writings and discoveries."1 In virtue of this authority the Congress has created the patent and copyright systems of the United States, and regulates and controls the same exclusively. So vast has this body of United States law become as to employ the entire attention of a great number of capable practitioners. It can hardly be said that this power is exclusive to the Congress as against the commonwealths, in the sense that if the Congress had not occupied the ground the commonwealths might not do so. While the commonwealths cannot probably amend or supplement the patent and copyright laws of the United States, there is no reason for asserting that, in the absence of any patent and copyright legislation by Congress, the commonwealths may not pass laws to protect the inventions and writings of their own citizens, which will hold until displaced by the legislation of Congress upon the subject. Of course such protection would be very inadequate, as it would not reach beyond the boundaries of the particular commonwealth. 6. Legislation in respect to Naturalization. The constitution vests the Congress with the power to establish "an uniform rule of naturalization throughout the United States." 2 The power to establish a single statute of naturalization for the whole United States is, of course, an exclusive power of the Congress. The commonwealths could not do that even though the Congress should not regulate the subject at all. It is, indeed, conceivable that every com monwealth might pass exactly the same statute of naturaliza tion and that the courts of every commonwealth might give to the statutes of the respective commonwealths exactly the same interpretation and an uniform rule be attained in this manner. It is not, however, at all likely that they would. Moreover, the commonwealth naturalization could not give the full rights and privileges of citizenship. It could only 1 United States Constitution, Art. I, sec. 8, § 8. 2 Ibid. Art. I, sec. 8, § 4. give such as pertain to the individual as a resident of the particular commonwealth. The purpose of naturalization, viz; to gain the full rights and privileges of citizenship, could not thus be attained. It is also conceivable that the President and Senate might conclude identical treaties with all foreign states upon this subject, which, in the absence of legislation by Congress, or if made subsequent to legislation by Congress, would establish an uniform rule of naturalization. This is also an extreme improbability. Practically, then, the power to establish an uniform rule of naturalization is vested exclusively in the legislative department of the general government.1 It is not quite so manifest, however, that the power of the Congress over naturalization generally is exclusive. Naturalization conferred under the statutes of Congress has this great advantage: that it confers upon the person receiving the same both those rights and privileges of citizenship which stand under the guaranty and protection of the general government, and those which stand under the guaranty and protection of the commonwealth in which the person may chance to reside. But so far as the constitution is concerned, it is difficult to see why the commonwealths may not, even during the existence of such congressional statutes, confer, in whole or in part, those rights and privileges of citizenship which stand under their exclusive control and protection, upon terms more favorable to the alien than those contained in the congressional statutes. Many of the commonwealths do so.2 It is also difficult to see, so far as the constitution is concerned, why the President and Senate may not by treaty with a particular foreign state establish for the subjects of that state a different rule of naturalization from that prescribed generally by the statutes of Congress. 1 Chirac v. Chirac et al., U. S. Reports, 2 Wheaton, 259. 2 Stimson, American Statute Law, titles, "Alien," "Naturalization," "Suffrage.” Lastly, in case the Congress should not have regulated the subject by statute, a fortiori there would seem to be no reason, from the standpoint of the constitution, why the commonwealths might not act, each for itself, in so far as its powers extend, or why the President and Senate might not proceed by treaty. From the standpoint of political science, however, this possible alternation in the control of this subject is not to be approved. The dictum of political science would be the exclusive control of the subject by the legislation of Congress, which would mean that aliens should remain aliens until Congress should see fit to provide for their naturalization. 7. Legislation in respect to Bankruptcy. The constitution vests the Congress with the power to "establish uniform laws on the subject of bankruptcies throughout the United States." The same considerations are applicable to this topic as to that of naturalization. A single statute of bankruptcy for the whole United States can, of course, be enacted only by the legislature of the general government, and uniformity could hardly be attained. in any other way. The establishment of uniform laws upon the subject is, therefore, practically an exclusive power of the Congress. If, however, there should be at any particular time no congressional statute regulating the subject, it is difficult to comprehend, from the standpoint of the constitution, why the commonwealths may not undertake to establish bankrupt laws. In practice the constitution has been interpreted to permit this, and the Court has approved the practice. The cases hold, of course, that a commonwealth bankrupt law cannot affect the rights of non-residents, and 2 1 United States Constitution, Art. I, sec. 8, § 4. Sturges v. Crowninshield, U. S. Reports, 4 Wheaton, 122; Ogden v. Saunders, U. S. Reports, 12 Wheaton, 213; Boyle v. Zacharie, U. S. Reports, 6 Peters, 345; Gilman v. Lockwood, U. S. Reports, 4 Wallace, 409. cannot discharge past indebtedness as between residents, and that, upon the enactment of a general law by the Congress, the operation of such a commonwealth law would be entirely suspended. There is no such reason in political science for the exclusive control of bankruptcy as for that of citizenship. Citizenship is a fundamental political concept, and its principle determines in large degree the whole character of the state, while bankruptcy is a subject of minor concern and of temporary importance. 8. Legislation in respect to Crime. The constitution vests the Congress with the power to provide for the punishment of counterfeiting the securities and current coin of the United States,1 and to declare the punishment of treason.2 These are the only crimes concerning which the power of legislation is conferred upon the Congress, except the crimes committed on the high seas and offences against international law, which I have already considered, and crimes committed in the territories and districts which do not enjoy commonwealth government, which I shall consider further on; i.e. these are the only crimes committed within the commonwealths concerning which Congress has the power to legislate. There are no specific limitations. placed by the constitution upon the power of Congress to legislate for the punishment of counterfeiting the securities and current coin of the United States; but in legislating upon this subject, Congress may not over-step those general limitations upon the powers of the government, which I have treated in the previous division of this work. This power of the Congress cannot be said to be exclusive. The constitution does not deny the exercise of this power to the commonwealths, and there is no reason in political science which would forbid it so long as the action of the commonwealths does not hinder that of the general government upon the subject. The Court takes this view of the question.3 1 Art. I, sec. 8, § 6. As to the crime of treason, however, the power of legis lation by Congress is somewhat closely hedged about with constitutional restrictions. This is both rational and proper. Treason is the criminal concept through which the government may unrighteously rid itself of its political opponents. A party in opposition to the governing party is an absolute necessity to the preservation of liberty. The governing party must not be allowed to silence the arguments of the opposition through criminal prosecution. It must not be allowed to treat peaceable opposition to its policies as disloyalty to the country, as treason against the state. It is not impossible that the policy and practice of the governing party itself may at times approach nearer to treason than those of the opposition. The constitution, therefore, does not vest Congress with the power to define treason. It undertakes to do that itself. It declares that "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." 1 The interpretation of the phrases "levying war' and "adhering to their enemies" is a matter wholly for the Court. The Court is thus empowered to defend the individual against prosecutions for any extraordinary treasons which the Congress might attempt to construct. The constitution also prescribes the rule of evidence necessary to convict for treason, viz; the testimony of two credible witnesses to the same overt act, or confession of the accused in open court. The legislation of Congress is thus most carefully confined to the fixing of the punishment; and in this sphere it is subject to the restriction that it cannot decree corruption of blood or forfeiture as a punishment except during the life of the person attainted. This language re 1 United States Constitution, Art. III, sec. 3, § I. 2 Ex parte Bollman and Swartwout, U. S. Reports, 4 Cranch, 75; Hanauer v. Doane, U. S. Reports, 12 Wallace, 342; Carlisle v. United States, U. S. Reports, 16 Wallace, 147. 8 United States Constitution, Art. III, sec. 3, § I. 4 Ibid. Art. III, sec. 3, § 2. |