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I N H E R E N T   O R   C R E A T E D   R I G H T S:
Early Views on the Intellectual Property Clause
Edward C. Walterscheid [FN1]

Hamline Law Review
Fall 1995
Copyright © 1995 by the Hamline Law Review; Edward C. Walterscheid

I. Introduction

The United States patent and copyright law derives from a constitutional grant of authority to the Congress "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...." [FN2] The clause granting such authority is frequently referred to as either the patent clause, the copyright clause, or the intellectual property clause, depending on the context in which it is being discussed. Any of these descriptors is in a sense misleading in that the clause contains "[n]o reference to 'property' itself (or to patents or copyrights as such)...." [FN3] A more correct description of the clause, at least in the context of the time at which the Constitution was drafted, would be the "science and useful arts" clause, because the term "intellectual property" seems to have been unknown in the eighteenth century. [FN4] Nonetheless, because intellectual property law is to a substantial extent derived from the grant of authority set forth in this clause, this article follows what is increasingly becoming standard usage and refer to it as the intellectual property clause.

Much has been written about the preoccupation of the Framers with the protection of property. [FN5] As noted by Jennifer Nedelsky: "For the Framers, property was both a natural and a positive right, and it was a right that could not simply be declared to be beyond the reach of government because it required government (and was therefore the origin of government)." [FN6] Surprisingly, however, constitutional scholars and legal historians who readily discuss every other aspect of the constitutional language in the context of its supposed relationship to property rights have almost nothing to say about the intellectual property clause. Even so, there has long been a school of thought which argues that the intellectual property clause was not intended to empower the Congress to statutorily create intellectual property but rather was intended to obligate the Congress to secure, confirm, and implement property rights of authors and inventors already existing under the common law. Perhaps the foremost exponent of this view in recent times is Frank D. Prager, who contends that "common law had binding force in America in and before 1787." [FN7] Prager further contends that Madison perceived such a common law right to exist when he wrote in The Federalist in 1788 with respect to the intellectual property clause: The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain to be a right of Common Law. The right to useful inventions seems with equal reason to belong to the inventors.... The public good fully coincides in both cases with the claims of individuals. [FN8] According to Prager, the text of the intellectual property clause "is consistent with these views of The Federalist" and "[n]o known document of the convention period is to other effect." [FN9]

The purpose of this article is to explore the merits of this school of thought in thecontext of early commentary on the intellectual property clause and the Constitution. First, a brief look will be taken at common law views as to the rights of inventors and authors. In addition, whether the common law had binding force in America in and before 1787 will be reviewed, as will contemporaneous views on the relevance of common law under the Constitution. Some contemporaneous views on monopoly and the Constitution will also be discussed. An analysis will be provided of Madison's views as set forth in The Federalist concerning the intellectual property clause. A perspective will be given on other early commentary relevant to the clause, including the first Supreme Court opinion to address it in the context of the common law.

II. Intellectual Property Rights under the Common Law in the Eighteenth Century

The Statute of Monopolies, [FN10] enacted in 1623, is frequently stated to be the legal foundation for the English patent system. [FN11] Constitutional historians view the Statute as the culmination of a long struggle between Parliament and the crown to place curbs on the royal prerogative. [FN12] For the purposes of this article, it is of interest primarily because in the eighteenth century it was the only statutory basis for the English patent practice. [FN13] In most respects, the Statute was simply a recapitulation in statutory form of the existing common law. The first section declares, as contrary to the law of the realm and utterly void, "all monopolies, ... grants, licenses, ... and letters patents heretofore made or granted, or hereafter to be made or granted, to any person or persons, bodies politic or corporate ... of or for the sole buying, selling, making, working or using of anything within the realm ...." Section two provides that the "force and validity" of all monopolies, and all commissions, grants, licenses, charters, letters patents, proclamations, etc., tending toward monopoly, shall be determined in accordance with common law. Section three provides that no person, body politic or corporation may use or exercise any monopoly right granted by any "commission, grant, license, charter, letters patents, proclamation...." Section four grants any party aggrieved by a monopoly the right to recover treble damages and double costs in the common law courts.

Sections five through fourteen set forth a variety of exceptions to the mandate of the first section. Of specific interest here is section six, which provides that: any declaration before mentioned shall not extend to any letters patents and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use, so as also they be not contrary to the law, nor mischievous to the state .... The said fourteen years to be accounted from the date of the first letters patents, or grant of such privilege hereafter to be made, but the same shall be of such force as they should be, if this act had never been made, and of none other. [FN14] It was this language which sanctioned the extant English patent practice in 1787.

A critical aspect of the Statute of Monopolies was that it permitted but did not require the crown to issue patents of monopoly for invention. Such patents were considered to be exceptions to the general ban on monopolies, but were deemed to be in the interest of the public at large. The practice was entirely at the discretion of the crown; a patent was the creature of the royal prerogative. [FN15] The rights secured by patent could be protected at common law, but there was no common law right to a patent. In the absence of a patent an inventor had no means at common law of protecting any perceived "rights" in invention. Without patent, such rights were at best deemed to be inchoate. Unlike the term "patent," [FN16] copyright had a literal connotation through the eighteenth century, namely, the right to copy. The rise of copyright is inextricably intertwined with the development of printing. [FN17] In England, copyrights began in the same way as did patents of monopoly for invention, as adjuncts to the royal prerogative, but unlike the patent privilege which prior to 1852 was never treated as a right under the common law, copyright-as the very name implies-developed into something more than a mere privilege. It became an inherent right.

During the seventeenth century, a variety of ordinances and parliamentary acts were passed for the purpose of regulating printed works. [FN18] These tacitly, if not specifically, acknowledged a common law right of property in copyright. However, it was not until 1710 that what has been denominated as the first true English copyright act became law. This was the famous Statute of Anne. [FN19] The Statute had two major purposes: to prevent the piracy of printed works, and to encourage the writing of useful books. [FN20] To accomplish these ends, it provided that authors, or their assigns, had the exclusive right for a limited period-twenty-one years for existing books, and fourteen years, with one fourteen-year right of renewal, for new books-to print their works. [FN21] Registration with the stationers' company was required, along with any record of assignment or consent to copy. [FN22]

In 1769, in Millar v. Taylor, [FN23] it was held that despite the existence of the Statute of Anne, authors held a perpetual property right in their works based on common law. [FN24] Five years later in Donaldson v. Beckett, [FN25] the House of Lords decided that whatever may have been the case at common law, the Statute of Anne effectively limited the term for which copyright could be enforced at common law to a maximum of twenty-eight years. [FN26] The result was that, while under English law an author retained a perpetual copyright, it could only be enforced in accordance with the terms of the Statute. [FN27]

And so entering into the last quarter of the eighteenth century, it was finally established in England that there was indeed a common law property right in copyright, but one which could only be enforced in accordance with the Statute of Anne. It was based on this history of common law property right in copyright that an argument would be made that there is no logical distinction between literary work and invention, in that both involve the use of the mental faculty, and the ideas that derive from such should result in similar property rights. But the life of the law is not always logic. [FN28] Thus, in Donaldson v. Beckett, it was the lack of a common law property right in invention which provided a fixed point in the debate about common law property in copyright. [FN29] Those who argued for such property in perpetuity deemed themselves obligated to distinguish between literary work and invention, whereas those who denied it found themselves arguing that the two were analogous. While two of the law lords were prepared to admit the possibility that "previous to the monopoly statute, there existed a common law right, equally to an inventor of a machine and an author of a book," the only property right that existed for an invention disclosed to the public after the Statute of Monopolies was that granted by the crown, for a limited time, in the form of a patent. [FN30] In 1787, there was thus a clear-cut dichotomy in the common law relative to the treatment of the "rights" of inventors and authors in their respective inventions and writings. While an author had an inherent right to obtain a copyright for his or her literary work-subject always to the payment of the requisite fees and conformance to the ministerial requirements-the same was not true with respect to the patenting of invention by an inventor. A patent was a privilege and not a right at the common law. Thus, if this same common law applied with respect to intellectual property in the United States in 1787, the result was a very different treatment of inventors and authors from a legal perspective.

III. The Common Law in America

Prager's unequivocal statement that "[c]ommon law had binding force in America in and before 1787" [FN31] does not accord with the actual state of affairs. While Americans in the colonies in general desired to have the common law apply to them (although with the right to modify it to fit their particular circumstances), [FN32] there is a massive difference between simply desiring and actually having the common law in effect as a legal reality. Nonetheless, because of this general desire of the American public, the issue was an important one, and as one commentator has put it, "[i]n the years preceding the American Revolution, the British Crown's refusal to concede that the colonies were entitled to the common law of England was a rankling sorepoint." [FN33] Indeed, the high value which the colonies placed on the use of both the common law and English statutes is evidenced by a resolution contained in the Declaration of Rights issued by the First Continental Congress in 1774, namely, that:

the respective colonies are entitled to the common law of England... [and] they are entitled to the benefit of such of the English statutes as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances. [FN34] It is not too much to say that the refusal of the crown to concede these points was a significant factor leading up to the American Revolution.

The position of the crown may be summarized as follows. [FN35] From the time of the Conquest onward, the crown had held non-English possessions. The King in Council issued orders or acts relating to these possession, with an order for one entity being typically limited to that entity alone on the logical premise that a decree well suited to Aquitaine, for example, might well have little relevance for England and vice versa. When the King in Council became the King in Parliament, the crown took the view that Parliament as such had no authority over the crown's non-English possessions. It was the crown's prerogative to govern its non-English holdings, and an act of Parliament would not extend to such dominions unless the crown specifically authorized it.

At the time the first American colonies were settled, it was an accepted proposition by the Crown lawyers that English laws were not necessarily in force in non-English Crown dominions and that an act of the King in Parliament did not extend to non-English possessions unless specifically declared to extend thereto. While Englishmen going to uninhabited regions carried the laws of England with them, those going to inhabited ones did not. The Crown lawyers held that the "old American colonies" were settled in "inhabited countries" and thus, absent an affirmative act by the Crown, the colonists did not carry with them the laws of England. [FN36] While it seems to have been settled that acts of Parliament would not apply to the American colonies unless such acts specifically mentioned them, the applicability of the common law itself remained muddled. [FN37] Thus, for example, Lord Coke had stated, "[T]he Common Law of England sometimes is called Right, sometimes Common Right, and sometimes Common Justice." [FN38] If this was indeed the case, then it was difficult to perceive how common law should not apply to all dominions of the English crown. Indeed, in 1720 the English Attorney General Richard West acknowledged:

[T]he common law of England is the common law of the [American] plantations and all statutes in affirmance of the common law, passed in England antecedent to the settlement of a colony, are in force in that colony, unless there is some private act to the contrary; though no statutes, made since those settlements, are thus in force unless the colonists are particularly mentioned. [FN39] But taken at face value, Attorney General West's acknowledgment that the statutory law applicable in a particular colony depends on its date of settlement, meant that the English law applicable in the American colonies must of necessity vary from colony to colony, something somehow antithetical to the concept of a "common law." [FN40] Moreover, to say that the common law is in effect is not quite the same thing as setting forth the legal effect of such a pronouncement. American views as to what constituted the common law were not necessarily in agreement with those in England. The net result was that, as set forth in a well-known 1803 American edition of Blackstone, it would be "in vain" to "attempt, by a general theory, to establish an uniform authority and obligation in the common law of England, over the American colonies, at any period between the first migrations to this country, and that epoch, which annihilated the sovereignty of the crown of England over them." [FN41] The differences between rules of English common law and those of the American colonies were so great that "it would require the talents of an Alfred to harmonize and digest into one system such opposite, discordant, and conflicting municipal institutions, as composed the codes of the several colonies of the period of the revolution." [FN42]

The problem of attempting to define what the common law meant in the United States would become even more pronounced after the Revolution. In the period following the Declaration of Independence, nine states had declared either by constitutional provision or legislative enactment that the common law was in effect within their jurisdictions. [FN43] But it was one thing to say that the common law was in effect and quite another to determine exactly what was meant by such a pronouncement:

Was it the common law of England or the common law as had been practiced in the courts of a particular colony? The common law of what date-the first emigration, the Declaration of Independence? Was it the common law without any statutory modification, the common law with statutory modifications prior to a given date, the common law as modified by all subsequent statutes? [FN44] These were questions that could not be answered at the state level, much less at the federal level. Indeed, as will be seen, shortly after the Constitution had been drafted and signed, Madison would set forth some very pronounced views on why, under the proposed Constitution, the common law could have no applicability. [FN45]

Because the Statute of Monopolies and the Statute of Anne made no express reference to the American colonies, they were by crown interpretation not automatically applicable to those colonies. For this reason English patents and copyrights did not automatically cover the American colonies. [FN46] Yet under the common law the only basis for granting exclusive rights to inventors and writers in their respective discoveries and writings had been determined to be these two statutes. If they did not automatically cover the colonies prior to the Revolution, how could they be said to provide any basis for exclusive rights in discoveries and writings in the United States after it had become an independent nation? No one who has argued for a common law property right in literary works or invention in this country has ever satisfactorily answered this question.

IV. Early Comment and Interpretation [FN47]

A. A Question of Monopoly
The founding father whose absence from the Constitutional Convention was most conspicuous was Thomas Jefferson, who had been appointed Minister to France. One may only speculate as to what the style and content of the Constitution might have been had he been present to take active part, but there is good reason to believe that he would have opposed the intellectual property clause. While the Convention was in progress, Jefferson wrote a letter to a French citizen who had invented a method of better preserving flour and had inquired as to whether the government of the United States might be interested in purchasing it. In his response, Jefferson stated:

I am not authorized to avail my country of it by making any offer for its communication. Their policy is to leave their citizens free, neither restraining nor aiding them in their pursuits. Though the interposition of government, in matters of invention, has its use, yet it is in practice so inseparable from abuse, that they think it better not to meddle with it. [FN48] The content of this letter is highly suggestive that Jefferson, had he been present at the Constitutional Convention, would have opposed granting to Congress a power to secure to inventors for limited times exclusive rights in their discoveries. That this would have been the case is further evidenced by the fact that upon receiving a draft of the Constitution from Madison, Jefferson wrote back in December expressing his general satisfaction, but also noting his concern that it did not have a bill of rights. [FN49] In setting forth his views on what should be in a bill of rights, he indicated that it should provide "clearly and without the aid of sophism ... for the restriction of monopolies." [FN50]

When Jefferson found that the Constitution had been ratified, he expressed his pleasure to Madison in a letter dated July, 1788, and went on to amplify his views concerning monopolies, stating: It is a good canvas, on which some strokes only want retouching. What these are, I think are sufficiently manifested by the general voice from North to South, which calls for a bill of rights. It seems pretty generally understood that this should go to [among other things] ... Monopolies .... [I]t is better ... to abolish ... Monopolies, in all cases, than not to do it in any.... The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred by the hope of a monopoly for a limited time, as of 14. years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression. [FN51] Madison responded several months later by letter, commenting:

With regard to Monopolies they are justly classed among the greatest nusances [sic] in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our Governments than in most others? Monopolies are sacrifices of the many to the few.

Where the power, as with us, is in the many not the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many. [FN52] Whether because of Madison's argument or otherwise, Jefferson would thereafter accept and play an important role in the early development of the United States patent law, which he and other knowledgeable people of the time fully recognized as law relating to a legalized form of monopoly. [FN53] What would have happened had he been a member of the Constitutional Convention remains an intriguing thought.

Jefferson's aversion to monopolies was in no way unique. Among a variety of reasons why his fellow Virginian and delegate to the Constitutional Convention, James Mason, refused to sign the proposed Constitution was that "[u]nder their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce." [FN54] In addition, the New York convention which ratified the Constitution recommended that certain amendments be sought to it, among which were "[t]hat the Congress do not grant monopolies, or erect any company with exclusive advantages of commerce." [FN55] Likewise, the ratifying conventions of Massachusetts, New Hampshire, and North Carolina all requested an amendment "that Congress erect no company of merchants, with exclusive advantages of commerce." [FN56] Although these requests are not addressed to the monopolies inherent in the intellectual property clause per se, these views serve to demonstrate why the delegates to the Constitutional Convention saw the need to expressly set forth the authority of the Congress to secure "for limited times to authors and inventors, the exclusive right to their respective writings and discoveries."

It is in the context of the above noted monopoly concerns by the ratifying conventions that the only contemporaneous comment by a member of the public with respect to the intellectual property clause has been found. It was simple and to the point: "As to those monopolies, which, by way of premiums, are granted for certain years to ingenious discoveries in medicine, machines and useful arts; they are common in all countries, and more necessary in this, as the government has no resources to reward extraordinary merit." [FN57]

The clause was briefly mentioned during two of the state ratification contests, but apparently only in the context of its grant of authority to the Congress to establish copyright. In Pennsylvania the point was made that: the power of securing to authors ... the exclusive right to their writings ... could only with effect be exercised by the Congress. For, sir, the laws of the respective states could only operate within their respective boundaries and therefore, a work which has cost the author his whole life to complete, when published in one state, however it might there be secured, could easily be carried into another state in which a republication would be accompanied with neither penalty nor punishment-a circumstance manifestly injurious to the author in particular. [FN58]

In North Carolina, in response to an argument concerning lack of freedom of the press in the proposed Constitution, a fervid proponent, James Iredell, stated: the future Congress will have ... authority ... to secure to authors for a limited time the exclusive privilege of publishing their works. This authority has long been exercised in England ... and ... such encouragement may give birth to many excellent writings which would otherwise have never appeared. [FN59] Just as in the Constitutional Convention itself, the issue of the limited monopolies authorized by the intellectual property clause seems never to have been a point of contention in the state ratifying conventions.

B. The Federalist No. 43
No delegate to the Constitutional Convention has left any record concerning the interpretation or meaning placed on the intellectual property clause by the delegates themselves. [FN60] It may well be that they perceived no comment to be necessary, in that the clause was considered on its face to be self- explanatory. If so, this was most unfortunate because of the ambiguity inherent in several of its key terms. [FN61] The one thing that distinguished the intellectual property clause during the ratification process for the Constitution is the paucity of comment with respect to it within any state. It simply was not an issue during this period, and there is almost no discussion to be found concerning it in any extant documentation regarding the arguments presented for and against the Constitution. A major exception, in addition to those previously noted, seems to be Madison's comments in The Federalist No. 43. [FN62] Short and succinct, these comments represented a carefully crafted argument in favor of the intellectual property clause, but were in reality more than a bit disingenuous.

Before analyzing Madison's argument, it is helpful to turn for a moment to the grammatical form of the intellectual property clause, because the aesthetics of the form may have in no small measure influenced the actual language used. The clause is generally taken as an example of the "balanced style" of composition much favored in the eighteenth century, [FN63] and viewed as "a consolidation of two proposals which got packaged together." [FN64] The manner in which the term "respective" is used in the clause lends substantial credence to this interpretation. [FN65] What is common to the balanced composition of the clause are the terms "promote," "progress," "securing," and "limited times." But Congress is in actuality given two separate powers involving the common use of these terms. Thus it is given power, first, "to promote the Progress of Science ... by securing for limited Times to Authors ... the exclusive Right to their ... Writings," and second, "to promote the Progress of ... useful Arts by securing for limited Times to ... Inventors the exclusive Right to their ... Discoveries."

It is important to note here that the symmetry of the balanced construction is destroyed if the term "securing" is not used to mean the same thing in the context of an exclusive right of both authors and inventors. If "securing" had a particular legal connotation of protecting an existing right as arguably it did at the time in question, this balanced construction would only be justified if this legal connotation of "securing" was in fact applicable to the rights of both authors and inventors. [FN66] As will be seen, such was not the case at common law. Thus, if the Framers actually intended "securing" to be used with this legal connotation, then by using a balanced composition of this type, they effectively created an interpretational approach to the intellectual property clause not justified by the existing common law. Madison, being the erudite fellow that he was, may well have known this to be the case. It is most unlikely, however, that the other delegates to the Constitutional Convention were aware of the potential for inconsistency created by the use of the term "securing" with the balanced composition of the intellectual property clause.

Alternatively, "securing" may be interpreted in a manner having nothing whatever to do with the then existing common law treatment of patents and copyrights. As will be suggested in the following discussion, this approach removes any inconsistency in meaning of "securing" as applied to the rights of authors and inventors. Nonetheless, the ambiguity inherent in the phrase "securing ... the exclusive right" has created substantial argument among commentators as to the actual intent of the Framers. The point has been made that "[t]he early Colonial writings usually associate the word 'secure' with the word 'rights."' [FN67]

The same can be said for that most famous of early American documents, the Declaration of Independence, which states in its second paragraph that:

We hold these truths to be self evident, that all men are created equal; that they are endowed by their Creator with certain inalienable rights. Among these are life, liberty, and the pursuit of happiness; that to secure these rights Governments are instituted among men.... [FN68] Clearly, if men are endowed with certain rights that are "inalienable," then "to secure" them cannot mean "to obtain" or "to provide" them but rather must mean "to insure" or "to affirm and protect" existing rights.

This language is frequently cited as demonstrating the natural law and natural rights precepts on which the Declaration is in no small measure predicated. A word of caution is in order, if it is to be presumed that these lines somehow demonstrate that the rights to be secured are inherent, for these lines are not what Jefferson originally drafted. Instead: Jefferson had written "endowed by their Creator with inherent and inalienable rights." The Congress deleted "inherent" and added "certain." Since inherent rights were natural rights, the deletion by Congress diminishes, and by some interpretation even eliminates, the idea that the rights proclaimed in the Declaration exist by nature. [FN69] This would seem to suggest that any automatic assumption that the use of "secure" with "rights" in the Declaration means that the rights to be secured are inherent ones is not entirely tenable.

There are also two critical distinctions that must be borne in mind in any comparison of the language of the Constitution and the Declaration. The Declaration is above all else a political document whereas the Constitution is the quintessential legal document of the land, setting forth as it does the legal framework of the national government. The Constitution is the result of a long and studied drafting process, and there is a considerable record to indicate the intent of the Framers. [FN70] The Declaration was written in a few days, and there are no notes to indicate Jefferson's intent in his draftsmanship. [FN71] Reliance on language from the Declaration to provide insight and meaning to a term in the Constitution is thus a dubious process at best.

Be that as it may, it ought not to be forgotten that the verb "secure" is used elsewhere in the Constitution in a manner that can reasonably be interpreted to mean "to insure" or "to affirm and protect." [FN72] It is not surprising, therefore, that it should in more recent times be argued to have the same meaning in the context of the intellectual property clause. [FN73] This was all well and good with respect to securing the rights of authors since the right to copyright had been established at common law, [FN74] and a case could be presented that this right should continue to exist in the United States. [FN75] The same could not be said for the rights of inventors, however, because the right to a patent simply did not exist at common law. [FN76] How then could "securing" be used with a common meaning of "to insure" or to "affirm and protect" with regard to the rights of both authors and inventors? This was the dilemma inherent in the use of the balanced composition and one which Madison had to somehow address in The Federalist No. 43.

Those who have commented on Madison's passage have frequently assumed that he understood the use of the term "securing" in the intellectual property clause to mean that inventors have certain basic preexisting rights with respect to their inventions which the state is obligated to protect. [FN77] Madison clearly believed that both inventors and authors should have their rights protected by a grant of exclusivity, at least for a limited time, but it is much less certain whether he believed that such rights inherently existed in the United States, absent congressional action. Moreover, he must have been fully aware that while during the Constitutional Convention both he and Pinckney had used "to secure" in the context of their proposals for protecting the rights of authors, Pinckney had used the quite different "to grant" in his proposal respecting the rights of inventors. [FN78] If the right to patent inherently existed, why would not Pinckney have used "to secure" with regard to inventors as well as authors? [FN79]

Consider now what Madison wrote in The Federalist No. 43. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right at common law. This was correct, insofar as it went, because copyright in Great Britain had indeed been adjudged a common law right in the celebrated case of Millar v. Taylor. If this statement is to be taken as an affirmation that Madison interpreted "securing" as meaning "to insure or affirm," however, then also implicit in it is a presumption that rights under the common law carried over and were operative under the new Constitution. Yet the Constitution says not a word about the common law. Indeed, this was one of the reasons given by Virginia delegate George Mason for refusing to sign the Constitution. As he put it, "[n]or are the people secure even in the enjoyment of the benefit of the common law [which stands here upon no other foundation than its having been adopted by the respective acts forming the constitutions of the several States]." [FN80] Mason had a point, because the applicability of the common law to the American colonies had been a matter of great contention between the crown and the colonies. [FN81] Not all of the states had adopted the common law, [FN82] however, and in those states which had adopted it, there was great confusion as to exactly what had been adopted. [FN83] Shortly after the Constitutional Convention concluded, Madison raised the subject of Mason's concerns about the common law to George Washington, saying:

What can he mean by saying that the Common law is not secured by the new Constitution, though it has been adopted by the State Constitutions. The Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed. The Constitution of Virga. drawn up by Col Mason himself, is absolutely silent on the subject. An ordinance passed during the same Session, declared the Common law as heretofore & all Statutes of prior date to the 4 of James I. to be still the law of the land, merely to obviate pretexts that the separation from G. Britain threw us into a State of nature, and abolished all civil rights and obligations. [FN84] He then went on to forcefully argue why the Constitutional Convention simply could not have made the common law the law of the land, by first asking, "What could the Convention have done?," and answering:

If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G. B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. [FN85] It has been argued that the "men of the Convention apparently considered the standing national law of the United States to be the 'Common Law of England,' in all its applicable portions." [FN86] As shown by the foregoing discussion this was clearly not the case. Rather, there were those such as Mason who believed that it should be declared the law of the land by the Constitution. Obviously, such views did not prevail during the debates over constitutional language. If the common law was deliberately made inapplicable under the Constitution, as Madison most emphatically seemed to have stated, what then was the relevance to "securing" the rights of authors of his statement that "[t]he copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law"? Either Madison was arguing in a quite inconsistent legal fashion with regard to the position he had earlier taken with Washington, or he intended the term "securing" to mean "to obtain" or "to provide" rather than "to insure" or "to affirm and protect." That he clearly contemplated and used it to mean "to obtain" or "to provide" is amply supported by his later discussion with Jefferson concerning the intellectual property clause, wherein he refers not to a common law right but rather to a privilege. [FN87]

Look now at his next sentence: The right to useful inventions seems with equal reason to belong to the inventors. This suggests a rather clear understanding by Madison of the existing state of the common law whereby a right to copyright existed but a right to patent did not. He very carefully refrains from contending that there is a common law right to a patent, but instead says only that "with equal reason" inventors should have similar rights as authors are adjudged to have at common law. However, saying that an inventor should have a right is not the same thing as saying the right inherently exists, as would be necessitated if "securing" is interpreted by Madison to mean "to insure" or "to affirm or protect" an existing right.

The public good fully coincides in both cases with the claims of individuals. Implicit in this statement is the assumption that there is a public good in issuing patents and copyrights which grant limited term monopolies. Such an assumption was becoming fairly widely accepted, although there was absolutely no hard economic data to support it. [FN88] Nonetheless, assuming the premise to be true, it does not necessarily follow that there is any inherent right to either a copyright or a patent or any other form of exclusive right for either an author or an inventor. Rather, once again a statement of this type can be interpreted as meaning that to create a right in both instances coincides with the public good.

The States cannot separately make effectual provision in either of the cases, and most of them have anticipated the decision on this point by laws passed at the instance of Congress. This appears both internally inconsistent and a misstatement of what the states had actually done. If the states "have anticipated the decisions on this point" by enacting laws, how is this consistent with the argument that they cannot effectively act with regard to protecting the rights of either authors or inventors? Moreover, contrary to the clear impression left by Madison, the states most certainly had not enacted patent laws "at the instance of Congress." With the exception of South Carolina, none of them had enacted any patent legislation, and the Congress had never asked them to do so. [FN89] Here, Madison, in an attempt to make his point in as few words as possible, ends up being both confusing and misleading.

V. Summation

It was perhaps inevitable that in the late eighteenth and early nineteenth century authors and inventors and their representatives would argue that they had an inherent property right in their writings and inventions which the intellectual property clause was intended to protect. Some contended that the right arose out of natural law, while others argued that it was a common law right which the Congress was compelled to protect under the Constitution. These two arguments, while occasionally used together and at other times confused, were in fact quite different, in that the common law was antithetical to any view that property rights arose out of natural law.

Jefferson, in 1813, quite effectively showed that there could be no natural law basis for any right in invention. Although he did not speak expressly to literary works, implicit in his discussion was the view that the argument was the same irrespective of whether the intellectual property involved was literary works or invention.Those who favored the argument that the intellectual property clause was intended to implement the common law as it applied to property rights in invention and literary works made two basic presumptions, both of which would ultimately be shown to be invalid. The first was that the common law applied under the federal system set up by the Constitution. The second was that there was in fact a common law property right in both literary works and invention; that is to say, that there was a common law right to both copyrights and patents. While the common law did indeed establish a right to copyright, it never before or during this period held that a right to patent existed.

Nonetheless, an argument could be-and indeed was-made that the specific language used in the intellectual property clause, specifically the term "securing," of necessity compelled a conclusion that the constitutional language was intended to protect existing property rights in both literary works and invention. Read superficially and without reference to other contemporaneous views expressed by him, Madison's comments in The Federalist No. 43 could indeed be taken as supporting this view. But when the issue was presented to the Supreme Court in 1834, it chose to interpret the meaning to be given to "securing" in a quite different light, namely, as merely a grant of authority to the Congress to create a right. Nonetheless, to this day there are those who argue that the intellectual property clause protects certain inherent rights of authors and inventors rather than merely giving the Congress power to create exclusive rights for a limited period of time. [FN115] This interpretation of Madison's commentary is perhaps not surprising, for the dissent in Wheaton v. Peters interpreted it similarly. [FN116] The historical objectivity is open to question, however, when it both fails to look at Madison's commentary in The Federalist No. 43, in the light of his other correspondence at the time, and also fails to acknowledge that the Supreme Court, when given the opportunity, refused to interpret the intellectual property clause as protecting any existing right, in authors or inventors, under the common law. [FN117]

# # #

FN1. Edward C. Walterscheid, Deputy Laboratory Counsel, University of California Los Alamos National Laboratory, Los Alamos, NM 87545; B.A. University of New Mexico; J.D., University of New Mexico. Although the work which resulted in this article was performed under a contract between the Department of Energy and the University of California, the views expressed herein are uniquely those of the author and do not necessarily represent those of either the Department or the University.

FN2. U.S. Const. art. 1, s 8, cl. 8.

FN3. Bruce W. Bugbee, Genesis of American Patent and Copyright Law 129 (1967).

FN4. Id. at 3. Bugbee notes the existence of a book published in 1878 entitled Thoughts on the Nature of Intellectual Property and Its Importance to the State, which is a defense of the United States patent system as it then existed. Steven Lubar cites an earlier work entitled Law of Intellectual Property published in 1855, which in essence is a strong attack on the antebellum United States patent system. Id. at 3-4. See Steven Lubar, The Transformation of Antebellum Patent Law, 32 Technology and Culture 932, 953 (1991).

FN5. See generally Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism (1990); Laura S. Underkuffler, On Property: An Essay, 100 Yale L.J. 127 (1990); Mark V. Tushnet, The Constitution as an Economic Document, 56 Geo. Wash. L. Rev. 106 (1987); Charles A. Beard, An Economic Interpretation of the Constitution of the United States (2d ed. 1935); Richard Hofstadter, The American Political Tradition and the Men Who Made It (2d ed. 1973).

FN6. Nedelsky, supra note 5, at 152.

FN7. Frank D. Prager, Historic Background and Foundation of American Patent Law, 5 Am. J. Leg. Hist. 309, 318-19 (1961).

FN8. Id. at 318 (quoting The Federalist No. 43 (James Madison)).

FN9. Id. at 319.

FN10. Statute of Monopolies, 1623, 21 James I, ch. 3, ss 1-14 (Eng.).

FN11. See generally Edward C. Walterscheid, The Early Evolution of the United States Patent Law: Antecedents (Part 2), 76 J. Pat. & Trademark Off. Soc'y 874 (1994).

FN12. Id. at 874.

FN13. Id.

FN14. Statute of Monopolies, 1623, 21 James I, ch. 3, s 6 (Eng.).

FN15. W.M. Hindmarch, A Treatise on the Law Relative to Patent Privileges for the Sole Use of Inventions 3 (1846). Hindmarch stated, "[I]nventors are never entitled as of right to letters patent, granting them the sole use of their inventions, but they must obtain them from the Crown by petition, and as a matter of grace and favour...." Id. at 4.

FN16. It was only near the end of the eighteenth century-indeed at the very time that the Constitution was being drafted-that the term "patent" (short for letters patent) began to have "a precise and technical meaning: a grant of monopoly powers [by the state] over the commercial exploitation of an invention for a limited period." Christine MacLeod, Inventing the Industrial Revolution: The English Patent System 1660-1800 10 (1988).

FN17. See generally Bugbee, supra note 3, at 43-53.

FN18. Id. at 53. See also 6 Sir William Holdsworth, A History of English Law 367-77 (1924).

FN19. Statute of Anne, 1710, 8 Anne, ch. 19, ss 1-11 (Eng.). There is frequent confusion as to the date of this statute. It was enacted in the calendar year 1709 and became effective April 10, 1710. But at this time the beginning of the year in England was March 25. January first became the beginning of the year in 1752. See Calendar Act, 1750, 24 Geo. II, ch. 23, ss 1-6, 20 Stat. 186 (Eng.). By modern usage, the statute was both enacted and became effective in 1710. See Lyman R. Patterson, Copyright in Historical Perspective 3 n.3 (1968)

FN20. Statute of Anne s 1.

FN21. Id.

FN22. Statute of Anne s 2. In 1556, the crown chartered the company of stationers and granted it general supervision of the trades of printing, binding, publishing, and dealing in books. In return for this right of supervision, the stationers agreed to royal censorship, supervision, regulation, and licensing of books to be printed. The stationers' company quickly established a register in which were recorded the works for which copying rights or privileges had been obtained. Unless a printer or publisher had obtained a printing patent from the crown authorizing the printing of a particular book or class of books, the work to be printed had to be registered with the stationers' company. For a discussion of the stationers' company and how it operated, see Patterson, supra note 19, at 28-41; Bugbee, supra note 3, at 51-55; Holdsworth, supra note 18, at 363-65.

FN23. 98 Eng. Rep. 201 (1769).

FN24. Id. at 202.

FN25. 98 Eng. Rep. 257 (1774). See also Cobbett, 17 Parliamentary History of England cols. 954-1003 (1803). This case was for all intents and purposes effectively an appeal of Millar v. Taylor. Millar had sold his copyright, at issue in Millar v. Taylor, to Beckett, who had Donaldson pirate it. Beckett immediately obtained an injunction against Donaldson, and the latter appealed to the House of Lords. See Richard C. De Wolf, An Outline of Copyright Law 10 (1925).

FN26. Donaldson, 98 Eng. Rep. at 262 (concluding that the Statute of Anne, not common law, provides the rights and remedies for private parties).

FN27. See De Wolf, supra note 25, at 11-12; Bugbee, supra note 3, at 55. Cf. E. Burke Inlow, The Patent Grant 66 (1950), which states unequivocally that "[o]n the question of the common-law right, the Lords were quite certain that no such right ever existed." While they may have believed this, they were constrained to rule on the basis of the answers to certain specific questions they submitted to the judges of the courts of King's Bench and Exchequer. One of those questions was whether the author of any literary composition and his assigns had the sole right of printing and publishing the same in perpetuity by the common law. Of the eleven judges who responded, seven answered yes. See De Wolf, supra note 25, at 11.

FN28. Oliver Wendell Holmes, The Common Law 5 (Mark DeWolfe Howe ed., 1963). What Holmes actually wrote was: "The life of the law has not been logic: it has been experience." Id.

FN29. Donaldson, 98 Eng. Rep. at 262. The same point was noted in Millar v. Taylor wherein Justice Yates, dissenting, argued that it was well known that no common law property right existed in mechanical inventions once they were published. Millar, 98 Eng. Rep. at 246.

FN30. MacLeod, supra note 16, at 198 (citing Cobett, 17 Parliamentary History 1771-1774, cols. 981, 987). A point made by Holdsworth, but one which seems never to have been addressed in any clear-cut way in the eighteenth century, is that there were two distinct ways of obtaining copyright, either by registration or by patent, whereas the option of registration did not exist with inventions. Thus, the arguments in favor of common law property in copyright derive almost entirely from the registration practices of the stationers' company engaged in for a period of well over a century that provided the necessary evidence of long custom or usage that is indicative of a common law right. There is nothing to indicate that in the seventeenth century, for example, there was any belief that printing patents should be issued as a matter of right. Holdsworth, supra note 18, at 366.

FN31. Prager, supra note 7, at 319.

FN32. See, e.g., Morton J. Horwitz, The Transformation of American Law, 1780- 1860 5-9 (1977); 1 William W. Crosskey, Politics and the Constitution 578-609 (1953).

FN33. Elizabeth G. Brown, The Views of a Michigan Territorial Jurist on the Common Law, 15 Am. J. Leg. Hist. 307, 307 (1971).

FN34. 1 Journals of the Continental Congress (1774-1789) 63, 69 (1904).

FN35. This discussion is taken from Elizabeth G. Brown, British Statutes in the Emergent Nations of North America: 1606-1949, 7 Am. J. Leg. Hist. 95, 96- 101 (1963).

FN36. Id. at 96.

FN37. As Richard Morris has pointed out,

[T]he whole issue of the applicability of English law to the colonies was confused by Calvin's Case, 7 Coke Rep. 1 (1608), which distinguished acquisition of territory by conquest from a Christian king, where the laws remained unaltered subject to the will of the king, and conquest from an infidel, where the laws were abrogated and the inhabitants governed by the king; but once he introduced them, they could not be altered without express reference to Parliament. The courts could not refrain from further refinements. Holt, C.J., is reputed to have said that in the case of an uninhabited country newly discovered by English subjects, all the laws in England were in force there. Earl of Derby's Case, 2 And. 116; Holt 3; 2 Salk. 411; 4 Modern 222; Comberback 228. Richard B. Morris, The Forging of the Union, 1781-1789 343 (1987).

FN38. 1 Sir Edward Coke, Institutes of the Laws of England 142 (1644).

FN39. Horwitz, supra note 32, at 6 (quoting St. G. Sioussat, The English Statutes in Maryland 21 (1903)).

FN40. Horwitz seeks to carefully distinguish between common law and statutory law as applied to the American colonies, arguing that common law is customary law arising out of natural principles of justice. Id. at 6-7. As he puts it, "[C]ommon law doctrines were derived from natural principles of justice, statutes were acts of will; common law rules were discovered, statutes were made." Id. at 7.

FN41. Id. at 11 (quoting 1 William Blackstone, Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia 429-30 (St. George Tucker ed., 1803)). Blackstone himself had stated:

[T]he common law of England, as such has no allowance or authority there [i.e., in the American plantations]; they being no part of the mother country, but distinct (though dependent) dominions. They are subject however to the control of the parliament; though (like Ireland, Man, and the rest) not bound by any acts of parliament, unless particularly named. See 1 William Blackstone, Commentaries on the Laws of England 105 (1765).

FN42. Horwitz, supra note 32, at 11.

FN43. Brown, supra note 33, at 307 n.2.

FN44. Id. at 308.

FN45. See infra notes 84-85 and accompanying text.

FN46. Thus, Fenning was incorrect in stating that "Of course, copyright and invention patent protection was extended to the colonies by the English Laws." See Karl Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 17 Geo. L.J. 109, 116 (1929) & 11 J. Pat. Off. Soc'y 438, 444 (1929).

FN47. As used herein "early" refers to comment and interpretation that occurred within the first 50 years after the Constitution was drafted.

FN48. Paul E. Holbrook, Science vs. Gadgets, 33 J. Pat. Off. Soc'y 87, 91- 92 (1951) (quoting letter from Jefferson to L'Hommande, Aug. 9, 1787).

FN49. P.J. Federico, Operation of the Patent Act of 1790, 18 J. Pat. Off. Soc'y 237, 240 (1936) (citing 4 The Writings of Thomas Jefferson 476 (P.L. Ford ed., 1895)).

FN50. Id.

FN51. 13 The Papers of Thomas Jefferson 442-43 (J.P. Boyd ed., 1956) (quoting letter from Jefferson to Madison, July 31, 1788).

FN52. 14 The Papers of Thomas Jefferson 21 (J.P. Boyd ed., 1956) (quoting letter from Madison to Jefferson, Oct. 17, 1788).

FN53. But he still would have preferred a change to the Constitution. Thus, in commenting to Madison on the proposed Bill of Rights, he stated: I like the declaration of rights as far as it goes, but I should have been for going further. For instance, the following alterations and additions would have pleased me ... Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding-years, but for no longer term and for no longer purpose. Federico, supra note 49, at 240, (citing 5 The Works of Thomas Jefferson 113 (P.L. Ford ed., 1895) (quoting letter from Jefferson to Madison, Aug. 1789)).

FN54. 2 The American Museum: or Repository of Ancient and Modern Fugitive Pieces, etc. 536 (1787).

FN55. 4 The American Museum: or Repository of Ancient and Modern Fugitive Pieces, etc. 156 (1788) [hereinafter 4 American Museum].

FN56. Remarks on the amendments to the federal constitution, proposed by the conventions of Massachusetts, New Hampshire, New York, Virginia, South and North Carolina, with the minorities of Pennsylvania and Maryland, by the rev. Nicholas Cottin, D.D., in 6 The American Museum: or Repository of Ancient and Modern Fugitive Pieces, etc. 303 (1789) [hereinafter 6 American Museum]. See also 4 American Museum, supra note 55, at 268.

FN57. 6 American Museum, supra note 56, at 303 (quoting Nicholas Cottin).

FN58. 2 The Documentary History of the Ratification of the Constitution 415 (John P. Kaminski et al. eds., 1984) (quoting Thomas McKean, speaking at the Pennsylvania Convention on the Ratification of the Federal Constitution).

FN59. Marcus IV, Norfolk and Portsmouth Journal, 16 The Documentary History of the Ratification of the Constitution 382 (John P. Kaminski et al. eds., 1984).

FN60. Seidel notes that "[n]o historical writings or events have been found analyzing the [clause]." Arthur H. Seidel, The Constitution and a Standard of Patentability, 48 J. Pat. Off. Soc'y 1, 10 (1966). Madison's views expressed in The Federalist No. 43 are not so much an explanation of the clause as an argument in favor of its inclusion in the Constitution. See supra text accompanying note 8.

FN61. For a discussion of the ambiguity inherent in the use of the terms "inventors" and "discoveries," see Edward C. Walterscheid, Novelty in Historical Perspective, 75 J. Pat. & Trademark Off. Soc'y 689, 707-08 (1993). For a discussion of the uncertain meaning of "securing," see generally infra notes 66-87 and accompanying text.

FN62. See supra text accompanying note 8.

FN63. For various discussions of this balanced style of composition in the context of the intellectual property clause, see Seidel, supra note 60, at 9; Giles S. Rich, The Principles of Patentability, 42 J. Pat. Off. Soc'y 75, 77-78 (1960); Karl B. Lutz, Patents and Science: A Clarification of the Patent Clause of the U.S. Constitution, 32 J. Pat. Off. Soc'y 83, 84 (1950); Robert I. Coulter, The Field of the Statutory Useful Arts, 34 J. Pat. Off. Soc'y 487, 491 (1952); De Wolf, supra note 25, at 15.

FN64. Rich, supra note 63, at 78. Or as stated in Graham v. John Deere Co., the patent "provision appears in the Constitution spliced together with the copyright provision." Graham v. John Deere Co., 383 U.S. 1, 5 (1966).

FN65. This is not the only possible interpretation. Prager, while acknowledging that "respective" may indeed serve "to correlate 'writings' with 'science' and 'discoveries' with 'useful arts,"' also suggests that it may mean instead or in addition "that each new creation be considered individually and with precision and that it be distinguished from the work of contemporaries and predecessors." Prager, supra note 7, at 317 (quoting Richard C. DeWolf, An Outline of Copyright Law n.20 (1925)).

FN66. As pointed out by Seidel, "The division of a balanced sentence was a rule of construction at common law. Reddendo Singula, Singulis, meaning literally to refer each to each, as each phrase or expression to its appropriate object." Seidel, supra note 60, at 9 n.10.

FN67. George Ramsey, The Historical Background of Patents, 18 J. Pat. Off. Soc'y 6, 15 (1936).

FN68. Declaration of Independence para. 2 (U.S. 1776) (emphasis added).

FN69. Charles Miller, Jefferson and Nature, An Interpretation 166 (1988).

FN70. Although, as has been noted, no intent is evident in the context of the intellectual property clause. See supra text accompanying notes 5-9.

FN71. Gary Wills, Inventing America: Jefferson's Declaration of Independence xxv (1978).

FN72. Thus the Preamble states: We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America. U.S. Const. pmbl. (emphasis added).

FN73. See, e.g., Irah Donner, The Copyright Clause of the U.S. Constitution: Why Did the Framers Include It With Unanimous Approval?, 36 Am. J. Leg. Hist. 361, 362 (1992); Donald W. Banner, An Unanticipated, Nonobvious Enabling Portion of the Constitution: The Patent Provision-The Best Mode, 69 J. Pat. & Trademark Off. Soc'y 631, 637-38 (1987); Prager, supra note 7, at 318; Patterson, supra note 19, at 194; Bugbee, supra note 3, at 129-30; Ramsey, supra note 67, at 15-16; Jeremiah L. MacAuliffe, Patents and Their Purpose, 14 J. Pat. Off. Soc'y 253, 258 (1932).

FN74. See supra notes 16-27 and accompanying text. In the celebrated case of Millar v. Taylor, wherein the common-law right to copyright was judicially established, the issue of the meaning of the term "securing" in the context of the title to the Statute of Anne was raised. As stated therein:

Great stress has been laid by counsel for the defendant, upon the change of the title and the word "vesting" being used instead of "securing." The restraining of the provisions of the bill to a term, necessarily occasioned an alteration in the title. "Securing for a term" would not import that there was a common-law right beyond the term: and "vesting for a term" does not import that there is no common-law right. Millar v. Taylor, 98 Eng. Rep. 201, 218 (1769).

FN75. But see infra notes 80-87 and accompanying text.

FN76. Neither by statutory provision nor by court decision was an inventor conceded to have a common-law right to a patent by reason of his invention. See, e.g., Patterson, supra note 19, at 195; Frank D. Prager, A History of Intellectual Property From 1545 to 1787, 26 J. Pat. Off. Soc'y 711, 739 (1944). In Donaldson v. Beckett, it was the lack of a common-law property right in invention which provided a fixed point about common-law property in copyright. Donaldson v. Beckett, 98 Eng. Rep. 256 (1774). See also Cobbett, supra note 25, at cols. 954-1003. The same point was noted in Millar v. Taylor, wherein Justice Yates, dissenting, argued that it was well known that no common-law property right existed in mechanical inventions once they were published. Millar v. Taylor, 98 Eng. Rep. at 218.

FN77. As phrased by Banner, "there were rights that the inventor inherently possessed and which the Congress had the power to recognize and 'secure."' Banner, supra note 73, at 637. As Inlow put it, "James Madison, for example, had been certain that there was a common law right to patents." Inlow, supra note 27, at 70. In Prager's view, Madison interpreted the intellectual property clause "as saying that Congress will, by patent act, secure, confirm and implement the right already existing under the common law." Prager, supra note 7, at 318.

FN78. Madison's notes for August 18, 1787 state:

Mr. Madison submitted in order to be referred to the Committee of detail the following powers as proper to be added to those of the General Legislature .... To secure to literary authors their copyrights for a limited time .... These propositions were referred to the Committee of detail which had prepared the Report and at the same time the following which were moved by Mr. Pinkney [sic]: in both cases unanimously .... To grant patents for useful inventions .... To secure the Authors exclusive rights for a certain time ....Notes of Debates in the Federal Convention of 1787 Reported by James Madison 477-78 (1966).

FN79. Patterson suggests that "the language of Pinckney's recommendations, 'To grant patents ...' and 'To secure to authors...' indicates that the choice of words was made advisedly." He also argues that "[t]he use of the word 'securing' indicates that statutory copyright was to affirm and protect the existing right, not create one." He argues just as firmly, however, that an inventor never had a common-law right "to a monopoly of manufactures by reason of his invention." He fails to address the obvious dichotomy and inconsistency presented by the use of "securing" in the context of both authors and inventors if "securing" is intended to "affirm and protect an existing right." Patterson, supra note 19, at 194-95.

FN80. 2 Max Farrand, The Records of the Federal Convention of 1787 637 (1911). Farrand points out that the material in brackets was not in Mason's original written comments but was later added by Mason when his reasons for not signing were printed in pamphlet form. Id.

FN81. See supra text accompanying notes 31-34.

FN82. Brown, supra note 33, at 307 n.2.

FN83. Id. at 308. See also supra text accompanying note 44.

FN84. 3 Max Farrand, The Records of the Federal Convention of 1787 130 (1911) (quoting letter from Madison to Washington, Oct. 18, 1787).

FN85. Id.

FN86. 1 William W. Crosskey, Politics and the Constitution 549 (1953). Crosskey later states that there is no possibility of understanding the enumeration of congressional powers in the Constitution, except upon the assumption-fully warranted by its perfect fit and its rationalizing effect upon a great multitude of otherwise unruly facts-that, to the extent of their applicability to American conditions, the various branches of the Common law, and the British statutes in amendment thereof, were deemed to be "Laws of the United States" when the Constitution was drawn and adopted. 2 William W. Crosskey, Politics and the Constitution 1165-66 (1953). He acknowledges, however, that his views are at almost total variance with accepted scholarship and legal history, contending only that "the actual, historic meaning" of the Constitution as determined by him "is a matter unknown, alike, to our accepted constitutional law and our conventional American histories. 1 Crosskey, supra, at vii.

FN87. See supra text accompanying note 52.

FN88. The industrial revolution was only just getting fairly underway in Great Britain and there had as yet been no studies performed with respect to what role, if any, patenting played in encouraging the rapid industrial growth that was then perceived as commencing. While there was a strong feeling that publication of literary works encouraged "science," the growth of learning and knowledge, again there was very little hard evidence that the issuing of copyrights could conclusively be demonstrated to be in the public good.

FN89. See Bugbee, supra note 3, at 92-93.

FN115. See supra note 73 and accompanying text. Cf. James B. Gambrell, The Constitution and the In Personam Defense of First Invention, 39 J. Pat. Off. Soc'y 791, 804-05 (1957) (at most, in the United States, the courts have held that an inventor holds an "inchoate right" of property in his invention which is perfected by the issuance of a patent).

FN116. Wheaton, 33 U.S. at 685 (Thompson, J., dissenting).

FN117. Prager dismisses Wheaton with the casual statement that the opinion therein was issued "without adequate historical analysis and with questionable legal arguments." Prager, supra note 7, at 319 n.24.

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