operate as a Legislative confirmation of the grant, although it may have been intended as a Legislative prejudgment of all subsequent cases.

Notwithstanding it was agreed by the Judges, that the State grant was taken subject to the power of Congress, it was clear to the apprehensions of the Committee, that the extraordinary remedies thus given to protect the grantees, might, at their pleasure, be applied to cases neither contemplated by the Legislature, nor comprehended within the decision of the Court of Errors. In strict conformity, therefore, with the principles recognised in that decision, the Committee recommended a new Law, declaring that nothing in the several acts theretofore passed, concerning Steam boats, "should be so con

strued as to affect the right which any person "might have to use the invention of the Steam boat, "or any improvement thereon, which had been, or "thereafter might be Patented, under the Constitu"tion and Laws of the United States: Provided, "that they did not interfere with any invention or "improvement secured by any of the acts above "mentioned."*

This proposed Law, you declared, Sir, in your "Life of Fulton," "to be in effect an entire repeal "of the exclusive grants of Messrs. Livingston and "Fulton,"†—and it did appear to me that you meant to support your position, by the suppression of one important word in the proviso to the first section of that Bill; for I was at a loss to divine what other colourable pretext could be found for your opinion. I endeavoured, therefore, in my Letter, to expose,

* Vide Letter to Colden, Appendix L. + Life of Fulton, p. 245.

the artifice, and fancied that I had succeeded; but the ingenuity of an experienced advocate in his own cause, is not easily subdued. You repeat the assertion in your pamphlet, but endeavour to sustain it by new arguments, and on different grounds. You now allege that "the first clause of the "section gives a right to use on the waters of this "State, notwithstanding the Laws passed in favour of "Messrs. Livingston and Fulton, the invention of the "Steam boat, or any improvements which were then, "or might thereafter be Patented."*

But is this a repeal of the whole grant? Does it not leave the rights and remedies of Messrs. Livingston and Fulton, precisely where it found them, except in cases where they conflict with the rights of Patentees? Is there any thing more in the clause than an adoption by the Legislature, of that very construction of the State grant which had been admitted by the Counsel of Livingston and Fulton, and sanctioned by the Court of Errors? I admit that if the Law stood without the proviso, a Patentee might rún a Boat on the waters of this State, notwithstanding its exclusive grant, but I deny, Sir, that in virtue of such a law any other than a Patentee under the paramount authority of Congress, could have infringed upon it.

The argument by which you attempt to prove your assertion to the contrary, involves a petition of the question, and, once more, assumes in direct contradiction to the case of Livingston and Van Ingen, that the State grant must prevail over the right of a Patentee. Besides, there is a peculiar inconsistency in such an objection, Sir, from you:-It is a point upon which, (if

* Vide Colden's Vind. p. 160.

I may be permitted the use of " technical language,") you were estopped; for, you had admitted expressly, that" if the law of 1798, were against the Constitu<tion of the United States; if the State had no pow"er to pass the Law, it was void, and that the Legislature had power to declare it so."*

Now, this Sir, is admitting much more than I ever did, or ever shall contend for. Confident as I am, that the State grant is unconstitutional and void, I never shall allow, that "the Legislature have power, consistent with its faith and honour, (and this, Sir, is the only power of which I speak,) to de"clare it so." It is not for them to avoid their own grant, upon an allegation of their own defective jurisdiction or authority. The unconstitutionality of that grant is a judicial question, to be decided according to the rules and forms of the Law,-in the mode-established by the Constitution and prescribed by the Act of Congress. The utmost extent of my efforts, was to prove the necessity of a Legislative declaration, to prevent the grantees of the State from extending their special remedies beyond the acknowledged limits of the State authority. With whatever plausibility, therefore, (setting aside all regard to consistency,) you may have urged the propriety or expediency of protecting the representatives of Messrs. Livingston and Fulton from all future litigation, in defence of rights judicially settled in their favour; the argument can have no force or application in regard to those matters of controversy, which have never been judicially considered: much less can it justify the suppression of all future investi

gation of that objection to their title, which in the only case which has arisen in respect to it, had been admitted to be valid.

But as the distinction taken by the Court of Errors in favour of Patentees, was not a point adjudicated, the Committee added the proviso to their Bill, with the view, that every question which could arise in case of future conflict between the State Monopolists and the authority of Congress, should be reserved for decision in the ordinary Courts; and had that Bill become a Law, its effect would have been no more than to have opened the avenues to justice, to persons invested with privileges secured (or at least intended to have been secured,) to them, by the Supreme Law of the Land. In case of the intrusion of a Patentee, the representatives of Messrs. Livingston and Fulton might still have availed themselves of every mode of redress at Common Law, and every Statute remedy which they possessed anterior to, and independent of, the Act of 1811; and if the validity of their right were questioned by any other than a Patentee, they would have yet had at their command those very means of suppressing the inquiry with which that act had armed them.

You deny, however, that "this Proviso can operate "to reserve any thing; because none of the acts pass"ed in favour of Messrs. Livingston and Fulton pre"tend to secure any invention or improvement;"* and aver, that "there is not the least reference to in"vention or improvement in them;" but, that "they give the exclusive grant merely on the ground of Mr. "Livingston's having undertaken to establish Steam

66

* Colden's Vind. p. 161.

«Boats, that would go at a certain velocity, without

66

66

considering whether the effect was to be produced by his own invention or improvement, or that of 46 any other person."*

Neither, Sir, did the Proviso" consider," whether the invention or improvement secured to Messrs. Livingston and Fulton, was their own, or that of any other person. The terms were used in reference to the subject matter of the former Laws, and were intended to describe that mode of propelling boats by Steam, of which those gentlemen had when they obtained their grant, represented themselves to be "possessors." On that occasion, they had alleged, their principles to be " new and advantage"ous;”—this was the ground upon which the exclusive grant was given to them, and the Committee, therefore, presumed, that a plan founded upon such principles, must have been either an "invention” or an "improvement" of some person's or other, if not of Messrs. Livingston's and Fulton's.

But if the Committee were mistaken; if that mode of propelling boats by Steam upon new and advantageous principles, of which Messrs. Livingston and Fulton were the possessors;" when, in consequence of such representation of it, they were invested with their exclusive privileges, was not in fact" an "invention or an improvement," either of their own, or of any other person's-what was it then? What, Sir, was actually secured to them by the former acts? and how would you have described the subject matter of their grant? If any more apt description could have been suggested by yourself, or any advocate of Messrs. Livingston and Fulton upon the floor of the * Colden's Vindication, p. 162.