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'to their respective writings, and discoveries.' The utility of this power has never been questioned. Indeed, if authors, or inventers, are to have any real property or interest in their writings, or discoveries, it is manifest, that the power of protection must be given to, and administered by, the General Government. A copy-right, or patent, granted by a single State, might be violated with impunity by every other; and, indeed, adverse titles might at the same time be set up in different States to the same thing, each of which, according to the laws of the State in which it originated, might be equally valid. No class of men are more meritorious, or better entitled to public patronage, than authors and inventers. They have rarely obtained, as the history of their lives sufficiently establish, any due encouragement and reward for their ingenuity and public spirit. They have often languished in poverty, and died in neglect, while the world has derived iinmense wealth from their labors, and science and the arts have reaped unbounded advantages from their discoveries. They have but too often possessed a barren fame, and seen the fruits of their genius gathered by those, who have not blushed to purloin, what they have been unable to create. It is, indeed, but a poor reward, to secure to authors and inventers for a limited period only an exclusive title to that which is, in the noblest sense, their own property; and to require it ever afterwards to be dedicated to the public. But such as it is, it is impossible to doubt its justice, or its policy, so far as it aims at their protection and encouragement.
$ 125. The next power of Congress is, 'to constitute tri'bunals inferior to the Supreme Court. But this will prop. erly come under review, in considering the structure and powers of the Judicial Department.
Punishment of Piracies and Felonies. - Declaration of War.
$ 126. 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.' Piracy is commonly defined to be robbery, or forcible depredation upon the high seas with intent to steal. But ' felony' is a term, not so exactly understood, or defined. It is usually applied to designate capital offences, that is, offences punishable with death; but its true meaning seems to be, to designate such offences as are by the common law punished by forfeiture of goods and lands. Offences against the law of nations' are still less clearly defined ; and therefore, as to these, as well as felonies, the power to define, as well as to punish, is very properly given. As the United States are responsible to foreign Governments for the conduct of their citizens on the high seas, and as the power to punish offences committed there is also indispensable to the due protection and support of our navigation and commerce, and the States, separately, are incapable of affording adequate redress in such cases, the power is appropriately vested in the General Government.
The next power of Congress is, 'to declare war, grant letters of
marque and reprisal, and make rules con'cerning captures on land and water.' That the power to declare war should belong exclusively to the National Government, would hardly seem matter of controversy. If it belonged to the States severally, it would be in the power of any one of them, at any time, to involve the whole Union in hostilities with a foreign country, not only against their interests, but against their judgment. Their very existence might thus be jeoparded without their consent, and their liberties sacrificed to private resentment, or popular prejudice. The power cannot, therefore, be safely deposited, except in the
General Government; and, if in the General Government, it ought to belong to Congress, where all the States and all the people of the States are represented ; and where a majority of both must concur, to authorize the declaration. War, indeed, is, in its mildest form, so dreadful a calamity ; it destroys so many lives, wastes so much property, and introduces so much moral desolation; that nothing but the strongest state of necessity can justify, or excuse it. In a republican Government, it should never be resorted to, except as a last expedient to vindicate its rights; for military power and military ambition have but too often triumphed over the liberties of the people.
$ 128. Letters of marque and reprisal' are commissions, granted to private persons and ships, to make captures; and are usually granted in times of general war. But they are also sometimes granted by nations, having no intention to enter into a general war, to redress a grievance to a private citizen, which the offending nation refuses to redress. In such a case, a commission is sometimes granted to the injured individual, to make a reprisal upon the property of the subject of that nation to the extent of his injury. But this is a dangerous experiment; and the more usual, and wise course is, to resort to negotiations, and to wait until a favora. ble moment occurs to press the claim.
$ 129. If captures are to be made, as they necessarily must be, to give efficiency to a declaration of war, it follows that the General Government ought to possess the power to make rules and regulations concerning them, thereby to restrain personal violence, intemperate cupidity, and degrading cruelty.
Power as to Army and Navy. $ 130. The next power of Congress is 'to raise and support armies; but no appropriation of money to that use shall 'be for a longer term than two years. The power to raise armies would seem to be an indispensable incident to the power to declare war, if the latter is not to be a mere idle sound, or instrument of mischief. Under the Confederation, however, the two powers were separated; Congress were authorized to declare war; but they could not raise troops. They could only make requisitions upon the States to raise them. The consequence was (as is well known) general inefficiency, want of economy, mischievous delays, and great inequality of burthens. This is, doubtless, the reason, why the power is expressly given to Congress. It ensures promptitude and unity of action, and, at the same time, promotes economy and harmony of operations. Nor is it in war only, that the power to raise armies may be usefully applied. It is important to suppress domestic rebellions, and insurrections ; and to prevent foreign aggressions and invasions. A nation, which is prepared for war in times of peace, will, thereby, often escape the necessity of engaging in war. Its rights will be respected, and its wrongs redressed. Imbecility and want of preparation invite aggression, and protract controversy.
$ 131. But, inasmuch as the power to raise armies may be perverted in times of peace to improper purposes, a restriction is imposed upon the grant of appropriations for the maintenance of them. So that every two years the propriety of retaining an existing army must regularly come before the Representatives of the People in Congress for consideration; and if no appropriation is made, the army is necessarily disbanded. Thus, a majority of Congress may at any time
within two years be in effect dissolved, without the consent of the President, by a simple refusal to grant supplies. The power, therefore, is surrounded by all reasonable restrictions, as to its exercise ; and it has hitherto been used in a manner, which has conferred lasting benefits on the country.
§ 132. The next power of Congress is, 'to provide, and maintain a Navy.' This power has the same general object, as that to raise armies. But, in its own nature, it is far more safe, and, for a maritime nation, quite as indispensable. No nation was ever deprived of its liberty by its Navy. The same cannot be said of its Army. And a commercial nation would be utterly without its due weight upon the ocean, its means of self-protection at home, and its power of efficient action abroad, without the possession of a Navy. Yet this power, until a comparatively recent period, found little favor with some of our statesien of no mean celebrity. It was not, until the brilliant achievements of our little Navy during the late war had shed a glory, as well as a protection, over our national flag in every sea, that the country became alive to its vast importance and efficiency. At present, it enjoys an extensive public favor, which, having been earned by the most gallant deeds, can scarcely fail of permanently engrafting it into the solid establishments of our national strength.
$ 133. The next power of Congress is, 'to make rules, ' for the government and regulation of the land and naval ' forces.' Upon the propriety of this power, as an incident to the preceding, it is unnecessary to enlarge. It is equally beyond the reach of cavil and complaint.