But the principle of national sovereignty which operates in Congressional legislation on money, currency, coinage, and legal tenders, does not nullify the principle of contracts. A lawful contract between parties that calls for payment of a particular article with a particular article, be it silver coin, gold coin, national bank notes, treasury notes, reserve bank issues, or subsidiary coin, is satisfied only when executed in the terms of the contract. The obligation of the contract would be impaired if it were executed otherwise than as the contract itself sets forth.[72]
31. Congress is not under contract to coin money, to pay the debts of the United States, or to borrow money in any particular way. Duties, excises, and imports must be uniform throughout the United States, and this condition is a fundamental limitation. No limitation is placed by the Constitution on the power of Congress over the currency. This power is supreme. It is a power which, duly exercised, secures the existence of sovereignty itself.[73]
A function of sovereignty is performed in the issuing of a bill of credit, the sovereign power thus pledging its faith, and the thing issued is designed to circulate as money. The State, or Commonwealth, in the Union, is not a sovereign for this purpose, as the Constitution provides.[74] So when a State incorporates a bank, which issues bills of credit, the act of the bank is not an act of sovereignty, and the State, though a stockholder in the bank, imparts none of its sovereignty to the bank. The bank as a corporation, not the State as an incorporator, is answerable for the obligations of the bank.[75] To constitute a “bill of credit,” in the meaning of the Constitution, it must be issued by a State, on the faith of the State and be designed to circulate as money.[76]
32. Power to provide for the punishment of counterfeiting the securities and current coin of the United States is specially delegated to Congress,[77] but it is not denied to the several States. The power to coin money belongs exclusively to Congress[78] as a mark and necessary incident of sovereignty, but counterfeiting the coin constitutes an offense against both the State and the United States. The uttering of counterfeit coin is a cheat, and the State can protect its citizens against fraud by exercise of its police power. Such offenses fall strictly within State jurisdiction. Counterfeiting debases the coin, throws spurious and base metal, or false securities into circulation, and is an offense against that constitutional power which is exclusively authorized to create a currency for public uses. The offense is against the sovereignty of the nation, and, being a fraud, it is against the sovereignty of the State. In either case it imperils sovereignty.[79]
33. The power of Congress to establish post offices and post roads is not an exclusive power, for the States are not prohibited to legislate on the same subject. But Congress has unlimited power over it and may designate what may be included in and what may be excluded from the mails. This exercise is doubtless of the police power. It does not follow that congressional establishing and regulation of post offices and post roads mean that Congress has power to deal with crime or immorality within a State in order to maintain that it possesses the power to forbid the use of the mails in aid of the perpetration of crime and immorality. So a postal law of Congress excluding lottery tickets from the mail is not an abridgment of the freedom of the press. Congress, by reason of the nature of its functions, is empowered to determine what shall and what shall not be carried in the mails, and the right of freedom of speech does not give the right to injure the objects or to defeat the purposes which government is ordained and established to further and protect.[80] But the State, in exercise of its police power, may undoubtedly protect its citizens from injury springing out of that intercourse known as the mail service so long as it is wholly intrastate,—that is, within its jurisdiction.
34. Copyrights and patent rights are privileges granted by Congress for a term of years and are strictly statutory—for the United States has no common law. The States may exercise their powers in like manner, subject to the essential condition that the Constitution is the supreme law of the land. Copyrights and patent rights are examples of rights which exist by act of Congress,[81] but the right thus created does not annul the ordinary police power as put forth in the police regulations of a State. The person owning or controlling either copyright or patent right is not thereby empowered to defy the laws of a State as respecting the sale of the article in which or over which he has the exclusive right. The article itself may be adjudged injurious to the public and, therefore, by police regulation, forbidden to be sold or to be exposed for sale in the State. The patent right prevents others than the inventor from participating in the fruits of his invention, without his consent; but the exercise of the right must be in subordination to the police regulations of the State, otherwise, “a person might with as much propriety claim a right to commit murder with an instrument, because he held a patent for a new and useful invention.”[82] It may be accepted as a principle that “patent laws do not interfere with the power of a State to pass laws for the protection and security of its citizens, in their persons and property, or in respect to matters of internal polity, although such laws may incidentally affect the profitable use or sale by a patentee of his inventions.”[83]
35. The power of Congress, expressly delegated to it, “to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations,” is not exclusive. The States are not prohibited from legislating on the subject. Offenses committed within the jurisdiction of a State are punishable by State laws. Such offenses are punishable by common law. If there is no act of Congress covering the offense, then the United States has not assumed jurisdiction. But absence of a specific mention or definition of the offense does not invalidate a claim of jurisdiction when the result of the offense is piracy. Piracy is robbery committed within the jurisdiction of the admiralty,[84] but an offense that effects piracy, though not technically robbery, is piracy.[85] As piracy is an offence against the law of nations, and not strictly against domestic municipal law, it falls within the jurisdiction of the admiralty—a jurisdiction over which the judicial power of the United States is expressly extended by the Constitution.[86] This jurisdiction is not exclusive as provided for by the Constitution. Practically, however, the States do not legislate on the subject, unless it be to provide for the execution of their police power over their own waters.
36. The “admiralty jurisdiction” of the United States is co-extensive with its authority over or on waters, fresh or salt, including the high seas, the Great Lakes, and rivers and streams commerce over which it has power to regulate. Thus this jurisdiction is over the American ship wherever it may be. “Offenses committed on vessels belonging to citizens of the United States, within their admiralty jurisdiction (‘that is within navigable waters’) though out of the territorial limits of the United States, may be judicially considered when the vessel and parties are brought within their territorial jurisdiction.”[87]
37. The war power is possessed by Congress exclusively,[88] for the limitation of the States as to declaring war can be construed only as an exclusive delegation of this power to the United States. The exercise of this power is a sovereign act and may consist in a formal declaration of war, or a formal recognition or declaration of a state of war. War existing by such regulation, the President, as commander-in-chief of the army and navy, and of the militia of the several States when called into the actual service of the United States, is bound by his oath faithfully to execute his office—which is to execute the laws of the United States. It is for the President to determine how to execute his office; that is a political, not a judicial question. “He must determine what degree of force the crisis demands.” He must decide the character of the opposing forces, whether they are belligerents, or of some other character. He may close ports or declare a blockade of the enemy. He possesses the whole executive power of the United States. Ratification of his acts though ex post facto are constitutional,—fundamentally because sovereignty having vested the executive office in a President, and he having performed its duties to the best of his ability, refusal to consider his acts as constitutional would be repudiation by sovereignty of an act which had been done by its authority.[89]
38. The word “State” in the Constitution refers to a State of the Union.[90] For while the Constitution was made, “ordained and established by the people of the United States for themselves,”[91] it was made for the people of the United States in States. Thus it follows that over a domain not constituting a State, that is, over a domain consisting of a ceded district, or a territory, or an outlying possession, Congress has sole jurisdiction. Only the United States and the several States possess sovereignty. No State, or a member of the Union, has jurisdiction over the district and there is no other American government than Congress to exercise it. “Territory” like property by common law must have an owner; if it is self-owned and self-governed, it is sovereign; otherwise it is a subject or possession of sovereignty. It follows, as to American constitutional law, that subdivisions of States are wholly within State jurisdiction: Congress having no jurisdiction over counties or cities other than as, in a general way over matters, Congressional legislation affects counties and cities as parts of States throughout the United States.[92] And unless a State has ceded its jurisdiction over a district within its borders, it has full authority to levy taxes, to execute its inspection and other police laws and regulations within that district. Thus Kansas ceded the Ft. Leavenworth Military Reservation to the United States in 1875, but the deed of cession granted no more than use of the land as a military post; the State, therefore, could levy and collect taxes within this area, having never parted with the sovereign right to do so.[93] And any other powers or rights of the State, over this area, not explicitly granted to the United States by Kansas in the deed of cession remain intact in the State; its original jurisdiction as a State, save as explicitly modified by that deed, remains.