Early attempts, then, by Congress to furnish postal facilities and open up communication through the construction of highways for the carriage of the mails, met with denials that the power “to establish postroads” meant more than the power to designate the roads to be used, and that, even if this were not so, any action could be taken without the consent of the states whose territory was to be used. To permit national undertakings, however, Monroe developed the distinction that Congress might appropriate for roads to be laid out with the consent of the states, but that the national government had no jurisdictional rights to construct, repair or keep the highways free from obstructions. This distinction, which Von Holst called a “quibble on words,” was abandoned by John Quincy Adams, who was a stanch advocate of federal aid, but was revived by Jackson, who believed that appropriations could be made for national, but not for local purposes. In Congress, during the whole of this period, various views were expressed, but the better opinion, accepted by the authority, if not by the majority, of the speakers, was that Congress had powers (occasionally exercised) which were broader than the executives were disposed to concede.

The continued assertion by the states of plenary authority and the failure of Congress to adopt any successful plan by which the Cumberland Road might be kept in repair, led to compacts of surrender under which the national authorities gave up all control over this highway. The meaning of these compacts was examined by the Supreme Court of the United States, and the plain implication of the decisions (although definite expressions were not necessary for the determination of the particular questions presented) is that Congress had the right to construct postroads and to charge tolls for their use by others than postal officials. This power had already been conceded in an illuminating opinion by the Kentucky Court of Appeals, and the subsequent decisions recognizing a right of eminent domain in the federal government and sanctioning the federal incorporation of railway and bridge companies, are conclusive authority that Congress had the power which the more liberal of its members asserted, but which the states and occasional executives denied. That the power to establish postroads comprehends the power to construct (compensation being made to the states), to levy tolls, and to repair and keep free from obstructions, has thus been assured by judicial decisions as well as by a fair interpretation of the words of the grant; and any fancied taint of unconstitutionality has been removed from laws which Congress passed under its plenary power “to establish postroads,” but which exceeded the limitations laid down by the strict constructionists, and did not come before the Supreme Court for a determination of their validity.