POWER TO PROMOTE SCIENCE AND USEFUL ARTS.
§ 1146. THE next
power of congress is, "to promote the progress of science and the useful
arts, by securing, for limited times, to authors and inventors the exclusive
right to their respective writings and discoveries."
§ 1147. This power did not exist under the
confederation; and its utility does not seem to have been questioned. The
copyright of authors in their works had, before the revolution, been decided in
Great Britain to be a common law right; and it was regulated and limited under
statutes passed by parliament upon that subject. 1
The right to useful inventions seems, with equal reason, to belong to the
inventors; and, accordingly, it was saved out of the statute of monopolies in
the reign of King James the First, and has ever since been allowed for a limited
period, not exceeding fourteen years. 2
It was doubtless to this knowledge of the common law and statuteable rights of
authors and inventors, that we are to attribute this constitutional provision.
3 It was beneficial to all parties, that
the national government should possess this power; to authors and inventors,
because, otherwise, they would have been subjected to the varying laws and
systems of the different states on this subject, which would impair, and might
even destroy the value of their rights; to the public, as it would promote the
progress of science and the useful arts, and admit the people at large, after a
short interval, to the full possession and enjoyment of all writings and
inventions without restraint. In short, the only boon, which could be offered to
inventors to disclose the secrets of their discoveries, would be the exclusive
right and profit of them, as a monopoly for a limited period. And authors would
have little inducement to prepare elaborate works for the public, if their
publication was to be at a large expense, and, as soon as they were published,
there would be an unlimited right of depredation and piracy of their copyright.
The states could not separately make effectual provision for either of the
cases; 4 and most of them, at the time
of the adoption of the constitution, had anticipated the propriety of such a
grant of power, by passing laws on the subject at the instance of the
continental congress. 5
§ 1148. The power, in its terms, is
confined to authors and inventors; and cannot be extended to the introducers of
any new works or inventions. This has been thought by some persons of high
distinction to be a defect in the constitution. 6
But perhaps the policy of further extending the right is questionable; and, at
all events, the restriction has not hitherto operated as any discouragement of
science or the arts. It has been doubted, whether congress has authority to
decide the fact, that a person is an author or inventor in the sense of the
constitution, so as to preclude that question from judicial inquiry. But, at all
events, such a construction ought never to be put upon the terms of any general
act in favour of a particular inventor, unless it be inevitable. 7
§ 1149. It has been suggested, that this
power is not exclusive, but concurrent with that of the states, so always, that
the acts of the latter do not contravene the acts of congress. 8
It has, therefore, been asserted, that where congress go no farther than to
secure the right to an author or inventor, the state may regulate the use of
such right, or restrain it, so far as it may deem it injurious to the public.
Whether this be so or not may be matter for grave inquiry, whenever the question
shall arise directly in judgment. At present, it seems wholly unnecessary to
discuss it theoretically. But, at any rate, there does not seem to be the same
difficulty in affirming, that, as the power of congress extends only to authors
and inventors, a state may grant an exclusive right to the possessor or
introducer of an art or invention, who does not claim to be an inventor, but has
merely introduced it from abroad. 9
§ 1150. In the first draft of the
constitution the clause is not to be found; but the subject was referred to a
committee, (among other propositions,) whose report was accepted, and gave the
clause in the very form, in which it now stands in the constitution.
10 A more extensive proposition, "to
establish public institutions, rewards, and immunities for the promotion of
agriculture, commerce, and manufactures" was (as has been before stated)
made, and silently abandoned. 11
Congress have already, by a series of laws on this subject, provided for the
rights of authors and inventors; and, without question, the exercise of the
power has operated as an encouragement to native genius, and to the solid
advancement of literature and the arts.
§ 1151. The next power of congress is, "to
constitute tribunals inferiour to the Supreme Court." This clause properly
belongs to the third article of the constitutioconstitution/a> -->; and will come in review, when
we survey the constitution and powers of the judicial department. It will,
therefore, be, for the present, passed over.
1. 2 Black. Comm. 406, 407, and
Christian's note, (5); 4 Burr. R. 2303; Rawle on Const. ch. 9, p. 105, 106; 2
Kent's Comm. Lect. 36, p. 306, 307, 314, 315.
2. 2 Black. Comm. 407, and Christian's
note, (8); 4 Black. Comm. 159; 2 Kent's Comm. Lect 36, p. 299 to 306.
3. The Federalist, No. 43.
4. 2 Kent's Comm. Lect. 36, p 298, 299.
5. The Federalist, No. 43; See also 1
Tuck. Black. Comm. App. 265, 266; Rawle on Const. ch. 9, p. 105, 106; See
Hamilton's Report on Manufactures, § 8, p. 235, &c.
6. Hamilton's Rep. on Manufactures, §
8, p. 235, 236.
7. Evans v. Eaton. 3 Wheat. R.
8. 1 Tuck. Black. Comm. App. 265, 266;
Livingston v. Van Ingen, 9 John. R. 507.
9. Livingston v. Van Ingen, 9
John. R. 507; Sergeant on Const. ch. 28, [ch. 39]
10. Journ. of Convention, 260, 327, 328,
11. Journal of Convention, 261.
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