A State 1824. which may be exercised by the States. A State may make it an offence to, counterfeit the coin of any foreign country within its territory. Thus, New-York has provided for the punishment of counterfeiting" any of the species of gold or silver coins, now current, or hereafter to be current in this State." And Congress has provided for the punishment of counterfeiting "any gold or silver coin of the United States," or of any "foreign gold or silver coins, which, by law, now are, or hereafter shall be made current, or be in actual use and circulation as money, within the United States." New-York has punished the counte feiting of "any promissory note, for the payment of money," including notes made by any body corporate; and under this the counterfeiting of the notes of the bank of the United States is punished. Congress has punished the same of fence in the law incorporating the bank of the United States." In all these acts of Congress, relating to coins and bank notes, it is provided, "that nothing in them contained shall be so construed as to deprive the Courts of the individual States of jurisdiction, under the laws of the several States, over any offence made punishable by these acts." This shows that Congress considered the power to punish these offences as concurrent, and that it could be exercised by the States on the Gibbons V. Ogden. Gibbons V. Ogden. 1824. ground of their own inherent authority, as it is held that Congress cannot delegate any part of the criminal jurisdiction of the United States to the State tribunals." Again: the power to provide for organizing, arming, and disciplining the militia, is a concurrent power, according to the same principles.' But the States have been in the constant habit of superadding to the regulations of Congress, additional provisions, suited to their own views and local circumstances. These instances, which might be greatly multiplied, show the practical construction put, both by Congress and the State Legislatures, upon these concurrent powers. C The learned counsel here recapitulated the principles laid down, and proceeded to apply them to the discussion of the cause, which he divided into two branches. (1.) The supposed repugnancy of the laws of New-York to the power of Congress on the subject of patents and copy-rights. (2.) Their supposed conflict with the power of Congress to regulate commerce. As to the first, the words of the constitution are," Congress shall have power 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." a Houston v. Moore, 5 Wheat. Rep. 69. Per Story, J. c 1 R. L. of N. Y. 216. Laws of Georgia, 468. 6 Laios of Pennsylvania, 320. This power is concurrent, according to all the principles before laid down. It is clearly a power appertaining to sovereignty, and, as such, vested in the Legislature of New-York, before the formation of the United States' constitution. A power to promote science and the useful arts, is highly important to every civilized society. It embraces all the means of education, and all kinds of mechanical labour and improvements. It is .constantly exercised by all governments, as a sovereign authority, by laws for the promotion of education in all its branches, by bounties for the encouragement of discoveries and new methods of business, and by the grant of exclusive rights and privileges for the same end. It has frequently been exercised by the State of New-York, and by other States, before the adoption of the constitution. It is not granted exclusively to Congress. No exclusive terms are used. The grant is affirmative and general, like all the other powers. There is no express prohibition upon the States against the exercise of it. Nor is it exclusive in its nature. It does not owe its existence or creation to the Union. When exercised by a State, it does not operate in any manner beyond the territorial jurisdiction of that State. From its nature, it admits of a great variety of regulations, both by local and general laws, which may exist harmoniously together. Being thus a concurrent power, it follows, according to the principles already established, that the State may exercise it at all times, and in every mode, until an actual and practical conflict arises between a right exer 1824.. Gibbons V. Ogden. 1824. Gibbons V. Ogden. cised under a statute of Congress, and the same right claimed to be exercised under the State. The power, as granted in the constitution, is a limited power, It is a clear principle, that when the means of executing any given power are specified in the grant, Congress cannot take, by implication, any other means, as being necessary and proper to carry that power into execution. This power, then, is limited: (1.) As to the persons and the objects in regard to which it may be exercised: these are, "authors and inventors, writings and discoveries." This enumeration excludes all right in Congress to legislate on the subject of any improvement, which is not an "inyention," either domestic or foreign. It excludes also all right to legislate for the benefit of any person who is not himself the "inventor." (2.) As to the means of executing the power, and the time during which those means may be exercised. They are by "securing the exclusive right for limited times." The power, considered in itself, is supreme, unlimited, and plenary. No part of any sovereign power can be annihilated. Whatever portion, then, of this power, was not granted to Congress, remains in the States. Consequently, the States have ex 'usive authority to promote science and the arts, by all other modes than those specified in the constitution, without limitation as to time, person, or object; and the Legislature is the sole judge of the expediency of any law on the subject. But this power, though limited in Congress, is still (as has been seen) concurrent in the States. 1824. Gibbons V. Ogden. |