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• To the Public.
• Unconstitutionality of the Laws of Congress, Prohibiting Private Mails.
• Argument.
• The Postmaster General’s Argument.
• Expediency.

THE POSTMASTER GENERAL’S ARGUMENT.

The argument of the Postmaster General is as follows:—

“This grant of power” (that is, “to establish post offices and post roads,”) “is found in the same clause, (should be “section,”) and is expressed in the same words and language of the grants of power to coin money, to regulate commerce, declare war, &c.”

No argument, in favour of the exclusiveness of the power, can be drawn from the fact here stated. Nearly all the powers granted to Congress, are included in the same section—but who before ever argued that all the powers mentioned in that section, were therefore exclusive?

The power “to lay and collect taxes,” and the power “to borrow money,” are “found in the same clause,” (section), and “expressed (substantially) in the same words and language of the grants to coin money, to declare war, &c.” But the powers to borrow money, and to lay and colject taxes, are not therefore exclusive.

The Postmaster General is certainly very unfortunate in his analogies. The exclusiveness of the powers “to coin money,” and “to declare war,” does not result from the terms of the grants, as his argument supposes, but from the special prohibitions in another section, to wit,—“no State shall coin money,” and “no state shall declare war.” But for these express prohibitions upon the States, the powers to coin money, and declare war, would have been concurrent powers—else why were these prohibitions inserted? There being no such prohibition in regard to establishing post offices and post roads, that power is concurrent, as those would have been, but for the prohibitions.

Besides, there is no analogy, in principle, between an exclusive power “to declare war,” or “to coin money,” and an exclusive power to establish post offices and post roads; because an individual has a natural power and right to establish post offices and post roads; but he has no natural power or right “to declare (public) war.” He has power only to speak and act for himself. Neither has he any natural power or right “to coin money,” because “to coin” signifies, (according to lexicographers), an act of government, as distinguished from the acts of individuals.

But the powers of Congress “to declare war,” and “to coin money,” are in reality exclusive, only as against the State governments. They are not exclusive of any natural rights on the parts of individuals. The constitutional prohibition upon individuals, to coin money, extends no farther than to prohibitions upon “counterfeiting the securities and current coin of the United States.” Provided individuals do not “counterfeit” or imitate “the securities or current coin of the United States,” they have a perfect right, and Congress have no power to prohibit them, to weigh and assay pieces of gold and silver, mark upon them their weight and fineness, and sell them for whatever they will bring, in competition with the coin of the United States.

It was stated in Congress a few years since, by Mr. Rayner, I think, of North Carolina, that in some parts of the gold region of that State, a considerable portion of their local currency consisted of pieces of gold, weighed, assayed, and marked by an individual, in whom the public had confidence. And this practice was as unquestionably legal, as the sale of gold in any other way. It was no infringement of the rights of Congress.

The same is true in regard to war. Individuals have no natural power to declare public war. But the natural right of individuals to make private war is secured to them by that clause of the constitution, that secures to them the right to keep and bear arms. It is true, the natural right of individuals to make war, extends no farther than is necessary for purposes of defence. Their natural power, however, goes beyond this limit—and if an individual were to exercise his natural power of making war for other purposes than defence, he would be punished only as a murderer or pirate, and solely on the ground of his having transcended his natural right—certainly not on the ground of his having infringed the exclusive power of Congress.

The power of Congress “to regulate commerce,” (which is quoted by the Postmaster General as a parallel case to the post office power), is held to be exclusive solely on the ground of the unity of the subject. In the case of Gibbons vs. Ogden, (9 Wheaton,) Mr. Webster’s argument in favor of the exclusive power of Congress over commerce, was this—that “commerce was a unit,” and that regulations by the States, operating upon the identical thing that was under the regulation of Congress, would necessarily conflict with the regulations of Congress—because, he said, the regulations of Congress may consist as much in leaving some parts free, as in regulating others. And the court concurred in this opinion.

That “commerce” is a unit, is obvious. There is but one “commerce with foreign nations,” into however many parts and varieties it may be subdivided. “Commerce” is a word that has no plural. It embraces every variety, part and parcel of all the different kinds of commerce that are carried on by individuals.

But there is no unity in the term “post offices” or “post roads”—any more than there is in the term stage coaches or steamboats. Suppose the constitution had said that “Congress shall have power to establish stage coaches and steamboats”—would any one have imagined that Congress had thereby acquired the exclusive right of establishing stage coaches and steamboats?

But there is a lack of analogy, in another particular, between the power “to regulate commerce” and the power “to establish post offices and post roads.” The power to “regulate” and the power to “establish,” are, in their nature, very different powers. No power is granted to Congress, to carry on or “establish” commerce on their own account—but only to “regulate” that which is carried on by others. Their post office power is directly the reverse of this. It is a power “to establish post offices” of their own—but not to “regulate” the offices or business of others.

But the Postmaster General says further, that the grant of power “to establish post offices and post roads” “is ample, full, and consequently exclusive.”

According to this reasoning, the power of Congress “to borrow money” is exclusive—for it is both “ample” and “full”—precisely as ample and full as the power to establish post offices and post roads. The power of taxation (except upon exports) is also “ample, full, and (according to the argument of the Postmaster General) consequently exclusive.”

Such are the absurdities into which men are obliged to run, in order to find apologies for claiming that a simple “power to establish post offices and post roads” is an exclusive one.

But the Post Master General says further: “If a doubt could exist as to the exclusiveness of this grant, that doubt must vanish upon a reference to the 10th article of the amendments to the constitution, which declares ‘The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.’ The power to establish post offices and post roads, is plainly and distinctly delegated to the United States. It is, therefore, not a power reserved to the states respectively, or to the people.”

This implication is as unfounded, as it is far-fetched and unnatural. The language quoted by the Post Master General is not contained in the original constitution, but constitutes an amendment, that was subsequently adopted. It is one of the ten amendments, that were adopted soon after the original constitution had gone into operation. These amendments were all adopted for the avowed purpose of quieting the fears of those who thought that too great powers had already been given to the government. Not one of the whole ten purports to grant any new power to Congress, or to enlarge any of the powers that had been previously granted. On the contrary, every one of them, without an exception, purports either to prohibit Congress from stretching their powers beyond the terms of the original grants, or to secure some principle of civil liberty against all pretences of power on the part of Congress. And the very amendment, quoted by the Postmaster General, was obviously designed, and designed solely, as a prohibition upon the usurpation of any power not previously granted. Yet now the Postmaster General, by a back-handed and unnatural implication, would draw, from a simple amendatory prohibition of this kind, a warrant for enlarging all the original powers, and making those exclusive and despotic, which were before harmless and concurrent.

But again. The language of this amendment is simply that: “The powers, not delegated to the United States, by the constitution,” (as distinct from the amendments,) “nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Now the inference of the Postmaster General from this language, might, safely to the argument, be admitted to be correct, if it were also considered what kind of a power, (on the subject of post offices and post roads,) had really been “delegated to the United States by the constitution.” What was that power? It was, as has been shown, merely a power concurrent with that of the states and people, “to establish post offices and post roads.” Only a concurrent power, then, having been delegated, and a like power not having been prohibited to the states or people, it necessarily follows, from the terms of the amendment itself, that a concurrent power to establish them is “reserved” to the states respectively, or to the people—or to both.

But the Postmaster General reasons as if none but exclusive powers had been either delegated or reserved. His whole argument hangs upon this idea. He cannot conceive of concurrent powers. It is probably a mystery to him how even two individuals can have concurrent rights to establish business of any kind in competition with each other.

If the implication of the Postmaster General were correct, the powers of Congress “to lay and collect taxes,” and “to borrow money,” are now exclusive powers—for they are “plainly and distinctly delegated to the United States,” and “therefore” (according to his argument) are “not reserved to the states respectively, or to the people.”

Nearly all the plausibility of the Postmaster General’s argument, (if it have any plausibility,) is derived from the unauthorized use of the article “The.” He says that “The power,” (as if there were, or could be, but one power of the kind, in the country,) “is plainly and distinctly delegated to the United States”—and then infers that it cannot of course be reserved to the states or people—because that would involve an impossibility. Now it happens that the power delegated to the United States, on this subject, is not described, in the constitution, as “the power,” (meaning thereby a sole power)—but it is described simply as “power.” The constitution does not say that Congress shall have “the power”—but only that they shall have “power”—that is, a power—or (more properly still) sufficient power—“to establish post offices and post roads.” He might, with the same propriety, have said that “The power,” (instead of a power,) “to borrow money,” had been delegated to the United States, and that therefore no similar power could be reserved to the states or people—as if there were, or could be, but one power, in the whole country, constitutionally capable of borrowing money. Or he might, with the same propriety, have said that “The power” of taxation—instead of a power of taxation—had been delegated to Congress—and that therefore no similar power had been reserved to the states or people.

When, in common parlance, we use the article “The,” in connexion with a power granted to Congress—as, for instance, in the expression, “The power of congress to borrow money,” or “The power of congress to lay and collect taxes,” or “The power of Congress to establish post offices, and post roads”—we do not use it to designate certain sole powers, or units, but to designate the powers existing in congress, as distinguished from similar or other powers existing in the states or individuals. But the Postmaster General has not only substituted the language of common parlance for the language of the constitution, but has also given to it a different meaning from what, even in common parlance, is attached to it.

The whole argument of the Postmaster General, as has already been said, rests upon the assumption that there is, or can be, but one power of any one kind, in the whole country—and that if this one power be granted to Congress, it cannot, of course, remain with the states or people. If this doctrine were correct, all the powers granted to Congress, would necessarily have been exclusive, without any express prohibitions either upon the states or individuals—and consequently all the express prohibitions, in the constitution, would have been mere surplussage.

But there is still another oversight in the argument of the Postmaster General.

A simple power “to establish post offices and post roads,” and the power of prohibiting similar establishments by others, are, in their nature, distinct powers. The former alone having been delegated to Congress, the latter necessarily remains, and is declared, by the amendment cited, to remain with the states, or the people. Neither the states, nor the people, have seen fit to exercise this prohibitory power, that is thus reserved to them—and they probably never will. They cannot exercise it, without abridging the freedom of speech and the press, and infringing a fundamental principle of civil liberty.

Still further. No implication, natural or unnatural, logical or illogical, necessary or unnecessary, can prevail against an express provision. The provision is express, that “Congress shall make no law” (post office law, or any other,) “abridging the freedom of speech, or of the press.” The power of Congress, then, on this subject, is just what it would have been, and only what it would have been, if the two clauses had stood in connexion, in this wise. “Congress shall have power to establish post offices and post roads,” but “shall make no law abridging the freedom of speech, or of the press.”