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.1 § 1155. 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 agriculture, commerce, and manufactures," was, as has been before stated, made, and silently abandoned.3 (a) 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. § 1156. The next power of Congress is "to constitute tribunals inferior 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 Livingston v. Van Ingen, 9 Johns. R. 507; Sergeant on Const. ch. 28 [ch. 30]. 2 Journal of Convention, 260, 327, 328, 329. Journal of Convention, 261. (a) The power of Congress to legislate on the subject of patents is plenary. McClurg v. Kingsland, 1 How. 202; s. c. 17 Pet. 228. It may make special grants: Bloomer v. Stolley, 5 McLean, 158; and special extensions: Blanchard's Factory v. Warner, 1 Blatch. 258; Evans v. Eaton, Pet. C. C. 322. It may give its grants a retrospective effect. Blanchard v. Sprague, 2 Story, 164; McClurg v. Kingsland, supra. But the intention to do so will not be presumed. Blanchard v. Sprague, 3 Sum, 535. The patent laws can have no effect in a foreign country; and the use upon a foreign vessel, in an American port, of an improvement patented here is not an infringement of the patent, provided it was placed upon her in a foreign port, and was authorized by the laws of the country to which she belongs. Brown v. Duchesne, 2 Curt. 371, and 19 How. 183. CHAPTER XX. POWER TO PUNISH PIRACIES AND FELONIES. § 1157. 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.” § 1158. By the confederation, the sole and exclusive power was given to Congress "of appointing courts for the trial of piracies and felonies committed on the high seas. 99 1 But there was no power expressly given to define and punish piracies and felonies.2 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 recognized jurisprudence of the Union.4 § 1159. 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, 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 1 Art. 9. 2 The Federalist, No. 42; 5 Wheat. R. App. 16. 8 See Ordinance for trial of piracies and felonies, 5th April, 1781; 7 Journ. Cong. 76. ↑ 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, "declar. ing 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. Mr. Marshall's Speech, 5 Wheat. R. 16, Appx. 5 The Federalist, No. 42; Rawle on Const. ch. 9, p. 107; 2 Elliot's Deb. 389, 390. furandi, is piracy. The common law, too, recognizes 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.1 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, nobody 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 of ascertaining, from the common law, what constituted malice. aforethought; so that there would be no end to difficulties or definitions; for each successive definition might involve some terms which would still require some new explanation. But the true intent of the Constitution in this part, was, not merely to define piracy, as known to the law of nations, but to enumerate what crimes in the national code should be deemed piracies. And so the power has been practically expounded by Congress. 3 § 1160. But the power is not merely to define and punish piracies, but felonies, and offences against the law of nations; and, on this account, the power to define, as well as to punish, is peculiarly appropriate. It has been remarked, that felony is a term of loose signification, even in the common law; and of various import in the statute law of England. Mr. Justice Blackstone says that felony, in the general acceptation of the English law, comprises every species of crime which occasioned, at common law, the forfeiture of lands or goods. This most frequently 1 4 Black. Comm. 71 to 73. 2 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." 2 East, P. C. 796. In giving this definition he has done no more than follow the language of preceding writers on the common law. 4 Black. Comm. 71 to 73. 3 United States v. Smith, 5 Wheat. R. 153, 158 to 163. The Federalist, No. 42; 2 Elliot's Deb. 389, 390. happens in those crimes for which a capital punishment either is or was liable to be inflicted. All offences, now capital by the English law, are felonies; but there are still some offences, not capital, which are yet felonies (such as suicide, petty larceny, and homicide by chance-medley); that is, they subject the committers of them to some forfeiture, either of lands or goods. 2 But the idea of capital punishment has now become so associated, in the English law, with the idea of felony, that if an act of Parliament makes a new offence felony, the law implies that it shall be punished with death as well as with forfeiture. 3 § 1161. Lord Coke has given a somewhat different account of the meaning of felony; for he says, "ex vi termini significat quodlibet capitale crimen felleo animo perpetratum;” (that is, it signifies every capital offence committed with a felonious intent); “in which sense murder is said to be done per feloniam, and is so appropriated by law as that felonice cannot be expressed by any other word."4 This has been treated as a fanciful derivation, and not as correct as that of Mr. Justice Blackstone, who has followed out that of Spelman.5 § 1162. But whatever may be the true import of the word "felony" at the common law with reference to municipal offences, in relation to offences on the high seas its meaning is necessarily somewhat indeterminate; since the term is not used in the criminal jurisprudence of the admiralty in the technical sense of the common law. Lord Coke long ago stated, that a pardon of felonies would not pardon piracy, for "piracy, or robbery on the high seas, was no felony whereof the common law took any knowledge, &c.; but was only punishable by the civil law, &c.; the attainder by which law wrought no forfeiture of lands or corruption of blood." And he added, that the statute of 28 Henry 8, ch. 15, which created the high commission court, for the trial of "all treasons, felonies, robberies, murders, and confederacies, committed in or upon the high sea," &c., did not alter the offence, or make the offence felony, but left the offence as it was before the act, viz. felony only by civil law. 8 1 Co. Litt. 391. 24 Black. Comm. 93 to 98. 8 4 Black. Comm. 98. See also 1 Hawk. P. C. ch. 37 (Curwood's edit. ch. 7). * Co. Litt. 391; 1 Hawk. P. C. ch. 37. 5 See 1 Curwood's Hawk. P. C. ch. 7, note, p. 71. 6 United States v. Smith, 5 Wheat. R. 153, 159. 83 Inst. 112; Co. Litt. 391, a. 7 3 Inst. 112. § 1163. Offences against the law of nations are quite as important, and cannot with any accuracy be said to be completely ascertained and defined, in any public code recognized by the common consent of nations. In respect, therefore, as well to felonies on the high seas, as to offences against the law of nations, there is a peculiar fitness in giving to Congress the power to define, as well as to punish. And there is not the slightest reason to doubt, that this consideration had very great weight with the convention, in producing the phraseology of the clause.1 On either subject it would have been inconvenient, if not impracticable, to have referred to the codes of the States as well from their imperfection as their different enumeration of the offences. Certainty, as well as uniformity, required that the power to define and punish should reach over the whole of these classes of offences. 2 § 1164. What is the meaning of "high seas," within the intent of this clause, does not seem to admit of any serious doubt. The phrase embraces not only the waters of the ocean, which are out of sight of land, but the waters on the sea-coast, below low-water mark, whether within the territorial boundaries of a foreign nation or of a domestic State.3 Mr. Justice Blackstone has remarked, that the main sea or high sea begins at the low-water mark. But between the high-water and the low-water mark, where the tide ebbs and flows, the common law and the admiralty have divisum imperium, an alternate jurisdiction, one upon the water, when it is full sea, the other upon the land, when it is an ebb. He doubtless here refers to the waters of the ocean on the sea-coast, and not on creeks and inlets. Lord Hale says that the sea is either that which lies within the body of the county or without. That which lies without the body of a county is called the main sea, or ocean.5 So far, then, as regards the States of the Union, "high seas" may be taken to mean that part of the ocean which washes the sea-coast, and is without the body of any county, according to the common law; and, so far as regards 1 United States v. Smith, 5 Wheat. R. 153, 159. 2 The Federalist, No. 42; Sergeant on Const. ch. 28 (ch. 30); Rawle on Const. ch. 9, p. 107. 3 United States v. Pirates, berger, 5 Wheat. R. 76, 94. Wheat. R. 184, 200, 204, 206; United States v. Wilt 4 1 Black. Comm. 110; Constable's case, 5 Co. R. 106; 3 Inst. 113; 2 East's P. C. 802, 803. 5 Hale in Harg. Law Tracts, ch. 4, p. 10; 1 Hale, P. C. 423, 424. |
