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created by the constitution. A prohibition to the States would have been absurd, because this never was, before the adoption of the constitution, within the scope of State power ; no State being able to pledge the credit of the United States for the repayment of the money borrowed."

But it is obvious that the mere grant of a power to Congress does not necessarily vest it exclusively in that body. Congress has power to levy and collect taxes. But this does not preclude the States from the exercise of a like power, except so far as they are expressly restrained, in relation to duties on imports and exports. Thus, we see that there are subjects upon which the United States and the individual States must, of necessity, have concurrent jurisdiction ; and all the fears and apprehensions of collision in the exercise of these powers, which have been urged in argument, are unfounded. The constitution has guarded against such an event, by providing that the laws of the United States shall be the supreme law of the land, any thing in the constitution of any State to the contrary notwithstanding. In case of collision, therefore, the State laws must yield to the superior authority of the United States.

“The power given to Congress to promote the progress of science and the useful arts, is restricted to the rights of authors and inventors ; and their rights are only to be secured for a limited time. Whatever power the States had over the subjects

prior to the adoption of the constitution, and which have not been granted to the general government, and which are not within the scope and purview of its authority, must, beyond all possible doubt, be retained by the States. The appellants do not, in the case before us, claim as inventors, but only as professors, of a mode of applying the steam-engine to propel boats, on new and advantageous principles. The right therefore, claimed by them, as granted by the laws of this State, was beyond the reach of congressional authority.

But if the appellants are considered as inventors, and entitled to a patent, or as having actually obtained one, it cannot operate as an exclusion of all legislative authority and interference, to aid and protect the rights thus obtained under the general government. If the subject matter be within the scope of State jurisdiction, and the power is exercised in harmony with, and in subordination to, the superior powers of Congress, it is beyond all doubt legitimately exercised. - If any person should appear claiming under a patent, in hostility to the privilege granted by this State, that would be a paramount right, and must prevail, if set up in a court having jurisdiction of the question.

Kent C. J. said, that the grant to the appellants by the legislature of the State, was not repugnant to the power vested in Congress in relation to copyrights and patents. That power only secures, for a

limited time, to authors and inventors, the exclusive privilege to their writings and discoveries; and, as it is not granted by exclusive words, to the United States, nor prohibited to the individual States, it is a concurrent power,



be exercised by the States, in a variety of cases, without any infringement of the congressional power. A State cannot take away from an individual his patent right, and render it common to all the citizens. This would contravene the act of Congress, and would be, therefore, unlawful. But if an author or inventor, instead of resorting to the act of Congress, should apply to the legislature of the State, for an exclusive right to his production, I see nothing to hinder the State from granting it, and the operation of the grant would, of course, be confined to the limits of the State. Within our own jurisdiction, it would be complete and perfect. So a patentee, under the act of Congress, may have the time of his monopoly extended by the legislature of any State beyond the term of fourteen or twenty-eight years allowed by that law. Congress may secure, for a limited time, an exclusive right throughout the Union ; but there is nothing in the constitution to take away from the States the power to enlarge the privilege within their respective jurisdiction

Again, the power granted to Congress goes no further than to secure to the author or inventor, a right of property, which, like every other species of


property, must be used and enjoyed within each State, according to the laws of such State. The power of Congress is only to ascertain and define the right of property; it does not extend to regulating the use of it. That must be exclusively of local cogni

If the author's book or print contains matter injurious to the public morals or peace, or if the inventor's machine, or other production, will have a pernicious effect upon the public health or safety, no doubt a competent authority, remains with the States to restrain the use of the patent right. That species of property must likewise be subject to taxation, and to the payment of debts, as other personal proerty. The national power will be fully satisfied, if the property created by patent be, for the given time, enjoyed and used exclusively, so far as under the policy of the several States the property shall be. deemed fit for toleration and use.

It has been the uniform opinion in England, both before and since the statute of James, that imported improvements, no less than original inventions, ought to be encouraged by patents. And can we for a moment suppose that such a power does not exist in the several States? We have seen that it does not belong to Congress, and if it does not reside in the States, it resides no where, and is wholly extinguished. This would be leaving the States in a condition of a singular and contemptible imbecility. The power is important in itself, and may be most benefi

cially exercised for the encouragement of the arts; and if well and judiciously exerted, it may meliorate the condition of society, by enriching and adorning the country with useful and elegant improvements. This ground is clear of any constitutional difficulty, and renders the argument in favor of the validity of the statutes perfectly conclusive.

The Court of Errors, adjudged the exclusive privilege granted by the legislature of the State to the appellants, to be valid, and ordered that a writ of injunction should issue against the respondents. Livingston v. Van Ingen, 9 Johns. R. 506.

Thus the question rests, as a subject of judicial decision, to the present time, for though the subject of Livingston and Fulton's monopoly was again brought before the Court of Chancery of New York,24 also before the Supreme Court of Errors of that State, 27 and finally before the Supreme Court of the United States, 28 yet as the decision eventually turned upon the act of Congress regulating the coasting trade, and not upon the general power of the States to grant monopolies—the point decided being that a law of any State contravening the laws of the United States regulating commerce, was, as far as it was inconsistent with those laws of the United States, unconsti

Ogden v. Gibbons, 4 Johns. Ch. R. 150. 27 S. C. 17 Johns. R. 488. 38 Gibbons v. Ogden. 9 Wheat. 1.

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