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constitution, and shows that the State considered itself as still retaining a concurrent right of legislation on the subject of inventions in science and the useful arts, notwithstanding the new constitution, and the recent transfer of similar powers to Congress.
What is the power delegated to Congress, and on what principle is it founded? A confined and partial mode of promoting the progress of science and useful arts, viz. by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries. The Federalist, No. 43," says, “ the utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain to be a right at common law. The right to useful inventions seems, with equal reason, to belong to the inventors." This commentary, and the words of the constitution, show that the power is only founded on the principle of literary property extended to inventions. It proceeds upon assuming a pre-existent common law right, which, however, requires to be properly secured by adequate remedies. Its principle is entirely different from that on which patents rest in England. They are exclusive rights, not merely secured, but created and granted; they are monopolies for things invented or imported, and do not suppose or act on any pre-cxistent right; but grant a right, the origin and efficacy of which is derived from its being a gift from the
a p. 269.
crown, permitted and legalized by act of Parlia
1824. conferring upon an individual a monopoly, in
which he had no pre-existent right. This can be Gibbons
done by the States, and only by the States. The Ogden.
power delegated to Congress, does not authorize it to create any right, or to give any right; it only enables that body to secure a pre-existent common law right, and for that purpose it may create and gide a remedy. Where there is no pre-existent right to be secured, the power of Congress cannot operate. To these positions, the attention of the Court is directed, as they may be found important in the sequel.
Although the article in the constitution is expressed with accuracy, yet it also has employed a word, sometimes taken in different senses, and which has likewise contributed to a false view of the power of Congress: the expression is, “ an exclusive right.” The word “exclusive" may well mean, as it does here, individual, sole, or separate, in which sense, every man's private property, to which no other man has any claim, is his exclusive property. In that sense, Judge Chase says, in the case of Calder et ux. v. Bull et ux.". “ If any one has a right to property, such right is a perfect and exclusive right.” But, that word, exclusive, is more frequently applied to express, that others have been excluded or shut out from the participation of what they were previously entitled, or would, but for that exclusion, be entitled to enjoy and use. In this sense, the phrase, exclusice rights or privilegos, is ordinarily under
a 3 Dallas' Rep. 394.
1824. Gibbons Gil Ogden.
stood. But, it never was intended to give Congress any power to grant exclusive privileges; and in the article of the constitution, that meaning of the word would be inconsistent with the idea of securing a pre-existing right. All error would have been avoided, if the adjective had been entirely omitted, or the word individual substituted.
At the time of making the State grant in question, 'no man had, and; indeed, no man yet has, any pre-existing right to an invention, connected with the subject matter of the grant. Suppose any man, however, now to make an invention, and seek to use it without procuring for himself a patent, or availing himself of the power delegated to Congress, surely the law of the State would be competent to prevent his using it within its waters and jurisdiction. The statute law would, in that instance, operate on the common law, and prevent the common law right, pro tanto, from ever arising, in the same way as in a fishery. The right of fishing, in a public navigable river, is a common right; but, suppose that before the birth of any given individual, a part of that navigable river had, by statute, been turned into a several fishery, surely his common right would not entitle him to fish in that part of the navigable river which a statute had, before the commencement of his common right, turned into a separate fishery. His right to fish there never had a commencement or origin-So with this supposed inventor. A statute, prior to the commencement of his common law right, so acted on that common law itself, that a right
in him to use his invention, in the waters of the State, never had a commencement or origin. Now, suppose the inventor to procure a patent; would that enable him to use his patented invention within the jurisdiction and waters of a State, contrary to its statutes? If it did, what would be its operation? The delegated power, is only to secure a pre-existent right; it can only do that, so far as there is a pre-existent right; where there is not, there is nothing to be secured. So far, then, as 'relates to any use or exercise of the invention within the State, there would be no right to be secured, and nothing for the power of Congress to operate upon. But further, if the inventor, before obtaining his patent, could not legally use his invention, but, after obtaining his patent, could use it in despite of the State laws, the patent would then create and give a right that did not exist before, and thus transcend the power delegated to Congress, which does not enable that body to create or give any right, but only to create and give a remedy, for the purpose of securing an existing right, which derives its origin and forc from some other law or laws than those made by congress.
So far, then, as relates to those State laws, it is impossible that their validity can be affected by the patenting of any invention or discovery made subsequent to their enactment. But it may still be advisable to pursue the same course of reasoning, and inquire how far even the existence of a patent, previous to the passing of such acts, would