power may be carried into effect by means short of constructing or purchasing the things authorized. A temporary use of a suitable site or buildings may possibly be obtained, with or without hire. Besides, why may not Congress purchase or erect, a post-office building, and buy the necessary land, if it be, in their judgment, advisable? Can there be a just doubt, that a power to establish post-offices includes this power, just as much as a power to establish custom-houses would to build the latter? Would it not be a strange construction to say, that the abstract office might be created, but not the officina, or place, where it could be exercised? There are many places peculiarly fit for local post-offices, where not suitable building might be found. And, if a power to construct post-office buildings exists, where is the restraint upon constructing roads?

§ 1140. It is said, that there is no reason why Congress should be invested with such a power, seeing that the State roads may and will furnish convenient routes for the mail. When the State roads do furnish such routes, there can certainly be no sound policy in Congress making other routes. But there is a great difference between the policy of exercising a power and the right of exercising it. But, suppose the State roads do not furnish (as) in point of fact they did not at the time of the adoption of the Constitution, and as hereafter, for many exigencies of the government in times of war and otherwise, they may not) suitable routes for the mails, what is then to be done? Is the power of the general government to be paralyzed? Suppose a mail road is out of repair and founderous, cannot Congress authorize the repair of it? If they can, why then not make it originally? Is the one more a means to an end than the other? If not, then the power to carry the mails may be obstructed, nay, may be annihilated, by the neglect of a State.1 Could it have been the intention of the Constitution, in the exercise of this most vital power, to make it dependent upon the will or the pleasure of the States?

§ 1141. It has been said, that when once a State road is made a post-road by an act of Congress, the national government have acquired such an interest in the use of it, that it is not competent for the State authorities to obstruct it. But how can this be made out? If the power of Congress is merely to select or designate the mail-roads, what interest in the use is acquired by the

1 4 Elliot's Debates, 356.

national government any more than by any travellers upon the road? Where is the power given to acquire it? Can it be pretended, that a State may not discontinue a road after it has been once established as a mail road? The power has been constantly exercised by the States, ever since the adoption of the Constitution. The States have altered, and discontinued, and changed such roads at their pleasure. It would be a most truly alarming inroad upon State sovereignty to declare that a State road could never be altered or discontinued after it had once become a mail road. That would be to supersede all State authority over their own roads. If the States can discontinue their roads, why not obstruct them? Who shall compel them to repair them when discontinued, or to keep them at any time in good repair? No one ever yet contended that the national government possessed any such compulsive authority. If, then, the States may alter or discontinue their roads, or suffer them to go out of repair, is it not obvious that the power to carry the mails may be retarded or defeated in a great measure by this constitutional exercise of State power? And, if it be the right and duty of Congress to provide adequate means for the transportation of the mails wherever the public good requires it, what limit is there to these means, other than that they are appropriate to the end? 1

§ 1142. In point of fact, Congress cannot be said, in any exact sense, to have yet executed the power to establish post-roads, if by that power we are to understand the designation of particular State roads, on which the mail shall be carried. The general course has been to designate merely the towns, between which the mails shall be carried, without ascertaining the particular roads at all. Thus, the Act of 20th of February, 1792, ch. 7 (which is but a sample of the other acts), declares, that "the following roads be established, as post-roads, namely, from Wiscasset in the District of Maine to Savannah in Georgia, by the following route, to wit: Portland, Portsmouth, Newburyport, Ipswich, Salem, Boston, Worcester," &c. &c. ; without pointing out any road between those places, on which it should be carried. There are different roads from several of these places to the others. Suppose one of these roads should be discontinued, could the mail-carriers insist upon travelling it?

§ 1143. The truth is, that Congress have hitherto acted under 14 Elliot's Debates, 356.

the power to a very limited extent only; and will forever continue to do so from principles of public policy and economy, except in cases of an extraordinary nature. There can be no motive to use the power, except for the public good; and circumstances may render it indispensable to carry it out in particular cases to its full limits. It has already occurred, and may hereafter occur, that post-roads may be important and necessary for the purpose of the Union, in peace as well as in war, between places, where there is not any good State road, and where the amount of travel would not justify any State in an expenditure equal to the construction of such a State road.1 In such cases, as the benefit is for the Union, the burden 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.

§ 1144. 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 su

preme.

§ 1145. 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 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

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

2 4 Elliot's Debates, 356.

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, dockyards, 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, 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

1 No. 42.

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