States,25 yet as the decision turned upon a construction of the acts of Congress relating to trade, the general question as to the authority of the States to grant patents and exclusive privileges, still remains without any judicial determination in the court of paramount jurisdiction on the subject.

In the year 1798, an act was passed by the legislature of New York, by which, after reciting that "whereas it had been suggested to the people of this State, represented in senate and assembly, that Robert R. Livingston was the possessor of a mode of applying the steam-engine, to propel a boat on new and advantageous principles," a grant was made to him of "the sole and exclusive right and privilege of constructing, making, using, employing and navigating, all and every species or kinds of boats, or water craft, which might be urged or impelled through the water, by the force of fire or steam, in all creeks, rivers, bays and waters whatsoever, within the territory and jurisdiction of this State," for the term of twenty years from the passing of the act, provided, that he should, within twelve months, construct a boat of at least twenty tons capacity, to be propelled by steam, the mean progress of which, with and against the ordinary current of the Hudson river, taken together, should not be less than four miles an hour. The efforts of Livingston to accom

25 Gibbons v. Ogden, 9 Wheat. 1.

plish this object were ineffectual, and in 1803, another act was passed, by which the privileges granted to him by the act of 1798, were extended to him, and Robert Fulton, whom Livingston had associated with himself in the enterprise, for twenty years from 1803; and in 1808, these privileges were extended for a still further period of time. It appeared that Livingston and Fulton had succeeded in constructing a boat, possessing the properties required by these acts of the legislature; and that Van Ingen and others, without any license from Livingston and Fulton, had also set in motion on the Hudson, a steam-boat, which was employed in navigating and carrying passengers between the cities of New York and Albany. Livingston and Fulton applied to the court of chancery for an injunction to restrain Van Ingen and others, from using their boat in the navigation of the Hudson. The injunction having been refused by that court, the applicants appealed to the Court of Errors. The respondents contended that the acts of the legislature under which the appellants claimed, were contrary to that clause in the constitution of the United States, vesting in Congress the power "to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." Thompson J. said, that "it was an undeniable rule of construction, applicable to the constitution of the United States, that all pow

ers and rights of sovereignty, possessed and enjoyed by the several States, as independent governments, before the adoption of the constitution, and which are either not expressly or by necessary implication, delegated to the general government, are retained by the States. This was the object intended to be secured by the 10th article of the amendments of the constitution, which declares, that the powers not delegated to the United States by the constitution, nor prohibited by it, to the States, are reserved to the States respectively, or to the people. If then, the grant of the privileges claimed by the appellants, would, before the adoption of the constitution, have been a legitimate exercise of State sovereignty, it would be a strained construction of that instrument, to say such sovereignty has been thereby surrendered by the State. This power is certainly not denied to the States, nor exclusively granted to the union, by express terms; and those powers which are exclusive, by necessary implication, must be such as are created by the constitution, and which did not antecedently form a part of State sovereignty, or the objects of which, from their nature, are beyond the reach and control of the State governments. An express prohibition to the States, against the exercise of powers of that description would have been useless and absurd. Thus Congress have power to borrow money on the credit of the United States. This is an exclusive power by necessary implication. It is a power

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