trary in 1928 having been subsequently
overruled.[1186]

TRADE-MARKS AND ADVERTISEMENTS

In the famous Trade-Mark Cases,[1187] decided in 1879, the Supreme Court
held void acts of Congress which, in apparent reliance upon this clause,
extended the protection of the law to trade-marks registered in the
Patent Office. "The ordinary trade-mark" said Justice Miller for the
Court, "has no necessary relation to invention or discovery"; nor is it
to be classified "under the head of writings of authors." It does not
"depend upon novelty, invention, discovery, or any work of the
brain."[1188] Not many years later the Court, again speaking through
Justice Miller, ruled that a photograph may be constitutionally
copyright,[1189] while still more recently a circus poster was held to
be entitled to the same protection. In answer to the objection of the
Circuit Court that a lithograph which "has no other use than that of a
mere advertisement * * * (would not be within) the meaning of the
Constitution," Justice Holmes summoned forth the shades of Velasquez,
Whistler, Rembrandt, Ruskin, Degas, and others in support of the
proposition that it is not for the courts to attempt to judge the worth
of pictorial illustrations outside the narrowest and most obvious
limits.[1190]

Clause 9. _The Congress shall have Power_ * * * To constitute Tribunals
inferior to the supreme Court; _See_ article III, p. 528.

Clause 10. _The Congress shall have Power_ * * * To define and punish
Piracies and Felonies committed on the high Seas, and Offences against
the Law of Nations.

Piracies, Felonies, and Offenses Against the Law of Nations

ORIGIN OF THE CLAUSE

"When the United States ceased to be a part of the British empire, and
assumed the character of an independent nation, they became subject to
that system of rules which reason, morality, and custom had established
among civilized nations of Europe, as their public law. * * * The
faithful observance of this law is essential to national character,
* * *"[1191] These words of Chancellor Kent expressed the view of the
binding character of International Law which was generally accepted at
the time the Constitution was adopted. During the Revolutionary War,
Congress took cognizance of all matters arising under the law of nations
and professed obedience to that law.[1192] Under the Articles of
Confederation, it was given exclusive power to appoint courts for the
trial of piracies and feloni