CHAPTER XIX.

POWER TO PROMOTE SCIENCE ANd useful ARTS.

§ 557. THE next power of congress is, "to promote "the progress of science and the useful arts, by secur"ing, for limited times, to authors and inventors the "exclusive right to their respective writings and dis"coveries."

§ 558. This power did not exist under the confederation; and its utility does not seem to have been questioned. The copyright of authors in their works had, before the revolution, been decided in Great Britain to be a common law right; and it was regulated and limited under statutes passed by parliament upon that subject. The right to useful inventions seems, with equal reason, to belong to the inventors; and, accordingly, it was saved out of the statute of monopolies in the reign of King James the First, and has ever since been allowed for a limited period, not exceeding fourteen years. It is doubtless to this knowledge of the common law and statuteable rights of authors and inventors, that we are to attribute this constitutional provision. It is beneficial to all parties, that the national government should possess this power; to authors and inventors, because, otherwise, they would be subjected to the varying laws and systems of the different states on this subject, which would impair, and might even destroy the value of their rights; to the public, as it will promote the progress of science and the useful arts, and admit the people at large, after a short interval, to the full possession and

enjoyment of all writings and inventions without restraint. In short, the only boon that could be offered to inventors to disclose the secrets of their discoveries, would be the exclusive right and profit of them, as a monopoly, for a limited period. And authors would have little inducement to prepare elaborate works for the public, if the publication of them would be at a large expense, and, as soon as they were published, there would be an unlimited right of depredation and piracy of their copyright. The states could not separately make effectual provision for either of the cases; and most of them, at the time of the adoption of the constitution, had anticipated the propriety of such a grant of power, by passing laws on the subject, at the instance of the continental congress.

§ 559. The power, in its terms, is confined to authors and inventors; and cannot be extended to the introducers of any new works or inventions. This has been thought by some persons of high distinction to be a defect in the constitution. But perhaps the policy of further extending the right is questionable; and, at all events, the restriction has not hitherto operated as any discouragement of science or the arts. It has been doubted, whether congress has authority to decide the fact, that a person is an author or inventor in the sense of the constitution, so as to preclude that question from judicial inquiry. But, at all events, such a construction ought never to be put upon the general terms of any act in favour of a particular inventor, unless it be inevitable.

§ 560. The next power of congress is, "to consti"tute tribunals inferior to the Supreme Court." This clause properly belongs to the third article of the con

stitution; and will come in review, when we survey the structure and powers of the judicial department. It will, therefore, be, for the present, passed

over.

CHAPTER XX.

POWER TO PUNISH PIRACIES AND FELONIES.

§ 561. 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."

562. 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 furandi, is piracy. The common law, too, recognises, 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. 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, no body 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 constitutes 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. The true intent of the constitution in this clause, is not merely to define piracy, as known to the law of nations, but to enumerate what crimes in the national code shall be deemed piracies. And so the power has been practically expounded by congress.

§ 563. 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 and goods. This most frequently 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. But the idea of capital punishment has now become so associated, in the English law, with the idea of felony, that if