to regulate commerce; and the state laws were declared to be void, merely from their repugnance to the exercise of that power by the Federal Government. The leading principles, however, of that decision, as well as much of the reasoning in the case relative to the licenses required by the State of Maryland from importers of foreign goods, apply with equal force to the power now under discussion; and although the invalidity of the state grant has thus been established, and the question relative to the nature and operation of a patent from the United States can never arise with respect to that grant, yet it may become material in other controversies, and, from its general importance, deserves examination. With all due deference to the opinion of "the highest court in the State" of New-York, I shall endeavour to show the obvious meaning of the Constitution to be, that Congress shall secure "the exclusive rights of authors and inventors to their respective writings and discoveries," by the exercise of an exclusive power of legislation.

In a confederated government, extending, like ours, over many independent sovereignties, it seems difficult to conceive in what manner the right in question can possibly be secured, except by vesting such exclusive power in a paramount authority; and the necessity of such a power to the attainment of the end was an adequate reason for vesting it in the Supreme Legislature of the Union. The power under consideration comes under that class of cases enumerated in the thirty-second number of "The Federalist," to which the exercise of a similar power in the states would be repugnant and contradictory. The example which the learned and eloquent author of that paper selected to illustrate his reasoning involved a contradiction by direct implication, from the force of

the terms. It was an example taken from the power of Congress to establish a uniform system of naturalization; and it was argued that such power must necessarily be exclusive, because, if each state had power to prescribe a distinct rule, the rule of Congress could not be uniform. In the present case, the power given is necessarily exclusive, both from the terms and the nature of the grant. The words are, that "Congress shall have power to secure the exclusive rights of authors and inventors, for limited times." Now, if a state have a concurrent power with Congress over the subject, it must be a power arising from the unceded portion of its sovereignty, and, consequently, a power to grant without limit of time. But how could Congress secure to the inventor, for a limited period, the enjoyment of that which the state might grant to another forever? It was said, on the occasion referred to, in the Court of Errors, by one of its most eminent judges, "that if an author or inventor, instead of resorting to the act of Congress, should apply to the State Legislature for an exclusive right to his production, there is nothing to prevent the state from granting such exclusive privilege, provided it be confined in its exercise to the particular jurisdiction." But, with all due submission, if this opinion be correct, one of two things must follow either that Congress may secure to an inventor or author an exclusive right in his discovery or writing, and the state secure to another, either as author or possessor of the same invention, the exclusive right to use it within its own jurisdiction; or that Congress cannot secure such a right to the inventor after the state has secured it to the possessor. In the former conclusion this consequence seems to be involved: that Congress may grant an exclusive right to one person to the use of a certain thing

throughout the Union; and that the individual state may grant an exclusive right to another person to use the same thing within the limits of a particular district; or, in other words, that over the same subject, and within the same jurisdiction, two co-ordinate powers may grant exclusive privileges to different persons. The other branch of the dilemma supposes the state to derogate, by an assumption of power, from the express terms of its grant to the Federal Government, and actually to exercise an exclusive power to secure exclusive privileges, in direct contradiction to the terms of the power ceded to Congress. Nor does it obviate this repugnancy to say that, when these separate powers come into direct conflict, the grant of the state must yield to "the su preme law of the land," because the repugnancy is, from the nature of the subject, different from that arising under the power to regulate commerce, and is directly deducible from the propositions themselves, and not from any casual effects or consequences arising from the accidental collision of concurrent or of independent powers.

The power now in question is, moreover, exclusive, from the nature of the grant; because, if each state have a concurrent power, its exercise would defeat the twofold object for which the Federal Constitution intended to provide. That object, we have seen, was to secure to the public the benefit and transmission of invention, as well as to secure to genius a reward for its productions and discoveries. But if the individual states have a concurrent power with Congress, neither branch of this object can be secured by the latter; for, in regard to the former branch, if Congress prescribe fourteen years as the limit of exclusive rights, and render them common at the expiration of that period, each state might fix

a different period, or might secure a right of property to authors and inventors in perpetuity. Nor could the latter branch of the object be secured by Congress if the states could exercise a concurrent power; because each state might, upon that supposition, reduce the term of exclusive enjoyment to a minimum, or declare, at once, the fruits and industry of genius to be common property.

The arguments against the exclusive nature of this power of Congress, drawn from the nature and effect of a patent in merely securing, as was alleged, a title or right of property, without conferring a right of sale or of use; and the cbjection deduced from the right of legislation retained by the states in regard to their purely internal trade and intercourse, and their police, health, and inspection laws,* have, in effect, been met and refuted by the Supreme Court, in their opinions declaring that a coasting license not only ascertains the national character and ownership of a vessel, but confers a right of navigation; that a right to import goods involves the right to sell them; and that, whenever those rights come into collision with state laws, passed in virtue either of a concurrent or of an independent right of legislation, on these, or any other subjects, and the exercise of the Federal and state authorities are found repugnant or irreconcilable to each other, the state law must yield to the superior power of Congress. So a patent or a copy-right not only ascertains the title of the patentee or author, but confers the same paramount right of using, and vending to others to use, their respective discoveries and writings.

In applying, however, the reasoning of Chief-jus

* Vide a pamphlet entitled "A Vindication of the Laws of NewYork, granting exclusive privileges to Robert R. Livingston and Robert Fulton," by Cadwallader D. Colden, Esq., Albany, 1818.

tice Marshall to the case of a patent or copy-right, it is, perhaps, necessary to remark, that the property which an author may have in his writings appears to be somewhat different from that which an inventor may have in his discoveries. The former has no beneficial use or property whatever in his writings, independently of that which may be derived from the sale of them. The latter may, though in a very restricted sense, use his invention for purposes of profit; to both, however, a right of sale is indispensable, but more manifestly so in the first case than in the last. Every other subject of property may be partially enjoyed, though the right of sale be restricted or forbidden; but the right of property of authors and inventors is so essentially connected with the right of sale, that the inhibition of that right annihilates the whole subject. The right of sale, in these instances, therefore, is an elementary principle in the very idea of property. Separate it from the rest, and the complex legal notion of property is destroyed: the value the thing intended to be secured, is lost to it. All human laws proceed upon the assumption of value as implicitly involved in the idea of property; and as new discoveries in science, and new improvements in the arts, give rise to new modifications of property, the first thing that attracts the attention of the Legislature to any subject as being capable of appropriation or exclusive ownership, is its VALUE. Accordingly, we find that the laws passed by Congress in virtue of the Constitutional power now in question, secure to an author or his assignee "the sole right and liberty of printing, reprinting, publishing, and vending" his work; and to a patentee," the full and exclusive right and liberty

*Laws U. S., 1 Cong., 2 Sess., ch. xv.; 2 Cong., 2 Sess., ch. xi.

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