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Gibbons

1824: support this position. These acts contain no pro

vision to ascertain the character of the books or

engravings to be published, and whether they be Ogden.

such as may be safely permitted, consistently with the good order of society and public morals. They grant the same right to the author, as the patent grants to the inventor. In both cases, they depend on the same constitutional right, and only convey a right to prevent others from using or publishing without his consent, but not to enable him to use or publish without restraint.

If a State can thus control a right to use a thing patented, directly, it may do it indirectly. If by a positive law, then, through the agency of the Courts, by injunction or otherwise. Or, the right to prohibit the use of it may be delegated to individuals, either acting as public agents, or in their own behalf, to protect some other right vested in them; and may forbid the use of the thing patented, or the publication of the book, the copy-right of which has been secured, without their license. So that if an exclusive grant be made by a State law to an individual, with a provision that the thing grantcd shall not be used in the State, without license of the grantee, and there be a patent under the act of Congress for the same thing, the consequence would be, that the State grantee could not use it, because it would be a violation of the patent, and the patentee could not, without the license of the State grantee, because the State law prohibited him. Thus, the State law would be inoperative, 80 far as it granted the exclusive right; but valid, so far as it prohibited the use of the thing patented.

1824.

Gibbons

Ogden.

These principles may be applied to the law now in question, which gives an exclusive right, and forbids any person to use the thing which is the subject of the right, without the license of the

persons in wbom it is yested. It contains a granting clause, and a prohibiting clause. The injunction is founded on the prohibition, and may be enforced, though the grantees might not use their rigbt. Let it be supposed that, from reasons of public policy, the laws of New-York had prohibited the use of steam boats entirely, and had directed the Court of Chancery to restrain them by injunction, would not the prohibition have been a valid one ? and if so, may not the State determine that it is against the public interest, that steam boats should be built or navigated, unless under the direction, or with the license; of an individual, who' may be thought particularly skilful in that business? It might, therefore, be contended, that this injunction is to be sustained, whatever might become of the respondent's exclusive right.

A State may probibit the use of a thing patented, by virtue of its power over the public domain. A patented thing cannot be used on the private property of an individual, without his consent. The power of the State over the public property, is, at least, equal to that of an individual over his own; and particularly so, as to the navigable rivers in the State, which are, emphatically, the property of the people of the State, and subject to their authority, acting through the local Legislature.

The question has hitherto been discussed, as if :
VOL. IX.

8

Gibbons

1824. the exclusive right claimed by the respondents,

was the right to an invention, for which a patent

may have been, or may yet be obtained. But in Ogden:

truth, his right is not to the use of any invention, or of any thing for which a patent can be granted. Livingston and Fulton do not, on the face of the acts granting or securing the right, claim to be the inventors of any thing. In the act of 1798, c. 55. 8. 21. it is recited, that R. R. L. " is the possessor of a mode of applying the steam engine to the propelling of vessels, on new and advantageous principles.” It is not alleged or pretended, that he was the discoverer of that mode, or of the principles of its application; or that the mode; or the principles, were secret or unknown to the rest of the world. His right, therefore, is to the use of an improvement, introduced (perhaps) from a foreign country, and, consequently, not the subject of a patent, and in respect to which Congress has no power to legislate at all. On the other hand, it does not appear, that the appellant has a patent for any thing connected with the subject of steam boats, or for any thing belonging to the steam engide, which can be used in navigation by steam. He can, therefore, claim no right, in this case, under the patent laws; and there is no question as to any actual conflict between the State right and a patent right. . He is, consequently, compelled to rely upon the broad ground, that the State has no power to legislate at all, for the encouragement of any art or science, or for any improvement connected therewith, because Congress has legislated under a power which is partial in its extent, boch as to objects and time

1824.

Gibbons

Ogden.

'The result of all that has been said, tends to establish, that the power in the constitution is strictly a concurrent power. That it is also a limited power in Congress to promote science and the arts, by particular means, and in regard to particular objects, and for limited times. That all the residue of the power, to promote science and the arts, by all other means, and towards all persons and objects, and for unlimited times, remains exclusively in the States. That the States may legislate, in pursuance of this concurrent power, in all cases, and can grant exclusive rights to any thing which may be the subject of a patent, which will be valid within their own territory until a patent is actually issued under the authority of the Union. That when a patent işsues, the State has full power to prohibit or control the use of it within its territory, though it cannot grant the right to use the patented thing to others. That it may exercise the power of prohibition, partially or totally, by direct legislative acts, or through the medium of its Courts, and may delegate the right to probibit to any of its citizens. That in the present case, the right of prohibition has been delegated to Livingston and Fulton; and the mode of exercising that right, is by injunction out of Chancery. That this right of prohibition may be valid, even though the grant of the exclusive right to use, &c., might be invalid. That the State laws are, therefore, valid, even on the supposition that the right granted by them, was to an invention which might be patented; and that they would be valid, as to their prohibitions, even were a patent issued for the same,

Gibbons

1824. object. But that, in truth, the right in question,

has no connection with any thing that can be the

subject of a patent; and if it has, that no patent Ogden.

has, in fact, issued to the appellant, nor does he, in any mode, claim a right under a patent. That the question, therefore, on this branch of the cause, is reduced to the inquiry, whether the State may legislate under' a power, confessedly concurrent, when Congress has not acted at all, or when no person sets up a right under any act of Congress.

But the laws of New York, now in question, are supposed to be in conflict with the constitutional power of Congress, “ to regulate commerce with foreign nations, among the several States, and with the Indian tribes."

This is a concurrent power, according to all the principles before laid down. It was fully possessed by the States, after the declaration of independence, and constantly exercised. It is one of the attributes of sovereignty, specially designated in that instrument, “ to establish commerce.” It is not granted, in exclusive terms, to Congress. It is not prohibited, generally, to the States. The only express restraints upon the power of the States, in this respect, are against laying any impost or duty on importe or exports, (except for the execution of their own inspection laws,) or of tonnage; against making any agreement or compact with a foreign power; and against entering into any treaty. All these prohibitions, being partial, are founded on the supposition, that the whole power resided in the States. They are, accordingly, all in restraint of State power. It is a clear

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