Page:Harvard Law Review Volume 32.djvu/594

558 SS8. HARVARD LAW REVIEW Pomerene Act, which relate directly to the contract between the shipper and the carrier are thus governed by federal law, but those which relate to the transfer of the bill of lading between third parties, if for no other reason than because the rights of the transferee necessarily affect the obligation of the carrier. If the purchaser of the bill of lading acquires an indefeasible title to the goods, the carrier must recognize that title, and will be liable in damages if he fails to do so. In United States v. Ferger,^ however, it has recently been held that section 41 of the Pomerene Act, which makes criminal the forging of an interstate bill of lading, is unconstitutional, "since the forged bills of lading were nothing but pieces of paper fraudulently inscribed., . . They were not receipts for goods. . . . They did not affect interstate commerce." The court excluded from contemplation, as possibly presenting a different question, the counterfeiting of an existing genuine interstate bill of lading. An argument of this character is applicable not alone to forged bills of lading, but to any case where Congress seeks to punish a simulation of a lawful means or agency for promoting a constitutional object. The court refers in its opinion to the counterfeiting of money of the United States, and distinguishes the admitted power of Congress to punish counterfeiting money from the asserted power to punish counterfeiting bills of lading on the ground that the Constitution itself gives power to Congress "to provide for the punishment of counterfeiting the securi- ties and current coin of the United States." This express statement in the Constitution certainly does deprive the illustration of counterfeit money of value as an argument; but Congress has undertaken to punish not only counterfeiting its own money and securities, but those of foreign countries, and this legislation has been held constitutional,^ though no direct authority is given in the Consti- tution similar to that regarding domestic money and securities. The Supreme Court did, indeed, in reaching its conclusion, rely mainly on the provision in the Constitution which gives Congress power to punish offenses against the law of nations, but also relied on the power of Con- gress to regulate commerce with foreign nations; and the fact that the forging of foreign securities might be a subject of foreign commerce was held a reason for protecting such commerce by punishing the forgery. Another statute, also held constitutional,* shows the power of the government to punish simulation of what has been put under the pro- tection of the national government. It has been enacted by Congress: * "Whoever, with intent to defraud either the United States or any per- son, shall falsely assume or pretend to be an officer or employee acting under the authority of the United States . . . shall be fined," etc. It will be observed that this provision punishes the fraudulent demanding or obtaining from "any person" any money, paper, etc.; and this pro- vision has been sustained by the Supreme Court, though the guilty defendant purported to hold an office under the United States which 2 So. Dist. Ohio, October, 1918. ' United States v. Aijoua, 120 U. S. 479 (1887). ' CoMP. Stats. § 10196 (1913).
 * United States v. Barnow, 239 U. S. 74 (1915)-