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1824. patent authorizes the patentee to use his invention,

and it is the use which is secured. When a disGibbons

covery is deemed useful by the national governOgden.

ment, and a patent shall issue authorizing the patentee to use it throughout the United States, and the patentee shall be obstructed by a State in the exercise of this right, on the ground that the discovery is useless and dangerous, it will be time enough to consider the power of the States to defeat the exercise of the right on this ground. But this is not the question before the Court. It might be admitted, that the State had authority to prohibit the use of a patented machine on. that ground, or of a book, the copy-right of which had been secured, on the ground of its impiety or immorality. But the laws which are now in judgment were not passed upon any such ground. The question raised by them is, can the States obstruct the operation of an act of Congress, by taking the power from the National Legislature into their own hands? Can they prohibit the publication of an immoral book, licensed by Congress, on the pretext of its immorality, and then give an exclusive right to publish the same book themselves? Can they prohibit the use of an invention on the ground of its noxiousness, and then authorize the exclusive use of the same invention by their own law ?

But there is no pretext of noxiousness here. The authority to enact these laws is taken up under a totally distinct head of State power. It is the sovereign power to grant exclusive privileges and create monopolies, the constitution and laws

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of the United States to the contrary notwithstand. ing. This is the real power under which these laws are defended; and it may perplex, although it cannot enlighten the discussion, to confound it with another and a distinct head of State power. If then the power of securing to authors and inventors the use of their writings and discoveries, be exclusively vested in Congress, the acts of New-York are void, because they are founded on the exercise of the same power by the State. And if the power be concurrent, these aots are still void, because they interfere with the legislation of Congress on the same subject.

These laws were also void, because they interfere with the power given to Congress, to regulate, commerce with foreign nations and among the several States. This nullity of the State laws would be supported, first, upon the ground of the power being exclusive in Congress; and, secondly, that if concurrent, these laws directly interfered with those of Congress on the same subject.

That this power was exclusive, would be mani. fest from the fact, that the commerce to be regulated, was that of the United States; that the government by which it was to be regulated, was also that of the United States; and that the subject itself was ope undivided subject. It was an entire; regular, and uniform sysiem, which was to be carried into effect, and would not admit of the participation and interference of another hand. Does not regulation, ez di termini, imply harmony and uniformity of action? If this must be admitted to be the natural and proper force of the VOL. IX.

. .. 23

1824. terra, let us suppose that the additional term, uni

form, had been introduced into the constitution,

80 as to provide that Congress should have power Ogden.

to make uniform regulations of commerce through-
out the United States. Then, according to the
adjudications on the power of establishing a uni-
form rule of naturalization, and uniform law's of
bankruptcy, throughout the United States, this
power would unquestionably have been exclusive
in Congress. But regulation of that commerce
which pervades the Union, necessarily implies
uniformity, and the same result, therefore, fol-
lows as if the word had been inserted.
• With regard to the quarantine laws, and other
regulations of police, respecting the public health
in the several States, they do not partake of the
character of regulations of the commerce of the
United States. It had been said, that these local
regulations were recognised by Congress, which
had made them a part of its own system of com-
merce. But this recognition would have been su-
perfluous, if they could have stood without it on the
basis of State sovereignty; and so far as their
adoption by Congress could be considered as af-
feeting the question, the manner and purpose of
the recognition operated the other way. It would
be found that, by the commercial regulations which
Congress had made, a general system was adopt-
ed, which, if executed in every instance, would
have carried ships and vessels into all the ports of
the several States, their local quarantine laws to the
contrary notwithstanding. An express regulation
is, therefore, introduced, requiring the collectors

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of the customs to conform the execution of their 1824. official duties, under the navigation and revenue

48 Gibbons laws, with the quarantine laws of the respective States. Without such a provision, the local health laws must have given way to the supremacy of the navigation and revenue laws of the Union. - A serious objection to the exclusive nature of this power of regulating commerce, was supposed to arise from the express prohibitions on the States, contained in the 10th sec. of the 1st art. of the constitution. It has been considered, that these prohibitions imply that, as to every thing not prohibited, the power of the State was meant to be reserved ; and the authority of the authors of the Federalist, was cited in support of this interpretation. But another commentator, of hardly less imposing authority, and writing, not as a polemic, for the purpose of vindicating the constitution against popular objections, but for the mere purpose of didactic instruction as a professor, with this section before him, and with a strong leaning towards State pretensions, considers the power to regulate commerco as an exclusive power. But the difference : between them is rather in appearance, than in reality. It does not appear that the author of that number of the Federalist, did himself consider these police regulations as, properly speaking, regulations of the commerce of the Union. But the objectors to the constitution had presented them as such, and his argument in substance is, that if

a Tucker's Bl. Com. part 1. Appz. 180

1824.

Gibbons

Ogden.

they are, the constitution does not affect them. The other commentator did not consider them as regulations of the commerce of the United States; for if he did, he could not admit them, as he did, to be left in the States, and yet hold the opinion that the power to regulate commerce was exclusively vested in Congress. But might not a reason for these prohibitions be found, in the recent experience of the country, very different from that which had heretofore been assigned for them. The acts prohibited, were precisely those which the States had been passing, and which mainly led to the adoption of the constitution. The section might have been inserted ex abundanti cautela. Or the convention might have regarded the previous clause, which grants the power to regulate commerce, as exclusive throughout the whole subject; and this section might have been inserted to qualify its exclusive character, so far as to permit the States to do the things mentioned, under the superintendance and with the consent of Congress. If either or both of these motives combined for inserting the clause, the inference which had been drawn from it against the exclusive power of Congress to regulate commerce, would appear to be wholly upwarranted.

But if these police regulations of the States are to be considered as a part of the immense mass of commercial powers, is not the subject susceptible of division, and may not some portions of it be exclusively vested in Congress ? . It was viewing the subject in this light, that induced his learned asso

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