more inconsistent than any thing else to be met with in the history of this controversy. You admit with me, "that authors and inventors have a natural or "common law right in the fruits" as you express it, "of their mental labours."* But whilst I have endeavoured to shew, that the right of using and enjoying this species of property was a necessary incident to its acknowledgment, you have asserted, "that the right to property is very different from, “and indeed, entirely independent of the use or the "right to use."† On the one hand, I have regarded a Patent as the effect of a compromise, by which the exclusive use and enjoyment of the productions of genius were secured to the authors for a limited time only, in order, that the public might afterwards enjoy a common right to use them ;-whilst you, on the other hand, have contended, that its only use and office was "to ascertain the property, afford the evidence of "title, and enable the Patentee to maintain his suit, "for the invasion of his rights."

Thus, Sir, in your zeal to justify the repeal of the State grant or Patent to Mr. Fitch, you lose sight of those principles upon which you afterwards rely, to prove the constitutionality of the grant to Mr. Livingston,—and without establishing the first point, not only admit, in contradiction to your doctrine on the other, that a right of property secured by Patent, necessarily includes a right to its enjoyment; but insist, that, from the nature of such a grant, a condition is implied, which renders it obli

*Colden's Vind. p. 108-109.

† Ibid.

p. 104.

Colden's Vind. p. 110.

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gatory upon the Patentee, actually to use his invention, under the penalty of forfeiture, in case of his neglect.

So far, however, as respects" this part of the dis"cussion," you admit, expressly," that there was no "reason to question the perfection of Mr. Fitch's in"vention, or the performance of his boat ;"*-and, for the purpose of the present argument, I also am disposed to consider his success or failure equally immaterial. I am, moreover, willing to allow, that the grounds upon which you justify the resumption and transfer to another, of his privileges, might have been urged in the first instance, as strong reasons against the original grant to Fitch himself;-yet, had the condition which you merely imply from the terms of the law, been actually expressed, I should, notwithstanding the original impolicy of a grant so unbounded in operation, have denied, with the Council

It has nevertheless been deemed important to swell the "Vindication" with "all the evidence which could be collected, to raise some doubts, whether the construction and performance of Mr. Fitch's boat were such as have been represented." It has not, however, been thought expedient to contradict or answer the testimony, which was adduced upon the subject in 1815, before the Legislature of New-Jersey. On that occasion, the most conclusive proof was afforded of Mr. Fitch's success, from experiments made two years subsequent to the date of Dr. Thornton's Letter to Dr. Lettsome; from certain expressions in which, a previous abandonment of the project has been inferred. If Fitch's Answer to Rumsey's Pamphlet, had not been removed from the "archives" of the NEWYORK SOCIETY LIBRARY, the "Biographer of Mr. Fulton" might have ascertained, that Fitch had incontestibly established his prior claim to the invention,-the certificates and statements appealedto on behalf of Rumsey, to the contrary notwithstanding. Vide Colden's "Vindication," p. 27-36, "Letter to Colden," p. 125, 126, Appendix-and ibid. p. 62.

of Revision, that the Legislature had any "right "resting upon moral obligation," to declare, that the vested rights of Fitch or his representatives, had become forfeited, without "proof of the facts upon which the forfeiture was alleged to have arisen.”

And, had Mr. Livingston made the representation to me, of that extreme case, which, to illustrate your argument you have so ingeniously supposed,* I should have answered him in precisely the same terms, in which I have replied to those who have urged the total repeal of his own exclusive privilege, and told him, that the "impolicy" or " improvidence" of the grant would not excuse a violation of the public faith;—that questions touching its validity were of judicial cognizance;-and, in reference to the particular grounds upon which he sought the interference of the Legislature, I should have probably observed, that if "the grant to Fitch must neces

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sarily be understood, to have been upon condition, "that he should, within a reasonable time, give the "State the benefit of his invention,"t-the ordinary tribunals were competent so to expound it, as well as to adjudge, whether that condition had or had not been performed. I should, moreover, have declared to Mr. Livingston, my utter inability to conceive, why the existence" of Fitch's law should deter him from carrying his new and advantageous principles into effect," when it had not prevented him from making the experiments by which their efficacy had been ascertained; and I should have inquired, with due submission, whether, in case the prior right had be

* Colden's Vind. p. 38.

+ Colden's Vind. p. 39.

come forfeited by non-user, he could not avail himself of that circumstance in his defence?

If he had remained unsatisfied, and had still pressed his application to the Legislature, I should have ventured to remind him, that the power of "granting " and securing the exclusive right to new inventions " and discoveries," had, since the grant to Fitch, been transferred by the Federal Constitution to the Government of the Union. If he claimed any right, derived from the supreme authority of that Government, and entertained well founded apprehensions of being interrupted in its enjoyment, by those who claimed under a State grant, I should then have acquiesced in a Legislative declaration of the paramount nature of his privileges, so far as to exempt them from the operation of the cumulative remedies given by Statute, to protect the rights granted by the State-and if he insisted, that those remedies were incompatible with rights secured by the Constitution to every Citizen, as his natural birth right and inheritance, I should have promised him my feeble aid to procure the abrogation of such forfeitures and penalties, and to admit him upon equal terms to substantiate or defend his claims in the Courts of Justice.

But to obviate the force of that answer to your stated case, which you must have anticipated,—you next argue upon the supposition, that "there was injus"tice in repealing Fitch's Law, and in conferring on "Chancellor Livingston, the privileges which had "been previously granted to another," but you contend, "that the injustice being towards Fitch or his "representatives, no other person had a right to

6.

complain." You admit, indeed, that " if the Law "in favour of Chancellor Livingston, interfered with "the prior grant, the prior grantee or his representa❝tives, might, with great propriety maintain, that "the subsequent grant, so far as it had deprived them of any advantage, was unjust."

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Now, where, and when, or to what purpose, Sir, were they to maintain that objection, if not before the Legislature, at the time of the meditated interference with their grant, and to the end, that they might prevent such interference? It seems, that you would rather have wished them patiently to have submitted to injustice, and then have trusted to time and chance, or the favour of a succeeding Legislature, to replace them in possession of their rights, in opposition to the powerful influence of Mr. Livingston and his connections: for you pretend, that "to authorize Mr. Fitch or his representatives to "make this complaint, they must have shewn, that "he or they attempted, or at least intended to avail "themselves, of the exclusive privileges conferred

by the act under which they claimed." Thus, throwing upon them the burden of proof, in regard to that omission or neglect, which, according to your own notions, was to have operated a forfeiture against them.

But, were this even incumbent upon the representatives of Mr. Fitch, what opportunity was allowed to them to shew their intention of availing themselves of their grant, before they were deprived of it? It is not pretended, that they had notice of Mr. Livingston's application to the Legislature, and the

* Colden's Vind. p. 41.