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suing a doctrine to its legitimate consequences, that we are frequently best enabled to detect or illustrate its absurdity. If the constitutional power of Congress can be taken away by the grant of a state monopoly in any case, I am at a loss to conceive why it may not, by similar means, be taken away in all cases. The principle once admitted, the consequence, of necessity, follows. It was affirmed in argument, by one of the learned counsel* by whom the claim of Messrs. Livingston and Fulton was so ably vindicated in the Court of Errors, that the only effect of a patent is to confer on the inventor an exclusive right of property in his discovery; that, at common law, an invention or discovery is converted into a chattel, a subject to which a right of property can attach. The exercise, however, of this right of property is, as it was said, still liable to be controlled and regulated by the municipal laws of the several states, who may prohibit the use of any particular invention, as noxious to the health, injurious to the morals, or in any other respect prejudicial to the welfare of its citizens. When I declare that I cannot help entertaining the strongest doubts of the truth and soundness of this doctrine, I must be understood to speak with the utmost diffidence in my own judgment, and with the highest respect for the authority of those by whom the doctrine has been advanced or adopted. It seems to me that Congress possesses exclusively the power to determine whether an invention for which a patent is sought be useful or pernicious; in other words, whether it be one for which a patent ought or ought not to be granted. The object of the constitutional power of Congress to secure an exclusive right to inventions, is the promotion of the "useful arts." An invention useless or pernicious, it is evident, would not be a proper object for its exercise. Should a patent for such an invention unadvisedly have issued, there can be no doubt that Congress might repeal the patent, and interdict the use of the noxious discovery.

The grant of the power in question to Congress would, as it appears to me, be completely nugatory, by the admission that the states, in the exercise of an absolute discretion, may prohibit the introduction or use of any particular invention, for which a patent has been regularly obtained. Were this construction of the Constitution to prevail, the states, it seems to me, would retain, substantially, the very

*The late Thomas Addis Emmet.

power they nominally have parted with. What is the Constitution? It is the instrument by which the states have severally ceded to the Federal Government a certain portion of their own sovereignty, to be exercised for the common good. The power of securing the exclusive right of inventors is thus given. But if the states not only possess a concurrent power of granting exclusive privileges within their respective limits, but may, in effect, repeal and annul, ad libitum, any and all patents which Congress may have issued, what power, I may ask, in relation to this subject, have they parted with? What portion of their sovereignty, quoad hoc, have they ceded? The whole value of a patent consists, I apprehend, in the exclusive privilege of using the invention, which it is meant to ascertain and secure. To strip the inventor of this, in order to confer upon him a barren metaphysical right, is not to reward, but to mock and insult him. It may be a good scholastic distinction, but it is very contradictory to common sense to say that a man's right of property is not invaded when his use and enjoyment of it are interdicted. Suppose a State Legislature, jealous of the overgrown and accumulating wealth of some unpopular landlord, should, on the common pretext of the public good, release his tenants, in perpetuum, from the payment of rents, would the lord of the manor of Clermont consider this no invasion of the right of property, because the fee-simple, technically speaking, would still remain vested in the obnoxious proprietor ?

It is admitted by those who urge the doctrine against which I am contending, that the states cannot, in direct terms, divest or take away an exclusive right secured by patent. But to prohibit the exercise of such a right within the jurisdiction of a state, and during the whole period for which the patent has been granted, is, in effect, so far as the power of the state extends, to take away the right itself. There may be a difference in the terms employed, but the injury to the patentee is in both cases precisely the same. Nor can I believe that the Federal Courts would listen to the verbal distinction by which such a usurpation of power is attempted to be justified. It is not my intention to deny that the states may, by their own laws, define and modify the rights of property within their respective jurisdictions, when such rights have their origin in the state or municipal law. I am free to allow, that not only the exercise of those rights may, by the same law, be controlled and regulated,

but even that the rights themselves may be annulled and destroyed. But it seems to have been forgotten that the right of a patentee is not derived from state authority, but has its foundation in the Constitution and laws of the United States. As the state prohibition of its exercise, in whatever terms expressed, under whatsoever pretext made, however coloured and disguised, would, in truth, be a violation of the right itself, I am forced to the conclusion that such a legislative act would be wholly void, as repugnant to that law which is confessed by all to be supreme and par

amount.

II. I consider the grant to Messrs. Livingston and Fulton as repugnant, also, to that clause of the Constitution of the United States which vests in Congress the power "to regulate commerce with foreign nations and among the several states;" which power I regard also as necessarily exclusive. It has been so treated by every department of the government, and by all classes of citizens, in every quarter of the Union, ever since the adoption of the Federal Constitution. It was to effect this transfer of power that the Constitution owes its origin. This was the express motive for assembling the Federal Convention. The exclusive grant of this power was essentially requisite to give to our shipping its nationality and protection; and the surrender of this power was, in this state, the most formidable obsta cle to the ratification of the new Constitution. It possessed the best harbour upon the Atlantic coast; the fertility of its western territory was known; the rapid increase of its population was confidently anticipated; the tide of immigration had begun to flow in upon it; and the consequent accession of wealth and power promised from these sources afforded the most seductive objects to the ambition of its statesmen and politicians. These were the causes, indeed, which combined to delay and resist the adoption of the Constitution in this state, until it became certain that, by the assent of "nine states," it would go into immediate operation among them, while this state and the other recusant members of the old Confederacy would thus be deprived of the benefits both of the former compact, and of the government by which it was superseded.

It remains only to consider in what manner Mr. Gibbons may best avail himself of the rights conferred by his patents and coasting license under the Constitution and laws of the United States. My advice is, that he send his boat

into those waters between this state and New-Jersey which are claimed as lying within the territorial boundary, as well as the jurisdiction of the former, without confining her navigation to those waters which, though admitted to be within the limits of the latter, yet over which New-York claims, nevertheless, exclusive jurisdiction. Nor need he be deterred by fear of having his boats seized under the act of 1811, authorizing Messrs. Livingston and Fulton immediately to seize and keep possession of his property before condemnation, and without trial; thus giving them the benefit of an execution before the verdict of a jury or the judgment of a court, and without the intervention of the sheriff; for I hold this monstrous provision to be so clearly repugnant to that fundamental law which man derives from his Creator, and which is paramount to all human authority, that no judge on earth will venture to execute it.

W. A. DUEr.

Albany, July 14th, 1816.

G, p.

AN ORDINANCE FOR THE GOVERNMENT OF THE TERRITORY OF THE UNITED STATES NORTHWEST OF THE RIVER OHIO.

BE it ordained by the United States in Congress assembled, that the said territory, for the purposes of temporary government, be one district; subject, however, to be divided into two districts, as future circumstances may, in the opin ion of Congress, make it expedient.

Be it ordained by the authority aforesaid, that the estates both of resident and non-resident proprietors in the said territory dying intestate, shall descend to, and be distributed among their children, and the descendants of a deceased child, in equal parts; the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them; and where there shall be no children or descendants, then in equal parts to the next of kin, in equal degree; and among collaterals, the children of a deceased brother or sister of the intestate shall have in equal parts among them their deceased parents' share; and there shall in no case be a distinction between kindred of the whole and half blood; saving in all cases to the widow of the intestate her third part of the real estate for life, and one third part of the personal estate; and this law relative to

descents and dower shall remain in full force until altered by the Legislature of the district. And until the governor and judges shall adopt laws as hereinafter mentioned, estates in the said territory may be devised or bequeathed by wills in writing, signed and sealed by him or her in whom the estate may be (being of full age), and attested by three witnesses; and real estates may be conveyed by lease and release, or bargain and sale, signed, sealed, and delivered by the person, being of full age, in whom the estate may be, and attested by two witnesses, provided such wills be duly proved, and such conveyances be acknowledged, or the execution thereof duly proved, and be recorded within one year after proper magistrates, courts, and registers shall be appointed for that purpose; and personal property may be transferred by delivery; saving, however, to the French and Canadian inhabitants, and other settlers, of the Kaskasties, Saint Vincent's, and the neighbouring villages, who have heretofore professed themselves citizens of Virginia, their laws and customs now in force among them, relative to the descent and conveyance of property.

Be it ordained by the authority aforesaid, that there shall be appointed from time to time, by Congress, a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress: he shall reside in the district, and have a freehold estate therein in one thousand acres of land, while in the exercise of his office.

There shall be appointed from time to time, by Congress, a secretary, whose commission shall continue in force for four years, unless sooner revoked; he shall reside in the district, and have a freehold estate therein in five hundred acres of land, while in the exercise of his office: it shall be his duty to keep and preserve the acts and laws passed by the Legislature, and the public records of the district, and the proceedings of the governor in his executive department; and transmit authentic copies of such acts and proceedings, every six months, to the secretary of Congress: there shall also be appointed a court, to consist of three judges, any two of whom to form a court, who shall have a common law jurisdiction, and reside in the district, and have each therein a freehold estate in five hundred acres of land, while in the exercise of their offices; and their commissions shall continue in force during good behaviour.

The governor and judges, or a majority of them, shall

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