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wrong done to the individual by receiving a counterfeit bill or coin is alone considered, it is clearly a subject for the State police regulation, and cannot be considered a subject for congressional legislation, whether the coin that is counterfeited is foreign or domestic. But when the wrong to the government, whose coin or currency is counterfeited, is considered, the character of the offense is changed. Instead of being a subject of internal police regulation, exclusively, it constitutes a subject of international law. It is an offense against the law of nations. And although it might not be declared to be so by the existing code of international law, Congress is given the power to define, as well as punish, offenses against the law of nations, and it can undoubtedly, in the exercise of this power, provide for punishing the counterfeiting of foreign coin. The exercise by Congress of this implied power will not exclude the States from the exercise of their ordinary police power over the offense against the individual wronged by the deception.
§ 207. Regulation of the sale of patented articles. The constitution of the United States contains also a provision,' authorizing Congress to promote inventions by providing for the issue of exclusive patent rights to inventors. The power has been exercised, and the number of patented articles offered for sale in the United States is legion. In the exercise of the police power over trades and professions, the States very frequently establish regulations, which directly or indirectly interfere with or restrict the sale of patented articles, and the constitutionality of such regulations bas often been questioned on that account. But they have been generally sustained, if they were in other respects free from constitutional objection. Thus, it was held to be lawful to restrain the sale of adulterated provisions without a stamp, although the article sold was patented. Congress cannot grant under the patent law the right to practice deception in the sale of adulterated articles ; 1 and if the adulterated article is injurious when used in the manner for which it was intended, the sale of it may be prohibited altogether. But, unless there is fraud or deception in the manufacture of the patented article, it is very probable that the State could not nullify the patent by a prohibition of the sale of the patented article, on the ground that its sale involves elements of danger to the
1 U. S. Const., art. I., § 8, cl. 8.
Within this limitation, however, the sale of the patented article is subject to reasonable regulation by the State. For example, for the purpose of preventing fraudulent practices in the sale of patent rights, it was provided by statute in Indiana that vendors of patent rights shall file with the county clerk an authenticated copy of the letters patent, with an affidavit that they are genuine and have not been revoked or annulled, and that the vendors have authority to sell. The statute was sustained as not being in violation of the rights of the patentee, nor an invasion of the jurisdiction of Congress. But a State law was declared in Nebraska to be unconstitutional, which provided that no one shall sell any patent right within the State until he has first submitted his letters patent to a county judge and obtained his approval. It is also held to be constitutional for a State to impose a license tax upon the sale of patented articles by an ordinary trader, as for example, peddlers of
1 Palmer v. State, 39 Ohio St. 236 (48 Am. Rep. 429). As to the general right of the State to regulate the sale of patented articles, see Jordan v. Overseers, 4 Ohio, 295; In re Brosnahan, 4 McCrary C. C. 1 (18 Fed. Rep. 62); Patterson v. Kentucky, 97 U. S. 501 ; Webber 0. Virginia, 103 U. S. 344.
? Patterson v. Kentucky, 97 U. S. 501.
sewing machines.1 But it seems to be considered unconstitutional for a State to impose a license tax upon the sale by the patentee of his patented article.”
§ 208. War and rebellion. — It is provided by the constitution that Congress shall have the power “ to declare war, to grant letters of marque and reprisal, and make rules concerning captures on land and water." 3
We are not concerned in this connection with the general war powers of the government, except so far as the exercise of them bears upon the citizens of the United States. Under the authority“ to grant letters of marque and reprisal, and make rules concerning captures on land and water,” it is held to be a legitimate means of prosecuting war to seize and confiscate the property of the enemy, and this right is also claimed for the United States against its citizens who have engaged in rebellion. On the same grounds, it has been held to be lawful as a war measure, to emancipate by proclamation the slaves of those who are engaged in rebellion. Congress may also in the suppression of a rebellion establish military tribunals for the trial of military offenses in those sections of the country which constitute the seat of war, and where in consequence civil law is superseded by military law. But where the courts of the country are open for the bearing of criminal offenses, and hostilities are not in such close proximity as to prevent the courts from enforcing their decrees, the jurisdiction of the civil courts cannot be invaded by a military court.6
In further support of the war power of the United States, Congress is empowered to “raise and support armies.” 1 The manner of “raising' an army, the mode of enlistment, must be determined by acts of Congress. As long as the enlistments are voluntary, no constitutional question can arise. Although it has been questioned whether the gov. ernment could make forced enlistments, it cannot be seriously doubted that Congress possesses this power, and under the government of the Confederate States, whose constitution made a similar grant of power to the Confederate Congress, it was held that the general government possessed this power to compel citizens of the country to perform military service in its armies, in time of war.”
1 Howe Machine Co. v. Gage, 100 U. S. 676.
4 Miller v. United States, 11 Wall. 268; Tyler 0. Defrees, 11 Wall. 331; The Grape Shot, 9 Wall. 129; The Prize Cases, 2 Black, 635.
6 Slayback v. Cushman, 12 Fla. 427; Weaver v. Lapsley, 42 Ala. 601; Hall v. Keese, 31 Tex. 504; Dorris v. Grace, 24 Ark. 326. Ex parte Mulligan, 4 Wall, 2.
$ 209. Regulation of the militia. — Congress is authorized to “provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”' 3 The actual control of the militia is, therefore, reserved to the States, until the Presi. dent of the United States has exercised the power, which may be given him by Congress * to call the State militia into the service of the Uinted States, when the militia becomes for the time being a part of the United States army; and although the States may regulate the appointment of the officers of the militia, not only are these officers subject to the orders of the President, but are also subordinate to those officers who may be placed by the President over them in
1 U.S. Const., art. I., $ 8, cl. 12.
? Barber v. Irwin, 34 Ga. 27; Ex parte Tate, 39 Ala. 254; Ex parte Coupland, 26 Tex. 386.
3 Const., art. I., $ 8, cl. 16.
+ Congress is authorized to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions.” U. S. Const., art. I., $ 8, cl. 13.
general command of the army or of divisions of the army.1 And when the President, in pursuance of the authority of Congress calls out the militia of the State, he may make his requisition upon the Governor of the State, or directly upon the militia officers. Any one refusing to obey this call, subjects himself to punishment under the military laws.?
As already stated, the power to regulate and control the militia of the country is expressly reserved to the States; and hence it cannot be doubted that the power of maintaining a militia was not intended to be included in the prohibition by the constitution of the keeping of troops in time of peace by the States.: Not only is that true, but it is competent for a State to make it unlawful for any body of men, other than the regularly organized volunteer militia of the State, and the troops of the United States, with an exception in favor of students in educational institutions in which military instruction is given, to associate themselves together as a military company, or to drill or parade with arms in any city or town of the State, without the license of the Governor. Such a statute is not inconsistent with any constitutional provision, and is a reasonable regulation in the interest of public order."
§ 210. Taxation.
of taxation may of course be exercised by both the Federal and State governments. Neither could exercise the other powers vested in it, without the authority to provide by taxation the means of securing the execution of the laws. The constitution of the United States expressly declares that “the Congress shall have power to levy and collect taxes, duties, imposts and excises to pay the debts and provide for the common defense and general welfare of the United States; but all duties, im
1 See Kneedler v. Lane, 45 Pa. St. 238. ? Houston o. Moore, 5 Wheat. 1; Martin v. Mott, 12 Wh-at. 19. 3 U. S. Const., art. 1, § 10, cl. 3; Luther v. Borden, 7 How. 1. • Dunne v. People, 94 Ill. 120 (34 Am. Rep. 213).