pair, 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;1 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.2

§ 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. 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

1 2 Kent's Comm. Lect. 36, p. 298, 299.

2 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.

3 Hamilton's Rep. on Manufactures, § 8, p. 235, 236.

constiution, 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.1

2

§ 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. 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.3

§ 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." A more extensive proposition, "to establish public institutions, "rewards, and immunities for the promotion of agricul

1 Evans v. Eaton, 3 Wheat. R. 454, 513.

2 1 Tuck. Black. Comm. App. 265, 266; Livingston v. Van Ingen, 9 John. R.507.

3 Livingston v. Van Ingen, 9 John. R. 507; Sergeant on Const. ch. 28, [ch. 39.]

4. Journ. of Convention, 260, 327, 328, 329.

ture, commerce, and manufactures" was (as has been before stated) made, and silently abandoned.' 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 consti"tute 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.

1 Journal of Convention, 261.

CHAPTER XX.

POWER TO PUNISH PIRACIES AND FELONIES.

§ 1152. THE next power of congress is. " to define "and punish piracies and felonies committed on the 'high seas, and offences against the law of nations."

99 1

§ 1153. By the confederation the sole and exclusive power was given to congress "of appointing courts for the trial of píracies and felonies committed on the high seas.' But there was no power expressly given to define and punish piracies and felonies.* Congress, however, proceeded to pass an ordinance for the erection of a court for such trials, and prescribed the punishment of death upon conviction of the offence. But they never undertook to define, what piracies or felonies were. It was taken for granted, that these were sufficiently known and understood at the common law; and that resort might, in all such cases, be had to that law, as the recognised jurisprudence of the Union.*

3

1154. If the clause of the constitution had been confined to piracies, there would not have been any necessity of conferring the power to define the crime,

1 Art. 9.

2 The Federalist, No. 42.

3 See Ordinance for trial of piracies and felonies, 5th April, 1781; 7 Journ. Cong. 76.

4 A motion was made in Congress to amend the articles of confederation, by inserting in lieu of the words, as they stand in the instrument, the following," declaring what acts committed on the high seas shall be deemed piracies and felonies. It was negatived by the vote of nine states against two. The reason, probably, was the extreme reluctance of congress to admit any amendment after the project had been submitted to the states.*

*1 Secret Journals of Congress, 384, June 25, 1778,

2

since the power to punish would necessarily be held to include the power of ascertaining and fixing the definition of the crime. Indeed, there would not seem to be the slightest reason to define the crime at all; for piracy is perfectly well known and understood in the law of nations, though it is often found defined in mere municipal codes. By the law of nations, robbery or forcible depredation upon the sea, animo furandi, is piracy. The common law, too, recognises, and punishes piracy as an offence, not against its own municipal code, but as an offence against the universal law of nations; a pirate being deemed an enemy of the human race. The common law, therefore, deems piracy to be robbery on the sea; that is, the same crime, which it denominates robbery, when committed on land. And if congress had simply declared, that piracy should be punished with death, the crime would have been sufficiently defined. Congress may as well define by using a term of a known and determinate meaning, as by an express enumeration of all the particulars included in that term; for that is certain, which, by reference, is made certain. If congress should declare murder a felony, no body would doubt, what was intended by murder. And, indeed, if congress should proceed to declare, that homicide, "with malice aforethought," should be deemed murder, and a felony; there would still be the same necessity

3

1 The Federalist, No. 42; Rawle on Const. ch. 9. p. 107; 2 Elliot's Debates, 389, 390.

2 4 Black. Comm. 71 to 73.

3 Mr. East says, "The offence of piracy, by the common law, consists in committing those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there."* In giving this definition he has done no more than follow the language of preceding writers on the common law.†

2 East, P. C. 796.

† 4 Black. Comm. 71 to 73.