by the constitution; the one, by giving to men of genius the excitement of a secured property in their writings; and the other, by extending (after the expiration of the term limited) the free use of the effective produce of invention to the whole community.*

The general end of the power, and the profitable result to the public in the reversionary interest, being then equally apparent, it is not less obviously the meaning of the constitution, that congress should "secure the exclusive right of authors and inventors," by the exercise of an exclusive power of legislation. This we have already inferred from the mere words of the constitution; but the view now given of the origin and policy of the article in question, whilst it more fully explains the principles which must have influenced the framers of that instrument, appears abundantly to confirm the reasoning which first led us to such a conclusion. If that conclusion and the principles here stated be admitted, it will easily be seen that the grant of exclusive privileges by a state in that which, according to the intent of the constitution, may be secured by copyright or by patent from the United States, is voidable as affecting other interests besides those of authors and inventors - interests equally intended to be secured under the power granted by the several states to the government of the union. It is, however, difficult to bring the full force of this argument home to the mass of any community, and impossible, perhaps, to reduce it to the level of their comprehension, who, professing to have read and understood the English cases of literary property, can impute presumption and folly to the great Lord Camden, without dread of a retort of the charge upon themselves, or deny the legal abilities and learning of Sir Joseph Yates, without suspicion of their incompetency to decide upon the character of a judge, of whose name and reputation they probably do not affect to be ignorant.†

* These views of the doctrine deducible from the English cases, in regard to the effect of the statute of Anne, upon the rights of authors at common law, and the identity in principle and policy of the power of congress with that statute, were exhibited by President Duer, in the controversy referred to in the article on steam navigation, in our last number, and have since been sanctioned by the supreme court of the United States, in Wheaton v. Peters, 8 Peters' Rep. 591.

Of the reputation of Lord Camden, as a lawyer, a judge, a statesman, and a patriot, it cannot be necessary to remind our readers. Although evidently no favorite of JUNIUS, yet that extraordinary writer "believed the character of this friend and coadjutor of Chatham, and patron of America,' to be fertile in every good and great qualification," and called on him at an important crisis in the history of the British constitution, "to stand forth in defence of the laws, and exert, in the cause of truth and justice, those great abilities with which he was entrusted for the benefit of mankind."-See Woodfall's Junius, v. 2. p. 147. The name and character of Mr. Justice Yates, are also immortalized in the letters of this

The right of each citizen to the future enjoyment of the productions of literature, of discoveries in science, and improvements in the arts the benefit personally derived from them concerns so many, and concerns them so remotely - that it is scarcely known as an actual advantage, nor is its privation felt as a sensible and real loss. The disturbance of such a right, affects the interests of no combination of individuals; it can only be perceived by its operation upon future prosperity, and to trace that downwards to individual comfort, ease, and opulence, is a matter of some difficulty; and even if done with strength and clearness, would not agitate the multitude, intent upon the pursuit of nearer objects, with any powerful emotions. To the eye of genuine and intelligent philanthropy, it is nevertheless an interest of great magnitude; and in proportion as its effects are remote, and less likely to enlist the passions in its favor, does it need all the aid that a firm, unshrinking reason can afford it. It is obvious, therefore, that to insist, at this period, upon the restoration of perpetual copyright, is to contend for that which is not less erroneous in policy, than unattainable in practice; and the advocates of a measure neither solicited nor suggested by the British or the American petitioners for international copyright, are not in effect more hostile to their cause than those who deny the original right of authors to any property whatsoever in their works. Indeed, there is good reason to believe that the impediments and difficulties which have hitherto prevented the success of the application to "great unknown," as well as in the reports of Sir James Burrow. The former imputes the removal of "this great and upright judge from the king's bench to the common pleas, to the jealousy of Lord Mansfield; with whom his judicial opinions, especially on political questions, were often at variance. In a debate which took place in the house of commons, December 6, 1770, on a resolution to inquire into the administration of criminal justice, particularly in cases relating to the liberty of the press, an eminent whig orator asserted, that "a late judge, equally remarkable for his knowledge and integrity, was solicited to favor the crown, in certain trials then depending; but this great, this honest judge, being thus solicited in vain, a letter was sent to him directly by a great personage, but as he suspected it to contain something dishonorable, he sent it back unopened. The excellent person who was thus tempted to disgrace and perjure himself, and to betray and ruin his country, could not die in peace till he had disclosed this scene of iniquity, and warned his fellow-citizens of their danger." Woodfall added to his report of this speech, the following: "N. B., Sir Joseph Yates was the judge meant. When the letter from the great personage was mentioned, Lord North, and the rest of the treasury bench, stared at one another, but did not utter a single sentence by way of contradiction."-See Woodfall's Junius, v. 1. p. 255. Ignorance of such a character, certainly argues that he who confesses it "must be himself unknown." But this is not equal to the absurdity of a reviewer's mistaking the author of the Elements of Criticism, who, as a Scotch judge, was styled by courtesy, Lord Kames, for a peer of parliament; or, a lawyer's supposing the opinion of his titular lordship, in the case of Hinton v. Donaldson, before the court of sessions, at Edinburgh, to have been delivered in the house of lords, at Westminster.

congress, have arisen more from fears and scruples entertained by some of the most liberal and philosophical minds in the senate, lest the proposed amendment of the law might affect injuriously the interests intended to be secured by the constitution to the PUBLIC, than from any undue regard to the interested clamor of those who have remonstrated against it.

Previously to the adoption of the federal constitution, it had been made, as we have seen, a question in England - whether an author had any natural or common law-right of property in his works, and that it was declared by a majority of the judges, when solemnly called on for their opinions by the house of lords, that such right had indeed existed before the statute of Anne, but was by force of that act transferred to the public, upon the expiration of the term for which the copyright was secured by it to the author. Whether this opinion were sound or not, is now immaterial. Such, at all events, was the decision of the lords, and such was the settled law, both in England and America, when our national constitution was adopted. The framers of that instrument being called together for the purpose of defining the powers and establishing the form of a new federal government, and not for the purpose of resolving judicial doubts, touching an author's or inventor's right, took the subject as they found it, and simply reserved to the legislature of the union a limited but exclusive power of interference in regard to it. And in this they acted, as we shall contend, upon more enlarged views and with a more liberal policy, than congress, when it came to execute the power, seems to have penetrated.

* In Miller v. Taylor, the court of King's Bench, in 1769, gave judgment in favor of the subsisting copyright; Lord Mansfield, Chief Justice, Mr. Justice Willes, and Mr. Justice Aston, holding that copyright was perpetual by the common law, and not limited by statute, except as to penalties, and Mr. Justice Yates, who died in 1770, dissenting from them. In 1774, the same question was brought before the house of lords, in Donaldson v. Becket, when eleven judges delivered their opinions upon it. Four of them held, with Lord Camden and the deceased Sir Joseph Yates, that no right of property existed in an author, independently of the act of parliament; whilst five agreed with Lord Mansfield's opinion in the former case, that the common law right was not divested by the statute; Lord Mansfield himself declined from delicacy, as a peer, giving any opinion on this occasion, but he was understood to adhere to that he had delivered in Miller and Taylor. The remaining two judges admitted the existence of the right anterior to the statute, but were of opinion that a reversionary interest was thereby created, which at the expiration of the term secured by cumulative remedies to the author became vested in the public. These two, agreeing with the four, upon the general question as to the limitation of the right, formed the majority. Had Lord Mansfield delivered his opinion, the twelve judges would therefore have been equally divided. But the lord chancellor, (Thurlow,) agreed with the two judges, and his predecessor, Lord Camden, with the four. Their union carried a large majority of the peers with them. See 4 Burrow's Reports, ubi sup.

We have already adduced the reasoning in support of the exclusive nature of this power, which is substantially the same that was urged in the controversy respecting the exclusive right granted by this state to Messrs. Livingston and Fulton. The arguments against the exclusive nature of the power vested in congress, deduced on that occasion, from the nature and office of a patent or a copyright, in merely securing a title or right of property, without conferring a right of sale or of use, and the objections drawn from the right of legislation retained by the states in regard to their purely internal trade and intercourse, and their police, health, and inspection laws, were in effect met and refuted by the late Chief Justice Marshall, in his opinions declaring that a coasting license not only ascertains the national character and ownership of a vessel, but confers the right of navigation ;* that a right to import goods involves the right to sell them; and that whenever these rights come in collision with state laws, passed in virtue of a concurrent or of an independent right of legislation on these, or any other subjects, and the exercise of the federal and state authorities are found repugnant or irreconcilable to each other the state law must yield to the superior power of congress. So the letters-patent, or the instrument given as evidence of a copyright, not only ascertains the title of the patentee or grantee as an inventor or author, but confers on them the same paramount and exclusive right of using, and vending to others to use, their discoveries and writings.

In reference, however, to the subject now under consideration, it is perhaps necessary to remark, that the property which an author may have in his writings appears to be somewhat different from that which an inventor may have in his discoveries. The former has no beneficial use or property whatever, independent of what may be derived from the 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 but more manifestly so in the first case than in the last. Every other subject 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 the right of sale, that the inhibition of that right annihilates the whole subject. The right of sale, therefore, is, in these instan

Gibbons v. Ogden, 9 Wheaton's Reports, 1.

+ Brown v. Maryland, 10 Wheat. Rep. 446.

sepa

ces, an elementary principle in the very idea of property rate it from the other elements, and the complex legal notion of property is destroyed. The value, the thing intended to be secured, is lost to it. 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, give rise to new modifications of property, the first thing that attracts the attention of the legislature to any subject as being capable of appropriation or exclusive ownership, is its value. Accordingly, we find that the laws passed by congress in virtue of the constitutional power we are now considering, secure to an author, or his assignee, "the sole right and liberty of printing, reprinting, publishing, and vending" his works; and to a patentee the full and exclusive right and liberty of making, constructing, using, and vending to others to be used," his invention or machine, within the times limited for the enjoyment of their respective privileges.

Now, although 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 possess that value, which would require the law to guard, to define, and to regulate its enjoyment; and however important the right of sale may be to the full enjoyment of all property, it is, in most cases, but an accessary. In the instance in view, however, it is the principal. In other subjects; a right of sale is implicitly involved in every contract of absolute transfer, as a necessary incident; but when an author sells a printed copy of a book, of which he has secured a copyright, the right which is transferred, is merely a right to the individual book-the general power of sale, both of the copyright, and of other copies of his work, still remaining in him. The purchaser, however, of the copyright, is the purchaser of the general right of vendition. This is the principal in the nature of such a contract. It is the subject-matter, the thing to be disposed of quod ipso venditione, solum fruitur; and as the right to sell is the principal and beneficial right, the right to use is a secondary and necessary one- and both are assignable. The nicety and solidity of the distinction which has been attempted between the security of the author's title, and his right to publish or use his book or sell it to others, to publish or - may therefore be clearly seen. An author, according to that distinction, is secured in his right to sell - but he, or his

use