promotes the future convenience, ease, and comfort of each individual. In stating the consideration of the grant to Messrs. Livingston and Fulton, to be meritorious, and in appealing so feelingly in its favour to the good faith and honesty of the State, ought it not, Sir, to have occurred to you, that good faith and honesty are of no kindred, or party, or particular connection? We are not unfrequently deluded, and we not unfrequently cheat ourselves,--with words; and thus the understanding becomes corrupted, and is occasionally betrayed by its ablest ally. Notwithstanding your happy exemption, Sir, from the "tramels of your pro"fession," you appear to be somewhat obnoxious to this general cause of error, or you might otherwise have apprehended, that although the Citizens of the Union may not chose to justify their right to reversionary interests in future improvements, nor authors to vindicate the security of their limited terms,--on the ground of a "technical" bargain or contract,-yet, in truth, they may place them, if not upon the same, upon higher ground;-for upon what basis do these interests rest? They are rooted in the solemn agreement of every State in the Union;-they are supported by a consideration of mutual forbearance in the exercise of the powers of Legislation amongst co-ordinate sovereignties,--for an end-the most beneficial, and of universal concernment,-the unchecked progress of Science, Literature, and the Arts. Now, whether this be a trust or a "contract," give it what name you please, the nature of the consideration yet remains, and the binding force of the obligation is unchanged. An Act, therefore, of the Legislature of any individual State, passed in violation or subtraction of interests so founded and secured,―is as much a breach of faith and honesty, as if the State were to repeal the right vested in Messrs. Livingston and Fulton. This would be a violation of both faith and honesty, and notwithstanding your representations to the contrary, you know, Sir, that I have never advised it.-Whether the extraordinary remedies given to protect that right from judicial investigation, which you so strenuously uphold, do not to authors and inventors, and the public, involve as great a violation of faith and justice,remains for you a thesis; for the Legislature,—a matter of judgment. To say, that "the only security which Congress "are empowered to give to an inventor by the Con"stitution, is a right of property in his discovery," appears to me, at least an unadvised assertion: When you further say, that a Patent only" ascertains the "title," your assertion may be true or false, as you contract or enlarge the meaning of a term not accurately defined, and, at best, can only give rise to a verbal dispute-terminating where it began. If, however, it be meant, that a Patented invention, within the meaning of the Power in the Constitution, and of the Acts of Congress, confers no right nor property, because both are recognized as previously existing, and therefore cannot arise from the Power and the Laws passed in virtue of it;-this may be true;-but then, it is nothing to the purpose. It evades the question, and neither meets nor resolves the dispute. * Colden's Vindication, p. 111. The right, it is admitted upon both sides, was a previously existing one. The Power did not create the right,-nor does it profess to do so.It limits the right of property, and secures what it professes to limit;-but the only security to which it points, or which it can indeed give, is what results from an exclusive power of Legislation.-It is this paramount authority, which, restraining the interference of subordinate sovereignties, gives the requisite and intended security to an author or inventor, and creates a reversionary interest for the benefit of the Public. IT IS THIS WHICH FINALLY SECURES TO HIM AN EXCLUSIVE RIGHT IN HIS INVENTION OR DISCOVERY, BY LIMITING TO HIS USE A TERM OF YEARS IN THE THING PATENTED, THAT NO OTHER POWER IN THE UNION MAY ENLARGE, Abkidge, or alter. If this result be not the security,-and if the exclusive power of Legislation be not the means of that security,―shew me, Sir, what is?-You have not shewn it, you cannot point it out;-you have negatived all power of future explanation, by saying, that "the right of property is to be secured, and nothing "more." Upon this supposition, the terms of the power are a formal pedantry,—a set of words combined with great appearance of skill and caution,"signifying nothing;"-or at most, productive of a frivolous result, inconsistent with the known wisdom of the framers of the Constitution, and useless to any purpose whatever, of a confederate nature. But I waive the advantage of a rash and hasty assertion,— I will not push home to its consequences this bald construction;-I give you liberty to retract and explain; the Public expect from you both the one and ;-the the other; they look to your ingenuousness for a re traction, to your pride, for some explanation;-they take an interest, Sir, in your advancement, and they have by purchase, a right to your confessions. Having shewn the nature and result of the means intrusted to Congress, for securing to authors and inventors their exclusive rights, I now proceed to examine, whether there be any thing in your distinction between the "title" and "the unlimited use "of the invention," to invalidate or impugn my doctrine. In opposition to an opinion hazarded in my former letter, you maintain, that "though Congress "have the power to ascertain the title of the in"ventor, the individual States may yet control the Patentee in the use of his invention."* The consideration of this objection necessarily leads me to inquire into the nature of the thing to be secured. In the first place it is to be remarked, that the property which an author may have in his writings, appears to be different from that which an inventor may have in his discoveries. The former has no beneficial use of property in his writings, independent from what may be derived from a sale of them,— the latter may, in a very restricted sense, use his invention for purposes of profit, to both, however, a right of sale is indispensable,—more manifestly so with the first, than with the last ;--every other subject in the two great legal divisions of property may be partially enjoyed, though the right of sale be restricted or forbidden;-but the right of property of authors and inventors is so essentially connected with * Colden's Vind. p. 108,-111. the right of sale, that the inhibition of that right ar nihilates the whole subject. The right of sale in these instances, is an elementary principle in the very idea of Property. Separate it from the other elements, and the complex legal notion of Property is destroyed. The value,-the thing intended to be secured by Law, is lost to it.This, Sir, is no metaphysical distinction. All human Laws proceed upon the assumption of value, as implicitly involved in the idea of Property;-and as new discoveries in Science, and new improvements in the arts of life, give rise to new modifications of Property, the first thing that attracts the attention of the Legislature in any subject, as being capable of appropriation or exclusive ownership-is its va→ LUE. Accordingly we find, that the Laws passed by Congress, in virtue of the Constitutional power now in question, secure to an author or his assignee, "the sole right and liberty of printing, reprinting, "publishing and vending" his work ;* and to a Patentee, “the full and exclusive right and liberty," within the term limited, " of making, constructing, using and "vending to others to be used," his invention or discovery.f Again;-though all things which have a use, have also a value, independent of the right of sale;-yet, in most subjects, the use without the right of sale, constitutes an adequate value. Land, for instance, if not allowed to be transferred by sale, by devise, or descent, would, nevertheless, have that value which would require Law to guard, to define, and to * Vide L. U. S. Cong. 1. Sess. 2 ch. 15. |