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The utmost that can be said is, that the passage may be a little longer, and may be somewhat retarded. The doctrine of the Federalist applies here, that it is not a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can, by implication, alienate and extinguish a pre-existing right of sovereignty. Regulations for a toll-bridge may delay the mail carrier, and so far interfere with the execution of the power delegated to Congress, of regulating the post office and post roads; but, could he gallop over a bridge, that a State law directed should always be crossed on a walk?
But the clause in the constitution, authorizing Congress to make laws respecting patents, is supposed to present another argument against the constitutionality of those State laws. This point, having been but very slightly mentioned, and in some measure abandoned, by the appellant's opening counsel, would not be dwelt on now, if the Attorney General had not intimated an intention of insisting and relying on it. If the appellant had a patent of any kind, on which he could rest, it might fairly be urged by us that a patent cannot give to ar; unpatented thing, even though connected with one that is patented, the right to violate the State law. But liow does or can that question come up in this case? There is here no allegation of a patent, nor a claim of any thing entitled to be protected by the patent law, and the use or enjoyment of which has been interfered
a The Federalist, No. 32.
1824. with by the exclusive grant. As the appellant m claims no patent, if this power in Congress can
furnish to him any objection against the State Ogden.
laws, it must be on the ground, that inasmuch as Congress is authorized 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, every State law, calculated or purporting to promote the progress of science and useful arts,' is utterly void, merely because that is its purport and object, even though it should not relate to any invention or discovery; though the privileges it may confer should not be given on the score of invention or discovery, but of public policy and convenience; and further, although there is no discovery or invention of any other person in existence, the right to which Congress could secure, and which has any relation to the State grant. That, in short, the appellant, or any other person, has a right to treat the State law as a nullity, and, in violation of it, to use unpatented articles, and incapable of being the subject of a patent or protection; and, that no Court or process of law has authority to restrain him from the use of what never can come within the power of Congress; because, peradventure, something may hereafter be discovered, having some relation to the subject of the State grant, and some person may, hereafter, be entitled to claim the benefit of the constitutional protection, as an inventor. The extraordinary boldness of this position must surprise and astonish. If the passing of the patent law is per se compe
tent to prevent a State granting this exclusive right, for a thing (so far as the pleadings show) not the subject of a patent, it is equally so to prevent a State granting every other exclusive right, and particularly if connected with science and the useful arts. If the law alone will not produce that effect, until a patent is granted, at variance with the exclusive right, the patent should appear, to let us see if it be really at variance, and have that effect.
If the last steam boat laws, enacted since the North River boats were in operation, had, instead of using a general phraseology, forbid any person to use, on the waters of the State, steam boats constructed or made in the same manner as those then used by Livingston and Fulton, or in any manner before known or used, or in any manner indented by a non-resident alien, would there be any thing for the patent laws or power of Congress to operate on in collision thereto? If not, then those State laws are so far good; and any one, to impeach their operation, must claim and show that he has a boat constructed in a different manner, and which is patented as an invention, or, at least, is a subject for the laws of Congress to operate upon, and which he is restrained from usiog.
Has it ever been disputed that, h State has a right to grant exclusive privileges, where not forbidden to the Legislature by its constitution? The wisdom and the motives of the grant, are points for which it is responsible to the people of the State only; they can never be drawn into
1824. discussion in this Court, nor come under the con
V trol of Congress. It is a right inherent in the Gibbons
sovereignty of every country, not delegated to Ogden
Congress, but allowed to, and constantly exercised by, the State governments. It is a legislative instrument of great power, and may, therefore, be used to evil purposes; but it may be, and often has been, as in the present instance, productive of splendid benefits. It must reside somewhere; it does not reside in Congress; where, then, does it reside?
Whether the power delegated to Congress be exclusive or concurrent, the power of promoting science and useful arts, by the introduction of imported improvements, and encouraging the employment of things not susceptible of being patented, is exclusively in the State Legislatures. It is of great importance, and exercised by every wise government; by England, France, &c. It domesticates the sciences and useful arts, the talents and genius of the civilized world. The States, in the exercise of this their excluside power, which has been employed in making those laws, are not to be interfered with from any apprehension of collision in the exercise of a concurrent
power, only relating to another branch of the · same subject, which tbe State has not used, and
which Congress may never have an opportunity of
I say, a concurrent power; for such is that delegated to Congress. One of the counsel now opposed to us, in his argument in the case of
Sturges o. Crowninshield, places in his third class, that is, among the concurrent powers, that to promote the progress of science and useful arts; and says, very truly, “ from the exercise of any of these powers, the States are neither expressly, nor by any fair rule of construction, excluded." Judge Tucker, in his Appendix D. p. 182. 265. among the cases in which the States have unquestionably concurrent, though, perhaps, subordinate
power to promote the progress of science and the useful arts, by securing to the authors and inventors. the exclusive right, within the State, to their respective writings and discoveries. In the case of Livingston o. Van Ingen, Thompson, J. takes for granted, that it is so, and it is expressly asserted by Kent, C. J.; and in the same case, an instance is given of its exercise, by an act of the Legislature of New York, in favour of Mr. Rumsey, passed on the 23d of February, 1789, after the adoption of the federal constitution, and shortly before the first meeting of Congress. It was entitled, “ for securing to James Rumsey the sole right and advantage of making and employing, for a limited time, the several mechanical improvements by him lately invented." I do not speak from research, but I understand that he obtained a similar patent from several other States. This law is a cotemporaneous exposition of the