right to my own property ;-but I may not erect on it a manufactory to poison all around me. I have the exclusive privilege of riding my own horse,but I may not gallop him over my neighbour's fields. So I have the exclusive right, as Inventor of a pernicious medicine, or Author of a licentious book, (if such right can be,)-yet the right of invention, in neither of these cases, confers an irresponsible power of sale;-because simply a paramount principle involved in the body of the Law, and running through every particular, commands me so TO USE MY OWN THAT I

INJURE NEITHER THE RIGHTS OF OTHERS NOR THE INTERESTS OF THE PUBLIC.

There is, then, no necessity for the interference of the States, or of Congress, to prohibit, by law, the use of a pernicious invention; yet you assert, (with the dogmatic confidence, which belongs rather to your new office, than to the cautious modesty of your ancient profession,) that "if the State Legislature cannot control the use of an invention, "it is above all Law, for Congress," you pronounce, "has no such power."* The proposition is too broad for direct refutation; narrow it to a point, and it refutes itself. If you intend that Congress cannot regulate the rights of Patentees, or fix the terms of exclusive enjoyment, you are so evidently wrong, that I disdain to set you right, otherwise than by referring you to the act of Congress, where, amongst other things, you will find a provision for the repeal of a Patent obtained on false suggestions. If you mean, however, that Congress have no power, after

* Colden's Vind. p. 111.

+ Vide Laws U. S. Cong. 2. Sess. 2. ch. 11. Sect. 10.

granting a Patent, for an useful invention, to the real inventor, causelessly to prohibit the use of the in-, vention,--I agree that they have no such moral or constitutional power :-neither can any sovereignty have it, except by that omnipotence, which may do wrong, because no power exists in the State to question the fiat of its sovereign will. If you mean that no power exists in Congress, or in the States, to prohibit the use of a pernicious invention, or the sale of a licentious publication, on the supposition that Congress have the exclusive power of Legislation, contended for by me, the conclusive answer is, that the ordinary Courts of Law are bound to notice whether the thing Patented be a public mischief, or a public indecency, and to punish criminally both the one and the other.

But your objection supposes that the Patent confers, on the Patentee, a right to sell poison, either literary or medicinal. That this is not so, is still more manifest from the consideration of this simple principle, that it is an implicit condition involved in the grant of every Patent, that the thing Patented be neither pernicious nor immoral:-a principle which protects the public morals, and renders a civil prosecution by an inventor, whose discovery is either pernicious or licentious, utterly hopeless. And this answer, which shews that no prohibitory Laws are necessary, moreover proves, that either the Federal Legislature, or the individual States, may prohibit what is noxious, notwithstanding Congress may have the undoubted right to secure the beneficial ownership in what is usefully invented.

Again; it is said, that " a State may prohibit the "use of an invention secured by Patent, and confess

"ed to be beneficial, lest it should interfere with the sup"posed extent of a State grant ;"*-and you thus distinguish, "that if the invention only interfere with the "supposed extent of a State grant, the prohibition may or may not be discreet ;-if with the actual extent, then it would be a rightful, i. e. a constitutional prohibition. This distinction between the actual and supposed extent of the State grant, is an affectation as puerile as it is impertinent. The States have a right to prohibit the use of a beneficial invention, or they have it not;-and whether they discreetly exercise their right, is not the question,-but whether they may constitutionally exercise any pow

er at all.

If we consider the broad and general proposition, we shall naturally be led to the qualifications which limit the authority of the individual States, in the exercise of their sovereignty on the subject. If the use of an invention be prohibited, because, from the peculiar condition and circumstances of a particular State, that invention, which is elsewhere beneficial, is there contrary to the public good ;--a power of Legislation is merely exercised which is inherent in every separate sovereign member of the General confederacy. From the nature of that Confederacy, though each State have a right to judge and act, it has no power to render its acts obligatory :—a provision is wisely made, for the purpose of bringing the validity of the exercise of such judgment to a legal test; and the means of obtaining a definite judicial opinion upon every Constitutional question, is clearly pointed out by Law. Each

* Vide Colden's Vind. p. 119, 120.

+ Ibid. p. 121.

State has a right to exercise its discretion upon all Constitutional points as to the limits of its own power, but the legality of that discretion. may be questioned, and the Law finally controlled or settled by the Supreme Judicial Power of the Union.

It may, then, be safely conceded, that a State Legislature has full right to exercise its judgment in prohibiting the use of a Patented invention; and if the invention be injurious to a particular State, it is not unfair to suppose that its use in that State may be justly proscribed. The intent of the power vested in Congress, was not to secure certain benefits for all the States, at the expense of the interests of any one of them. The object of that power was evidently different,-it was simply to enable Congress to secure to Authors and Inventors the exclusive right of property in their writings and discoveries;—the inhibition, therefore, of the use of an invention, injurious to the interests of a particular State, can never frustrate the object of that power: the case does not come within the meaning of the Constitution: -it is one of those things which are tacitly excepted. Granting, then, that such a Law be passed, and be determined by the Court, in the last resort, to be Constitutional, it does not follow that all prohibitions, much less a prohibition of an invention secured by Patent, and acknowledged to be beneficial, are equally lawful.

Cases may, indeed, arise, in which even such an invention as the one last described, might be the subject, on peculiar grounds, of a rightful prohibition,—but the distinguishing peculiarity must be such as to shew the case to be an exception to the intent and meaning of the Power limiting the Sovereignties of the parti

cular States. Upon no other except this, or an equivolent supposition, can such prohibition be supported,-upon such it may. But it is manifest that a prohibition resting on such grounds, is very different from an interdict, resting upon none-nor defensible upon any authority:--but “ Stat pro ratione "voluntas." This, on the contrary, is an inhibition upon the principle of a specified necessity of exception, leaving the general Law not only unquestioned. but confirmed.

A prohibition, whether justified upon the ground of an arbitrary discretion, or of a capricious will, or even proceeding on the assumption of driving a good bargain for the State, is evidently a very different case. Upon the former supposition, the interdict may be constitutional, allowing the power to be exclusive ;-upon the latter, it never can. It matters not, then, whether the contract made between the State and its grantees, were discreet and proper-if it be a fair contract; whether the bargain be a good or a bad one, the State and the party are equally bound-but the question recurs, had the State a right to make a contract including such inhibition? If this be even doubtful, what, Sir, is the character of those Laws which stop up the access to the Courts, and throw impediments in the way of those who ask for a judicial decision of the question ?

The ground upon which you contend that a State may interdict the use of an invention, confessed to be beneficial, is singular indeed.--It may be prohibited, you say, "lest it interfere with the extent of "a State grant." What is there in this circumstance to give power to the State, which it has not other

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