road.1 In such cases, as the benefit is for the Union, the burthen ought to be borne by the Union. Without any invidious distinction, it may be stated, that the winter mail-route between Philadelphia, and Baltimore, and Washington, by the way of the Susquehannah and Havre de Grace, has been before congress under this very aspect. There is no one, who will doubt the importance of the best post-road in that direction; (the nearest between the two cities;) and yet it is obvious, that the nation alone can be justly called upon to provide the road.

§ 1139. Let a case be taken, when state policy or state hostility shall lead the legislature to close up, or discontinue a road, the nearest and the best between two great states, rivals perhaps for the trade and intercourse of a third state, shall it be said, that congress has no right to make, or repair a road for keeping open for the mail the best means of communication between those states? May the national government be compelled to take the most inconvenient and indirect routes for the mail?2 In other words, have the states a power to say, how, and upon what roads the mails shall, and shall not travel? If so, then in relation to post-roads, the states, and not the Union, are supreme.

§ 1140. But it is said, that it would be dangerous to allow any power in the Union to lay out and construct post-roads; for then the exercise of the power would supercede the state jurisdiction. This is an utter mistake. If congress should lay out and construct a postroad in a state, it would still be a road within the ordinary territorial jurisdiction of the state. The state could not, indeed, supercede, or obstruct, or discon

1 See Rawle on the Constitution, ch. 9, p. 103, 104.

24 Elliot's Debates, 356.

tinue it, or prevent the Union from repairing it, or the mails from travelling on it. But subject to these incidental rights, the right of territory and jurisdiction, civilly' and criminally, would be complete and perfect in the state. The The power of congress over the road would be limited to the mere right of passage and preservation. That of the state would be general, and embrace all other objects. Congress undoubtedly .has power to purchase lands in a state for any public purposes, such as forts, arsenals, and dock-yards. So, they have a right to erect hospitals, custom-houses, and courthouses in a state. But no person ever imagined, that these places were thereby removed from the general jurisdiction of the state. On the contrary, they are universally understood for all other purposes, not inconsistent with the constitutional rights and uses of the Union, to be subject to state authority and rights.

§ 1141. The clause respecting cessions of territory for the seat of government, and for forts, arsenals, dockyards, &c. has nothing to do with the point. But if it had, it is favourable to the power. That clause was necessary for the purpose of ousting the state jurisdiction in the specified cases, and for vesting an exclusive jurisdiction in the general government. No general or exclusive jurisdiction is either required, or would be useful in regard to post-roads. It would be inconvenient for congress to assemble in a place, where it had not exclusive jurisdiction. And an exclusive jurisdiction would seem indispensable over forts, arsenals, dock-yards, and other places of a like nature. But surely it will not be pretended, that congress could not erect a fort, or magazine, in a place within a state, unless the state should cede the territory. The only effect would be, that the jurisdiction in such a

case would not be exclusive. Suppose a state should prohibit a sale of any of the lands within its boundaries by its own citizens, for any public purposes indispensable for the Union, either military or civil, would not congress possess a constitutional right to demand, and appropriate land within the state for such purposes, making a just compensation? Exclusive jurisdiction over a road is one thing; the right to make it is quite another. A turnpike company may be authorized to make a road; and yet may have no jurisdiction, or at least no exclusive jurisdiction over it.

§ 1142. The supposed silence of the Federalist 1 proves nothing. That work was principally designed to meet objections, and remove prejudices. The postoffice establishment in its nature, and character, and purposes, was so generally deemed useful and convenient, and unexceptionable, that it was wholly unnecessary to expound its value, or enlarge upon its benefits.

§ 1143. Such is a summary of the principal reasoning on each side of this much contested question. The reader must decide for himself, upon the preponderance of the argument.

§ 1144. This question, as to the right to lay out and construct post-roads, is wholly distinct from that of the more general power to lay out and make canals, and military and other roads. The latter power may not exist at all; even if the former should be unquestionable. The latter turns upon a question of implied power, as incident to given powers.2 The former turns upon the true interpretation of words of express grant. Nobody doubts, that the words. "establish post-roads," may, without violating their re

1 No. 42.

2 See Rawle on the Constitution, ch. 9, p. 104.

ceived meaning in other cases, be construed so, as to include the power to lay out and construct roads. The question is, whether that is the true sense of the words, as used in the constitution. And here, if ever, the rule of interpretation, which requires us to look at the nature of the instrument, and the objects of the power, as a national power, in order to expound its meaning, must come into operation.

§ 1145. But whatever be the extent of the power, narrow or large, there will still remain another inquiry, whether it is an exclusive power, or concurrent in the states. This is not, perhaps, a very important inquiry, because it is admitted on all sides, that it can be exercised only in subordination to the power of congress, if it be concurrent in the states. A learned commentator deems it concurrent, inasmuch as there seems nothing in the constitution, or in the nature of the thing itself, which may not be exercised by both governments at the same time, without prejudice or interference; but subordinate, because, whenever any power is expressly granted to congress, it is to be taken for granted, that it is not to be contravened by the authority of any particular state. A state might, therefore, establish a post-road, or postoffice, on any route, where congress had not established any.1 On the other hand, another learned commentator is of opinion, that the power is exclusive in congress, so far as relates to the conveyance of letters, &c. It is highly improbable, that any state will attempt any exercise of the power, considering the difficulty of carrying it into effect, without the co-operation of congress.

1 1 Tuck. Black. Comm. App. 265.

2 Rawle on the Constitution, ch. 9, p. 103, 104.

CHAPTER XIX.

POWER TO PROMOTE SCIENCE AND USEFUL ARTS.

§ 1146. THE next power of congress is, " to promote "the progress of science and the useful arts, by secur"ing, for limited times, to authors and inventors the "exclusive right to their respective writings and dis"coveries."

§ 1147. This power did not exist under the confederation; and its utility does not seem to have been questioned. The copyright of authors in their works had, before the revolution, been decided in Great Britain to be a common law right; and it was regulated and limited under statutes passed by parliament upon that subject. The right to useful inventions seems, with equal reason, to belong to the inventors; and, accordingly, it was saved out of the statute of monopolies in the reign of King James the First, and has ever since been allowed for a limited period, not exceeding fourteen years. It was doubtless to this knowledge of the common law and statuteable rights of authors and inventors, that we are to attribute this constitutional provision. It was beneficial to all parties, that the national government should possess this power; to authors and inventors, because, otherwise, they would have been subjected to the varying laws and systems of the different states on this subject, which would im

1 2 Black. Comm. 406, 407, and Christian's note, (5); 4 Burr. R. 2303; Rawle on Const. ch. 9, p. 105, 106; 2 Kent's Comm. Lect. 36, p. 306, 307, 314, 315.

2 2 Black. Comm. 407, and Christian's note, (8); 4 Black. Comm. 159; 2 Kent's Comm. Lect. 36, p. 299 to 306.

3 The Federalist, No. 43.