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The granting to Congress of the power to declare criminal interference with the mails, or, indeed, interference with the performance by any federal agent of his official duties, does not necessarily carry with it an exemption of such postal agents from arrest and punishment by the States for violations of the States' penal laws, even though the operation of the mails may, incidentally and to a slight extent, be affected.36

§ 398. Patents.

PATENTS AND COPYRIGHTS.

Congress is given 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."

The granting by the United States of a patent right does not give to the patentee the authority to exercise it in a State in violation of the police laws of that State.

In Patterson v. Kentucky the court say: "The right which the patentee or his assignee possesses in the property, created by the application of a patented discovery, must be enjoyed subject the Constitution to its care. The strong arm of the National Government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the nation, and all its militia, are at the service of the nation to compel obedience to its laws."

In United States v. Kirby, 7 Wall. 482; 19 L. ed. 278, the court say: "No officer or employee of the United States is placed by his position, or the services he is called to perform, above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention, when accused of felony, in the form prescribed by the Constitution and laws. The public inconvenience which may occasionally follow from the temporary delay in the transmission of the mail caused by the arrest of its carriers upon such charges, is far less than that which would arise from the extending to them the immunity for which the counsel of the government contends. Indeed, it may be doubted whether it is competent for Congress to exempt the employees of the United States from arrests in criminal processes from the state courts and when the crimes charged against them are not merely mala prohibita, but are mala in se. But whether legislation of that character be constitutional or not, no intention to extend such exemption should be attributed to Congress unless clearly manifested by its language."

87 97 U. S. 501; 24 L. ed. 1115.

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to the complete and salutary power with which the States have never parted, of so defining and regulating the sale and use of property within their respective limits as to afford protection to the many against the injurious conduct of the few. The right of property in the physical substance, which is the fruit of the discovery, is altogether distinct from the right in the discovery itself, just as the property in the instruments or plate by which copies of a map are multiplied is distinct from the copyright of the map itself.. The right to sell . . was not derived from the patent; that right existed before the patent, and, unless prohibited by valid local laws, could have been exercised without the grant of letters patent. The right which the patent primarily secures is the exclusive right in the discovery, which is an incorporeal right. The enjoyment of that incorporeal right may be secured and protected by national authority against all hostile state legislation; but the tangible property which comes into existence by the application of the discovery is not beyond the control, as to its use, of state legislation, simply because the inventor acquires a monopoly in the discovery."

Applying the principles of the Patterson v. Kentucky case the court in Webber v. Virginia38 sustained the power of the State to require the payment of a license fee for the sale of sewingmachines, even though these machines were manufactured under a United States patent.

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The relation of the taxing and other powers of the States to patent rights granted by the United States is more fully discussed. in Section 48.

§ 399. Copyrights: Trade-Marks.

In the Trade-Mark Cases it was held that the ordinary trademark has no necessary relation to invention or discovery, and, therefore, its use may not be regulated by Congress under the power to provide for the issuance of patents and copyrights.

103 U. S. 334; 26 L. ed. 565.

89 See also Allen v. Riley, 203 U. S. 347; 27 Sup. Ct. Rep. 95; 51 L. ed. 216. 40 100 U. S. 82; 25 L. ed. 550.

Lacking this authority the court held that the Federal Government has power to legislate with reference to trade-marks only in so far as their use in interstate trade is concerned. The law in question in the case not being thus limited was held void.

In Higgins v. Keuffel12 it was held that a mere label might not be copyrighted. "To be entitled to a copyright," the court declared, "the article must have by itself some value as a composition, at least to the extent of serving some purpose other than as a mere advertisement or designation of the subject to which it is attached."

Little v. Gould43 is the authority for the doctrine that, in the absence of congressional regulation, a State may afford protection to literary productions.

PIRACIES AND FELONIES ON THE HIGH SEAS, AND OFFENSES AGAINST THE LAW OF NATIONS.

§ 400. Piracies, etc.

The power of the United States to define and punish piracies and other crimes committed upon the high seas, and offenses against the law of nations, may be supported upon three constitutional grants, one express and two implied. In Article 1, Section VIII, Clause 10, it is expressly given. It may also be implied from the federal admiralty and maritime jurisdiction, and from the general contrcl granted to the Federal Government in all that concerns foreign affairs. The implied power under the maritime jurisdiction is broader, territorially, than that given in Article I, Section VIII, Clause 10, inasmuch as admiralty jurisdiction has been construed to extend not only over the high seas, but over the public navigable waters.

41 The law thus held void was enacted July 8, 1870. The law dated March 3, 1881, was expressly limited in its operation to interstate and foreign commerce, and with Indian Tribes, and was held valid in Ryder v. Holt, 128 U. S. 525; 9 Sup. Ct. Rep. 145; 32 L. ed. 529. The present law was enacted Feb. 20, 1905 and has been since amended. The last amendatory act bears date March 4, 1909.

42 140 U. S. 428; 11 Sup. Ct. Rep. 731; 35 L. ed. 470. 43 2 Blatchf. 165.

The authority given to Congress to define and punish all offenses against the law of nations would seem to be broad enough to authorize the prohibition and punishment of acts which, though committed within the territorial limits of the United States, may give rise to international responsibilities upon the part of the United States. It would also seem that this authority may be implied from the general fact that to the Federal Government is given the exclusive control of foreign relations, and to it alone do foreign States look for the redress of any injuries which they may conceive themselves to have suffered. Where, therefore, the responsibility is imposed, the right to prevent its accruing may properly be implied.

A most intersting case upon this point is that of United States v. Arjona in which was questioned the constitutionality of the law of Congress defining as a crime the counterfeiting within the United States of the notes, bonds, and other securities of foreign governments. The authority for this act could not be found in Article I, Section VIII, Clause 6, for that relates only to the securities and current coin of the United States. Therefore, in sustaining its validity the court was obliged to have recourse to the authority to punish offenses against the law of nations and to the general control which the Federal Government has over all matters that pertain to or may involve international rights and responsibilities.45

By the clause under discussion Congress is given the power not simply to provide for the punishment of piracy as defined by the law of nations, but itself to define what shall constitute the offense and to punish it as such. Thus, for example, the slave trade, though not declared by international law to be piracy, has by Congress been declared so to be.46

$401. Declaration of War.

WAB.

As is well known the existence of war, that is, a contest the parties to which have been recognized as belligerents, is a status 44 120 U. S. 479; 7 Sup. Ct. Rep. 628; 30 L. ed. 728.

45 See ante, p. 256.

46 U. S. Rev. Stat., §§ 5375-5376.

that gives rise to numerous legal consequences to the parties involved, to neutral powers, to the actual combatants and to noncombatants. In all countries, it is, therefore, a matter of great importance, what authority shall have the constitutional power of creating such a status, and of determining the date of its beginning.

§ 402. Civil War.

That, under our Constitution, the United States may begin war against a foreign country only by a declaration issued by Congress has never been disputed, the Constitution expressly providing that Congress shall have the power to declare war. That a foreign nation, or insurrectionary body of citizens, may by invasion of the United States or by other acts bring about a condition of affairs which will warrant the President in declaring, in advance of congressional legislation, that a state of war exists, was asserted by the Supreme Court in the Prize Cases.47 After very properly holding that a public war may exist between a State and its rebellious citizens as well as between independent nations, the court say: "A civil war is never solemnly declared; it becomes such by its accidents the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war.”

This is true enough as to foreign powers. All nations have the power and right, usable at their discretion, in the case of a civil contest in another State, to determine, each for itself, whether the struggle is to be treated as a war and the parties to it as belligerents. They are not bound by the action which the State concerned may take or has taken. Nor, on the other hand, is that State bound by the action of foreign States. It may continue to treat as

47 2 Black, 635; 17 L. ed. 459.

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