construction of the Cumberland Road. This road was commenced in 1806, and in a few years finished from Cumberland, on the Potomac, to Wheeling, on the Ohio. In 1820, Congress resumed the construction from Wheeling westward, and it is now in progress through the western states. This work was undertaken on the ground of the compact with Ohio. By the terms of a compact made between that state and the United States, five per cent. of all the moneys arising from the sale of public lands within that state were to be applied to the making of roads "leading from the navigable waters of the Atlantic to the Ohio." This, however, falls within the same principles already stated, in reference to the three per cent. fund; and as the sum drawn from the reserved funds was soon greatly exceeded, the work has since been conducted simply on the ground of internal improvement.

§ 165. The next act2 was the opening of the road from Athens, in Georgia, to New-Orleans, and from Nashville to Natchez. In 1809, the Canal of Carondelet was extended to the Mississippi by the general government.

§ 166. In 1811, Congress directed the survey and making of two roads, one from the Rapids of the

1 Act of March, 1806.
$ Act of February, 1809.

2 Act of April, 1806.
4 Act of December, 1811.

Maumee to the Western Reserve, and another from Sandusky to the Greenville Line.

§ 167. By several successive acts in 1812, 1816, 1817, and 1818, Congress confirmed their former decisions, by making surveys of, and authorizing the construction of roads; till it would seem that, practically, there was no doubt in the National Legislature upon the subject. The matter has, however, been several times tested by the interposition of the Executive Veto.

§ 168. A bill to set apart a portion of the bank bonus and dividends for the purpose of Internal Improvement was passed in 1817, and returned by Mr. Madison, who denied the power of Congress to construct roads and canals, or improve water-courses. The House of Representatives, however, re-affirmed their power by a vote of sixty to fifty-six.

§ 169. At the succeeding session, Mr. Monroe, in his message, also denied the constitutional power of Congress to make Internal Improvements. The House soon after passed a resolution, ninety to seventy-five, declaring that Congress, under the Constitution, had power to construct roads and improve water-courses.

§ 170. From this period Internal Improvement seemed the settled policy of the government for several years. In 1822, Mr. Monroe, indeed, interposed his veto on the bill providing for the Collection of Tolls on the Cumberland road; but, the objection was not to the power of making roads, but to the Collection of Tolls upon it, as being inconsistent with the jurisdiction and sovereignty of the soil. This, however, was not deemed an impediment to the construction of public works, for Congress immediately took measures to organize a system of surveys and reports, in relation to such roads and canals as the public interest might require; and in April, 1824, what is called the Survey Bill became a law. It appropriated $30,000 for the purpose of making surveys of different parts of the country, and authorized

the employment of the Engineer Corps in that service. Soon after the passage of this bill, the accession of a new administration, decidedly favorable to Internal Improvement, gave the system a new impulse, and from that time forward Congress enacted many laws affirming and enlarging these powers. They subscribed a large amount of stock to the Ohio and Chesapeake Canal, to the Dismal Swamp Canal, and the Louisville and Portland Canal. They made appropriations for the improvement of numerous harbours, rivers, &c. &c.,for the making of Military Roads,-for the continuance of the Cumberland Road, and various other public works. A practical check was given to this system by President Jackson, in his veto on the Maysville Road Bill, of which I shall speak hereafter. Congress, how

ever, remained unchanged. By the passage of the Harbour Bills, and numerous other items for roads and improvements in other bills, they have manifested a fixed opinion in favor of their power to construct roads. and other public works.

§ 171. The result deduced from this Legislative History is, that Congress have uniformly asserted their power, under the Constitution, to construct and hold, with the public funds, public works, under the denomination of Internal Improvements. We shall now examine the opinion of another branch of the government.

§ 172. 2d. Of the Executive opinions. During the administration of Washington and the elder Adams, the power of Congress in respect to Internal Improvements was neither exercised nor much examined, and therefore no executive opinions were formally advanced. Under the administration of Mr. Jefferson, we have already seen the compact was made with Ohio, and the Cumberland Road undertaken. To both these acts Mr. Jefferson gave his assent, and it is difficult to see in what respect these works differ from other public improvements; yet, by his message of December 2d, 1806,

he denied the power of Congress to make roads and improve water-courses, though he earnestly recommended the grant of such powers by the states. The reason given was, that this power was not enumerated among the powers of Congress. The authority of Mr. Jeffer son, therefore, may be considered as decidedly against the power to make internal improvements, though he was most earnestly in favor of granting such a power to the government.

§ 173. Mr. Madison, in 1796, spoke in favor of a resolution relative to a survey of a road from Maine to Georgia; yet, in 1815, in his Message to Congress, while strongly recommending to Congress "the great importance of establishing throughout our country the roads and canals which can best be executed under national authority," intimated that any defect in the constitutional power might be supplied in the mode provided by the Constitution.

In 1817, Mr. Madison placed his Veto upon the bill providing means for the construction of roads and canals, and the improvement of water-courses. He denied the constitutional power of Congress to make such works, and thus gave his judgment also in the negative.

§ 174. In Mr. Monroe's first message to Congress,' he declared his agreement with his predecessors, and doubt of the constitutionality of such works. After the passage of the Resolution of Congress, in 1818, affirming the power, he is understood to have withdrawn his opposition, and during his administration, appropriations for such purposes greatly increased. In 1822, however, he placed his veto2 upon the act for the erection of Tollgates and the collection of Tolls on the Cumberland Road. This he considered as requiring the jurisdiction and sovereignty of the soil, which the general government did not possess.

§ 175. Mr. John Quincy Adams strongly recom1 December, 1817. 2 May, 1822.