so immense an outlay, as to be beyond the reach of private capital. Chief among these is the Pacific Railway. The power of the legislature to assist these enterprises has been partly rested upon the authority given them to establish postroads. The whole subject is, as yet, confined to the legislative department; it has never passed into the domain of the courts. It is probable that, like so many other matters once doubtful and disputed, this class of measures will be quietly acquiesced in by the people, as it tends to promote the general welfare; and that the legislators and judges will be guided by the opinion of that great constituency which, after all, imposes its decisions upon each department of the government.

It never has been doubted that the power over the postal system is exclusively within the control of Congress.

SECTION VIII.

THE POWER TO CREATE AND BESTOW PATENT RIGHTS AND COPY

RIGHTS.

§ 413. The next legislative power is given in these words: "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."

It is not necessary to dwell at any length upon this particular grant; and the purposes of the present work do not call for any explanation of the legislation thereunder. The power seems to have been tacitly assumed as exclusive. Certain it is that the full and minute patent and copyright laws of Congress have completely covered the ground and ousted the states of any jurisdiction which, perhaps, they otherwise might have had. The measures which may be adopted will involve means for ascertaining and declaring the priority of inventions and writings, and for enabling the inventors and authors thus ascertained to have the exclusive right to manufacture and vend their products at any place within the United States for a definite term of years.

§ 414. No state has attempted to pass any general statute providing for the same classes of persons; and the task of issuing and enforcing patent rights for inventions and copyrights for writings, is entirely confined, under the laws of Congress, to the national executive and judiciary. There can be no doubt that a state may grant a special reward to particular inventors or authors, if it were deemed expedient, and thus promote the progress of science and the useful arts; but such reward could not take the shape of a license for the exclusive use, manufacture, or sale of the article. Such an enactment would directly contravene the clause of the Constitution we are considering, and the legislation of Congress by virtue thereof. The means of promoting science and the useful arts which consists in bestowing such an exclusive right to use, manufacture, and vend the product, is given to Congress alone.

SECTION IX.

THE POWER TO DEFINE AND PUNISH CRIMES.

§ 415. I collect here all the express grants of power to legislate on the subject of crimes. In Article I. Section VIII. are found the following: "Congress shall have power

to provide for the punishment of counterfeiting the securities and current coin of the United States; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." No other provision is included within the general enumeration of legislative functions contained in the eighth section of the first article. But in Article III., which principally relates to the judiciary, there are clauses which contain express grants to, or limitations upon, the legislative department. These are as follows: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason

shall work corruption of blood or forfeiture, except during the life of the person attainted."1 Also: "The trial of all crimes except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed." 2

In addition to these several direct clauses conferring authority over crimes, there are many other cases in which the power to legislate upon the subject is plainly implied in, is confessedly a consequence of, other general grants which primarily relate to a different subject-matter. The discussion, therefore, must be separated into two divisions: (1.) The express power to define and punish crimes; and (2) the implied power to define and punish crimes. These divisions will now be taken up in order.

First. The Express Power to Define and Punish Crimes.

§ 416. We must be struck at the outset by the very small number of these express grants, and by the restricted and precise terms in which the legislative powers contained therein are conferred. There are three separate provisions, each relating to a distinct group of crimes; the offences in each being indicated by a generic term, or by the highest in a grade of related delicts. These provisions cover (1) the counterfeiting of national securities and current coin; (2) piracies and felonies on the high seas, and offences against the law of nations; (3) treason against the United States.

I. Counterfeiting the Securities and Current Coin of the United States.

§ 417. The securities" here mentioned might be so extended as to include all instruments by which the rights and interests of the general government are secured. But the context and the peculiar language used, show that the word is to

1 Const. Art. III. Sec. III.

2 Ibid. III. Sec. II. § 3.

be restricted to the evidences of indebtedness which the United States may have issued in pursuance of its power to borrow money. The power to coin money is protected in one portion of the clause, and the affiliated power of borrowing money would seem to be intended in the other. The bonds, treasury notes, certificates, and other written promises issued by the United States, would naturally circulate from hand to hand as representatives of value easily convertible, and to them the counterfeiting" may properly apply. The "current coin of the United States," plainly refers to that actually made and issued by the government, and does not include, as we shall see, foreign coin in circulation whose value Congress may have regulated. The authority to punish the counterfeiting of such foreign coin, and the forging of instruments which are not evidences of the public debt, must be referred to some other function of the legislature.

term "

§ 418. The express grant in question, then, enables Congress to punish the crime of counterfeiting the evidences of the public debt which are included under the name "securities," and the national coin made and circulated by authority of the general government. Counterfeiting" is a generic term, and, under the familiar principle of construction that a grant of the greater includes the less, it embraces not only the manufacture of forged coins and securities, but the uttering them when made, and the having them in possession with the intent to utter them. Congress may therefore pass laws determining each of these three grades of crime, the manufacture, the putting into circulation, and the having in possession with the intent to put into circulation; and may affix such penalties and punishments to each offence as it deems expedient. The trial and conviction of offenders under these laws belong, as we shall see, to the national judiciary.

§ 419. As the coined metallic currency is national, completely and exclusively within the control of Congress; and as borrowing money is a national function of the highest consequence and import, to be guarded by all means within the power of the government, it was very proper, nay, absolutely necessary, that Congress should be able to pass laws providing

for the punishment of counterfeiters, and for the consequent prevention of acts which would render these attributes of coining and borrowing absolutely useless. If the power to punish the counterfeiters of these national representations of value had been left entirely to the states, the government would have been without protection; any antagonism which might arise between it and the local commonwealth would paralyze its energies and reduce its laws to an empty form.

§ 420. While it is so indispensable to the orderly working of the general government, that it should hold the authority to punish those criminals who would destroy its currency and its credit, is it equally necessary that the power should be exclusive? In other words, may the states also exercise this function, and make the offenders punishable under the local laws? We have seen that the cases of exclusive power held by the United States may be reduced to three: (1.) Where the grant is in exclusive terms; (2.) Where the states are expressly prohibited; and (3.) Where there is a direct repugnance and incompatability in the exercise of it by the states.1 The capacity to punish the offences in question does not fall under the first or second of these classes; does it under the third? In respect to some functions of the government it is impossible that two concurrent jurisdictions should act side by side upon the same subject-matter. Thus in regard to regulations of commerce, and bankrupt laws, if Congress has already legis lated, any attempt of the states to pass laws would necessarily conflict with the system established by the general government. It is not so with respect to the function we are now examining. So long as Congress may apportion the punishments, and the national courts may try and condemn the criminals, there is no interference or repugnancy if the states also declare the act to be a crime, and supplement the punishment by a second penalty inflicted by their own tribunals. So long as the general government is left free to act, it is a matter which only concerns the state and the offender, whether he shall suffer a double penalty for the same criminal act. § 421. The question came directly before the Supreme 1 See § 388.