cupations. Yet as poverty may also assail those of different employments, it would be hard to exclude them from the humane protection of the state legislatures. But as states are prohibited from passing laws impairing the obligation of contracts, it has been contended that their power to pass insolvent laws is now questionable. The answer to this objection is, that without impairing the obligation of a contract, the remedy to enforce it may be modified as the wisdom of the legislature may direct. Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as the means of inducing him to perform it. The state may withhold this mean and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation. (38)

Congress shall have power to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.

In a subsequent section of the same article, (39) the separate states are prohibited from coining money and emitting bills of credit. The other parts of this section seem proper objects for the exclusive power of congress. But until it shall be exercised, each state it is presumed, retains the right to fix the standard of weights and measures within its own precincts.

A power to provide for the punishment of counterfeiting the securities and current coin of the United States, is incident to part of the antecedent section, and in itself purports the exclusion of state power. But whether the exclusive cognizance of such cases may be given to the tribunals of the United States, or may not under some circumstances be concurrently exercised by

the state courts, belongs to another head, and will be hereafter considered.

The power to establish post offices and post roads, has a necessary connexion with the promotion of commerce and the general welfare of the Union.

A regular system of free and speedy communication is of vital importance to the mercantile interest, but on a wider scale we must also admit it to be of the first consequence to the general benefit. In time of peace, it tends to keep the people duly informed of their political interests, it assists the measures of government, and the private intercourse of individuals. During a war, the rapid communication of intelligence, by means of the post, and the greater facility of transferring bodies of men or munitions of war to different places by the aid of good roads, are evident advantages. If these establishments should in practice produce no revenue, the expense would be properly chargeable to the Union, and the proceeds of taxation in the common forms be justly applied to defray it. If, however, as has proved to be the case, the post office yields a revenue, which is with the other revenues of the United States applicable only to the general service, it is obvious that no state ought to interfere by establishing a post office of its own. This is therefore an exclusive power so far as relates to the conveyance of letters, &c. In regard to post roads, it is unnecessary, and therefore would be unwarrantable in congress where a sufficient road already exists to make another, and on the other hand, no state has a power to deny or obstruct the passage of the mail, or the passage of troops, or the property of the United States over its public roads.

The powers given to congress in respect to this subject, were brought into operation soon after the constitution was adopted, and various provisions have at dif

ferent times been enacted, founded on the exclusive principle.

It has been made a constitutional question, whether congress has a right to open a new mail road through a state or states for general purposes, involving the public benefit, and the same doubt has been extended to the right of appropriating money in aid of canals through states. If we adhere to the words of the text, we are confined to post roads; but it appears to the author to be one of those implied powers which may fairly be considered as within the principles of the constitution, and which there is no danger in allowing. The general welfare may imperiously require communications of either of these descriptions. A state is bound to consult only its own immediate interests, and not to incur expense for the benefit of other states. The United States are bound to uphold the general interest at the general expense. To restrain it to pointing out the utility of the measure, and calling on particular states to execute it, would be partially to recall the inefficiency of the old government and to violate the main principle of the present one. If any political evil could result from the procedure, it would present a strong argument against the allowance of the power, but good roads, and facile aquatic communications, while they promote the prosperity of the country, cannot be seriously alleged to affect the sovereignty of the states, or the liberties of the people. The road ought, however, to be an open, not a close one. It is doubtful whether tolls for passage on it could be constitutionally exacted.

In the succeeding section the interests of science and the useful arts are laudably provided for, by empowering congress to secure for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.

At common law, it seems to have been a question whether the inventor of any new art or improvement had such a special property in it, as to entitle him to pursue another who made use of it after the inventor had made it public. But there was no doubt that if another person had fallen on the same invention, without a knowledge of the first, he would be entitled to the benefit of his own talents. It has however been deemed in many countries politic and wise, to secure to the first inventor a reward for the time and study employed in such pursuits. In England, the king undertook, on the score of royal prerogative, to grant exclusive privileges of making and selling articles of domestic manufacture, and of importing foreign articles, by which, protection to such inventors was occasionally obtained. But this practice began to be abused, and such licences or monopolies, often conferred as rewards on particular favourites, or used merely to promote the interest of the crown, had increased in the reign of Elizabeth and James I. (40) to an alarming degree, and therefore, by an act passed in the twentyfirst year of the reign of the latter, all such grants are declared to be void; in the fifth section however a proviso is introduced, which is the foundation of the present system in that country relative to patents, by allowing them to be granted to the authors of any new inventions for a term not exceeding fourteen years.

In respect to what is termed literary property; the right which a person may be supposed to have in his own original compositions, the same doubts as to the common law are entertained, and the protection of a statute has been likewise extended,(41) which at the same

(40) Coke's Inst. vol. iii. 181.

(41) 8 Ann. c. 19. 15 Geo. 3. c. 53.

time disposed of the common law question, as to those who complied with its forms, by declaring that the author should have the benefit of it for fourteen years, and no longer, unless he was still living at the expiration of the first term, when it might be renewed for fourteen years more. But as the author might not avail himself of the benefit of the statute, the question remained unsettled till the year 1774, when a small majority of the twelve Judges decided against it. (42) This interesting question merits much consideration. At present it is sufficient to say, that as from the nature of our constitution, no new rights can be considered as created by it, but its operation more properly is the organization and distribution of a conceded power in relation to rights already existing, we must regard these provisions as at least the evidence of opinion, that such a species of property both in the works of authors and in the inventions of artists had a legal existence.

In some of the states, prior to the adoption of the general constitution, acts of the legislature in favour of meritorious discoveries and improvements, had been passed, but their efficacy being confined to the boundaries of the states was of little value, and there can be no doubt that, as soon as congress legislated on the subject, (which was as early as the second session, 1790,) all the state provisions ceased; although in the act of 21 Feb. 1793, it is cautiously provided that the applicant for the benefit of the protection of the United States, shall surrender his tight under any state law; of which his obtaining a patent shall be sufficient evidence.

To define and punish piracies and felonies committed on the high seas is an exclusive power.

(42) 4 Burrow, 2417.