chapter 40: power to promote science and useful arts

§ 1146. T HE 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 constitution; 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.