sion conveyed by the learned professor is really THE CONSTITUTION OF THE UNITED at the bottom of the confusion in New York practice, and explains why over one-half of the time of the courts is taken up in correcting mistakes of lawyers. By the statistics we are not so bad off here, but when it can be said truly that special pleading is a lost art, we shall be. Individually, I protest the learned judge may confess that he never knew, or has forgotten, the art, but the writer knows personally quite a number of lawyers that are first rate special pleaders, and judges, who are masters of the art, and while he agrees with many things, as STATES AND ITS RELATION TO THE AS S legal science progresses, much that has been said concerning "written Constitutions" is seen to be of superficial importance. The fact that the organic provisions are expressed in formulated clauses and paragraphs and in particular words is nothing more than a distinct announcement that the provisions exist. The provisions are not the more organic because they are set down in written words. Before they can be defined they must exist. And to state and ratify the definition is simply to make a formal statement and assertion that they are were The influences which produced the common law of England produced what is called the English Constitution and, also, the Constitution of the United States. Owing to the incidental fact that George the Third was a narrow-minded and unreasonable tyrant, the American colonies driven into rebellion; and, after their separation from England had been accomplished they formulated a written summary of their convictions-a Constitution in which they embodied that which was generic and that which was specific. The generic provisions came of the same influences which have made the English Constitution, and the specific provisions were adopted "from reflection and choice." In its details, in that it made provision for the special conditions of the thirteen colonies and for a definite union upon certain terms it was, perhaps, unique. But in its spirit and substance it was in no essential respect unlike the unwritten Constitution of the nation from which there had been a separation. Then, as now, the influences which had created the Magna Charta and that which followed it were operative in both England and the United States. indeed most of what is said in the articles mentioned, he believes that a great deal can be done to simplify the use of our procedure by study-operative and of controlling force. ing it. Of course, that is a good deal like saying, 'Go wash seven times in the Jordan,' but if the statute of amendments and jeofails was bound in our statutes with the practice act, and the applicants for admission to the bar required to pass a good examination upon pleading and practice, it would save them much future trouble, their clients money, and much of the time of the court, to say nothing about the waste of public funds on account of appeals and retrials. "They have legislated and simplified for almost fifty years in the Empire State, while the reformers have said, 'It is no use to study pleading.' In Connecticut they have legislated a little and studied much. The result is that the practice act of the latter is held up as a model, while the Code of Procedure is pointed to an example to be avoided,' and the Legislature is now laboring to reconstruct it 'in a spirit of true reform.' No State in the Union ever spent one-fifth so much as New York upon its procedure. For fifteen years the Code commission was kept up, and drew volumes of acts and salary without stint. In a few more years this fabric was torn to pieces against the protest of From a period earlier than we recognize these inMr. Field, by another reviser, and later there fluences had been moving as they are now moving were nine chapters added to the history of with unfaltering progress. In England they found practical simplicity in procedure, and then thir-expression in rules which have not been reduced to teen more, and sections ad infinitum, and now they have more Solons, selected by the governor's appointment, and they have begun inquiring, 'Whence came we, and whither have we drifted?' Samuel Warren said in 1855, which is quite as applicable to our procedure in 1895 Never was it so absolutely indispensable as now to study law systematically and master principles, in order to avoid being overwhelmed by changes of detail and administration, and steer through them with safety and comfort. He who does not pursue this course will find himself tossed about, without rudder or compass, on a wild sea of change.' a system of written clauses and paragraphs. In the United States they found expression, first, in the great Declaration of Independence (as broad and inclusive in its postulates as if it existed only in the minds of those who published it) and later on in the written Constitution of the United States. To that written Constitution we have added a recognition of the fundamental doctrine that the only words of limitation which it contains are those which relate to that which has been demonstrated—the things of the past which have been solved and concluded. For instance: We adopted the Fifteenth Amend At a much earlier date, what may be designated trade-mark rights had been recognized or referred to in the English courts of both chancery and common law jurisdiction; but the evil of unfair competition was of such small proportions that it attracted very little attention. In North America commercial relations were only beginning to expand. The fact, therefore, that our Constitution contains no ment, by which African slavery was "prohibited within the United States. The original Constitution recognized African slavery, and to that extent, as we now perceive, it was illogical and inconsistent-a compromise with oppression which denied the truth of the most essential premises. The inconsistency brought about a war of unprecedented magnitude. But the great force which was behind the written words prevailed, and in the end adapt-specific reference to the subject is not in any deing itself to circumstances, wrote the amendment. The correction is of real root and vigor, not by reason of the struggle which preceded it, but because it states a limitation which was opposed by an evolution--by that which had been concluded and forever settled as distinguished from that which remains to be solved. In 1787 the Fifteenth Amendment could not be adopted because the operation of the forces and influences which produced it were for a time necessarily delayed. The union of the colonies was a pressing emergency, to which many important considerations were subordinated. African slavery was laid out of sight, and more immediate facts and dangers were made the basis of action. But the logical and natural progress of the forces and influences, which had been in part directed and given form, went on; to agitation was added war, and in the end the imperfection was corrected by the amendment. Nothing was added to the organic law except the recognition of a limitation which the evolution of the past had demonstrated to be an irrevocable decision from which there was no semblance of appeal. The language of the amendment, in extenso, might have been stated thus: "Because by experience, by suffering, by war and its loss of blood and of treasure, by the unwritten will of the American people, it has been made plain that African slavery is contrary to the rules and maxims of civilization, we do again ordain that all men are created equal, and that by our organic law African slavery shall not exist within the United States." It would be scarcely going too far to say that the written Constitution of the United States in all it parts presupposes the existence of the common law of Eugland, and is in many respects constructively subordinate thereto. I have ventured to offer these generalizations because they are of fundamental importance as affecting, perhaps, all that is generic in our Constitution; and because they are specially significant in connection with the things which that comprehensive instrument is by many supposed to have left untouched. They are of unusual and very pointed importance in considering the bearing which it has upon the subject of trade-marks. At the time the Constitution of the United States was formulated trade-marks were almost unknown. gree surprising. There is no reason why it should have contained the word "trade-mark" or any other work which could be construed to refer specifically to marks of origin or identification. The superficial observer is disposed to find in the fact that our Constitution contains no direct reference to trade-marks evidence that the instrument is imperfect and incomplete. It contains provisions conferring power to legislate upon copyrights, patents and bankruptcy-the popular view appears to be that there should have been a delegation of power to provide for the protection of trade-marks. But to examine the supposed omission and to understand the nature and history of the things involved is to demonstrate that in this respect the supposed defect is the strongest possible evidence of wisdom and consistency. I think that there is no doubt whatever that the Constitution of the United States contains a delegation of power to legislate on the subject of trademarks, and that the power which is conferred is as inclusive as it could have been made without assailing distinctions of a fundamental character. I think that in this respect nothing can be logically added to it and that any amendment conferring power analogous to that conferred in respect of copyrights and patents would be a deplorable inconsistency. Allusion has been made to the now well-defined fact that to our written Constitution has been added the doctrine by which its language is given the greatest elasticity. This doctrine or rule of construction is not, in the abstract, a new one. It comes in part of the inevitable growth and expansion of the use and meaning of words. We realize that the meaning of words changes and that the concept or idea communicated by means of a word in one century differs materially from the concept or idea which the same word symbolizes a century or the fraction of a century later. The words of our Constitution, except to the extent that they have a final value, are to be read in the light of the present and not as inseparable parts of the period in which they were first used. Without this necessary rule of construction it is obvious that they would be hopelessly inadequate and impotent. The importance and utility of the rule by which the true meaning of the words of our Constitution is determined are conspicuously illustrated in the judicial deliverances relating to the word "commerce." When the Constitution was adopted, that word meant much less than it means to-day. But the wisdom of the Supreme Court has given it such elasticity that we easily perceive that it is of the most inclusive character. Telegraphy was wholly unknown in 1787 and the word "telegraph" had not been coined. But it has been held in our national court of last resort, and with obvious wisdom and consistency, that the word "commerce" as used in the Constitution includes telegraphy. Speaking for the court, Chief Justice Waite says: "The powers thus granted are not defined to the instrumentalities of commerce * * * known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage coach, from the sailing vessel to the steamboat, and from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these agencies are successively brought into use to meet the demands of increasing population and wealth." (96 U. S. 9.) Not less liberal have been constructions which have been placed upon the organic provisions relating to copyrights. These provisions are that "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." It is not difficult to understand what the word "writings" meant in 1787; but it has been held by the highest judicial authority to include things which were not in any sense "writings" at the time the word was selected. In the courts of the United States, it means to-day anything and everything which is the result of that kind of mental operation which produces a book or writing. A figure or group of figures in marble or bronze, a design or bas-relief in stone or metal or wood, even a photograph or a negative thereof is a "writing" in the sense of the organic word. Those who have with unimpeached wisdom given this elasticity to the word have read it in the light of the purpose which was intended to be secured, and reading it in that light there is no room for doubt or difference of opinion. pression "writings and discoveries" includes everything of which the mind of man is capable, which, being the result of "original thought," tends to promote the progress of science and the useful arts. There can be no doubt that there are but two provisions in our Constitution which can by any process of reasoning be made to include the power to legislate concerning trade-marks. The first of these is the provision which has just been mentioned relating to the progress of science and the useful arts. This provision, however, may be at once laid out of sight for almost obvious reasons. It was said by Mr. Justice Miller: "The ordinary trade-mark has no necessary relation to invention or discovery. * * * It may be, and generally is, the adoption of something already in existence. ** * It does not depend upon nov elty, invention, discovery or any work of the brain. It requires no fancy or imagination, no genius or laborious thought. It is simply founded on priority of operation." (100 U. S. 94.) The Constitution is as if it read: Congress shall have power to promote the progress of science and the arts, but only by securing the exclusive right to writings and discoveries. Manifestly, trade-marks are not in any right sense included within the words "writings and discoveries." They are symbols or commercial signatures, and for this reason they are not within a provision which looks to "fancy," "imagination," "genius " and "laborious thought." After reading the opinion of Mr. Justice Miller, it is obvious that a trade-mark has no relation to science or the useful arts, and that marks to denote origin cannot be brought within any possible construction of the section relating to literature and the arts. The other provision of the Constitution which has been said to have a bearing upon the subject of trade-marks is that known as "the commerce clause." And to say that this clause does not include trade-marks is to say that there has been no actual or constructive delegation of power to legislate on that important subject, and, baldly, that the Constitution of the United States is imperfect and incomplete. But whatever may be our impressions, in view of the history of the last quarter of the present cenIt is thus plain that the words of the Constitu- tury and the decisions of the Supreme and inferior tion of the United States are under no circum-courts of the United States, it may be said that no stances to be read as words of restriction or limita- | doubt remains that the word "commerce " is broad tion where they apply to the living and increasing enough to support any legislation that Congress growth of the present as distinguished from that will ever enact. which has been finally executed and closed. Where Perhaps the most important part of the history of the word relates to that which is executory, it has trade-marks, and that which is especially instructno boundaries or limitations except those which de- ive, is the fact that they have been made the subfine the object which is contemplated. The ex-ject of treaties between nearly all the civilized na tions of the world. During the last half a century the United States have made treaties with nation after nation, by which what purport to be reciprocal obligations have been assumed; and whatever power the United States have to make these treaties is derived from the Constitution. They have no power to enter into any agreement or exercise any power with which they have not been invested by the Constitution; they can make contracts only within the limitations of the code from which their capacity to act is derived. They certainly cannot by means of a treaty or in any other way control those things which have been reserved to the several States and the jurisdiction over which has been expressly withheld from the central government. It is necessarily true either that the government of the United States has no power to make a treaty having relation to trade-marks or that it has by virtue of the Constitution been invested with power to make such a treaty; and it is equally certain that unless the power to make such a treaty was conferred by the commerce clause it does not exist. Unquestionably the word "commerce" includes the use of trade-marks in the same way and for the same reason that it includes telegraphy. And it may regulate the use of trade marks in the same manner and to the same extent that it can regulate commerce generally. But, as has been suggested, the decisions of the Supreme Court probably leave no room for doubt. It is possible that the language used in the Trademark Cases is suggestive of some uncertainty, but the opinion as a whole may be regarded as a statement that the statute which was held to be unconstitutional would have been found to be within the powers of Congress if it had been accurately limited to those kinds of commerce which are under congressional control. In the case of Rider v. Holt, 128 U. S. 525, and possibly in cases which have been since decided, there is a recognition of the power of Congress to legislate concerning trade-marks used in commerce with foreign nations; and in the Circuit Courts the existence of this power has been directly affirmed (22 Fed. Rep. 823). In recent legislation it has been assumed that the power exists, as well as by what is known as "the silent practice of the courts." It is not to be doubted, and would seem to be axiomatically plain, that the treaty-making power of the government of the United States necessarily includes the power to make a treaty which shall deal with any and every subject which is a matter of international importance. And in the light of the broad rule by which the possible insufficiency of the letter of our Constitution is subordinated to the spirit and purpose which may have been imper fectly expressed we have no difficulty in finding in the word "commerce" all the elasticity that is necessary. We need not concern ourselves about what that word might have meant at the beginning of the present century. There is no accepted rule or maxim by which it can, at the end of the century, be given a meaning which is narrow and exact. By the Constitution commerce may be said to be divided into four classes, namely, foreign commerce, commerce with the Indian tribes, interstate commerce and infrastate commerce. Over the first three classes, Congress may exercise control; over the last, "the commerce only between citizens of the same State" (100 U. S. 96), it has been repeatedly held that Congress has no color of jurisdiction. In numerous cases the Supreme Court has emphasized the importance of the limitations by which the power to regulate commerce are restricted. "Commerce among the States," it is said, "means commerce between the individual citizens of the different States," and "there still remains a very large amount of commerce, perhaps the largest, which, being trade and traffic between citizens of the same State, is beyond the control of Congress." (100 U. S. 96.) These words were uttered by Mr. Justice Miller less than a quarter of a century ago and are an expression of views about which there existed no possible uncertainty. * As we read them to-day we perceive that they have not the same weight and significance which they had at the time they were uttered. This is true because what is designated "commerce among the several States" and infrastate commerce are essentially antagonistic and the former is manifestly of greater energy and momentum. As the institutions and commerce of the United States have increased, the relations between the citizens of the different States have become more intimate and im portant. The purchase and sale of the necessities of life may be restricted to the limits of a single State, but the production of these necessities and their sale in quantities is of a different character. It is manifestly true that in 1895 the expression "among the different States" has a meaning which is distinctly different from that which it bore when the expression was adopted. Commerce between New York and California at one time involved impossibilities. The infrastate commerce of California was almost the only commerce which existed within the borders of the State. To-day, by reason of the conveniences of travel and transportation, New York sends her products in large quantities to California, and that wonderful land of plenty returns to New York her fruits, and wines and other products in almost fabulous profusion. The importance of infrastate commerce depends upon the existence of communities which are separated from each other. Interstate commerce contemplates a broad and perfect union by which the whole country is, to all the intents and purposes, made to be a single community. All the increase which comes of the progress of the different arts and manufactures of the different States must be in the direction of an enlargement of the relations existing between them. And the enlargement and multiplication of those relations will necessarily add to the organic provision and render it effectual in promoting its true objects. ral government, there is no doubt that Congress may legislate the same as it may in other relations. It has power to provide for the registration of such trade-marks and to protect them by remedies both civil and criminal. I do not, however, understand that Congress has power absolutely to prohibit in commerce of any kind the use of lawful trademarks, a right to the enjoyment of which exists at common law. But for the purposes of the present discussion, I think we need not undertake to fix the exact boundaries of the power. If it is true that trade-marks lawfully in use may be protected, there is jurisdiction to enact whatever statutes are expedient without attacking rights which are beyond dispute. I think there can be no doubt that there resides legislate concerning any trade-marks except such as are lawful at common law. In other words, there is no power in either the State or general government to destroy the right to the use of a trade-mark existing at common law. Thus we find that Congress, moved by important considerations, has within a few years enacted statutes by which the Constitution is made to bear a meaning which would certainly have seemed extra-in neither the general or State government power to ordinary before the railroad and the telegraph were known. These enactments relating to interstate commerce are of unmistakably good foundation in the organic law, and are convincing evidence of its elasticity. They illustrate the existence and fundamental value of the great doctrine of construction by which the organic words are made to be truly organic in that they define the power to-day, just as they defined it a century ago. The power and the limitations of the power are the same; the American people and their commerce are not the same; the constitutional provision is none the less now, as it has always been, a valid and effectual rule of action. The right to use such a trade-mark is property, and in the United States that element of sovereignty, so called, by which there may be a confiscation of property in times of peace by legislation has ceased to exist. It has been lost to the States, and by the limitations of the Federal Constitution it does not reside in the general government. But Congress, under the commerce clause, has power to do all that is necessary, I think, to ac States of the trade-marks of all who, directly or indirectly, carry on business within their jurisdiction. It may be said that, under the Constitution, Con-complish the effectual protection in the United gress has power to deal with all the influences and agencies by which the interchange of commodities among the States is effected. The channels of trade have their sources in one State and cross and ter minate in many States. Congress has power to keep these channels free, and to do so it may enter the jurisdiction of a State. This doctrine is, also, one by which the narrow rule is antagonized, and by which the lines of the international commerce of the States are rendered of doubtful stability. Certainly we shall never reach the conclusion that the earlier deliverances of the Supreme Court were in any sense erroneous or inconsistent, but there is as little doubt that civilization is progressing; that in this favored land it moves more rapidly than anywhere else, and that even the Supreme Court of the United States moves with it. But although the lines which separate interstate from infrastate commerce may yield, and continue to yield, in the direction of the expansion of the former; for the present it must be reasoned that to identify infrastate commerce is to absolutely stay and terminate the power of the general government. In respect of trade-marks used in the kinds of commerce which are under the control of the gene There is little difficulty in reaching a conclusion as to the inadequacy of existing statutes and as to the duty which the United States owe to their own citizens and to foreign nations. What is demanded is a statute which shall provide for the registration of trade-marks used in the kinds of commerce over which Congress has control, the counterfeiting of the trade-mark to be made a crime punishable by fine and imprisonment. The statute should authorize the issuing of a certificate, to be delivered to the registrant upon compliance with reasonable proof of ownership, the certificate to be prima facie evidence of ownership in all proceedings in which the right to the trade-mark may be made the basis of action. I think there can be no doubt that the general government has power to make its certificate prima facie evidence of ownership; there is as little doubt, as has been intimated, that neither the general government nor the State government has power to issue a certificate which would be equivalent to a grant and conclusive evidence of title. The Federal statute would necessarily be limited so as to prohibit only the authorized use, actual or |