that taxes on specific kinds of personal property and on occupations were excise taxes, and not direct. A Federal income tax levied during the Civil war was upheld as an excise tax, without inquiry as to the source of income. In 1894 Congress enacted another income tax, the validity of which was elaborately argued before the Supreme Court. A majority of the court decided that taxes upon real estate or personal property in the mass were direct taxes, and that taxes on the income from such property was within the fair scope of the prohibition (4). At the present time (1909) an amendment to the Constitution has been proposed to the states by Congress, permitting the government to levy an income tax without apportionment. A Federal inheritance tax is an excise upon the privilege of succeeding to land or other property and is not a direct tax (5). § 317. Same: Taxation of state governmental functions. Just as a state may not tax functions of the Federal government, the Federal government may not tax state functions. The reasons for this are given in § 347, below. Thus, the United States may not tax the salary of state officers, nor any steps in state judicial proceedings, nor the property or borrowing power of a state or municipal corporation (including state or municipal bonds) (6). (4) Pollock v. Farmers Loan and Trust Co., 157 U. S., 429; 158 U. S., 601 (all of the previous cases on the subject are here fully discussed). (5) Knowlton v. Moore, 178 U. S., 41. (6) Pollock v. Farmers Loan and Trust Co., 157 U. S., 429, 584-6. But the United States may tax a legacy to a state or city, and may tax the business of selling liquor, even though it is carried on by a state (7). This kind of a governmental function is not sufficiently vital to the state to escape Federal taxation. § 318. Bankruptcy. The powers of the United States over the subject of bankruptcy are dealt with fully in the article on that subject in Volume X of this work. § 319. Weights and measures. The Constitution, Article I, section 8, § 5, gives Congress power to "fix the standards of weights and measures." Congress has never passed any law regarding the use of any particular standards of weights and measures in this country, although it has made the use of the metric system permissible. By common usage English standards have generally been used in this country, except for scientific purposes, where the metric system is ordinarily employed. There has been some question whether, in the absence of Congressional legislation, the states could act upon the matter. Several state courts have intimated that they could and one inferior Federal court has suggested the contrary. § 320. Postal powers. The plenary power of Congress over the entire subject of the post-office has already been noticed in another connection. See §§ 28, 253, above. The business may be made a government monopoly and private competition made criminal (8). Congress may classify mail matter, apply different rates of postage to (7) South Carolina v. United States, 199 U. S., 437. (8) United States v. Bromley, 12 How., 88; U. S. R. S., §§ 3981-93. different articles, and prohibit certain classes of matter altogether. It may exclude from the mails matter that is fraudulent or otherwise injurious to the public, and it may refuse to deliver mail to persons who are using the postal service for improper purposes. The reasonable administration of these rules may be delegated to postal officials (9). § 321. Possible extent of postal powers. Under its power to extend the limits of mailable matter, it would seem competent for Congress to raise the limit of weight so as to include all the parcel business now done by express companies, which is included in the postal service of most European governments. It is quite possible that many articles of freight might also be included. The United States Supreme Court has left open the question whether telegraph lines may not be acquired by Congress as part of its postal business (10). This, too, is a common practice of foreign governments. It seems likely that the United States could construct postroads, including railroads, for its postal service if it saw fit. An early Kentucky case admitted the existence of this Federal power very broadly, and its existence has never been denied by the Federal Supreme Court (11). § 322. Copyright and patents. The Constitution, Article I, section 8, § 8, gives Congress power "to promote the progress of science and useful arts, by securing (9) Public Clearing House v. Coyne, 194 U. S., 497. (10) (11) Pensacola Telegraph Co. v. Western Union Co., 96 U. S., 1. Dickey v. Maysfield Turnpike Co., 7 Dana 113; California v. Pacific Railroad, 127 U. S., 1. for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The principal questions concerning copyright and patents are fully treated in the articles upon these subjects in Volume IV of this work. The patent itself, which is the right to exclude all others from the manufacture, use, or sale of the things patented, is a Federal franchise, and as such cannot be taxed or otherwise interfered with by state law (12). The same is true of copyright (13). The patented article, however, may be taxed or regulated like other property by the states. The patent and the article manufactured thereunder are thus distinct kinds of property, the first one involving a Federal right (14). § 323. Maritime offenses and offenses against the law of nations. The Constitution, Article I, section 8, § 10, gives Congress power "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." The manner in which Congress may define piracies, for instance, is treated in the article on Criminal Law, § 4, in Volume III. The latter part of the Constitutional provision above quoted gives to Congress considerable power that has never been exercised. Under it, Congress apparently might enact laws to protect aliens in this country from violence or other misconduct, which, under the law of nations, might become a ground of com (12) In re Sheffield, 64 Fed., 833. plaint for foreign powers. Under this clause, it has been held that the United States may punish the counterfeiting in a state of securities of any foreign government, though it could not punish the counterfeiting of a state bank-note (15). § 324. Indians. When the Constitution was adopted there still existed many powerful Indian tribes within the borders of the states, and in the western lands controlled by the United States. These tribes, even when in a state, ordinarily exercised a complete control over their internal affairs, and their relations with the states and the United States were governed by treaties made with formalities similar to those between independent nations. The Constitution gave the power to make treaties to the President and senate, and withdrew it from the states. In consequence, it was early held that the sole external power of governing the Indians lay with the United States (16). The only legislative power expressly conferred upon Congress by the Constitution in regard to the Indians is the power to regulate commerce with the Indian tribes (17). Prior to 1871 Federal control over the Indians was exercised chiefly by means of treaties, but in that year an act of Congress forbade further dealings with them by the treaty-making power. Later Congress legislated directly for the Indians, though situated in the (15) United States v. Arjona, 120 U. S., 479; Tennessee v. Davis, 100 U. S., 257, 280. (16) Worcester v. Georgia, 6 Pet., 515. (17) Const., Art. I, sec. 8, § 3. |