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F, p. 360.

OPINION AS TO THE CONSTITUTIONAL VALIDITY OF THE LAWS OF NEW-YORK GRANTING EXCLUSIVE PRIVILEGES OF STEAM NAVIGATION.

On considering the case submitted to me on behalf of Mr. Gibbons, I am of opinion that he has a perfect right, founded on the documents, of wbich copies are appended to the case, to navigate his steamboats on all the waters of this state, which it enjoys in common with New Jersey, and which communicate either with a port or place in the State of New-York, or empty into the Atlantic Ocean; and that such right is not taken away, affected, or impaired by the legislative grant to Messrs. Livingston and Fulton. I should, therefore, advise Mr. Gibbons, instead of making the application be contemplates to the Legislature, to bring the questions at issue between him and its grantees, to trial in the courts of the United States. The reasons that govern my opinion I shall briefly state.

The case of Livingston and Fulton vs. Van Inger and others ( 9 Johns. Rep., 507) furnishes, as I humbly conceive, no inferences hostile to the claim of Mr. Gibbons ; but, properly considered, strengthens the arguments which occur to me in support of this right. The great question in that cause was twofold, viz. : Whether the grant to Livingston and Fulton was absolutely void, as made in contravention of the constitutional powers of Congress, first, “To promote the progress of science and the useful arts;" and, secondly, whether it were repugnant to the power vested in Congress “to regulate commerce."

I. On the first point, the court decided that the grant was not absolutely void, on two grounds : first, that, considering Messrs. Livingston and Fulton as inventors, the state had a concurrent right with Congress to reward them as inventors, by the grant of exclusive privileges ; secondly, that, considering them not as inventors, but as possessors and inporters of a foreign invention, the state had an independent power to reward them as such ; which power had not been ceded to Congress at all.

It must be borne in mind, that Van Ingen and his associ. ates showed no right or title whatever ; and, for aught that appears, their mode of applying the steam-engine in the navigation of their boats was the same that had already

been introduced by Livingston and Fulton. Throughout the whole discussion, the powers of the state were assimi. lated to the powers of Congress; and two of the learned judges, by whom opinions were delivered, Mr. Justice Thompson and Mr. Justice Yates, explicitly admit that the state powers can only be legitimately exercised in harmony with, and in subordination to the superior power of Congress. In strict reasoning, therefore, no more can be inferred from the decision of the Court of Errors than that the grant to Livingston and Fulton is so far valid as to secure to them, and their representatives, an exclusive right to that peculiar mode of navigating vessels by steam or fire which they introduced into praclite, and of which the act of Marck, 1798, states Mr. Livingston to be in possession. Such is the extent of the constitutional power of Congress, to which the state powers are resembled ; and it is only by this limited construction of the grant that the reasoning of the learned judges can be rendered applicable and consistent. As it is, then, only that a “collision” between this exercise of the state sovereignty and the constitutional power of Congress can possibly be prevented, certainly the Court of Errors has not said, nor is there any ground for supposing that it meant to say, that the state, hy virtue, either of its concurrent power to reward inventors, or its independent power to reward the importers of foreign inventions, can prohibit the introduction and use, within its jurisdiction, of all future inventions, although secured by patent, in relation to the same object; or, by a still more violent stretch of authority, transfer the exclusive right to such inventions from the patentee to the legislative favourite. Yet, if the terms of the original grant to Messrs. Livingston and Fulton, and of the various laws passed to enlarge and secure that grant, are to be taken in their literal extent, such was to be their operation.

By the act of March, 1798, all the privileges granted before to John Fitch and his representatives were transferred to Mr. Livingston. These privileges were “the sole and exclusive right of constructing, making, using, employing, or navigating all, and every species or kind of boats or water-craft, which might be urged or propelled through the waters of this state, by force of fire or steam, in all creeks, rivers, &c., within the territory and jurisdiction of this state.” be remembered, that the grant to Fitch was made previously to the adoption of the present Federal Constitution, and be fure the state had surrendered this portion of its sovereign

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ty to the General Government; while it remained in full and acknowledged possession of the powers to reward genius and skill, and to encourage and foster navigation and commerce, by the means resorted to in favour of John Fitch. But she had ceded those powers, which, to be effectual, must be exclusive, to the United States,' before the monopolyfor this is the proper, though odious term, by which such grants should be designated-was attempted to be vested in Messrs. Livingston and Fulton. The only limitation of this monopoly of navigation is, that steam or fire be made use of as the propelling force; and the general terms of the grant comprehend every possible mode of producing and applying that force, which human ingenuity has discovered or can invent.

By the act of 1808, creating the forfeiture, it is declared that “no person or persons, without the license of the persons entitled to the exclusive right, shall navigate on the waters of this state, or within the jurisdiction thereof, any boat or vessel moved by steam or fire.” Thus the introduction into this state of any future invention, however original or valuable, in navigating vessels by steam or fire, is in terms prohibited without the sanction of the individuals in whom the right to employ all such inventions is exclusively vested. The very ground on which invention is to work is seized upon and preoccupied, and an exclusive privilege given, which not only prevents the future reward of security to inventors, but, in one important region, would stop the prog. ress of discovery itself. The very elements by which improvements can be made is monopolized, and the occasion snatched 'from Congress of exercising the power given to it by the Constitution. Now, if this can be done in one state, in relation to any one subject, why may it not be done in all, and in relation to all ? Where are we to fix the limit of state power? Why may not the states, respectively, grant

es embracing all the possible elements and materials, of which inventions can be framed, and every possible subject upon which ingenuity can operate ? and thus anticipate and frustrate, in toto, the exercise of the constitutional power of Congress, to secure an exclusive right to inventors.

It may be said that this is an extreme and improbable supposition. I admit it to be improbable that the states will attempt such an exercise of power ; but it is by extreine cases, or, to speak with more propriety, it is by pur.

suing a doctrine to its legitimate consequences, that we are frequently best enabled to detect or illustrate its absurdity. If the constitutional power of Congress can be taken away by the grant of a state monopoly in any case, I am at a loss to conceive why it may not, by similar means, be taken away in all cases. The principle once admitted, the consequence, of necessity, follows. It was affirmed in argument, by one of the learned counsel* by whom the claim of Messrs. Livingston and Fulton was so ably vindicated in the Court of Errors, that the only effect of a patent is to confer on the inventor an exclusive right of properly in his discovery; that, at common law, an invention or discovery is converted into a chattel, a subject to which a right of property can attach. The exercise, however, of this right of property is, as it was said, still liable to be controlled and regulated by the municipal laws of the several states, who may prohibit the use of any particular invention, as noxious to the health, injurious to the morals, or in any other respect prejudicial to the welfare of its citizens. When I declare that I cannot help entertaining the strongest doubts of the truth and soundness of this doctrine, I must be understood to speak with the utmost diffidence in my own judgment, and with the highest respect for the authority of those by whom the doctrine has been advanced or adopted. It seems to me that Congress possesses exclusively the power to determine whether an invention for which a patent is sought be useful or pernicious ; in other words, whether it be one for which a patent ought or ought not to be granted. The object of the constitutional power of Congress to secure an exclusive right to inventions, is the promotion of the “useful arts." invention useless or pernicious, it is evident, would not be a proper object for its exercise. Should a patent for such an invention unadvisedly have issued, there can be no doubt that Congress might repeal the patent, and interdict the use of the noxious discovery.

The grant of the power in question to Congress would, as it appears to me, be completely nugatory, by the admission that the states, in the exercise of an absolute discre. tion, may prohibit the introduction or use of any particular invention, for which a patent has been regularly obtained. Were this construction of the Constitution to prevail, the states, it seems to me, would retain, substantially, the very

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* The late Thomas Addis Emmet.

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power they nominally have parted with. What is the Constitution ? It is the instrument by which the states have severally ceded to the Federal Government a certain portion of their own sovereignty, to be exercised for the common good. The power of securing the exclusive right of inventors is thus given. But if the states not only possess a concurrent power of granting exclusive privileges within their respective limits, but may, in effect, repeal and annul, ad libitum, any and all patents which Congress may have issued, what power, I may ask, in relation to this subject, have they parted with? What portion of their sovereignty, quoad hoc, have they ceded? The whole value of a patent consists, I apprehend, in the exclusive privilege of using the invention, which it is meant to ascertain and secure. the inventor of this, in order to confer upon him a barren metaphysical right, is not to reward, but to mock and insult him. It may be a good scholastic distinction, but it is very contradictory to common sense to say that a man's right of property is not invaded when his use and enjoyment of it are interdicted. Suppose a State Legislature, jealous of the overgrown and accumulating wealth of some unpopular landlord, should, on the common pretext of the public good, release his tenants, in perpetuum, from the payment of rents, would the lord of the manor of Clermont consider this no invasion of the right of property, because the fee-simple, technically speaking, would still remain vested in the obnoxious proprietor ?

It is admitted by those who urge the doctrine against which I am contending, that the states cannot, in direct terms, divest or take away an exclusive right secured by patent. But to prohibit the exercise of such a right within the jurisdiction of a state, and during the whole period for which the patent has been granted, is, in effect, so far as the power of the state extends, to take away the right itself. There may be a difference in the terms employed, but the injury to the patentee is in both cases precisely the same. Nor can I believe that the Federal Courts would listen to the verbal distinction by which such a usurpation of power is attempted to be justified. It is not my intention to deny that the states may, by their own laws, define and modify the rights of property within their respective jurisdictions, when such rights have their origin in the state or municipal law. I am free to allow, that not only the exercise of those rights may, by the same law, be controlled and regulated,

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