The power given to congress, in respect to this subject, was brought into operation soon after the Constitution was adopted, and various provisions have at different times been enacted, founded on the principle of its being an exclusive power.

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 them 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, can 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 licenses 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. to an alarming degree,* and therefore, by an act passed in the twenty-first 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, which at the same 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

*Coke's Inst. vol. iii. 181.

8.Ann. c. 19. 15 Geo. 3. c. 53.

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.* 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 right 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.

The regulation of foreign commerce appertains to congress alone, and the punishment of offences committed on the high seas is an unavoidable incident to this power: as soon as the Constitution was adopted, the power of the states in this respect was at an end. But the principle of this exclusive

* 4 Burrow, 2417.

jurisdiction might perhaps be further extended. After the territorial boundaries of a nation are left, the sea becomes the common property of all nations, and the rights and privileges relative thereto being regulated by the law of nations and treaties, properly belong to the national jurisdiction, and would be inconveniently retained by the states which, in this respect, form only parts of the nation.

It does not seem to have been necessary to define the crime of piracy. There is no act on which the universal sense of nations has been so fully and distinctly expressed, as there is no act which is so universally punished. The pirate is the enemy of all nations, and all nations are the enemy of the pirate.

Felony is a term derived from the common law of England, and when committed on the high seas, amounts to piracy. The power to define either may have been introduced to authorize congress to qualify and reduce the acts which should amount to either. It is coupled with the power to punish, and this power extends not merely to citizens of the United States, but to all others except the citizens or subjects of a foreign state sailing under its flag and committing acts which amount to piracy; but general piracy committed by persons on board of a vessel, acting in defiance of all law, and acknowledging obedience to no government, are punishable in our courts, and in the courts of all nations.*

By the high seas we are to understand not only the ocean out of sight of land, but waters on the sea coast beyond the boundaries of low water mark, although in a roadstead or bay, within the jurisdiction or limits of one of the states or of a foreign government.†

* 5 Wheaton, 151, 4
417.

+1 Gallison, 124. 5 Wheaton, 204, 206.

A power to define and to punish offences against the law of nations is contained in the same paragraph, but it is doubtful whether the power to punish ought to be considered as an exclusive one. The law of nations forms a part of the common law of every civilized country; violations of it may be committed as well on land as at sea, and while the jurisdiction of the separate states is admitted to be withdrawn from them in regard to acts committed on the sea, it does not seem to follow that it is superseded as to those on shore.

Such acts may be of various kinds, and although the most prominent subjects under this head are those which relate to the persons and privileges of ambassadors, yet in many other particulars, infringements of the law of nations may be proper subjects of state jurisdiction. But even if an outrage were committed on a diplomatic character, and he preferred the redress to be obtained from a state court to that afforded by the courts of the United States, it is not perceived that this clause would prohibit him from so doing; yet whether the power is exclusive or not, on which some further remarks will be made, the power to define and to punish this class of offences is with great propriety given to congress. The United States being alone responsible to foreign nations for all that affects their mutual intercourse, and tends to promote the general relations of good order and just demeanour, it rests with them alone to declare what shall constitute such crimes, and to prescribe suitable punishments.

When such laws are made, they become binding rules of decision as well on the state courts as on the courts of the United States; but if cases arise for which no such statutory provision has been made, both these descriptions of courts are thrown upon those general principles, which being enforced by other nations, those nations have a right to require us to apply