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of making, constructing, using, and vending to others to be used,” his invention or discovery within the several times limited for the enjoyment of their respective privileges.
How far the exercise of this right of property is liable to be controlled and regulated by the municipal laws of the several states, depends, in a great measure, on the principles. recognised and established, in the two cases to which I have so often referred, as decided in the Supreme Court of the United States. In the prior case,* decided in the Court of Errors of the State of New-York, it was held that the Legislature of a state may prohibit the use of any particular invention, as noxious to the health, injurious to the morals, or in any respect prejudicial to the welfare of its citizens. But, in addition to the qualifications which this assertion must receive from the doctrine of the Supreme Court, it seems to me that the Government of the Union must possess exclusively the power of determining whether an invention for which a patent is sought be useful or pernicious; or, in other words, whether it be one for which a patent ought to be granted. The object of the constitutional power of Congress is the promotion of the “useful arts;" an invention useless or pernicious would not be a proper subject for its exercise ; but should a patent for such an invention have unadvisedly issued, there can be no doubt that the Federal authority might repeal the patent, and interdict the use of the noxious discovery. If a thing in itself pernicious be patented, the patentee could recover no damages for the violation of his right, as his patent would confer no right of property upon him. If it be useful in itself, but the art or
* 9 J. R., 507.
manufacture to which it relates be injurious, in its exercise, to the public health, the patent would afford no protection for the nuisance, because private interests must yield to the public good, and not because the Federal power is superseded or controlled by the state law. So, if the author of an immoral or libellous book prosecute for the invasion of his copyright, he could receive no indemnity; and if prosecuted for his offence against the state law, in issuing such a publication, the authority of the United States would not protect him, as, in the one case, his
copyright would invest him with no right of property, and, in the other, would convey no right to use his property to the injury of others. Nor would the patentee of a newly-invented vehicle, any more than the owner of a post-coach conveying the mail of the United States, be entitled to pass over a state turnpike-road without paying the toll, nor a patented steamboat permitted to ply on a ferry established by state authority, without being subjected to the accustomed ferriage, or to the penalties provided in cases of such violation of the particular right to the ferry, any more than that or any other vessel would be exempted from them by a coasting license. Restrictions of this nature are general in their operation. They are not confined to the patentee, and in no sense do they derogate from the exclusive power of Congress in relation to the promotion of science and the useful arts. But a construction of the Constitution admitting that the states, in the exercise of an absolute discretion, may prohibit the introduction or use of any particular invention for which a patent had been regularly obtained, would render the power in ques. tion completely nugatory, and the states would retain substantially the very power they had nominally
This power of securing to authors and inventors a right of beneficial ownership in their writings and discoveries has been surrendered to Congress, and any encouragement to invention, invitation to the introduction of improvements, or attempt to promote the progress of literature, science, and the arts, which interferes with, or prevents the exercise of that power, is an assumption of authority fairly, and on good consideration, yielded to the General Government. The several states, nevertheless, retain all other means of securing rewards to genius, of promoting learning and science, of encouraging new discoveries, and inviting improvements in the arts, except the power thus ceded to the Union. And although an individual state can neither secure to an inventor an exclusive property in his invention, nor, for any known and used improvement, grant exclusive privileges in the use of anything that may become the subject of a patent, yet it may promote the progress of learning, encourage new discoveries in science, and invite the introduction of new improvements in all the liberal and useful arts, in any other way that human ingenuity can devise, or good policy may dictate, and which does not interfere with the exercise of the power vested for the same purposes in Congress. And the reason of the difference is simply this : that all the other modes of effecting those objects may, without danger of being defeated by the clashing laws of co-ordinate legislatures, be safely committed to the several states, while the simple mode of securing the right of property must be possessed by the supreme Federal authority alone; for, in the peculiar condition and circumstances of the country, that end cannot otherwise be effected.
II. The power vested in Congress “ to exercise exclusive legislation, in all cases whatsoever, over suck
district, not exceeding ten miles square, as may, by cession of particular states, and the acceptance of Congress, become the seat of the Government of the United States; and to exercise like authority over all places purchased by the consent of the legislatures of the states in which the same shall be situated, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings."
This power was granted to Congress from a conviction of the indispensable necessity of investing that body with complete supremacy and control at the seat of the National Government. Without the
possession of such a power, the Federal authority might be insulted, and its proceedings interrupted with impunity; and the dependance of the functionaries of the General Government on one of the states for protection in the exercise of their duties, might subject the national councils to the imputation of partiality, and be productive of an influence equally dishonourable to the government, and dissatisfactory to the other members of the Union. This consideration was of greater weight, as the public archives liable to destruction would accumulate, and the gradual multiplication of public improvements at the permanent residence of the National Government would, it was thought, create so many additional obstacles to its removal, and still farther abridge its necessary independence. The necessity of a like authority over the forts, arsenals, and dockyards, and their appendages, established by the Federal Government, was supposed to be not less evident. The public money expended on such establishments, and the public property deposited in them, require their exemption from the local authority of the state where they are situated. Nor would it be proper that places on which the security of the entire Union may depend should
be in any degree dependant on a particular member; and all objections and scruples were obviated by requiring the concurrence of the states concerned in every such establishment.
The cessions of territory contemplated by the Constitution were duly made by the States of Maryland and Virginia, whereby Congress was enabled to execute this power by establishing, under its own jurisdiction, a permanent seat for the National Government. This territory was erected into district,” under the exclusive jurisdiction of Congress, by the name of the “ District of Columbia.” The City of “ WASHINGTON” was built, and the necessary edifices for the accommodation of all the different branch.. es of the Federal Government were erected on the banks of the Potomac, in conformity with a favourite wish of General Washington, and almost in sight of the place of his residence in life, and of his repose in death. The seat of government was removed thence at the commencement of the present century. Municipal corporations were created by Congress for managing the local concerns of the “ Federal city,” and of the cities of Georgetown and Alexandria situated within the “ten miles square,” ceded by the respective states within whose limits they had been hitherto confined. Laws have from time to time been passed by Congress for the government of the District of Columbia, and local courts established, as we have seen, for the administration of justice within its limits. But the acts of Congress adopted the laws of Maryland and Virginia as the laws of the several portions of the district ceded by those states respectively, with such alterations only as were rendered necessary by the change of jurisdiction.* Nor were
* 1 Cranch, 252.