in one year, build a boat to be propelled by fire or steam, "the mean rate of whose progress should not be less than four miles an hour; and that he should at no time omit, for the space of one year, to have a boat," of a certain construction, "plying between the cities of New-York and Albany." These conditions not having been performed within the period specified, the time for fulfilling them was repeatedly enlarged by successive acts of the Legislature for the purpose. One of these, passed after the former ones had expired, revived the privileges granted by them in favour of Robert R. Livingston and Robert Fulton. In the year 1807, the proof required of performance of the first condition of the grant was duly exhibited, and a boat propelled by steam, at the rate of more than four miles an hour, began to "ply between the cities of New-York and Albany," in pursuance of the second. Other boats were subsequently built by the grantees of the state, and after they had continued for some years in successful operation, rival boats, propelled in the same manner, were established, in defiance of the state grant, both on the Hudson River and on Lake Champlain, by persons denying its validity. Application for redress was speedily made by Messrs. Livingston and Fulton to the state courts of New-York, and the question presented was, whether the grant made to them by the Legislature was not absolutely void, as made in contravention of the powers of Congress to promote the progress of science and the arts, and to regulate commerce. It was decided in the Court of Chancery that the state grant was void on the ground alleged; but on an appeal to the Court of Errors and Appeals, that decision was overruled, and it was declared by this tribunal of the last resort in the state, that the grant was not absolutely void, on two dis tinct grounds, viz.: that, considering Messrs. Livingston and Fulton as inventors, the state had a con current power with Congress to reward them as such, by the grant of exclusive privileges to be exercised within its jurisdiction; and, secondly, that, considering them merely as the possessors and importers of a foreign invention, the state had an independent power to reward them for the introduction of such invention into beneficial use upon its waters-a power not ceded to Congess at all. It was observed, however, by one of the judges, that "if the opposite party could have shown a right by patent from the United States, as inventors, they must have prevailed, and the state law would have given way to the superior power cf Congress." For it must be borne in mind that the opponents of Messrs. Livingston and Fulton claimed no right or title whatsoever, either under a patent or coasting license; and for aught that appeared, their mode of applying the steam-engine in the navigation of their boats might be, as in fact it was, the same which had been introduced by the grantees of the state.* After notice of an appeal, on the part of their adversaries, to the Supreme Court of the United States, Messrs. Livingston and Fulton offered terms of compromise which were too advantageous to be refused by the other side, and, consequently, these questions were not then carried up to the Federal Court; and in the subsequent case,† referred to in a former lecture, the question respecting the nature and effect of the power to promote the progress of science and the arts did not arise. That case turned wholly upon the collision between the exclusive privilege granted by the State Legislature and the power of Congress * John. Rep., 557. † 10 Wheat., 446 to regulate commerce; and the state laws were declared to be void, merely from their repugnance to the exercise of that power by the Federal Government. The leading principles, however, of that decision, as well as much of the reasoning in the case relative to the licenses required by the State of Maryland from importers of foreign goods, apply with equal force to the power now under discussion; and although the invalidity of the state grant has thus been established, and the question relative to the nature and operation of a patent from the United States can never arise with respect to that grant, yet it may become material in other controversies, and, from its general importance, deserves examination. With all due deference to the opinion of "the highest court in the State" of New-York, I shall endeavour to show the obvious meaning of the Constitution to be, that Congress shall secure "the exclusive rights of authors and inventors to their respective writings and discoveries," by the exercise of an exclusive power of legislation. In a confederated government, extending, like ours over many independent sovereignties, it seems difficult to conceive in what manner the right in question can possibly be secured, except by vesting such exclusive power in a paramount authority; and the necessity of such a power to the attainment of the end was an adequate reason for vesting it in the Supreme Legislature of the Union. The power under consideration comes under that class of cases enumerated in the thirty-second number of "The Federalist," to which the exercise of a similar power in the states would be repugnant and contradictory. The example which the learned and eloquent author of that paper selected to illustrate his reasoning involved a contradiction by direct implication, from the force of U the terms. It was an example taken from the power of Congress to establish a uniform system of naturalization; and it was argued that such power must necessarily be exclusive, because, if each state had power to prescribe a distinct rule, the rule of Congress could not be uniform. In the present case, the power given is necessarily exclusive, both from the terms and the nature of the grant. The words are that "Congress shall have power to secure the exclusive rights of authors and inventors, for limited times." Now, if a state have a concurrent power with Congress over the subject, it must be a power arising from the unceded portion of its sovereignty, and, consequently, a power to grant without limit of time. But how could Congress secure to the inventor, for a limited period, the enjoyment of that which the state might grant to another forever? It was said, on the occasion referred to, in the Court of Errors, by one of its most eminent judges, "that if an author or inventor, instead of resorting to the act of Congress, should apply to the State Legislature for an exclusive right to his production, there is nothing to prevent the state from granting such exclusive privilege, provided it be confined in its exercise to the particular jurisdiction." But, with all due submission, if this opinion be correct, one of two things must follow: either that Congress may secure to an inventor or author an exclusive right in his discovery or writing, and the state secure to another, either as author or possessor of the same invention, the exclusive right to use it within its own jurisdiction; or that Congress cannot secure such a right to the inventor after the state has secured it to the possessor. In the former conclusion this consequence seems to be involved: that Congress may grant an exclusive right to one person to the use of a certain thing 0 e throughout the Union, and that the individual state The power now in question is, moreover, exclusive, from the nature of the grant; because, if each state have a concurrent power, its exercise would defeat the twofold object for which the Federal Constitution intended to provide. That object, we have seen, was to secure to the public the benefit and transmission of invention, as well as to secure to genius a reward for its productions and discoveries. But if the individual states have a concurrent power with Congress, neither branch of this object can be secured by the latter; for, in regard to the former branch, if Congress prescribe fourteen years as the limit of exclusive rights, and render them common at the expiration of that period, each state might fix |