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or obliquity of understanding, do you, then, maintain, that it was right and just in the Legislature, to repeal the law securing to John Fitch the sole right of employing his invention of the Steam-boat, whilst, in the same breath, you contend that it would be unright cous and unjust to interfere with the act by which this grant to Fitch was abrogated and annulled, and his privileges transferred to Mr. Livingston,
You remark, in support of this position, that “ Mr. “Fitch did not ask the interposition of the Legis“ lature to enable him to pursue experiments,” but that 6 he founded his claim to favour on his having ac“ tually established a beneficial mode of Steam Na“ vigation;" and you allege, that “ the Legislature, * to reward his success, and to secure to itself benefit " from an invention of so much utility, gave himn an ex6 clusive right." You deem it, therefore, absurd to suppose, that “ he was to have the whole fourteen
years,” for which his privilege was to endure,“ to “put his plan into operation;" you argue, from this absurdity, that his grant actually “ was upon condi64 tion implied, if not expressed, that he should avail 6 himself of it within some reasonable time :” and assuming this to have been actually a condition annexed to Fitch's law, you conclude that the State had a right, resting upon moral obligation, and moral duty, to repeal that grant, when they gave siinilar privileges to Chancellor Livingston.*
Unfortunately for your argument, the hypothesis upon which it rests, has no foundation in reality. A simple reference, Sir, to the act in favour of Fitch, will shew, that no condition whatever was attached
* Colden's Vindication, p. 25, 26.
to it. The preamble avers it to have been passed, 66 in order to promote and encourage so useful an “ improvement and discovery, and as a reward for “ his ingenuity, application, and diligence.” And whatever may have been the just “ expectations” of individual members of the Legislature, of which you speak so familiarly, Mr. Fitch's employment of his boat upon
the waters of this state, was no " part of “ the consideration" upon which his privileges were obtained. 6 The very nature of the grant,” as you have yourself so well observed, “ excludes the sup.66 position:" For if, as you say, he was to derive a benefit from it; that benefit could only result from his using it, previous to its expiration.† Hence, it is evident, that the Legislature must have thought it unnecessary to insist upon that as a condition of their grant, which the stimulus of private interest would at all events have insured.
The act in favour of Fitch having been passed before the adoption of the Federal Constitution, was, as you have accurately described it, “ in effect a “ Patent granted for a discovery, which it was repre66 sented, had not only been made, but had been ap
plied to a boat, that was then already built.”I But, when, Sir, let me ask, was it before pretended, that the grant of a Patent for a discovery or invention in any art or science, rendered it obligatory upon the Patentee to erect his machine, publish his work, or carry his improvement into actual operation? That you, Sir, should become the assertor of such a doctrine, does, I must confess, appear to me,
more inconsistent than any thing else to be met with in the history of this controversy. You admit with me,
(6 that authors and inventors have a natural or 6 common law right in the fruits” as you express it, 66 of their mental labours."* But whilst I have endeavoured to shew, that the right of using and enjoying this species of property was a necessary incident to its acknowledgment, you have asserted, " that the right to property is very different from, " and indeed, entirely independent of the use or the “ right to use.”+ On the one hand, I have regarded a Patent as the effect of a compromise, by which the exclusive use and enjoyment of the productions of genius were secured to the authors for a limited time only, in order, that the public might afterwards enjoy a common right to use them ;-whilst you, on the other hand, have contended, that its only use and office was " to ascertain the property, afford the evidence of 6 title, and enable the Patentee to maintain his suit, “ for the invasion of his rights.”I
Thus, Sir, in your zeal to justify the repeal of the State grant or Patent to Mr. Fitch, you lose sight of those principles upon which you afterwards rely, to prove the constitutionality of the grant to Mr. Livingston,—and without establishing the first point, not only admit, in contradiction to your doctrine on the other, that a right of property secured by Patent, necessarily includes a right to its enjoyment;—but insist, that, from the nature of such a grant, a condition is implied, which renders it obli
$ Colden's Vind. p. 110.
* Colden's Vind. p. 108-109. † Ibid. p. 104.
gatory upon the Patentee, actually to use his invention, under the penalty of forfeiture, in case of his neglect.
So far, however, as respects 6 this part of the dis*6 cussion,” you
admit, expressly, 66 that there was no * reason to question the perfection of Mr. Fitch's in* vention, orthe performance of his boat;"*-and, for the purpose
present argument, I also am disposed to consider his success or failure equally imimaterial. I am, moreover, willing to allow, that the grounds upon which you justify the resumption and transfer to another, of his privileges, might have been urged in the first instance, as strong reasons against the original grant to Fitch himself;--yet, had the condition which you merely imply from the terms of the law, been actually expressed, I should, notwithstanding the original impolicy of a grant so unbounded in operation, have denied, with the Council
* It has nevertheless been deemed important to swell the “ Vindication” with “ all the evidence which could be collected, 10 raise some doubts, whether the construction and performance of Mr. Fitch's boat were such as have been represented.” It has not, however, been thought expedient to contradict or answer the tes. timony, which was adduced upon the subject in 1815, before the Legislature of New-Jersey. On that occasion, the most conclusive proof was afforded of Mr. Fitch's success, from experiments made two years subsequent to the date of Dr. Thornton's Letter to Dr. Lettsome; from certain expressions in which, a previous abandonment of the project has been inferred. If Fitch's Answer to Rumsey's Pamphlet, had not been removed from the archives" of the NewYORK SOCIETY LIBRARY, the "Biographer of Mr. Fulton" might have ascertained, that Fitch had incontestibly established his prior claim to the invention,--the certificates and statements appealed to on behalf of Rumsey, to the contrary notwithstanding. Vide Colden's “Vindication," p. 27-36, “ Letter to Colden," p. 125, 126, Appendix--and ibid. p. 62.
of Revision, that the Legislature had any right “ resting upon moral obligation,” to declare, that the vested rights of Fitch or his representatives, had become forfeited, without “proof of the facts
upon which the forfeiture was alleged to have arisen.”
And, had Mr. Livingston made the representation to me, of that extreme case, which, to illustrate your argument you have so ingeniously supposed,* I should have answered him in precisely the same terms, in which I have replied to those who have urged the total repeal of his own exclusive privilege, and told him, that the “ impolicy” or “ improvidence” of the grant would not excuse a violation of the public faith ;-that questions touching its validity were of judicial cognizance ;--and, in reference to the particular grounds upon which he sought the interference of the Legislature, I should have probably observed, that if “ the grant to Fitch must neces: sarily be understood, to have been
upon condition, " that he should, within a reasonable time, give the 66 State the benefit of his invention,”t--the ordinary tribunals were competent so to expound it, as well as to adjudge, whether that condition had or had not been performed. I should, moreover, have declared to Mr. Livingston, my utter inability to conceive, why the existence 4 of Fitch's law should deter him from “ carrying his new and advantageous principles into 66 effect,” when it had not prevented him from making the experiments by which their efficacy had been ascertained; and I should have inquired, with due submission, whether, in case the prior right had be
* Colden's Vind. p. 38.
# Colden's Vind. p. 39,