the exercise of the power would supersede the State jurisdiction. This is an utter mistake. If Congress should lay out and construct a post-road in a State, it would still be a road within the ordinary territorial jurisdiction of the State. The State could not, indeed, supersede, or obstruct, or discontinue 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 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 court-houses 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.

§ 1146. The clause respecting cessions of territory for the seat of government, and for forts, arsenals, dock-yards, &c., has nothing to do with the point. But if it had, it is favorable 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.

§ 1147. The supposed silence of the Federalist1 proves nothing. That work was principally designed to meet objections, and remove prejudices. The post-office 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.

§ 1148. 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.

§ 1149. 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 received 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.

§ 1150. 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,

1 No. 42.

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

VOL. II.

6

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 post-office, on any route, where Congress had not established any. 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.2 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 Tuck. Black. Comm. App. 265.

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

CHAPTER XIX.

POWER TO PROMOTE SCIENCE AND USEFUL ARTS.

§ 1151. THE next power of Congress is, "to promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries."

§ 1152. 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.1 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 statutable rights of authors and inventors, that we are to attribute this constitutional provision.3 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 impair, and might even destroy the value of their rights; to the public, as it would promote the progress of science and the useful arts, and admit the people at large, after a short interval, to the full possession and enjoyment of all writings and inventions without restraint. In short, the only boon which could be offered to inventors to disclose the secrets of their discoveries, would be the exclusive right and profit of them, as a monopoly, for a lim

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

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

The Federalist, No. 43.

ited period. And authors would have little inducement to prepare elaborate works for the public, if their publication was to be at a large expense, and, as soon as they were published, there would be an unlimited right of depredation and piracy of their copyright. The States could not separately make effectual provision for either of the cases;1 and most of them, at the time of the adoption of the Constitution, had anticipated the propriety of such a grant of power, by passing laws on the subject at the instance of the continental Congress.2

§ 1153. The power, in its terms, is confined to authors and inventors; and cannot be extended to the introducers of any new works or inventions. This has been thought by some persons of high distinction to be a defect in the Constitution.3 But perhaps the policy of further extending the right is questionable; and, at all events, the restriction has not hitherto operated as any discouragement of science or the arts. It has been doubted whether Congress has authority to decide the fact, that a person is an author or inventor in the sense of the Constitution, so as to preclude that question from judicial inquiry. But, at all events, such a construction ought never to be put upon the terms of any general act in favor of a particular inventor, unless it be inevitable. 4

§ 1154. It has been suggested, that this power is not exclusive, but concurrent with that of the States, so, always, that the acts of the latter do not contravene the acts of Congress.5 It has, therefore, been asserted, that where Congress go no further than to secure the right to an author or inventor, the State may regulate the use of such right, or restrain it, so far as it may deem it injurious to the public. Whether this be so or not, may be matter for grave inquiry whenever the question shall arise directly in judgment. At present it seems wholly unnecessary to discuss it theoretically. But, at any rate, there does not seem to be the same difficulty in affirming, that, as the power of Congress extends only to authors and inventors, a State may grant

1 2 Kent's Comm. Lect. 36, pp. 298, 299.

2 The Federalist, No. 43.

See also 1 Tuck. Black. Comm. App. 265, 266; Rawle on Const. ch. 9, pp. 105, 106. See Hamilton's Report on Manufactures, § 8, p. 235, &c. 8 Hamilton's Rep. on Manufactures, § 8, pp. 235, 236.

4 Evans v. Eaton, 3 Wheat. R. 454, 513.

51 Tuck. Black. Comm. App. 265, 266; Livingston v. Van Ingen, 9 Johns. R. 507.