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The term, therefore, covers a box or trunk carried for mail from one building to another.'

X. COPYRIGHTS AND PATENTS.

matter.

Power of granting

copyrights and patents clusively to

belongs ex

congress.

450. By the eighth clause of the eighth section of article first congress has the power "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." At common law an author or inventor has been held to have no such protection; his only right being under the act of congress and in conformity with its prescriptions. The function of congress to legislate on the subject, however, is absolute and exclusive, though the states have no doubt power to offer bounties to particular industries.3 It has consequently been held that state statutes, restricting the rights of patentees to sell their patented property, are unconstitutional. But this does not preclude state police supervision of the patented article. Copyrights and patents have no extra-territorial

U. S. v. Marselis, 2 Blatch. 108. 2 Wheaton v. Peters, 8 Pet. 591. Blanchard v. Sprague, 2 Story, 164; Blanchard v. Warner, 1 Blatch. 258.

4 Hascall v. Whitmore, 19 Me. 102; Hollida v. Hunt, 70 Ill. 109; Helm v. Bank, 43 Ind. 167; Cranson v. Smith, 37 Mich. 309.

5 In Wilch v. Phelps, Neb. Sup. Ct. 1883, we have the following: "As to the manufacture and sale of patented articles, state regulation has frequently been upheld as a proper exercise of police power. Thus, in Livingston v. Van Ingen, 9 Johns 582, Chancellor Kent said: The power granted to congress goes no further than to secure to the author or inventor a right of property, which, like every other species of property, must be used and enjoyed within each state according to the laws of such state. . . . If the author's book or print contains matter

injurious to public morals or peace, or if the inventor's machine or other production will have a pernicious effect upon the public health or safety, no doubt a competent authority remains with the state to restrain the use of the patent-right.' And in Patterson v. Com., 11 Bush, 311; 21 Am. Rep. 220, Pryor, J., in speaking upon this subject, used this language: "There is a manifest distinction between the right of property in the patent which carries with it the power on the part of the patentee to assign it and the right to sell the property resulting from the invention or patent. A state has no power to say, through its legislature, that the patentee shall not sell his patent, or that its use should be common to all of its citizens, for this would be in direct conflict with the law of congress. . . . The discovery or invention is made property by reason of the patent, and this right of property the

effect, being purely local in their operation.'-Congress, under this clause, has no power to grant an exclusive right to trademarks.2

patentee can dispose of under the law of congress, and no state legislature can deprive him of this right; but where the fruit of the invention or the article made, by reason of the application of the principle discovered, is attempted to be sold or used within the jurisdiction of the state, it is subject to its laws like other property; and such has been the uniform decision of all the courts, state and Federal, upon this question."

In Bronahan, in re, 18 Fed. Rep. 62, it was ruled, that "the statute of Missouri, providing for the punishment by fine and imprisonment of any person who shall manufacture out of any oleaginous substance, or any compounds of the same, other than that produced from unadulterated milk, or cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream of the same,' or who shall sell or offer for sale the same as an article of food, is not in violation of any provision of the constitution of the United States."

"It is quite clear," said Miller, J., the question coming up on a habeas corpus prayed for by a party convicted under the above-mentioned statute, "that if the Missouri statute is justly obnoxious to either of the four objections first named, it is void, and the person held for violating that statute is in custody in violation of the constitution of the United States, and the power and duty of this court to discharge him are unquestionable.

1 Whart Conf. Laws, §§ 325-6.

"We proceed to inquire if the law is so objectionable.

"1. As to the effect of the patent. The patent is introduced in evidence, and proof is offered to show that the article sold by the prisoner, and for which sale he is prosecuted, is the article specified in Mege's patent, and that the prisoner has such authority as the patent confers to sell it. The validity of the patent is not disputed. Has the prisoner, then, a right to sell the article thus patented, notwithstanding the statute of Missouri which forbids such sale? The constitution (art. I., § 8, cl. 8) gives congress power 'to promote the progress of science and useful arts by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries;' and the act of congress which is designed to give effect to this clause declares that in every case where a patent is issued under it, the patentee shall have the exclusive right to make, use, and sell the subjectmatter of his patent, whatever it may be.

"It is to be observed that no constitional or statutory provision of the United States was, or ever has been, necessary to the right of any person to make an invention, discovery, or machine, or to use it when made, or to sell it to some one else. Such right has always existed, and would exist now if all patent laws were repealed. It is a right which may be called a natural right, and which, so far as it may be regulated by law, belongs to

U. S. v. Steffens, 100 U. S. 82 (Trade-mark Cases).

XI. PIRACIES AND FELONIES.

452. Congress has also power "to define and punish piracies and felonies on the high seas and offences against

ordinary municipal legislation, and it is unaffected by anything in the constitution or patent laws of the United States.

"The sole object and purpose of the laws which constitute the patent and copyright system is to give to the author and the inventor a monopoly of what he has written or discovered, that no one else shall make or use or sell his writings or his invention without his permission; and what is granted to him is the exclusive right; not the abstract right, but the right in him to the exclusion of everybody else.

"For illustration, an author who had written or printed a book always had the right to do so, and to make and sell as many copies as he pleased; and he can do this though he takes out no copyright for his work. But if he wishes to have the benefit of the exclusive right to do this, he can get it by securing a copyright under the act of congress. All that he obtains, then, by this copyright, all that he asks for or needs, and all it was designed to confer on him, is to make the right which he had already in common with everybody else, an exclusive right in hima monopoly in which no one can share without his permission.

"But let us suppose that the book which he has thus copyrighted is an obscene and immoral book, which, by the law of the state in which it is published, may be seized and destroyed, and for that reason; does this statute, which forbids any one else but him to print or publish it, authorize him to do so? Can he violate the law because no one else can do it? Does the copyright confer on him a monopoly of vice,

and an immunity from crime? Suppose a discovery of a cheap mode of producing intoxicating liquor, in regard to which the inventor obtains a patent for the product, does this authorize him to defy the entire system of state legislation for the suppression of the use of such drinks? The answer is, that the purposes of the patent law and of the constitutional provision are answered when the patentee is protected against competition in the use of his invention by others; and when the law prevents others from infringing on his exclusive right to make, use, or sell, its object is accomplished. This proposition is fully supported by the supreme court in the case of Patterson v. Kentucky, 97 U. S. 501. That case also cites with approval the following language from the opinion of the supreme court of Ohio in the case of Jordan v. Overseers of Dayton, 4 Ohio, 295:

"The sole operation of the statute [the patent law] is to enable him [the inventor] to prevent others from using the product of his labors, except with his consent. But his own right of using is not enlarged or affected. There remains in him, as in every other citizen, the power to manage his property or give direction to his laborers at his pleasure, subject only to the paramount claims of society, which require that his enjoyment may be modified by the exigencies of the community to which he belongs, and regulated by laws which render it subservient to the general welfare, if held subject to state control.'

"The principle is reaffirmed in Webber v. Virginia, 103 U. S. 344.”

Congress

has juris

piracies

and felonies on

the law of nations." The legislation of congress

diction over on these topics is elsewhere discussed. Piracy, as we have seen, is an offence by the law of nations, and by that law must be defined; and it is now settled that privateering is not piracy.-Felonies on the high seas are elsewhere distinctively discussed.*

high seas.

XII. WAR.

454. War, in an international and public sense, is a pros ecution by a nation of a right by force. It must be a prosecution; a mere passive attitude of belligerency is not war. It must be by a nation or body of men claiming to be a nation; war, in this sense, is not constituted by hostilities by a private person or group of private persons. It must be by force mere diplomatic contests, no matter how

War is the prosecution by a nation of a right by force; and may exist without a formal declaration.

violent, are not war. But it is not necessary to war that it should be formally declared ; and this holds in this country, though it is provided by the constitution of the United States that congress shall have power "to declare war, to grant letters of marque and reprisal, and make rules concerning captures by land and water." Hence it is within the province of the president to use all the forces at his command to resist an attack by a foreign or insurrectionary power, without waiting for a congressional declaration of war. That a war between two countries suspends business intercourse between the inhabitants of such countries has been already seen.9

455. The power "to make rules concerning captures on land and water" authorizes congress, not merely to make such

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belligerent Property of

captured.

rules, but to take measures to enforce them. Under this power the private property of the hostile belligerent may be seized on land or at sea, and after seizure may be disposed of as congress directs. This right to may be capture extends to the property of belligerent insurgents as well as to that of belligerent foreign states.1 Nor is the right to capture confined to movable property. The United States, under this power, may seize and retain an enemy's land either by forcible annexation or by annexation by process of treaty. The power of making rules as to captures justifies, also, the establishment of provisional and military courts as tribunals for the government of the territory of a hostile belligerent occupied by force, though such courts cease to have jurisdiction when peace is restored and the civil courts have resumed their ordinary duties. But no seizure of private property, not contraband of war, of insurgents can be made except in subordination to act of congress. -Seizures of goods of a foreign enemy are also subject to the law of nations.5

The Prize Cases, 2 Black, 635; The Grape-Shot, 9 Wall. 129; Tyler v. Defrees, 11 Wall. 331.

tion proclamation is to be restricted. Infra, § 584.

That the United States, as to insur

As to limitations, see supra, §§ 215- gents, claimed to possess both sovereign 218. and belligerent rights, see Rose ".

As to seizures at sea, see supra, §§ 218 Himely, 4 Cranch, 241, Marshall, C. J.;

et seq.

2 Am. Ins. Co. v. Canter, 1 Pet. 511; see supra, §§ 216-218; infra, § 467.

Supra, § 212; infra, § 467.

4 Jecker v. Montgomery, 13 How. 498; Milligan, ex parte, 4 Wall. 2.

It is under the above clause that the seizure and liberation of persons held in slavery by a belligerent are sustained. Such action may also be defended on the ground on which rests the release of persons held captive by an enemy, and the appropriation of articles contraband of war found within his lines, see Weaver v. Lapsley, 42 Ala. 601; Hall v. Keese, 31 Tex. 504. To this President Lincoln's emancipa

Alexander's Cotton, 2 Wall. 404; The
Revere, 2 Sprague, 107; The Sarah
Starr, Bl. Pr. Ca. 69; U. S. v. Hutes,
12 Am. Law Reg. 735; Miller v. U. S.
11 Wall. 268; Tyler v. Defrees, ibid.
331; see supra, § 217. On the other
hand, after the civil war closed, the
Federal government abandoned all at-
tempts to prosecute for political offences
those concerned in the insurrection
(see infra, § 573) ; and the confiscations
sustained by the supreme court of the
United States were sustained, not as
political, but as belligerent acts; see
infra, § 467. As to uuion of sovereignty
or belligerency see infra, § 593.
5 Supra, §§ 216-9.

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