§ 1147. The supposed silence of The Federalist1 proves nothing. That work was principally designed to meet objections, and remove prejudices. The post-office establishment, in its nature, and character, and purposes, was so generally deemed useful, and convenient, and unexceptionable, that it was wholly unnecessary to expound its value, or enlarge upon its benefits.

§ 1148. Such is a summary of the principal reasoning on each side of this much contested question. The reader must decide for himself upon the preponderance of the argument.

§ 1149. This question, as to the right to lay out and construct post-roads, is wholly distinct from that of the more general power to lay out and make canals, and military and other roads. The latter power may not exist at all; even if the former should be unquestionable. The latter turns upon a question of implied power, as incident to given powers.2 The former turns upon the true interpretation of words of express grant. Nobody doubts, that the words "establish post-roads," may, without violating their received meaning in other cases, be construed so as to include the power to lay out and construct roads. The question is, whether that is the true sense of the words, as used in the Constitution. And here, if ever, the rule of interpretation, which requires us to look at the nature of the instrument, and the objects of the power, as a national power, in order to expound its meaning, must come into operation.

§ 1150. But whatever be the extent of the power, narrow or large, there will still remain another inquiry, whether it is an exclusive power, or concurrent in the States. This is not, perhaps, a very important inquiry, because it is admitted on all sides, that it can be exercised only in subordination to the power of Congress, if it be concurrent in the States. A learned commentator deems it concurrent, inasmuch as there seems nothing in the Constitution, or in the nature of the thing itself, which may not be exercised by both governments at the same time, without prejudice or interference; but subordinate, because, whenever any power is expressly granted to Congress, it is to be taken for granted, that it is not to be contravened by the authority of any particular State. A State might, therefore, establish a post-road, or post-office, on any route, where Congress had not established

1 No. 42.

2 See Rawle on the Constitution, ch. 9, p. 104.

any.1 On the other hand, another learned commentator is of opinion, that the power is exclusive in Congress, so far as relates to the conveyance of letters, &c.2 It is highly improbable, that any State will attempt any exercise of the power, considering the difficulty of carrying it into effect, without the co-operation of Congress.

1 1 Tuck. Black. Comm. App. 265.

2 Rawle on the Constitution, ch. 9, p. 103, 104.

CHAPTER XIX.

POWER TO PROMOTE SCIENCE AND USEFUL ARTS.

§ 1151. THE next power of Congress is, " to promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries."

1

§ 1152. This power did not exist under the confederation; and its utility does not seem to have been questioned. The copyright of authors in their works had, before the revolution, been decided in Great Britain to be a common-law right; and it was regulated and limited under statutes passed by Parliament upon that subject. The right to useful inventions seems, with equal reason, to belong to the inventors; and, accordingly, it was saved out of the statute of monopolies in the reign of King James the First, and has ever since been allowed for a limited period, not exceeding fourteen years.2 It was doubtless to this knowledge of the common law and statutable rights of authors and inventors, that we are to attribute this constitutional provision. It was beneficial to all parties, that the national government should possess this power; to authors and inventors, because, otherwise they would have been subjected to the varying laws and systems of the different States on this subject, which would impair, and might even destroy the value of their rights; to the public, as it would promote the progress of science and the useful arts, and admit the people at large, after a short interval, to the full possession and enjoyment of all writings and inventions without restraint. In short, the only boon which could be offered to inventors to disclose the secrets of their discoveries, would be the exclusive right and profit of them, as a monopoly, for a limited period. And authors would have little inducement to prepare elaborate works for the public, if 1 2 Black. Comm. 406, 407, and Christian's note (5); 4 Burr. R. 2303; Rawle on Const. ch. 9, p. 105, 106; 2 Kent's Comm. Lect. 36, p. 306, 307, 314, 315.

2 2 Black. Comm. 407, and Christian's note (8); 4 Black. Comm. 159; 2 Kent's Comm. Lect. 36, p. 299 to 306.

The Federalist, No. 43.

1

their publication was to be at a large expense, and, as soon as they were published, there would be an unlimited right of depredation and piracy of their copyright. The States could not separately make effectual provision for either of the cases; and most of them, at the time of the adoption of the Constitution, had anticipated the propriety of such a grant of power, by passing laws on the subject at the instance of the continental Congress.2

§ 1153. The power, in its terms, is confined to authors and inventors; and cannot be extended to the introducers of any new works or inventions. This has been thought by some persons of high distinction to be a defect in the Constitution. But perhaps the policy of further extending the right is questionable; and, at all events, the restriction has not hitherto operated as any discouragement of science or the arts. It has been doubted whether Congress has authority to decide the fact, that a person is an author or inventor in the sense of the Constitution, so as to preclude that question from judicial inquiry. But, at all events, such a construction ought never to be put upon the terms of any general act in favor of a particular inventor, unless it be inevitable.4

§ 1154. It has been suggested, that this power is not exclusive, but concurrent with that of the States, so, always, that the acts of the lattter do not contravene the acts of Congress.5 It has, therefore, been asserted, that where Congress go no further than to secure the right to an author or inventor, the State may regulate the use of such right, or restrain it, so far as it may deem it injurious to the public. Whether this be so or not, may be matter for grave inquiry whenever the question shall arise directly in judgment. At present it seems wholly unnecessary to discuss it theoretically. But, at any rate, there does not seem to be the same difficulty in affirming, that, as the power of Congress extends only to authors and inventors, a State may grant an exclusive right to the possessor or introducer of an art or invention, who does not claim to be an inventor, but has merely introduced it from abroad.6

1 2 Kent's Comm. Lect. 36, p. 298, 299.

2 The Federalist, No. 43. See also 1 Tuck. Black. Comm. App. 265, 266; Rawle on Const. ch. 9, p. 105, 106; See Hamilton's Report on Manufactures, § 8, p. 235, &c. 3 Hamilton's Rep. on Manufactures, § 8, p. 235, 236.

4 Evans v. Eaton, 3 Wheat. R. 454, 513.

5 1 Tuck. Black. Comm. App. 265, 266; Livingston v. Van Ingen, 9 John. R. 507. 6 Livingston v. Van Ingen, 9 John. R. 507; Sergeant on Const. ch. 28 [ch. 30.]

§ 1155. In the first draft of the Constitution the clause is not to be found; but the subject was referred to a committee (among other propositions), whose report was accepted, and gave the clause in the very form in which it now stands in the Constitution.1 A more extensive proposition "to establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, and manufactures," was (as has been before stated) made, and silently abandoned.2 Congress have already, by a series of laws on this subject, provided for the rights of authors and inventors; and, without question, the exercise of the power has operated as an encouragement to native genius, and to the solid advancement of literature and the arts.

§ 1156. The next power of Congress is "to constitute tribunals inferior to the supreme court." This clause properly belongs to the third article of the Constitution; and will come in review when we survey the constitution and powers of the judicial department. It will therefore be, for the present, passed over.

1 Journal of Convention, 260, 327, 328, 329.

2 Journal of Convention, 261. [The power of Congress to legislate on the subject of patents is plenary. McClurg v. Kingsland, 1 How. 202; s. c., 17 Pet. 228. 'It may make special grants; Bloomer v. Stolley, 5 McLean, 158; and special extensions : Blanchard's Factory v. Warner, 1 Blatch. 258; Evans v. Eaton, Pet. C. C. 322. It may give its grants a retrospective effect. Blanchard v. Sprague, 2 Story, 164; McClurg v. Kingsland, supra. But the intention to do so will not be presumed. Blanchard v. Sprague, 3 Sum. 535.

The patent laws can have no effect in a foreign country; and the use upon a foreign vessel, in an American port, of an improvement patented here is not an infringement of the patent, provided it was placed upon her in a foreign port, and was authorized by the laws of the country to which she belongs. Brown v. Duchesne, 2 Curt. 371, and 19 How. 183.]