178 U. S. 41, 83-106, May 14, 1900; Brushaber v. Union P. R. Co., 240 U. S. 1, 9-19, Jan. 24, 1916; Eisner, Collector of Internal Revenue v. McComber, 252 U.S. 189, 205-206, Mar. 8, 1920; Florida v. Mellon. Secretary of Treasury, 273 U. S. 12, 17, Jan. 3, 1927; United States v. Butler, 297 U. S. 1, 64-66, Jan. 6, 1936; and Helvering v. Davis, 301 U. S. 619, 640-645, May 24, 1937.

The

ment a new obligation where there had been none before, for work performed by petitioner which was beneficial to the Government and for which Congress thought he had not been adequately compensated. power of Congress to provide for the payment of debts, conferred by §. 8 of Article I of the Constitution, is not restricted to payment of those obligations which are legally binding on the Government. It extends to the creation of such obligations in recognition of claims which are merely moral or honorary." (Pope v. United States, 323 U. S. 1, 9, Nov. 6, 1944.)

CASE NOTES

Regulation of navigation. The power to regulate commerce includes the regulation of navigation and comprehends navigation within the limits of every State in the Union so far as that navigation may be in any manner connected with the commerce over which Congress has jurisdiction. (Gibbons v. Ogden, 9 Wheat. 1, Feb. Term, 1824.)

"Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise: to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes, Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England. " (Gilman v. Philadelphia, 3 Wall. 713, 724-725, Dec. Term, 1865. See also: Gibson v. United States, 166 U.S. 269, 271-272, Mar. 22, 1897; Scranton v. Wheeler, 179 U.S. 141, 159-161, Nov. 12, 1900; Union Bridge Company v. United States, 204 U.S. 364, 388-394, Feb. 25, 1907; Fhiladelphia Company v. Stimson, Secretary of War, 223 U.S. 605, 634-638, Mar. 4, 1912; United States v. Chandler-Dunbar Water Fower Company, 229 U.S. 53, 62-65, May 26, 1913; United States v. River Rouge Improvement Co., 269 U. S. 411, 419, Jan. 4, 1926; United States v. Appalachian Electric Fower Co., 311 U.S. 377, 404, 405, Dec. 16, 1940; United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 595-597, Mar. 31, 1941; United States v. Commodore Fark, Inc., 143 F.2d 720, 725, June 23, 1944.)

Navigable waters of the United States.- "Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other

(The

States or foreign countries in the customary modes in which such commerce is conducted by water." Daniel Ball, 10 Wall. 557, 563, Dec. Term, 1870. Accord: The Montello, 20 Wall. 430, 441-443, Oct. Term, 1874: Escanaba Company v. Chicago, 107 U.S. 678, 682, Oct. Term, 1882; The Katie, 40 F. 480, 486-489, Nov. 12, 1889. Compare: United States v. Appalachian Elec-. tric Power Co., 311 U.S. 377, 407, Dec. 16, 1940.)

"The mere fact that logs, poles and rafts are floated down a stream occasionally and in times of high water does not make it a navigable river." (United States v. Rio Grande Dam and Irrigation Company, 174 U. S. 690, 698, May 22, 1899. See also Leovy v. United States, 177 U. S. 621, 632, May 14, 1900.)

If a stream has once met the test of navigability, its character as a navigable waterway is not lost by reason of obstructions in its channel and a discontinuance of commercial use. (Economy Light & Power Co. v. United States, 256 U. S. 113, Apr. 11, 1921.)

"To appraise the evidence of navigability on the natural condition only of the waterway is erroneous. Its availability for navigation must also be considered. 'Natural and ordinary condition' refers to volume of water, the gradients and the regularity of the flow. A waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken. " (United States v. Appalachian Electric Power Co., supra, 407. Accord: Pennsylvania Water & Power Co. v. Federal Power Commission, 123 F.2d 155, Oct. 20, 1941.)

"It is proper to say that many statutes of many states, for the very purpose of preserving these small streams for the use of saw-logs and various kinds of smaller water-craft, declare such streams navigable. There is hardly a stream in the western country that can float a log that has not, by statute of the state, been declared to be navigable, to prevent people from putting dams across it; but that has nothing to do with the great point of the navigability of streams of the United States concerning interstate navigation or international navigation. Those are statutes made by the states for their own uses, and they can declare, and often do de lare, that a little branch is a navigable stream. That does not make it so, within the meaning of any constitutional provision, treaty, or ordinance of the United States. "T (Duluth Lumber Co. v. St. Louis Boom & Imp. Co., 17 F. 419, 424-425, 1883.)

printed matter of all kinds, are transported in the mail. The power possessed by Congress embraces the regulation of the entire postal system of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded. The difficulty attending the

subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, out from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the transportation of the mail." (Ex parte Jackson, 96 U.S. 727, 732, Oct. Term, 1877.)

"That the government of the United States when it grants letters-patent for a new invention or discovery in the arts, confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser, we have no doubt. The Constitution gives to Congress 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, which could not be effected if the government had a reserved right to publish such writings or to use such inventions without the consent of the owner. Many inventions relate to subjects which can only be properly used by the government, such as explosive shells, rams, and submarine batteries to be attached to armed vessels. If it could use such inventions without compensation, the inventors could get no return at all for their discoveries and experiments. It has been the general practice, when inventions have been made which are desireable for government use, either for the government to purchase them from the inventors, and use them as secrets of the proper department; or, if a patent is granted, to pay the patentee a fair compensation for their use. The United States has no such prerogative as that which is claimed by the sovereigns of England, by which it can reserve to itself, either expressly or by implication, a superior dominion and use in that which it grants by letters-patent to those who entitle themselves to such grants. The government of the United States, as well as the citizen, is subject to the Constitution; and when it grants a patent the grantee is entitled to it as a matter of right, and does not receive it, as was originally supposed to be the case in England, as a matter of grace and favor." (James v. Campbell, 104 U.S. 356, 357-358, Oct. Term, 1881.)

"Although the Constitution of the United States, in § 8 of article 1, provides that the Congress shall have 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, yet the means for securing such right to authors are to be prescribed by Congress. It has prescribed such a method, and that method is to be followed. No authority exists for obtaining a copyright, beyond the extent to which Congress has authorized it. A copyright cannot be sustained as a right existing at common law; but, as it exists in the United States, it depends wholly on the legislation of Congress. (Banks v. Manchester, 128 U.S. 244, 251252, Nov. 19, 1888.)

Meaning of "secured". - "There is no mode by which the meaning affixed to a word or sentence, by a deliberative body, can be so well ascertained, as by comparing it with the words and sentences with which it stands connected. By this rule, the word secure, as used in the constitution, could not mean the protection of an acknowledged legal right. It refers to inventors, as well as authors, and it has never been pretended by any one, either in this country or in England, that an inventor has a perpetual right, at common law, to sell the thing invented." (Wheaton v. Feters, 8 Fet. 591, 660, Jan. Term, 1834.)

Copyrights and patents distinguished. "There is no doubt that a work on the subject of book-keeping, though only explanatory of well-known systems, may be the subject of a copyright; but, then, it is claimed only as a book. Such a book may be explanatory either of old systems, or of an entirely new system; and, considered as a book, as the work of an author, conveying information on the subject of bookkeeping, and containing detailed explanations of the art, it may be a very valuable acquisition to the practical knowledge of the community. But there is a clear distinction between the book, as such, and the art which it is intended to illustrate. The mere statement of the proposition is so evident, that it requires hardly any argument to support it. The same distinction may be predicated of every other art as well as that of book-keeping. A treatise on the composition and use of medicines, be they old or new; on the construction and use of ploughs, or watches, or churns; or on the mixture and application of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of perspective, -would be the subject of copyright; but no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein. The copyright of the book, if not pirated from other works, would be valid without regard to the novelty, or want of novelty, of its subject-matter. The novelty of the art or thing described or explained has nothing to do with the validity of the copyright. To

give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the puolic. That is the province of letters-patent, not of copyright. The claim to an invention or discovery of an art or manufacture must be subjected to the examination of the Fatent Office oefore an exclusive

Court;

EDITORIAL NOTE

The judicial system of the United States is prescribed by the Judicial Code, act of Mar. 3, 1911, ch. 231, 36 Stat. 1087, as amended.

CASE NOTE

Courts-martial. - "Courts martial form no part of the judicial system of the United States ✶✶ (Kurtz v. Moffit et al., 115 U.S. 487, 500, Nov. 23, 1885. See also United States v. MacKenzie et al., 30 Fed. Cas. 1160, No. 18,313.)

To de

EDITORIAL NOTES

The Criminal Code, act of Mar. 4, 1909, ch. 321, secs. 272-310, 35 Stat. 1142-1148, as amended, defines and provides for the punishment of offenses which may be committed upon the high seas.

The term "high seas", as used in sec. 5346, R.S., was considered in United States v. Rodgers, 150 U.S. 249, Nov. 20, 1893. Sec. 5346, R.S., which was enacted pursuant to this clause, was superseded by the Criminal Code.

CASE NOTES

In general. - "Although the Constitution contains no grant, general or specific, to Congress of the power to provide for the punishment of crimes, except piracies and felonies on the high seas, offences against the law of nations, treason, and counterfeiting the securities and current coin of the United States, no one doubts the power of Congress to provide for the punishment of all crimes and offences against the United States, whether committed within one of the States of the Union, or within territory over which Congress has plenary and exclusive jurisdiction." (Logan v. United States, 144 U.S. 263, 283, Apr. 4, 1892. See also: United States v. Fox, 95 U.S. 670, 672, Oct. Term, 1877; United States v. Hall, 98 U.S. 343, 345-346, Oct. Term, 1878; United States v. Barnow, 239 U.S. 74, 77-78, Nov. 8, 1915.)

The grant of power to define and punish piracies and felonies on the high seas "cannot be deemed to be a limitation on the powers, either legislative or judicial, conferred on the national government by Article III, § 2." (United States v. Flores, 289 U.S. 137, 149, Apr. 10, 1933.)

International law. - "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of

their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." (The Faquete Habana, 175 U.S. 677, 700, Jan. 8, 1900. See also: Hilton v. Guyot, 159 U. S. 113, 163, June 3, 1895; 11 Op. Atty. Gen. 297, 299, July, 1865.)

"It has been very properly observed, in argument, that the building of vessels in the United States for sale to neutrals, in the islands, is, during war, a profitable business, which congress cannot be intended to have prohibited, unless that intent be manifested by express words, or a very plain and necessary implication. It has also been observed, that an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country. These principles are believed to be correct, and they ought to be kept in view, in construing the act now under consideration." (The Charming Betsy, 2 Cr. 64, 118, Feb. Term, 1804.)

"The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognised by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice: out as these principles will be differently understood by different nations, under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this." (Thirty Hogsheads of Sugar v. Boyle, 9 Cr. 191, 198, Feb. Term, 1815.)

Violations of international law. - "Congress has power to make all laws which shall be necessary and proper to carry into execution the powers vested by the Constitution in the Government of the United States, Art. I, sec. 8, clause 18; and the Government of the United States has been vested exclusively with the power of representing the nation in all

that purpose given to the United States. The national government is in this way made responsible to foreign nations for all violations by the United States of their international obligations, and because of this, Congress is expressly authorized 'to define and punish ✶✶ ✶ offenses against the law of nations.' Art. I, sec. 8, clause 10.". (United States v. Arjona, 120 U.S. 479, 483, Mar. 7, 1887. See also Frend v. United States, 100 F.2d. 691, Oct. 31, 1938.)

CASE NOTES

Fower of Congress to declare war. "But the genius and character of our institutions are peaceful, and the power to declare war was not conferred upon Congress for the purposes of aggression or aggrandizement, but to enable the general government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens." (Fleming. et al. v. Fage, 9 How. 603, 614, Jan. Term, 1850.)

Fower of Fresident in advance of congressional action. "If a war be made by invasion of a foreign nation, the Fresident is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority." (Prize Cases, 2 Black 635, 668, Dec. Term, 1862.)

"Whether the President in fulfilling his duties, as Commander-in-chief, is suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. 'He must determine what degree of force the crisis demands.' The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case. (Prize Cases, supra, at 670.)

A state of actual war may exist without any formal declaration of it by either party; and this is true of both a civil and a foreign war. (Prize Cases, supra.)

Power to wage war.- "Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-inchief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions." (Ex parte Milligan, 4 Wall. 2, 139, Dec. Term, 1866.)

"The Constitution confers upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the

power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted. It therefore includes the right to seize and confiscate `all property of an enemy and to dispose of it at the will of the captor. This is and always has been an undoubted belligerent right. If there were any uncertainty respecting the existence of such a right it would be set at rest by the express grant of power to make rules respecting captures on land and water. It is argued that though there are no express constitutional restrictions upon the power of Congress to declare and prosecute war, or to make rules respecting captures on land and water, there are restrictions implied in the nature of the powers themselves. Hence it is said the power to prosecute war is only a power to prosecute it according to the law of nations, and a power to make rules respecting captures is a power to make such rules only as are within the laws of nations. Whether this is so or not we do not care to inquire, for it is not necessary to the present case. It is sufficient that the right to confiscate the property of all public enemies is a conceded right. Now, what is the right, and why is it allowed? It may be remarked that it has no reference whatever to the personal guilt of the owner of confiscated property, and the act of confiscation is not a proceeding against him. The confiscation is not because of crime, but because of the relation of the property to the opposing belligerent, a relation in which it has been brought in consequence of its ownership. It is immaterial to it whether the owner be an alien or a friend, or even a citizen or subject of the power that attempts to appropriate the property. In either case the property may be liable to confiscation under the rules of war. It is certainly enough to warrant the exercise of this belligerent right that the owner be a resident of the enemy's country, no matter what his nationality. The whole doctrine of confiscation is built upon the foundation that it is an instrument of coercion, which, by depriving an enemy of property within reach of his power, whether within his territory or within it, impairs his ability to resist the confiscating government, while at the same time it furnishes to that government means for carrying on the war. Hence any property which the enemy can use, either by actual appropriation or by the exercise of control over its owner, or which the adherents of the enemy have the power of devoting to the enemy's use, is a proper subject of confiscation." (Miller v. United States, 11 Wall. 268, 305-306, Dec. Term, 1870. See also Juragua Iron Company, Limited v. United States, 212 U. S. 297, Feb. 23, 1909.)

"There can be no doubt that Congress has power to provide for an immediate seizure in war times of property supposed to belong to the enemy, as it could provide for an attachment or distraint, if adequate provision is made for a return in case of mistake.