Cornell University Library 
 . .f~ KF4606.J78 
 
 M /- Th?..5?.KS^SLffilfiiiinilim"^^^^^^^ 
 
 3 1924 019 913 619 «• 
 
 BOUGHT WITH THE INCOME 
 FROM THE 
 
 SAGE ENDOWMENT FUND 
 
 THE GIFT OF 
 
 fienrg W. Sage 
 
 189Z 
 
 A.€OS.03^. 2//S/ 
 
 5901 
 
Cornell University 
 Library 
 
 The original of this bool< is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31 92401 991 361 9 
 
THE 
 COMMERCIAL POWER 
 
 OF 
 
 CONGRESS. 
 
 BY 
 
 PAUL JONES, LL. B. 
 
 COUNSELLOR-AT-LAW. 
 
 "The Congress shall have power . . . to regulate Commerce with foreign 
 Nations, and. among the several States, and with the Indian Tribes." 
 
 Constltulloii of the United States, Aitlcle I, Section VIII, Clause 3. 
 
 PBIVATELT FBINTED. 
 NSW YOBK, 1004. 
 
(c \o\ B ?HS 
 
 CoPYMGHTj 1904, 
 
 PAUL JONES. 
 
My Dear Sir:— 
 
 Will you do me the honor to accept this book, in tardy 
 recognition of my indebtedness to you, for your care as 
 a tutor and as a wise counsellor, at the commencement of 
 my professional career. 
 
 May I also venture to add, that your own personal and 
 professional connection with the development of the sub- 
 ject considered in its pages, has been such, that I know 
 of no one, who would be more interested in the result, or 
 appreciate more fully the labor it has occasioned me. 
 
 No. 54 William Street, 
 New York, December ist, 1904. 
 
 Yours truly. 
 
 To:— 
 Edmund D. Baxter, Esq., 
 Nashville, Tennessee. 
 
 Paul Jones. 
 
PRESS OP 
 
 CLARENCE S. NATHAN 
 
 9 and 11 Franklin St. 
 
 New York 
 
PREFACE. 
 
 There appears to be no subject of more importance, 
 demanding the attention of the American people, at the 
 present time, than a consideration of that clause of the 
 Constitution of the United States, which vests in Con- 
 gress the power to regulate commerce; and the import- 
 ance of the subject, arises as much from a steadily in- 
 creasing demand for a more comprehensive plan for the 
 regulation of trade, by the li|^slative authority of the 
 federal government, in pursuance of its commercial 
 power, and to what is generally admitted to be the in- 
 adequacy of measures hitherto adopted, for the regula- 
 tion of certain corporations, engaged in the business of 
 transportation, and for the management and control of 
 so-called "Trusts," as it does from that natural tendency 
 to centralization, which is incident to all forms of govern- 
 ment. 
 
 From the inherent nature of the power itself, its exer- 
 cise by the federal government, is, of course, primarily a 
 subject for the political consideration and action of Con- 
 gress; but, since the validity of any action, on its part, 
 is ultimately to be determined by the courts, a correct 
 and intelligent solution of the political question involved 
 in such action, must always depend, upon a proper under- 
 standing and appreciation of those general principles of 
 constitutional interpretation, which have been laid down 
 and established, by the Supreme Court of the United 
 States, in determining the subjects, upon which the power 
 
PREFACE. 
 
 may be exercised, as well as in defining the legitimate 
 scope of its operation. 
 
 It is, therefore, only for the purpose of ascertaining 
 these principles, and of tracing the development of the 
 constitutional power of Congress to regulate commerce, 
 in its bearing upon the various subjects to which it has 
 been heretofore applied, that this book has been written, 
 and is now offered to the public. 
 
 Being confined to this purpose alone, care has been 
 taken to avoid the expression of any personal views, 
 which the author may entertain, concerning the subjects, 
 considered in its pages, and such expression has been 
 indulged in, only in a few instances, where it was thought 
 to be necessary to a complete elucidation of some doctrine, 
 the authority of which seems to have been brought in 
 question. 
 
 But, whatever merit this work may otherwise have, it 
 has been done, in the belief, that, no subject is more 
 worthy of consideration, to the citizen, none calls for a 
 more profound knowledge, on the part of the legislator, or 
 is entitled to a higher respect and reverence, from the 
 jurist, than the principles upon which the Constitution is 
 based; for, under its provisions the personal rights of 
 the people are defined; the limits of legislation is de- 
 termined, and, in the conscientious enforcement of its 
 principles, by the judiciary, is alone to be found a suffi- 
 cient guaranty for the contentment" and freedom of all. 
 
 The Author. 
 
THE 
 COMMERCIAL POWER OF CONGRESS 
 
 On account . of its inherent nature, as well as the 
 constant enlargement of the scope of its operation, 
 no attempt has been made to define the Commercial Power 
 of Congress, with any degree of accuracy ; but, as briefly 
 outlined in the Constitution of the United States, it is 
 that power, in virtue of which the legislative department 
 of the federal government is vested with authority "to 
 regulate commerce with foreign Nations, and among the 
 several States and with the Indian Tribes."* 
 
 The delegation of this important and extensive power, 
 to the government of the United States, was the direct re- 
 sult of necessity, growing out of the political and commer- 
 cial conditions of the several States, when the Constitu- 
 tion was framed and adopted. These conditions had then 
 already become historical, and the causes which lead to 
 their existence are to be traced to a period long prior to 
 the adoption of that instrument, if, indeed, they be not co- 
 eval with the earliest settlement of the Anglo-American 
 colonies in the Western Hemisphere. 
 
 The establishment of all the British colonies, in that 
 part of North America, now comprised within the terri- 
 
 *Const. U. S., Art. I., Sec. VIII., CI. 3. 
 
2 COMMERCIAL POWER OF CONGRESS. 
 
 torial limits of the United States, was the direct result of 
 business and commercial enterprise, undertaken by pri- 
 vate individuals or mercantile associations, the immediate 
 object of which was personal gain. In their establish- 
 ment, therefore, the English nation, as a whole, took no 
 substantial part, except, that the Crown, as parens patriae, 
 authorized the undertaking and encouraged its success, to 
 the extent of endowing the promoters with proprietary 
 title to vast tracts of unexplored lands, and of erecting 
 them into corporations, by the charters of which, these 
 several landed proprietaries were vested with such ordi- 
 nary and extraordinary powers, franchises and immuni- 
 ties, of a private and public nature, as were deemed nec- 
 essary, not only to the proper management of their large 
 estates, but also, to the full and complete political admin- 
 istration of their respective domains, without any restric- 
 tion or reservation on the part of the grantor, other than 
 the stipulation, that the inhabitants of those lands should 
 bear allegiance to the British Crown, and that they should 
 "have all the privileges of free denizens and persons 
 native of England, .... in such manner and form, 
 as if they were resident within" the realm, "any law, 
 custom or usage to the contrary notwithstanding."* 
 
 The several promoters of these colonial settlements 
 having thus been constituted lords-proprietary of the 
 
 *.See the letters-patent, granted by Queen Elizabeth, to Sir 
 
 Walter Raleigh, in 1584.— Harper's Encyclopedia of American 
 
 History, Vol. 7, 371 et seq; as to /political powers generally, 
 
 / under colonial charters, see also, MaTtin v. Waddell, 16 Pet., 
 
 I 367; Shively v. Bowlby, 152 U. S., i; Morris v. United States, 
 
 ? 174 U. S., 196. 
 
COLONIAL PROPRIETARY CHARTERS. 3 
 
 lands granted to them by the Crown, and having been 
 endowed, by their respective charters, with unlimited 
 powers of government for their management and admin- 
 istration, the several colonies became, at once, separate 
 political communities, wholly independent of each other, 
 and the sole condition upon which these grants were 
 based, having been that of homage and fealty alone, 
 the only political connection between them and the 
 parent-state was that which arose from the application of 
 the principles of the feudal system; from the national 
 origin and character of the corporations, upon whose 
 members these extensive grants were conferred, and from 
 that natural allegiance which the proprietaries and the 
 inhabitants of their respective colonies owed, to the 
 sovereign, as subjects of the British Crown. 
 
 Inasmuch, however, as the full exercise of those poli- 
 tical powers, franchises and immunities, which were de- 
 signed for the civil government and administration of the 
 colonies, was vested exclusively in the corporations, to 
 which they were granted, and not to the inhabitants, 
 and, since they were intended to be employed solely for 
 the benefit of their respective corporate members, the 
 colonists, under the earlier charters, at least, were debarred 
 from all participation whatever in the colonial govern- 
 ments, and, at the beginning, they were ruled alone by 
 such laws, statutes and ordinances as the proprietaries, 
 in the exercise of these powers, and in the discretion, 
 conferred upon them by their respective charters, saw fit 
 to enact and adopt for that purpose.* But, these poli- 
 
 *If any of the original colonies offered an exception to this 
 
4 COMMERCIAL POWER OF CONGRESS. 
 
 tical conditions did not continue long. Claiming those in- 
 herent rights, which had been secured to them by Magna 
 Carta, as British subjects, and which had been guaranteed 
 by the several proprietary charters, the inhabitants of 
 colonies were not slow to assert these rights and to de- 
 mand representation in the governing-councils of the 
 corporations. In addition to this also, the proprietaries 
 soon discovered, that the methods of administration au- 
 thorized by their several charters, as well as the mode 
 of government adopted by them, were as ill-suited to 
 the political necessities of the colonists, as it was detri- 
 mental to their own financial interests. Hence, in order 
 to meet these newly developed conditions, and in recogni- 
 tion of the guaranties contained in their several charters, 
 the proprietaries, either from motives of necessity or expe- 
 diency, surrendered to the colonists, from time to time, 
 some, if not all, of those political powers, franchises and 
 immunities theretofore exercised by them, as bodies politic 
 and corporate; and thenceforth these powers, franchises 
 and immunities were exercised by the people themselves, 
 until the final abrogation of the original charters, and the 
 conversion of the proprietary colonies into royal prov- 
 inces. 
 
 Although the change thus wrought in the constitutions 
 
 general rule, it was because, as in the case of Massachusetts, 
 the inhabitants were joint-members of the corporation, under 
 whose auspices it was planted, and as such members, they 
 •were from the beginning entitled to exercise political rights, 
 not accorded to others, or, as in the case of Rhode Island and 
 Connecticut, these rights were originally conferred upon the 
 colonists, by charters granted directly to them by the Crown, and 
 on this account never fell under the proprietary rule. 
 
COLONIES AS ROYAL PROVINCES. 5 
 
 of the several colonies was intended to bring them 
 and their inhabitants more directly under the control of the 
 Crown, and to subject them to the application of the then 
 steadily growing doctrine of the paramount authority of 
 Parliament, it did not materially effect their substantial 
 political rights. These rights had been accorded to them, 
 not only by the English constitution, as subjects of the 
 British Crown, but they had also been guaranteed by the 
 terms of the several colonial charters, under the proprie- 
 tary grants, and secured beyond recall, both by direct 
 concessions from the proprietaries and by their long 
 continued and uninterrupted use and enjoyment. There- 
 fore, whenever the Crown or Parliament afterwards 
 undertook to restrict the exercise of any of these rights, 
 on the part of the colonists, the attempt was uniformally 
 resisted by the assertion of their natural rights ; by claim- 
 ing, the royal guaranties contained in the original char- 
 ters, and by the proprietary concessions made in their be- 
 half. 
 
 Likewise, when any of these rights were assailed, or the 
 validity of these concessions were questioned by the Crown 
 or by Parliament, the colonists invoked the doctrine of 
 the inviolable nature of contracts, in its application to 
 the proprietary charters, under which they had been 
 immediately secured ; and, while admitting that the abro- 
 gation of the original charters might change the authority 
 of the proprietaries, with a thorough knowledge of the 
 law, and of those constitutional principles which after- 
 wards stood them in such practical service, when called 
 upon to establish a government of their own, they always 
 
6 COMMERCIAL POWER OF CONGRESS. 
 
 contended, that this change "could not impair their con- 
 cessions or political liberties."* 
 
 But, whatever may have been the ultimate effect of 
 these contentions upon the actual political condition of 
 the colonists, under the royal regime, it is certain, that 
 the colonies retained much of their former independence ; 
 for, while the Crown claimed the right to appoint their 
 executive and other principal officers, retained a limited 
 veto, upon their acts of legislation, and asserted the doc- 
 trine of colonial government, by royal instruction, all the 
 civil and political rights, theretofore enjoyed by them, 
 were, by new charters, granted directly to the inhabitants 
 of the several colonies, confirmed and ratified, subject only 
 to these reservations, on the part of the Crown, and to the 
 assertion of the paramount authority, claimed for Parlia- 
 ment, over all colonial affairs. So that, even as royal 
 provinces, the colbnies were virtually as independent in 
 their political relation to the Crown, and to each other, 
 as they had been, under the proprietary charters. 
 
 If, therefore, disputes arose as to the existence of any 
 of these rights, they were always due to the conditions, 
 under which the royal prerogative was claimed, or under 
 which parliamentary authority was asserted; and, what- 
 ever may have been the merits of these disputes, they never 
 assumed proportions of any considerable importance, un- 
 til all the differences, from which they arose, were finally 
 merged into the single constitutional question of the 
 power of Parliament to interfere with the colonial rights 
 
 ♦Bancroft's Hist. U. S. Vol. II., 226. 
 
EXTENT OF COLONIAL TRADE. ^ 
 
 of legislation, by the imposition of taxes upon their com- 
 merce, without the consent of the representative assem- 
 blies of the several colonies, for the benefit of the English 
 exchequer. This question arose, however, too long after 
 their establishment to effect the material development of 
 the colonies. They, therefore, continued to increase in 
 population, wealth and political strength, and soon as- 
 sumed that position of commercial importance which, 
 more than any other cause, secured to England her com- 
 manding rank among the maritime nations of Europe.* 
 
 _ *In respect of the extent of the colonial trade, and its commer^ 
 cial importance to Great Britain, it may be interesting to note 
 that as early as 1670 an English author wrote that "Our Ameri- 
 can plantations employ two-thirds of our English shipping, and 
 thereby give employment to, it may be, 200,000 persons here at 
 home." See Harper's Encyclo. Amer. Hist., Vol. 8, 168. Speak- 
 ing in the House of Commons, on the repeal of the "Stamp Act," 
 Mr. Pitt estimated the profits of Great Britain, from the trade 
 of the colonies through all its branches, at £2,000,000 a year, 
 and declared that "this fund carried us through the last war;" 
 he also asserted that the direct effect of the colonial trade upon 
 the wealth of England was such that, "estates that were worth 
 two thousand pounds a year three score years ago, 
 are at three thousand pounds at present." See Ban- 
 croft's Hist. U. S. Vol. HI., 538, 546. And, on a 
 similar occasion, in 1775, Mr. Burke, in the House of Com- 
 mons, referred to the extent and importance of the colonial 
 trade to the empire in these florid words: "When," says he, 
 "we speak of the commerce of our colonies, fiction lags after 
 truth, invention is untruthful and imagination cold and barren. 
 . . . The commerce of your colonies is out of all proportion 
 to the number of the people. In 1772 the export trade from 
 England to North America, and the West Indies, amounted to 
 £4,791,734, the whole export trade in 1774, £6,509,000, including 
 these and other colonies, which was consequently more than one- 
 third of the whole, £16,000,000, in 1772." See Harper's Encyclo. 
 Amer. Hist., Vol i, 458. Referring to the same subject the 
 Encyclopedia Britannica says : "Mr. David McPherson, who pub- 
 lished his elaborate Annals of Commerce, in 180S, states that, in 
 
8 COMMERCIAL POWER OF CONGRESS. 
 
 In passing from the subject of the political conditions 
 under which the several Anglo-American colonies were 
 planted, and under which they were developed and at- 
 tained their marvelous material growth and prosperity, 
 to that of their commercial conditions, existing at and 
 prior to, the adoption of the Constitution of the United 
 States, it is necessary only to premise, that the two sub- 
 jects are so intimately connected, that the history of the 
 one is the history of the other, and that, while the three 
 branches of the commercial power of Congress, as out- 
 lined in the Constitution, doubtless owe their origin to 
 the same political causes, their development was due to 
 different conditions, arising not only from the relation of 
 the colonies to the Crown, as the sovereign representative 
 of the British nation, under whose authority their exist- 
 ence was derived, but also from their relation among them- 
 selves as separate political communities, as well as from the 
 relation of the several colonies with the Indian tribes, with 
 which they came in political and commercial contact. 
 
 Originally, the commercial rights of all the colonies, 
 like~their political rights, were based upon principles, 
 theoretically, at least, of perfect freedom, in so far as 
 the British government was concerned ; since, among the 
 
 1764, the total imports of Great Britain amounted in official 
 value to £11,250,660, and the total exports to £17,446,306." See 
 Encyclo. Brit. (9th Am. ed.), Vol. VI., 202. The author of the 
 articles from which this latter statement is taken, says: — "An 
 examination of the foreign trade of Europe two centuries after 
 the opening of the maritime route to India and the discovery 
 of America would probably give more reasons to be surprised 
 at the smallness, than the magnitude, of the use that had been 
 made of these events." 
 
FREEDOM OF COLONIAL COMMERCE. 9 
 
 franchises granted to the proprietaries was that of estab- 
 lishing commercial relations and of carrying on trade 
 with the natives, as well as with foreign nations, under 
 such license and regulation only as the several proprietary 
 corporations saw fit to adopt ; and, this right having been 
 surrendered to the colonists, with those other political 
 liberties which were conceded to them by the proprietaries, 
 it was, therefore, exercised by them with the same free- 
 dom of political action. 
 
 And, it is a singular fact, that the British government 
 never undertook to interfere directly with the colonial 
 trade in any of its aspects, except, perhaps, in the matter 
 of the Indian trade of the northern colonies, a few years 
 before the commencement of the Revolutionary War, and 
 in those fruitless attempts which were made by Parlia- 
 ment, after the close of the war with France, in 1763, to 
 levy taxes, in the nature of commercial regulations, the 
 result of which was the Declaration of Independence, the 
 final assertion of colonial freedom, and the establishment 
 of the present Government of the United States. 
 
 While, however, no direct attempt was made to restrict 
 that freedom of the commerce of the colonies, which had 
 been accorded to them under the proprietary charters, 
 repeated efforts were made to accomplish this, indirectly, 
 by the application of the several Navigation Acts of Par- 
 liament to the colonial trade, the primary object of which 
 was to secure its monopoly to the British metropolis ; by 
 the imposition of specific duties upon certain articles 
 imported into the colonies from the West Indies ; by the 
 general laws of the kingdom, levying duties upon all 
 
lO COMMERCIAL POWER OF CONGRESS. 
 
 imports and exports to and from the realm, irrespective 
 of the origin of the commodities upon which these duties 
 were levied ; by the attempts of Parliament to restrict the 
 inter-colonial trade, in the interest of certain classes of 
 home manufactures, and by the final assumption of all 
 control over the Indian affairs of the northern colonies 
 including trade, in the later years of colonial development. 
 
 The first English statutes, in the nature of Navigation 
 Laws, were the laws of Richard II,* which provided that 
 no merchandise should be shipped out of the kingdom, 
 except in British ships ; but, these laws were enacted by 
 Parliament more than a century before the discovery of 
 America. These Acts, however, were held not to apply 
 to the colonial trade, for the reason that they referred 
 to goods "shipped out of the kingdom;" that the sea- 
 ports of the colonies were not English ports, within the 
 meaning of the statutes, and that the colonies could not 
 be made subject to the provisions of laws in which they 
 were not specifically named. 
 
 These harmless Acts were followed by the statute of 
 1651, enacted by the Long Parliament at the instance of 
 Cromwell, as a war measure. It provided that all the 
 commerce of the colonies should be carried in English 
 ships; but, being intended by the Protector, only "to 
 confirm the maritime power of his country" against the 
 Dutch, with whom he was then at war, the occasion for 
 its enforcement ceased with the close of that war, and no 
 attempt was ever made to enforce its provisions against 
 
 *Rich. II., Stat, i, chap. 3, and 14 Rich. II., ch. 6. See Encyclo. 
 Britannica, Vol XVIL, 277. 
 
BRITISH NAVIGATION LAWS. II 
 
 the colonial trade.* Indeed, such was the condition of 
 the colonial commerce, even after the enactment of this 
 statute, that, in 1652, when the commercial rights of 
 Virginia were settled, upon the submission of that colony ' 
 to the authority of the Commonwealth, it was expressly 
 stipulated that the people of Virginia should have "as 
 free trade as the people of England;" and in pursuance 
 of the agreement contained in this stipulation, in 1658, 
 the assembly of that colony "invited the Dutch and all 
 other foreigners to trade with them, on the payment of 
 no higher duty than that which was levied on all English 
 vessels as were bound for a foreign port."t 
 
 The next, and by far the most important Navigation 
 Acts, in so far as their detrimental effect on the trade 
 of the colonies was concerned, were those enacted in the 
 reign of Charles II, in 1660 and 1663, the object of 
 which was not only to secure to England the exclusive 
 control of the colonial commerce, but also to raise a rev- 
 enue for the benefit of the royal treasury. 
 
 These Acts, among other things, provided that "no 
 merchandise shall be imported into the plantations, ex- 
 cept in vessels navigated by Englishmen," prohibited 
 under penalty the importation of any commodity of the 
 growth, production or manufacture of Europe into any 
 
 *In the passage of the Act of 1651, the right of the colonies 
 to regulate their commerce was fully recognized, for, says Ban- 
 croft, "The Long Parliament was more just" than its succes- 
 sors, "it attempted to secure to English shipping the carrying 
 trade of the colonies, but with the consent of the colonies them- 
 selves; offering an equivalent, which the legislatures in America 
 were at liberty to reject." Hist. U. S., Vol. I., 168-9. 
 
 tSee Bancroft's Hist., U. S. Vol. I., 170, i74- 
 
12 COMMERCIAL POWER OF CONGRESS. 
 
 of the English colonies, unless shipped from the British 
 Isles, in Elnglish built vessels, and granted a subsidy to 
 the King, to be collected from all exports and imports, 
 from and into the kingdom, or "any of His Majesty's 
 dominions," thus asserting, in the most unequivocal terms, 
 the commercial supremacy of the enacting power. But, 
 although the existence of these statutes, and the claim of 
 authority upon which they were based, was the cause of 
 grave political and economical apprehensions, and occa- 
 sioned much strife, on the part of the colonies, their en- 
 forcement met with little success ; for, it is recorded, that 
 in some of the colonies, the execution of these laws was 
 openly resisted, while in others it was reluctantly sub- 
 mitted to, under a claim of doubtful right, and in those 
 cases where the collection of the royal subsidy was at- 
 tempted to be made, the proceeds were hardly enough to 
 pay the cost of collection. 
 
 The policy of the British Government, in the imposi- 
 tion of specific duties on certain articles, imported into 
 the colonies, from the West Indies, such as sugar, mo- 
 lasses* and rice, was the same as that which inspired the 
 enactment of its general navigation laws, and was directed 
 
 *The foreign trade in West Indian molasses was of such 
 considerable importance to the colonies, that Rhode Island alone 
 imported 1,250,000 gallons a year, and in whose behalf, in oppo- 
 sition to the duty imposed by Parliament, it was urged that its 
 effect would put an end to the importation of foreign molasses 
 altogether; that it would destroy the value of costly distilleries 
 of rum in that State, which had been built up and fostered by 
 the free importation of molasses; that it would ruin the rum 
 trade with Spain, and throw the American trade in the hands 
 of the French. See Harper's Encyclo. Amer. Hist., Vol. 4, 
 419. 
 
DUTIES ON COLONIAL PRODUCTS. I3 
 
 principally, if not wholly, against the trade in those ar- 
 ticles, which were so largely produced in the Dutch and 
 French West Indian colonies, a ready market for which 
 was always found in the English colonial possessions on 
 the mainland of the continent. 
 
 It having already been determined that the provisions 
 of the Shipping Acts of Richard II, had no application 
 to the colonies, on the ground that the colonial seaports 
 were not English ports, there is no reason to believe, but 
 that, the products of the colonies were subject to the 
 operation of the general laws imposing duties upon all 
 merchandise imported into the kingdom, and that such 
 merchandise was, therefore, liable to the payment of these 
 duties, to the same extent as like articles imported from 
 foreign countries. It is unnecessary, however, to inquire 
 into the nature and magnitude of these duties, or into 
 the number and extent of the operation of the several 
 statutes under which they were levied, but, as a single 
 instance, may be mentioned the import duty upon tobacco, 
 which was, at first, doubtless due, in a large measure, to 
 the personal hostility of the king to its use, although it 
 was afterwards continued, throughout the colonial exist- 
 ence, as a source of considerable revenue to the Crown,* 
 
 *"At an early period in his reign," says Bancroft, "before 
 Virginia had been planted. King James found in his hostility 
 to the use of tobacco a convenient argument for the excessive 
 tax which a royal ordinance imposed upon its consumption. 
 When the weed had become the staple of Virginia, the Stuarts 
 cared nothing for the colony so much as for a revenue to be 
 derived from an import on its product. Whatever display might 
 be made for religion, the conversion of the heathen, the or- 
 ganization of the government, and the establishment of justice. 
 
14 COMMERCIAL POWER OF CONGRESS. 
 
 and, to this extent, imposed conditions upon the colonial 
 trade at variance with the principles of freedom, upon 
 which it had been originally established. 
 
 It was evidently to obtain relief from the operations of 
 laws of this nature (for the restrictive system of the 
 Navigation Laws of Spain, Holland and Portugal had not 
 then been adopted by England as a national policy), that 
 the New England colonies, as early as 1643, sent a com- 
 mittee to England to petition a repeal of the laws affect- 
 
 the subject of tobacco was never forgotten. The sale of it in 
 England was strictly prohibited, until the heavy import had been 
 paid; a proclamation enforced the royal decree; and, that the 
 tax might be gathered on the entire consumption, _ by a new 
 proclamation, the culture of tobacco was forbidden in England 
 and Wales, and the plants already growing were ordered to be 
 uprooted. Nor was it long before the importation and sale of 
 tobacco required a special license from the King. In this 
 manner, a compromise was effected between the interests of the 
 colonial planters and the monarch; the former obtained the 
 exclusive supply of the English market, and the latter succeeded 
 in imposing an exorbitant duty." Continuing, the same author 
 also says, "The first colonial measure of King Charles related to 
 tobacco; and the second proclamation, though its object pur- 
 ported to be the settling of the plantation of Virginia, partook 
 largely of the same character. In a series of public acts King 
 Charles attempted during his reign to acquire a revenue from this 
 source. The authority of the Star-Chamber was invoked to 
 assist in tilling his exchequer, by new and onerous duties on 
 tobacco; his commissioners were ordered to contract for all the 
 product of the colonies; though the Spanish tobacco was not 
 steadily excluded. All colonial tobacco was soon ordered to be 
 sealed; nor was its importation permitted except with special 
 license; and we have seen that an attempt was made by direct 
 negotiation with the Virginians, to constitute the King the sole 
 factor of this staple. The measure was defeated, and the mon- 
 arch was left to issue a new series of proclamations, constituting 
 London the sole mart of colonial tobacco; till, vainly attempting 
 to regulate the trade, he declared 'his will and pleasure to have 
 the sole pre-emption of all the tobacco' of the English planta- 
 tions." Hist. U. S., Vol. I., 166 et seq. 
 
INTER-COLONIAL TRADE. 1 5 
 
 ing their trade, and to secure commercial advantages, 
 which resuhed in an ordinance of the House of Com- 
 mons, exempting the commerce of these colonies from the 
 restrictions complained of, and declaring that it should be 
 free ; but, it may be noted, that this ordinance was coupled 
 with an express declaration, asserting the commercial su- 
 premacy of Parliament. 
 
 Whatever, therefore, may have been the effect of the 
 
 ' general navigation and revenue laws of England, upon 
 the colonial trade with foreign nations, they were not 
 
 I designed to interfere with the freedom of inter-colonial 
 commerce, and the regulation of this branch of trade was 
 left entirely to the control of the several colonies. Hence, 
 no attempts were made by Parliament to place restrictions 
 upon their inter-colonial trade, until the enactment of 
 the statutes of 1699 ^^^ ^73^> the purpose of which was 
 
 ; not so much to regulate inter-colonial commerce, as it was 
 to benefit English wool-growers, and to protect the manu- 
 facturers of certain articles of trade fabricated in the 
 British Isles. 
 
 / The first of these statutes provided that, "no wool or 
 manufactures, made or intermixed with wool, being the 
 produce or manufacture of any of the English plantations 
 in America, shall be loaden in any ship or vessel, upon 
 any pretext whatever — ^nor loaden upon any horse, cart 
 or other carriage — ^to be carried out of the English planta- 
 tions, to any of said plantations, or to any other place 
 whatsoever ;" while the second prohibited the exportation 
 of hats, as well as of their being carried from one colony 
 to another. And, to the same effect, was the bill intro- 
 
l6 COMMERCIAL POWER OF CONGRESS. 
 
 duced in the House of Commons, by Mr. Townsend, in 
 1750, which, "forbade the smiths of America to erect any 
 mill for the slitting or rolling of iron, or any plating 
 forge to work with a slit-hammer or any furnace for 
 making steel."* 
 
 From all this, it will be readily seen that, in view of the 
 claims made by the inhabitants of the several colonies, 
 and the exercise of authority, inconsistent with these 
 claims, on the part of the Crown and of Parliament, the 
 extent of the political and commercial rights of the col- 
 onies as a whole, was never authoritatively defined, from 
 the standpoint of the colonial contention, until the meeting 
 of the first Continental Congress, in 1774. 
 
 That body was not revolutionary in its character; nor 
 did it assemble to demand new rights. Its only purpose 
 was to ascertain and define those rights which were al- 
 ready in existence, and to declare them, as the basis of a 
 petition for a redress of grievances, occasioned by their 
 actual or threatened infraction. With this end in view, 
 therefore, this Congress only undertook to define the po- 
 litical and commercial rights of the several colonies, and 
 of the British empire, in respect of their foreign and inter- 
 colonial trade at least, by the adoption of a formal "De- 
 claration of Rights," and an "Address to the People of 
 Great Britain," upon which a redress of their grievances 
 was prayed, in order to avoid the waging of civil war. 
 
 ♦Although this clause of the bill was defeated, when it came 
 up for final passage, by a small majority, that portion of it which 
 was passed required an immediate report to be made by every 
 mill then in existence, and it was also provided that the number 
 should never be increased. 
 
FIRST CONTINENTAL CONGRESS. I7 
 
 The first of these documents declared, in the most sober 
 terms, "That the foundation of English liberty and all 
 free government, is the right of the people to participate 
 in their legislative councils ; and as the English colonies 
 are not represented, and from their locality and other 
 circumstances cannot be properly represented in the Brit- 
 ish Parliament, they are entitled to a free and exclusive 
 power of legislation in their several provincial legislatures, 
 where their rights of representation can alone be pre- 
 served, in all cases of taxation and internal polity, subject 
 only to the negation of the sovereign, in such manner as 
 has been heretofore used and accustomed. But, from the 
 necessity of the case, and a regard to the mutual interest 
 of both countries, we cheerfully consent to the operation 
 of such acts of the British Parliament, as are bona Me 
 restrained, to the regulation of our external commerce, 
 for the purpose of securing the commercial advantages 
 of the whole empire to the mother country, and the com- 
 mercial benefits of its respective members, excluding every 
 idea of taxation, internal or external, for raising a revenue 
 on the subjects in America, without their consent." And 
 to the same effect was the address to the People of Great 
 Britain, which declared that, "The colonies are entitled 
 to a free and exclusive power of legislation, in their 
 several provincial legislatures, where the right of repre- 
 sentation can be alone preserved, in all cases of taxation 
 and internal polity, subject to the negation of the sov- 
 ereign; but from the necessity of the case, and a regard 
 for the mutual intercourse of both countries, we cheer- 
 fully consent to the adoption of such acts of the British 
 
l8 COMMERCIAL POWER OF CONGRESS. 
 
 Parliament as are bona fide restricted to the regulation of 
 our foreign commerce."* 
 
 If no mention of trade with the Indian tribes was made, 
 in either of these memorials, it was probably due to the 
 fact that, being internal in its nature, it never suffered 
 any of the inconveniences which attended the many indi- 
 rect attempts on the part of Parliament to control the 
 foreign and inter-colonial trade. Hence, from, the begin- 
 ning, this branch of colonial commerce was left to take 
 care of itself, under such regulations as the legislative 
 assemblies of the several colonies deemed proper to pre- 
 scribe. 
 
 However, on account of the war-like nature of these 
 tribes, their relation to the colonies required joint-action 
 upon their, part, for mutual protection and defence ; and 
 the proximity of some of these tribes to the Canadian 
 border, and their employment by the French, in their 
 several wars against England and her colonies in Amer- 
 ica, gave the Indian question a weight of considerable 
 colonial and national importance, aside from any consid- 
 eration of trade. 
 
 To these conditions, therefore, was due, not only the 
 formation of the New England Confederation, in 1643, 
 which continued in active existence until the abrogation 
 of the first Massachusetts charter, in 1684, but also, the 
 assembling of those various general Congresses, which 
 were held, from time to time, at Albany and elsewhere, 
 for the purpose of entering into new, and confirming old, 
 
 ♦Journal of Congress, Vol. I., 28, 29; Baldwin's Constitu- 
 tional View, 69, 181. 
 
COLONIAL INDIAN TRADE. Vj 
 
 treaties with the neighboring Indian tribes; and which 
 finally resulted in the assumption, by the Crown, of all 
 control over the Indian affairs of the northern colonies, 
 in 1756, and their consolidation into one department, 
 under the superintendence of a royal appointee. 
 
 This change in the administration of the Indian affairs 
 of the northern colonies, however, having been based 
 primarily upon the necessities of national defence, against 
 the French, and to which the question of trade was of 
 secondary importance, the adoption of the system under 
 which it was effected, was not only approved, but was 
 willingly accepted, by those colonies, which were immedi- 
 ately affected by the system. 
 
 From the adoption of the Declaration of Independence,! 
 in 1776, until the final ratification of the Articles of Con- 
 federation, in 1781, by all the States, the several States 
 were wholly sovereign and independent of each other, in 
 so far as their respective rights and powers, as separate 
 political communities, were concerned.* Hence, during 
 this period, all commercial intercourse with and among 
 them, rested solely on the jus commune of nations. \ 
 
 And, this being so, it necessarily follows, that after the 
 adoption of the Declaration of Independence, each of the 
 several States possessed and exercised the power to regu- 
 late commerce, in all its branches ; and, with the exception 
 of that commerce, which was carried on exclusively within 
 the limits of a single State, all commerce was foreign, 
 whether it partook of the character of inter-state com- 
 merce, or was carried on outside the limits of all the 
 
 ♦Hinson v. Lott, 8 Wall., 148. 
 
20 COMMERCIAL POWER OF CONGRESS. 
 
 States, as foreign trade, under the present constitutional 
 acceptation of the meaning of those terms. 
 
 During this period, therefore, the power to regulate 
 commerce existed exclusively in the several States,* and 
 each enjoyed the right of intercourse with the others, at 
 the will of those others, both in respect of the transit 
 and residence of their respective citizens, as well as in the 
 introduction and sale of property. 
 
 However, the political and commercial effect of this] 
 condition was sought to be obviated by the provisions of 
 the Articles of Confederation ; for, in reference to foreign 
 commerce, that instrument provided, that, "No State shall | 
 lay any imposts or duties, which may interfere with any f 
 stipulations or treaties entered into by the United States, 
 in Congress assembled, with any King, Prince, or Statei 
 in pursuance of any treaty already proposed by Congress, 
 to the courts of France or Spain," subject to the limita-\ 
 tion, that, "no treaty of commerce shall be made, whereby 
 the legislative power of the respective States shall be 
 restrained from imposing imposts and duties on foreign- 
 ers, as their own people are subject to, or from prohibiting 
 the exportation or importation of any species of goods 
 whatsoever," and that, "no vessels of war shall be kept 
 in time of peace by any State, except such as shall be 
 deemed necessary for the defence of each State, or its 
 trade ;" as to inter-state commerce, it provided, that, "the 
 better to secure and perpetuate mutual friendship and in- 
 ercourse, among the people of the different States, . . . 
 the people of each State shall have free ingress and re- 
 
 *Baldwin's Constitutional View, i8i. 
 
ARTICLES OF CONFEDERATION. 21 
 
 gress to and from any other State, and shall enjoy therein 
 all the privileges of trade and commerce, subject to the 
 same duties, impositions and restrictions as the inhabit- 
 ants thereof respectively; provided, that such restrictions 
 shall not extend so far as to prevent the removal of prop- 
 erty imported into any State, to any other State, of which 
 the owner is an inhabitant," and, in respect to the Indian 
 trade, it was provided, that, "the United States . . . 
 shall have the sole and exclusive right and power of reg- 
 ulating . . . the trade and managing all affairs with 
 
 / the Indians, not members of any State,"* 
 
 Whatever may have been the design and effect of these 
 provisions of the Articles of Confederation upon the 
 commercial power of the several States, or, for that mat- 
 ter, upon any of their sovereign powers, it was early 
 
 j demonstrated, that that instrument was but a "feeble 
 league of friendship,"! and, as a scheme of government, 
 the Confederation was acknowledged, on all hands, to be 
 bad from beginning to end. This arose from the fact that 
 there was no executive, no judiciary, and only the sem- 
 blance of a legislature ; acting on States and not on indi- 
 viduals. Congress never secured a hold on the people ; it 
 was looked upon as a revolutionary body and was treated 
 first with indifference and then with contempt.^ The 
 Articles of Confederation, therefore, was not the strong 
 tie which bound the colonies together during the severe 
 trials of the revolutionary struggle ; but it was rather the 
 
 ♦See Articles of Confederation, Arts. IV., VI., IX. 
 tHinson v. Lott, 8 Wall., 148. 
 
 JFramers and Framing of the Constitution, (McMaster), 
 Century Magazine, September. 1887. 
 
22 COMMERCIAL POWER OF CONGRESS. 
 
 mutual sympathies aroused by a common cause. These 
 dissolved, on the return of peace, and the very principles 
 which gave rise to the war of independence, it has been 
 said, "soon began to threaten the Confederacy with , an- 
 archy and ruin,"* thus fulfilling the saying of Lord 
 North, at the beginning of the struggle, when he described 
 the American Union as "a rope of sand." 
 
 It will, therefore, be seen that during the existence of 
 the Confederation, the commercial power remained prac- 
 tically in the same condition as it was, when the Declara- 
 tion of Independence was adopted, subject to all the muni- 
 cipal laws and regulations of the several States. 
 
 This was so, not so much because the Articles of Con- 
 federation did not undertake to vest the power to regu- 
 late commerce, in the Congress of the United States, as 
 then constituted, as it was because, notwithstanding the 
 delegation of an undoubted authority over the sub- 
 ject/ to the general government, that government had 
 neither the necessary machinery to establish effective 
 regulations, nor sufficient power, as a governing body, to 
 carry its legislation into effect. 
 
 As to the condition of the foreign commerce of the 
 country, prior to the adoption of the present Constitution, 
 Mr. Chief Justice Marshall says: — "It was regulated by 
 foreign nations, with a single view to their own interests, 
 and our disunited efforts to counteract their restrictions 
 were rendered impotent, by the want of combination. 
 Congress indeed possessed the power of making treaties, i 
 but the inability of the federal government to enforce 
 
 ♦Gibbons v. Ogden, 9 Wheat, i. 
 
COMMERCIAL DISORDER UNDER CONFEDERACY. 23 
 
 them became so apparent as to render that power in a 
 great measure useless," and, in the exercise of their in- 
 dependent commercial power, by the several States, a 
 spirit of selfishness, in legislation, was soon developed, 
 which "began to show itself in iniquitous laws and im- 
 politic measures, from which grew up a conflict of com- 
 mercial regulation, destructive of the harmony of the 
 States, and fatal to the commercial interests abroad."* 
 
 So, the conditions of their commerce, among them- 
 selves, was not unlike that which affected their foreign 
 commerce; for, it was found, that, rivers and bays, in 
 many cases, formed dividing lines between the States, 
 upon which they, severally, claimed and exercised all the 
 rights and powers of sovereign nations, and in enacting 
 laws for the regulation of the navigation of these waters, 
 many repugnances were found to exist, arising either 
 out of a misconception of powers, or enacted in a spirit 
 of retaliation, pure and simple.t 
 
 *Brown v. Maryland, 12 Wheat., 419. 
 
 ■fThis condition was not confined to early State legislation, 
 under the Articles of Confederation, but was continued even 
 after the adoption of the present Constitution. Thus, a law of 
 New York provided that no one should navigate the bay of New 
 York, the North River, the Sound, the Lakes or any of the 
 waters of the State, by steam vessels, without a license of the 
 State of New York or of its grantees. So, a law of Connecticut 
 prohibited any one to enter her waters, with a steam vessel hav- 
 ing such a license from the State of New York; while the New 
 Jersey Legislature declared that, if any citizen of that State 
 should be restrained under the statute of New York from using 
 steamboats between the ancient shores of New Jersey and 
 New York, he should be entitled to an action for damages, in 
 New Jersey, with treble costs, against the party who thus 
 restrains or impedes him, under the laws of New York; and 
 this act of New Jersey was entitled, "An Act of retortion against 
 
24 COMMERCIAL POWER OF CONGRESS. 
 
 The general embarrassments under which this condi- 
 tion of affairs placed the commerce of the country, were 
 not long in being felt and in impressing their weight upon 
 the attention of the statesmen and patriots of that day; 
 and true to the dictates of the highest wisdom and sound- 
 est policy, they set about to remedy the evils with which 
 they found themselves confronted. 
 
 Therefore, as early as 1778, hardly before the Articles^ 
 of Confederation had been proposed to the several States 
 for approval and ratification, the subject of a uniform 
 regulation of commerce was pressed upon the attention 
 of Congress, by a memorial from the State of New Jer- 
 sey,* the authors of which complained that the regulation 
 of trade was in the power of the several . States, and 
 within their several respective jurisdictions, to such a 
 degree as to involve many difficulties and embarrass- 
 ments; and, its framers expressed the earnest opinion, 
 that the sole and exclusive power to regulate commerce 
 with foreign nations ought to be vested in Congress.t 
 
 So, in 1780, two conventions were held in New Eng- 
 land, to consider the condition of the country and to de- 
 vise means to establish a more effective federal govern- 
 ment. The convention held in that year, at Hartford, 
 took into consideration, specially, the financial situation 
 of the country at the time, and recommended a plan, urg- 
 ing the several States to suffer Congress to tax them, I 
 
 the illegal and repressive legislation of New York," and was 
 defended, by its authors, on the principles of p.ublic law, which 
 justify reprisals between independent States. 
 
 *Brown v. Maryland, 12 Wheat., 410. 
 
 tLaws U. S., Vol. I., 28. 
 
NEW ENGLAND CONVENTIONS OF I780. 25 
 
 /according to population, and authorizing that body to 
 expend the revenue, so raised, in payment of the interest 
 on the public debt, while the Boston convention declared 
 in favor of a more solid and permanent union, under one 
 supreme head, and "a Congress competent for the gov- 
 ernment of all those common and national affairs, which 
 do not and cannot come within the jurisdiction of the 
 several States." 
 
 Although the action of neither of these conventions 
 seems to have referred directly to the subject of com- 
 merce, and the necessity of its regulation by the general 
 government, it shows, at least, a growing conviction on 
 the part of the Eastern States, that there was an im- 
 perative necessity for the establishment of a stronger and 
 more effectual union between the States, since there were 
 subjects of a recognized general nature, which could not 
 be exercised advantageously by the States separately, and 
 ought to be vested in the government of such a union. 
 
 Following the memorial of the Legislature of New 
 , Jersey, of 1778, Mr. Witherspoon, a delegate in Congress 
 I from that State, presented to that body, in 1781, a resolu- 
 Uion in the same spirit, but carrying the principle, upon 
 which it was based, still further, in its application to 
 commerce, by affirming, that it was indispensably neces- 
 sary that the United States, in Congress assembled, should 
 be vested with the right of superintending the commercial 
 regulations of every State, in order that none shall take 
 place, which shall be partial or contrary to the common 
 interest.* 
 
 ♦Gibbons v. Ogden, 9 Wheat, I. 
 
26 COMMERCIAL POWER OF CONGRESS. 
 
 So, in 1784, finding itself confronted by the intermin- 
 able difficulties and embarrassments which had then arisen 
 in respect of the commercial relations with foreign nations, 
 Congress adopted a resolution addressed to all the States, 
 recommending and urging, that they should authorize the 
 general government, for a limited time, to regulate the 
 foreign commerce of the country. But, the States hav- 
 ing declined to grant the requisite authority, under this 
 resolution, the measure failed. As a result of this failure, 
 however, Congress appointed a committee to take the 
 matter into consideration. The report of this committee, j 
 which was submitted, at the next session of Congress, in I 
 1785, declared, in the strongest terms, that Congress 
 ought to have the sole and exclusive power to regulate 
 trade, as well with foreign nations as among the States.* 
 
 So, that, during all these years, it will be seen, that 
 there was no lack of practical proof of the necessity of/ 
 some uniform system of commercial regulation in the 
 general government ; and, with what might seem to have 
 been an ample power, vested in Congress, by the Articles 
 of Confederation, that body found itself impotent to deal 
 even with the subject of foreign commerce under treaties 
 already made by it, and the local jealousies of the several 
 States rendered it impossible to gain their consent to the 
 exercise of such powers, as it nominally had, even for a 
 limited period. 
 
 Difficulties had likewise arisen between the States, as 1 
 to the regulation of commerce among themselves. Thus,> 
 in consequence of a lack of concerted action between thei 
 
 *Laws U. S., Vol. I., so. 
 
MOUNT VERNON CONVENTION, I785. T.'J 
 
 States of Maryland and Virginia, concerning the naviga- 
 tion of the Potomac and Roanoke Rivers and the Chesa- 
 peake Bay, a joint-commission was called to meet, at Mt. 
 Vernon, in 1785, to devise means for the adjustment of 
 all differences between them, and to define their respect- 
 ive jurisdiction over these waters. 
 
 The proceedings of this commission show, that its 
 members "had not been very long at work, when they 
 saw that common duties and common principles for ex- 
 plaining the meaning of commercial laws and settling dis- 
 putes about the currency were just as necessary as well 
 defined rights on river and bay;" but with these things, 
 the commission had nothing to do. Yet, such appeared 
 to have been the importance of the subject, that 
 its members ventured to draft a supplemental re- 
 port to the Legislatures of their respective States, 
 in which was set forth the needs of legislation on 
 the subject of the currency, duties, and commerce 
 in general, and urging the appointment of two commis- 
 sioners, each year, by either State, for the purpose of 
 arranging such matters, for the ensuing year. The 
 Legislature of Maryland readily accepted the report, and 
 requested Delaware and Pennsylvania to join in the 
 scheme ; but, Virginia went further, and proposed to all 
 the States, to call a trade convention, to be held at Ann- 
 apolis, in the following year. 
 
 The preamble to Mr. Madison's resolution, in the Vir- 
 ginia Assembly, authorizing the appointment of dele- 
 gates from that State to the proposed convention, recited 
 that, "Whereas, the relative situation of the United 
 
28 COMMERCIAL POWER OF CONGRESS. 
 
 States have been found, on trial, to require uniformity 
 in their commercial regulations, as the only effectual 
 policy of obtaining, in the ports of foreign nations, a 
 stipulation of privileges reciprocal to those enjoyed by 
 the subjects of such nations, in the ports of the United 
 States; for preventing animosities, which cannot fail to 
 arise among the several States, from the interference of 
 partial and separate legislation," therefore, the resolution 
 declared, that the purpose of the proposed general con- 
 vention be, "to take into consideration the trade of the 
 United States, to consider how far an uniform system, 
 in their commercial regulations may be necessary to their 
 common interest and their permanent harmony."* 
 
 While other causes may have conduced to the calling 
 and assembling of the Annapolis convention of 1786, this 
 preamble and resolution shows, that the primary cause of 
 the recommendation of the Legislature of Virginia was 
 the commercial necessities of the States, and a purpose on 
 the part of its framers, that that convention should con- 
 sider and devise some practical means for an effectual 
 and harmonious regulation of trade. 
 
 This convention was attended by delegates from Vir- 
 ginia, Pennsylvania, New York, New Jersey and Dela- 
 ware only. Therefore, with representatives from less 
 than half the States present, the convention found itself 
 powerless to accomplish the purposes for which it had 
 been called. Nevertheless, it remained in session for 
 two days, and its proceedings were directed to a discus- 
 sion of the low state of trade and commerce, and in 
 
 *Gibbons v. Ogden, g Wheat., i. 
 
;a.nnapolis convention of 1786. 29 
 
 lamenting the want of power in the general government 
 to afford proper relief. And, before adjournment, the 
 delegates proposed and adopted a report to be presented 
 to their respective States and to Congress, urging the 
 call of a convention to meet, at Philadelphia, in the fol- 
 lowing May, not only for the purpose of considering 
 the condition of trade, but also for a more extensive 
 revision of the Articles of Confederation, as the embodi- 
 ment of a^more complete and perfect system of federal 
 government. 
 
 In pursuance of the recommendations contained in this 
 report. Congress immediately adopted a resolution de- 
 claring the expediency of holding a convention for the 
 sole and express purpose of revising the Articles of Con- 
 federation, and this resolution was submitted to the Leg- 
 islatures of all the States for their approval and action; 
 and their approval having been obtained, the Constitu- 
 tional Convention met at Philadelphia at the time ap- 
 pointed. 
 
 The result of its deliberations, as is well known, was 
 the establishment of the present government of the Uni- 
 ted States, under the Constitution as it now exists, with 
 the exception of such amendments only as have, since, 
 from time to time, been adopted, adding to, taking from 
 or modifying the powers of the general government, as 
 defined in that instrument. 
 
 Considering, therefore, the direct and immediate 
 causes which led to the assembling of that convention, 
 and the results accomplished by its labors, it is a well 
 settled fact that the want of power, in the general gov- 
 
30 COMMERCIAL POWER OF CONGRESS. 
 
 eminent, to regulate commerce with foreign nations and 
 among the several States, was one of the leading de- 
 fects of the Confederation, and, certainly, as much as 
 any other cause, led to the establishment of the present 
 Constitution*, and that the many difficulties and embar- 
 rassments attending the regulation of commerce, under 
 the old system, were among the great and leading induce- 
 ments to its adoption, all of which justify the conclusion 
 of Mr. Webster that, "Over whatever other interests of 
 the country this government may diffuse its blessings, it 
 will always be true, as an historical fact, that it had its 
 origin in the necessities of commerce, and for its imme- 
 diate object the relief of those necessities by removing 
 their cause and by establishing a uniform and steady 
 system."t 
 
 It is thus apparent, that the main object and chief de- 
 sign of the framers of the Constitution, in vesting in 
 Congress the power to regulate commerce, was to insure 
 uniformity and consistency on all matters of a com- 
 mercial character affecting the intercourse of the States 
 with each other and with foreign nations ;t to secure 
 uniformity of regulation against conflicting and discrimin- 
 ating state legislation, in so far as that legislation may af- 
 fect the operations of the commerce of the United States ;§ 
 
 *See Cook v. Pennsylvania, 97 U. S., 566 ; Brown v. Maryland, 
 12 Wheat., 419 (446) ; Wabash, St. Louis & Pacific Railroad Co. 
 V. Illinois, 118 U. S., 557; State Tax Tonage Cases, 12 Wall., 
 204. 
 
 tGibbons v. Ogden, 9 Wheat., i. 
 
 JThe Lattawanna, 21 Wall., 558. 
 
 iWelton V. Missouri, 91 U. S., 275 ; County of Mobile v. Kim- 
 ball, 102 id., 691; Walling V. Michigan, 116 id., 446. 
 
PURPOSES OF COMMERCIAL POWER OF CONGRESS. 3 1 
 
 to establish a perfect equality among the several States 
 as to commercial rights, in order to prevent unjust and 
 invidious distinctions, which local jealousies and partial 
 interests might be disposed to introduce ;* to insure equal- 
 ity of commercial facilities, by preventing one State from 
 building up her own trade at the expense of other 
 States ;t to guard against the possibility of commercial 
 embarrassments which would result if one State could 
 directly, or indirectly, prohibit particular property from 
 entrance into its territory, from another ;t and thereby to 
 prevent commercial conflict among them,§ and, for the pro- 
 tection of the general interests, as involved in inter-state 
 and foreign commerceJ 
 
 Owing to the general terms in which the commercial 
 power of the federal government is vested in Congress 
 by the Constitution, there has been much conflict of 
 opinion as to the nature of this power, from which many 
 difficulties have arisen in the various attempts made by 
 the courts to determine the meaning of the word com- 
 merce, as well as to ascertain the full extent of the oper- 
 ation of the power itself. 
 
 For this reason, it was always customary, with the 
 earlier jurists, to consider the purposes .of the framers of 
 the Constitution, in vesting the commercial power in Con- 
 
 *Veazie v. Moor, 14 How., 567; Gibbons v. Ogden, 9 Wheat., 
 l; Mayor, etc., of New York v. Miln, 11 Pet. 102; Brown v. 
 Maryland, 12 Wheat., 419; License Cases, s How., 504. 
 
 fBowman v. Chicago & Northwestern Railroad Co., 125 U 3., 
 46s (514). 
 
 JLeisy v. Hardin, 135 U. S., 100 (112). 
 
 §Graves, et al. v. Slaughter, et al, 15 Pet. 449. 
 
 fNorthem Securities Co. v. United States, 193 U. S., 197 (352). 
 
32 COMMERCIAL POWER OF CONGRESS. 
 
 gress, in order to determine its nature and the extent of 
 its operation ; but, of late, there has been shown a dispo- 
 sition to disregard this method of inquiry, and, it has been 
 recently declared, that the reasons which may have 
 caused the framers of the Constitution to repose the 
 commercial power in Congress, do not affect the limit 
 or the extent of the power itself.* 
 
 Etymologically the term commerce is derived from 
 the Latin words, con and mercis, and, in its simplest 
 form, denotes a mutual selling or traffic, which necessarily 
 consists in the purchase, sale and exchange of commodi- 
 ties ;t and commerce, in its ordinary and practical ac- 
 ception, is said to be trade, bargain, sale, exchange, bar- 
 ter, embracing all these terms, both as its means and 
 object.1: 
 
 However, on account of the general purposes for 
 which the federal government was established, as well 
 as the very nature of the commercial power of Congress 
 itself, the meaning of the term commerce has been con- 
 stantly enlarged in order to meet the continued and ever 
 recurring changes in the conditions and requirements 
 of modern trade. So that, the term commerce is now held 
 to consist not only in the purchase and sale of com- 
 modities, but in its broadest signification it has also been 
 said to mean the purchasing and selling of articles of 
 
 *Addyston Pipe & Steel Co. v. United States, 175 U. S., 211. 
 
 tCounty of Mobile v. Kimball, 102 U. S., 691 ; Gloucester Ferry 
 Co. V. Pennsylvania, 114 U. S., 196; Kidd v. Peason, 128 U. S., 
 I (20) ; Northern Securities Co. v. United States, 193 U. S., 
 197 (379). 
 
 ^Passenger Cases, 7 How., 283 (500), per Daniel, J. 
 
COMMERCE DEFINED. 33 
 
 necessity,* as well as their production and manufacture; 
 in buying from one nation and selling to another, and in 
 transporting the merchandise so purchased and sold, 
 from the seller to the buyer, to gain the freight.! It like- 
 wise embraces every act of sale, whether by word of 
 mouth only or by the exhibition of samples, and con- 
 sequently covers the negotiation for the purchase, sale 
 and exchange of goods.t Commerce has, therefore, been 
 held to consist in commercial intercourse between nations 
 and parts of nations,! including navigation and inter- 
 course,ir and extends to the transportation of persons and 
 property for hire;|| and transportation includes all the in- 
 struments of shipment or carriage.** 
 
 So, transportation implies the taking up of persons 
 and property at some point, and putting them down at 
 another, and the receiving and landing of passengers and 
 freight are incident to transportation. Commerce also 
 includes the means of transportation and intercourse be- 
 tween nations and parts of nations, whether by naviga- 
 
 *Gibbons v. Ogden, g Wheat, i (191 et seq.) ; Gloucester Ferry- 
 Co. v. Pennsylvania, 114 U. S., 196 (203) ; Kidd v. Pearson, 128 
 U. S., I (20) ; United States v. E. C. Knight Co., 156 U. S., i (22). 
 
 fPassenger Cases, 7 How., 283 (416). 
 
 JRobbins v. Shelby County Taxing District, 120 U. S.. 489; 
 Leloup v. Port of Mobile, 127 U. S., 640; Caldwell v. North 
 Carolina, 187 U. S., 622. 
 
 § Passenger Cases, 7 How., 283. 
 
 ^[Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How., 
 421. 
 
 1 1 Passenger Cases, 7 How., 283; Crandall v. Nevada, 6 Wall., 
 35 ; Chicago & Northwestern Railroad Co. v. Fuller, 17 id., 560. 
 
 ♦♦Interstate Commerce Commission v. Brimson, 134 U. S., 
 447 (457). 
 
34 COMMERCIAL POWER OF CONGRESS. 
 
 tion or passage over land, and the means of transporta- 
 tion of persons and freight do not change the character 
 of the business as one of commerce ; neither does the time 
 within which the distance may be traversed,* nor the 
 magnitude of the traffic, nor the extent of the inter- 
 course.! And the means of transportation and inter- 
 course embraces ships and vessels as instruments of in- 
 tercourse and trade, as well as the officers and seamen 
 employed in their navigation.^ So, the telegraph is held 
 to be an instrument of commerce, and as such falls within 
 the regulating power of Congress under the commercial 
 clause of the Constitution ;§ and the term vessel embraces 
 not only ships, but also all commercial vehicles which 
 have been brought into existence since the adoption of 
 that instrument. 
 
 Hence, commerce with foreign nations and among the 
 States of the American Union means nothing less than 
 intercourse with those nations and among those States 
 for the purposes of trade, be the object and extent of that 
 trade what it may ; and thus, in its broadest signification, 
 intercourse must include all the means by which com- 
 merce may be carried on, whether by the free naviga- 
 
 ♦Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 196. 
 
 tUnited States v. 43 Gallons of Whiskey, 93 U. S., 188. 
 
 JHall v. De Cuir, 95 U. S., 485. As to seamen, it is held that 
 contracts for their wages are exceptional in character, and may 
 be subject to special restrictions, and, whenever they relate to 
 commerce, not wholly within a State, legislation enforcing such 
 restrictions comes within the domain of Congress, under the 
 commercial clause of the Constitution. Patterson v. Bark Eudora, 
 190 U. S., 169. 
 
 §Pensacola Telegraph Co. v. Western Union Telegraph Co., 
 96 id., I ; Western Union Telegraph Co. v. Texas, log id., 460. 
 
EXTENT OF POWER TO REGULATE. 35 
 
 tion of the waters of the several States, or by a passage, 
 over land or through the States, when such passage be- 
 comes necessary to commercial intercourse.* And, as 
 was aptly said, by Mr. Webster, in the case of Gibbons 
 against Ogden.i "nothing is more complex than com- 
 merce, and in an age like this, no words embrace a 
 wider field than commercial regulation," to which Mr. 
 Justice Johnson, who delivered a separate opinion in that 
 case, has added that, "The subject, the vehicle, the agent 
 and the various operations of commerce thus become the 
 objects of commercial regulation; and these various ob- 
 jects are so vital to the commercial prosperity of a people, 
 that the nation which cannot legislate concerning them 
 would not possess the power to regulate commerce." 
 
 Independent of all constitutional considerations, how- 
 ever, the power to regulate commerce is the power to 
 prescribe rules and to impose conditions by and under 
 which it is to be govemed.1: Thus, the enactment of a 
 law, by any government, which prescribes conditions upon 
 which vessels shall engage in commerce is a regulation 
 of commerce ;§ and any law is a regulation of commerce 
 which imposes new conditions and terms on the coasting 
 trade, or on foreign trade generally, or on foreign trade 
 as regulated by treaties, or which, in anywise, interferes 
 with the free use of navigable streams.lT 
 
 ♦Philadelphia & Reading Railroad Co. v. Pennsylvania, 13 
 Wall., 232. 
 
 t9 Wheat, i (9). 
 
 JAddyston Pipe & Steel Co. v. United States, 17s U. S., 211 
 (242). 
 
 §Henderson v. Wickham, 92 U. S., 259. 
 
 fCibbons v. Ogden, 9 Wheat., i (26), per Mr. Webster. 
 
2,6 COMMERCIAL POWER OF CONGRESS, 
 
 And SO, a quarantine law, which arrests a vessel on its 
 voyage, affects commerce, and since it interrupts the voy- 
 age, extends to the vessel, officers, seamen and passen- 
 gers, it is a regulation of commerce;* the same result 
 may be attained by duties imposed upon the subjects of 
 commerce, or on the receipts therefrom, or on the occu- 
 pation or business of carrying it on,t and under certain 
 circumstances the regulation of commerce may take the 
 form of and have the effect of prohibition.^ 
 
 Rules for the regulation of commerce may, therefore, 
 be established in various ways, such as the imposition 
 of a tax in the nature of discriminating, protective or pro- 
 hibitory duties,! and the levying of a tax upon freight or 
 passengers, passing through a State, is likewise a regu- 
 lation of commerce within the meaning of the Constitu- 
 tion ;![ and commerce may also be regulated by the ex- 
 ercise of the police power of the States.** 
 
 Since commerce is declared to include navigation and 
 the transportation of persons and property, as well as 
 the means and instruments employed in such transporta- 
 tion, the regulating power of Congress extends to trans- 
 portation in all its branches, and to all the means of 
 
 ♦Compagnie Francaise de Navigation a Vapeur v. Board of 
 Health, i86 U. S., 380 (388). 
 
 tPostal Telegraph Co. v. Adams, 155 U. S., 688 (695, 6). 
 
 ^Northern Securities Co. v. United States, 193 U. S., 197, citing 
 In re Rahrer, 140 U. S., 545; Lottery Case, 188 U. S., 321 (355).. 
 
 §Brown v. Maryland, 12 Wheat., 419; see also New York, 
 Lake Erie & Western Railroad Co. v. Pennsylvania, 158 U. S., 431. 
 
 HPickard v. Pullman Southern Car Co., 117 U. S., 34. 
 
 ♦♦Illinois Central Railroad Co., v. Illinois, 163 U. S., 142, 
 
REGULATION OF COMMERCE. 37 
 
 transportation within the limits of every State in the 
 Union ;* and also, since the term includes the agencies of 
 commerce, it embraces all such agencies whether they be 
 individual or corporate in their character.t It, therefore, 
 matters not that, in the course of a commercial transac- 
 tion properly falling within the purview of the Constitu- 
 tion, several different and independent agencies are em- 
 ployed, or that such agencies act within the limits of a 
 single State or within two or more States; if the subject 
 of the transaction be within the constitutional power of 
 Congress, these facts do not affect the exercise of the 
 power, and to the extent to which each agency acts, in 
 that transaction, it is unquestionably the subject of federal 
 regulation.? 
 
 But, in arriving at these conclusions as to the meaning 
 of the term commerce, and as to the extent of the power 
 of Congress to regulate the trade of the United States un- 
 der the Constitution, the subject has not been wholly free 
 from contention, either on the part of counsel or of the 
 courts, whose duty it has been to construe and apply the 
 principles upon which they are based. 
 
 Thus, it was early contended, that the power of Con- 
 gress to regulate trade, carried on over the navigable 
 streams of the United States, is more extensive than that 
 commerce which is confined to the land within its terri- 
 torial limits, because, as was argued, navigation is not 
 
 ♦Gibbons v. Ogden, 9 "Wheat, I (i97) ; Passenger Cases, 7 
 How., 283 (351) ; Brown v. Maryland, 12 Wheat., 419. 
 
 fPaul V. Virginia, 8 Wall., 168; Gloucester Ferry Co., v. 
 Pennsylvania, 114 U. S., 196. 
 
 JThe Daniel Ball v. United States, 10 Wall., 557. 
 
38 COMMERCIAL POWER OF CONGRESS. 
 
 merely incidental to the power of regulating commerce, 
 but it is commerce itself, as inseparably connected with 
 it, as vital motion is to vital existence.* This distinction, 
 however, was held to have no reason for its support, since 
 in the very statement, navigation is defined to be com- 
 merce, from which necessarily arises a confusion of the 
 terms upon which the argument is based. Besides, the fact 
 remains, that neither the land nor the water embraced 
 within the limits of the United States, as land and water, is 
 a part of commerce or navigation, but only subject to be 
 adapted, as ways or thoroughfares of commerce, only 
 when they are required by either.! Hence it has been 
 determined that, when so adapted, both land and water 
 are within the regulating power of Congress to the utmost 
 extent of the delegation of that power to the federal 
 government. 
 
 And, so of the application of the power to persons, and 
 vessels employed in the carriage of passengers as sub- 
 jects of the commercial regulation of Congress. 
 
 This question was first raised, before the Supreme 
 Court of the United States, in the case of Gibbons against 
 Ogden,t where Mr. Wirt, as Attorney General, took the 
 position that, since commerce always implies inter-com- 
 munication and intercourse, and inasmuch as the great 
 national object, in vesting the commercial power in Con- 
 gress, was to enable the legislative department of the 
 federal government to regulate the terms on which all 
 
 *Gibbons v. Ogden, 9 Wheat., i (229), per Johnson, J. 
 tHolmes v. Jennison, et al., 14 Pet, 540. 
 
 J9 Wheat, i ; see also, Passenger Cases, 7 How., 283 (557), per 
 Woodbury, J. 
 
PERSONS AS SUBJECTS OF COMMERCIAL REGULATION. 39 
 
 commercial intercourse, between foreigners and this coun- 
 try, and between the different States of the Union, should 
 be conducted, and upon this, assuming that the compensa- 
 tion paid for transportation, is the true test of the com- 
 mercial character of such transactions, he argued that, if 
 the freight be the test of commerce, then the regulation 
 of passengers is included in the commercial power of 
 Congress, because, as he maintained, freight is the com- 
 pensation for the hire of the ship, and such hire, whether 
 received from the carriage of passengers or goods, was 
 nothing less than freight. These views of counsel were 
 adopted, by the Chief Justice, Mr. Marshall, in delivering 
 his opinion, in that case, when he says : — "No distinction 
 is perceived between the power to regulate vessels in 
 transporting men for hire and property for hire," a con- 
 clusion which he deduced not from the commercial power 
 of Congress alone, but also, from that clause of the Con- 
 stitution which provides, that "the migration or importa- 
 tion of such persons as any of the States now existing 
 shall think proper to admit shall not be prohibited by the 
 Congress," prior to the year 1808,* by saying that "this 
 section proves that the power to regulate commerce applies 
 equally to the regulation of vessels employed in trans- 
 porting men who pass from place to place voluntarily, 
 and those who pass involuntarily." The analogy here 
 sought to be drawn by the learned Chief Justice, how- 
 ever, between the two classes of cases does not appear 
 to strengthen the argument, for the reason, that the per- 
 sons referred to in this clause of the Constitution were 
 
 *Const. U. S., Art. I., Sec. IX., cl. i. 
 
40 COMMERCIAL POWER OF CONGRESS, 
 
 slaves, and, therefore, the means used in their transporta- 
 tion was subject to the same rules as those which were 
 applied to ships employed in the carriage of ordinary 
 freight. 
 
 Nevertheless, the question was not directly in issue in 
 that case, and the expressions of the learned Chief Jus- 
 tice being obiter dicta, no rule was established, and the 
 question continued an open one, until the decision in the 
 case of The Mayor, Aldermen and Commonalfty of the 
 City of New York against Miln,* in which the court 
 upon a division of opinion, took an entirely different view 
 of the matter, and laid down the rule, that the commercial 
 power of Congress did not apply to the regulation of 
 passenger vessels. The appeal in that case was based 
 upon a statute of the State of New York, which required 
 the master of every vessel, arriving in the port of New 
 York from any foreign port or from a port of any of the 
 United States, other than the State of New York, under 
 certain penalties named in the statute, to make a report, 
 in writing, containing the names, ages, and last place of 
 residence of every person on board the vessels com- 
 manded by him during the voyage. And, in considering 
 the constitutionality of this statute, Mr. Chief Justice 
 Taney, drew a distinction between the case at bar, and the 
 case of Brown against Maryland,^ in which it had already 
 been determined that a statute of the State of Maryland, 
 imposing a license fee upon importers and sellers of im- 
 ported goods by wholesale, bale or package, was void 
 
 *li Pet, 102 (136). 
 ti2 Wheat., 419. 
 
PERSONS AS SUBJECTS OF COMMERCIAL REGULATION. 4I 
 
 as being in contravention of the commercial power of 
 Congress. "It is difficult," he contended, "to perceive 
 what analogy there can be between a case where the 
 right of a State was inquired into in relation to a tax 
 imposed upon the sale of imported goods, and one where, 
 as in this case, the inquiry is as to the right over persons 
 within its acknowledged jurisdiction; the goods are the 
 subjects of commerce, the persons are not. The court 
 did extend the power to regulate commerce so as to pro- 
 tect the goods imported from a state tax after they were 
 landed and were yet in bulk. But why? Because they 
 were the subject of commerce, and because the power to 
 regulate commerce, under which the imposition was made, 
 implied a right to sell; that right was complete without 
 paying the State for a second right to sell whilst the 
 bales or packages were in their original form. But how 
 can this apply to persons? they are not the subjects of 
 commerce, and not being imported goods cannot fall 
 within a train of reasoning founded upon the construc- 
 tion of a power given to Congress to regulate commerce 
 and the prohibition to the States from imposing a duty 
 on imported goods." The decision of the court in this 
 case, though not without a serious division of opinion,* 
 
 *In delivering a dissenting opinion, in the Miln case, Mr. 
 Justice Story contended that, if the powers to regulate commerce 
 be exclusive in Congress, there is no difference between an ex- 
 press or implied prohibition upon the States; and that, generally 
 if an act of a State be a regulation of commerce, and the subject 
 upon which it operates belongs exclusively to Congress, it was a 
 means cut off from the range of State sovereignty 
 and State legislation, and was void. So, the learned 
 justice continued, "The power given to Congress to 
 regulate commerce, with foreign nations and among the 
 
42 COMMERCIAL POWER OF CONGRESS. 
 
 was, therefore, that the statute of the State of New York, 
 in question, was not a regulation of commerce within the 
 meaning of the Constitution of the United States, and 
 it estabhshed the doctrine, that persons were not the sub- 
 jects of commerce, and do not fall within the principles 
 enunciated in the case of Brown against Maryland* 
 
 The opinion of a majority of the court upon which 
 this decision was based, however, rested, not so much 
 upon the character of the vessels employed in the trans- 
 portation of passengers, as upon the character of the pas- 
 sengers themselves. 
 
 This decision was rendered in 1838, and there the 
 matter stood until the Passenger Casesf came up for de- 
 termination in 1849. These cases were two in number, 
 and involved the constitutionality of a statute of the 
 State of New York, which imposed certain fees upon the 
 master of every vessel entering the port of New York, 
 from foreign ports, for himself, each cabin and steerage 
 passenger, mate, sailor and mariner, for the use of the 
 Marine Hospital, and a statute of the Commonwealth of 
 Massachusetts relating to alien passengers, which re- 
 quired an examination of such passengers arriving at 
 the port of Boston, and provided that, upon such exam- 
 States, has been deemed exclusive, from the nature and 
 objects of the power and the necessary implication growing 
 out of its exercise. Full power to regulate a particular subject 
 implies the whole power, and leaves no residuum, and the grant 
 of the whole to one is incompatible with a grant to another of a 
 part. When a State proceeds to regulate commerce with foreign 
 nations and among the States, it is doing the very thing which 
 Congress is authorized to do." 11 Pet, 102 (157-8). 
 
 *See Passenger Cases, 7 How., 283 (494). 
 
 t7 How., 283. 
 
PERSONS AS SUBJECTS OF COMMERCIAL REGULATION. 43 
 
 ination, the master, consignee or agent of vessels trans- 
 porting them, should pay for the support of foreign pau- 
 pers, a certain fee for every such passenger as might be 
 found incompetent to maintain himself. 
 
 Following the rule laid down in the case of The Mayor, 
 Aldermen and CommomiMeMn of the City of New York 
 against Miln, these statutes were held to be constitution- 
 al by the highest courts of the States of New York and 
 Massachusetts, respectively, and from their decisions, ap- 
 peals were taken to the Supreme Court of the United 
 States for final review. In the decision of these cases by 
 that court, however, there developed an irreconcilable 
 difference of opinion among its members, not only as to 
 the constitutionality of the acts upon which the appeals 
 were based, but also as to the actual conditions under 
 which the Miln case had been determined;* for all the 
 
 *In delivering their separate opinions in the Passenger Cases, 
 a verbal altercation, in which no little feeling was displayed on 
 either side, took place between Mr. Taney, the Chief Justice, 
 and Mr. Justice Wayne, as to what were the views of the 
 majority of the court in the case of Mayor, etc., of New York vs. 
 Miln, in which the latter took occasion to make a statement of 
 the circumstances under which that case was decided, in order, 
 as he said, "that hereafter the profession may know definitely 
 what was and what was not decided in that case by the court." 
 The effect of this statement was that, when that decision was 
 rendered, a majority of the court — four out of seven — were of 
 the opinion that the power of Congress to regulate commerce 
 was exclusive; that the opinion of Mr. Justice Thompson, who 
 had been appointed to deliver the opinion of the Court, was 
 objected to, on consultation, as containing expressions incon- 
 sistent with that view, and that the opinion of Mr Justice 
 Barbour, which was delivered, as that of the court, did not, so 
 far as anything contained in it was liable to the same objection, 
 command the assent of a majority of the Judges. To which the 
 Chief Justice replied that, of the seven Judges who then com- 
 
44 COMMERCIAL POWER OF CONGRESS. 
 
 judges read separate opinions, giving their individual 
 views upon the subject involved, with the exception of Mr. 
 Justice Nelson, who concurred in the opinion handed 
 down by Mr. Taney, the Chief Justice,* and the decision 
 of the court was embodied in an order to the effect that 
 the statutes of the States of New York and Massachu- 
 setts, imposing taxes upon passengers arriving at the 
 ports of these States, were contrary to the Constitution of 
 the United States, and, therefore, void, and its result 
 
 posed the court, four had already died. and. he orotested. against 
 a statement of circumstances, which rested only in memory, to 
 impair the authority of a settled rule, fearing lest it might tend 
 to shake the public confidence in the weight of the court's deci- 
 sion. Passenger Cases, 7 How., 283 (429, 487). 
 
 *The learned Chief Justice, in his opinion in these cases, 
 argued that the power contended for, by the majority of the 
 court, could not be maintained, except by the introduction of the 
 word "intercourse" into the Constitution, and that, if such be 
 the case, then it comes to this, that intercourse means nothing 
 more than "commerce," being merely the addition of a word 
 without changing the argument. "If," says he, "commerce with 
 foreign nations could be construed to include persons, and to 
 embrace travellers and passengers, as well as merchandise and 
 trade. Congress would also have the power to regulate this inter- 
 course between the several States, and to exercise this power of 
 regulation over citizens passing from one State to another. It, 
 of course, needs no argument to prove that such a power over 
 the intercourse of persons passing from one State to another 
 is not granted to the Federal government by the power to regulate 
 commerce among the several States. Yet, if commerce does 
 mean the intercourse of persons between the several States, and 
 does not embrace passengers or travellers from one State to 
 another, it necessarily follows that the _ same word does not 
 include pasengers or travellers from foreign countries. And, if 
 Congress, under its power to regulate commerce with foreign 
 nations, possesses the power claimed for it, in the decision in this 
 case, the same course of reasoning and the same rules of con- 
 struction (substituting 'intercourse' for 'commerce') would give 
 the general government the same power over the intercourse of 
 persons between the different States." 7 How., 283 (493). 
 
PERSONS AS SUBJECTS OF COMMERCIAL REGULATION. 45 
 
 was the abrogation of the doctrine laid down in the Miln 
 case, and the extension of the commercial power of Con- 
 gress to vessels carrying passengers, as well as to the 
 passengers themselves. 
 
 It is a self-evident proposition, that the subject upon 
 which any power is intended to operate is not the power 
 itself, and for this reason, while the term commerce, as 
 thus enlarged and defined by the Supreme Court of the 
 United States, may, to some extent, indicate the various 
 subjects upon which the commercial power of Congress 
 may operate, it by no means determines the full scope of 
 its operation. Hence, in order properly to ascertain the 
 scope of the operation of the commercial power of Con- 
 gress, it has been found necessary to resort to a consid- 
 eration of the cardinal principles underlying the general 
 powers of the federal government, as well as to the na- 
 ture of that government, in respect of the several pur- 
 poses, for which it was instituted and established, the 
 necessity recommending- this mode of construction, 
 arising from the fact that, under the federal system, the 
 powers of government are possessed and exercised by 
 two separate and distinct sovereignties operating, at the 
 same time, upon the same people, within the same terri- 
 tory, and often upon the same subject. 
 
 Among the fundatnental doctrines of American con- 
 stitutional law, based upon the historical development of 
 the Union, are that, prior to the establishment of the 
 federal government, all political power resided in the 
 people of the several States; that this condition arose 
 from their colonial history and development, and fi-om 
 
46 COMMERCIAL POWER OF CONGRESS. 
 
 the situation of the States as separate and independent 
 political communities when they declared themselves free 
 from all allegiance and connection with Great Britain; 
 that those powers, which were not delegated to the gen- 
 eral government, by the Constitution, were, and still are 
 inherent in the several States, or in the people thereof, 
 and that these powers may be exercised by the States 
 without restraint and independently of the federal rela- 
 tion, established by that instrument, between the States 
 and the United States ; that the federal government is the 
 creature of the Constitution, and as such, exercises its 
 functions only under delegated authority, and that, "The 
 powers not delegated to the United States by the Con- 
 stitution, nor prohibited by it to the States, are reserved 
 to the States respectively, or to the people."* There- 
 fore, notwithstanding the adoption of the Constitution 
 by the several States of the Union, and the establishment 
 of the government of the United States, the States may 
 still exercise any power of a political nature which has 
 not been delegated by them, through the Constitution, to 
 the United States, and that authority to exercise any 
 power, on the part of the federal government, is to be 
 determined alone, by a consideration of the question, as 
 to whether such power be delegated to the United States, 
 or prohibited to the several States or to tlie people, under 
 the Constitution. 
 
 In accordance with this doctrine, therefore, under the 
 operation of the dual system of government established 
 by the Constitution, some of the powers of government in 
 
 ♦Const., U. S., Amendment X. 
 
SOVEREIGNTY OF THE SEVERAL STATES. 47 
 
 this country may undoubtedly be exercised by the States 
 to the exclusion of the federal authority, while others 
 may be exercised by the general government, exclusive 
 of any authority, on the part of the several States. 
 
 However, there are said to be certain powers known 
 to the Constitution, which arise from the relation estab- 
 lished by that instrument between the several States and 
 the United States, as a whole, as well as from the nature 
 of their respective governments. These powers have 
 been usually denominated concurrent powers, which are 
 such powers as may be exercised by both governments, 
 at the same time, and upon the same subjects, and those 
 powers, which are of a local, temporary or subordinate 
 nature, which may be exercised by the States, but only 
 so long as the general government may see proper to 
 withhold its paramount authority over the subject-matter 
 of the power. 
 
 Based upon these considerations, therefore, it has been 
 customary to divide all the powers of government, under 
 the federal system prevailing in this country, into four 
 general classes, viz.: Those powers which belong ex- 
 clusively to the several States; those which belong ex- 
 clusively to the general government ; those which may be 
 exercised concurrently by both the States and the United 
 States, and those which may be temporarily exercised by 
 the States, but only until Congress, by some direct action, 
 assumes the exercise of the power in behalf of the federal 
 government. 
 
 Consequently, in determining the exclusiveness of the 
 authority of the federal government, in its application to 
 
48 COMMERCIAL POWER OF CONGRESS. 
 
 the commercial power of Congress, the following ques- 
 tions have received the consideration of the courts : (A) 
 Whether, under the Constitution, the power to regulate 
 commerce be exclusively in the States? (B) Whether 
 this power be vested exclusively in the federal govern- 
 ment? (C) Whether it may be exercised concurrently 
 by the States and by the federal government? and (D) 
 Whether this power, as delegated to the general govern- 
 ment, may, in any case, be exercised by the States tempor- 
 arily until Congress shall see fit to control the subject- 
 matter of the power, by the actual exercise of its para- 
 mount authority over the subject? 
 
 Of those powers, which belong exclusively to the 
 States, it may be said, generally, that they are all those 
 inherent powers of sovereignty, as before suggested, 
 which reside in the several States by virtue of their condi- 
 tion as separate political communities, capable of indepen- 
 dent self-government, and which were not surrendered to 
 the government of the United States, by the several States, 
 when the Constitution was framed and adopted. The 
 right of the several States to the unimpaired exercise of 
 these powers is, therefore, derived from their political 
 condition, prior to, and at the time of the adoption of 
 that instrument, and from the very nature of their sov- 
 ereignty, as independent States. 
 
 Therefore, when the Constitution is silent as to the 
 existence of any power, that power remains with the 
 
EXCLUSIVENESS OF COMMERCIAL POWER. 49 
 
 States, unimpaired by the grant of any other power, and 
 may, in all cases, be exercised by them to the exclusion 
 of any authority on the part of the United States. 
 
 The mere statement of these principles in connection 
 with that clause of the Constitution which vests in Con- 
 gress the power to regulate commerce shows, that the 
 terms in which this power is vested in the legislative de- 
 partment of the federal government, are such that the 
 power is not one belonging exclusively to the States, 
 because there is an express delegation of the power to 
 that body, and it would be impossible, under any rule of 
 correct reasoning, to predicate the existence of an ex- 
 clusive power in the Statgs, in any case, where the very 
 power in question is expressly delegated to the federal 
 government, whatever may be the extent of the authority 
 of that government, in the exercise of the power so dele- 
 gated. However, it may be stated, as a general principle 
 of constitutional interpretation, that the mere grant of a 
 power to the federal government does not of itself imply 
 a prohibition to the States to exercise the same power.* 
 
 There is nothing, however, in the language of that 
 clause of the Constitution, vesting in Congress the power 
 to regulate commerce, to indicate that the power is vested 
 exclusively in the general government, and therefore, 
 under the operation of the principle just stated, the 
 States may still exercise the same power, unless the ex- 
 clusiveness of the power in that government, may be 
 
 ♦Sturges V. Crownenshield, 4 Wheat., 122; Houston v. Moore, 
 5 id , I ; see also, New York, New Haven & Hartford Railroad 
 Co. v. New York, 165 U. S. 628 (631). 
 
50 COMMERCIAL POWER OF CONGRESS. 
 
 shown to exist, for some reason, other than that it has 
 been so delegated, by the express terms of the Consti- 
 tution; for, notwithstanding the grant of a power to 
 Congress, in express terms, it does not necessarily follow, 
 that that body is vested with exclusive authority over 
 the subject-matter of the power ; and, therefore, the States 
 may still exercise the same power, unless, for other 
 reasons, the prohibition to the States is fairly or neces- 
 sarily implied. Nevertheless, it has been often asserted 
 that the commercial power of Congress is exclusive, and 
 that no part of this power may be exercised by the 
 States.* 
 
 B. 
 
 Generally speaking, there are four ways in which an 
 exclusive power in the federal government may arise. 
 These are: Where the power is granted, in exclusive 
 terms ; where the States are expressly prohibited to exer- 
 cise a power, delegated to the federal government ; where 
 the power is exclusive in its nature, and its exercise would 
 legitimately admit of only a single and national rule, and, 
 where the terms in which the power is granted are such 
 as to show, that state legislation, on the subject-matter of 
 the power, would be repugnant to the federal grant, or 
 that the framers of the Constitution intended, that the 
 power should be exclusively exercised by Congress. 
 
 Examining the subject more closely, in reference to the 
 
 *Passenger Cases, 7 How., 283 (411) per Wayne, J., Graves, 
 et al., V. Slaughter, et al, 15 Pet., 449 (505), per McLean, J. 
 
EXCLUSIVENESS OF COMMERCIAL POWER. 5 1 
 
 commercial power of the general government, it will be 
 found, that the power to regulate commerce is not granted 
 to Congress, in exclusive terms; that the Constitution 
 nowhere expressly prohibits the States from exercising 
 the same power, and it nowhere affirmatively appears, that 
 the terms in which the grant is made, are necessarily of 
 such a nature as to show, that state legislation on the 
 subject would be repugnant to the federal grant, or that 
 the framers of the Constitution intended that the power 
 should be exercised exclusively by Congress.* If, there- 
 fore, the regulation of commerce be exclusively vested in 
 the legislative department of the federal government, it 
 must bear the other test of exclusiveness,t and be so from 
 
 ♦Notwithstanding the claim that the general language, in which 
 the commercial power is granted to Congress, is sufficient to show 
 that the federal government is vested with an exclusive au- 
 thority over the subject, in all cases, it will be remembered that 
 the Constitution itself recognizes some power, on the part of 
 the States, ,when it declares, that "no State shall, without the 
 consent of Congress, lay any imposts or duties on imports or 
 exports, except what may be necessary for executing its in- 
 spection laws." For the execution of these laws, therefore, the 
 several States may even lay an impost or duty upon commerce, 
 in so far as this may be necessary for that purpose; and, pi this 
 necessity the States are presumably to be regarded as the sole 
 judges. But, in this connection, it must not be forgotten that 
 this power which is reserved to the States, while absolute in 
 terms, is not to be used for any other purpose than that of 
 enforcing their inspection laws; and this is amply guarded, in 
 the same section of the Constitution, by the further provision 
 that "the net Produce of all Duties and Imposts laid by any 
 State on Imports or Exports shall be for the Use of the Treasury 
 of the United States; and all such Laws shall be subject to the 
 Revision and Controul of the Congress." Const. U. S.., Art. I., 
 sec. X., cl. 2. 
 
 tWelton V. Missouri, 91 U. S., 275; Henderson v. Wickham, 
 92 id., 259 ; County of Mobile v. Kimball, 102 id., 691. 
 
52 COMMERCIAL POWER OF CONGRESS. 
 
 the nature of the power itself, because this is the only 
 remaining source from which such exclusiveness can pos- 
 sibly arise; and, if the several States be excluded from 
 the exercise if this power, it must be so, because the 
 nature of the power, thus delegated to Congress, requires 
 that a similar authority should not be exercised by the 
 States.* 
 
 A resort to the nature of a power, as a means of con- 
 stitutional interpretation, is based wholly upon the doctrine 
 of implication, and such a mode of construction becomes 
 necessary on account of the general terms in which the 
 powers granted to the United States, by the Constitution, 
 are expressed; and, as applied to powers, generally, the 
 doctrine is that the grant of any power carries with it all 
 that is necessary to the full, proper and complete enjoy- 
 ment of the power expressly granted, in order to carry 
 out the beneficial purposes of the grant; and any power 
 which has been expressly granted must include whatever 
 is indispensably necessary to its enjoyment. 
 
 Therefore, when a power may be legitimately implied 
 from an express power, the power so implied is as im- 
 portant in determining the extent of the operation of the 
 power, upon which the implication rests, as the words of 
 the instrument in which the principal power is granted ;t 
 and, when this is ascertained, by logical rules of construc- 
 tion, a power which arises by implication is as effectual 
 as an express declaration would have been, had it been 
 made in the instrument itself ; and, in order to determine 
 
 *Cooley V. Board of Wardens, 12 How., 299. 
 fPrigg V. Pennsylvania, 16 Pet., 539. 
 
EXCLUSIVENESS OF COMMERCIAL POWER, S3 
 
 the extent of an implied power, the nature of the principal 
 power, and the object sought to be attained by the grant 
 are always subjects for judicial consideration. 
 
 These are familiar principles of the common law, and 
 are fully recognized, in their application to all classes of 
 powers, whether they be private, corporate, governmental 
 or constitutional in their nature, the object of the doctrine 
 of implied powers, being to rectify the common defects 
 of language, and to secure the beneficial enjoyment of 
 that which is imperfectly expressed. Therefore, whenever 
 from the Constitution of the United States a clear inten- 
 tion to vest a power exclusively in the federal govern- 
 ment may be discovered, its exclusiveness may be implied, 
 from the nature of the power so vested in that govern- 
 ment, as determined by the object sought to be attained 
 by the grant. 
 
 A power which is exclusive in the United States, by 
 reason of the nature of the subject-matter of the power, 
 and not by the express terms of the Constitution, is, 
 therefore, necessarily one which may be exercised only 
 by virtue of the nature of the subject; because the nature 
 of a power always depends upon the nature of the sub- 
 ject upon which it is intended to operate.* Familiar in- 
 stances of this are all those powers which concern the 
 intercourse of the United States with each other, and 
 with foreign nations, and which, as has been said, neces- 
 sarily concern the whole country collectively and no part 
 of it in particular; and, as applied to the commercial 
 power, when the nature of the power is referred to, as a 
 
 *Cooley V. Board of Wardens, 12 How., 299. 
 
54 COMMERCIAL POWER OF CONGRESS. 
 
 test of exclusiveness, it embraces that class of legislation 
 of a general nature affecting the commercial interests of 
 all the States, which, from its essential character is na- 
 tional, and which, so far as it affects these interests be- 
 longs exclusively to the federal government.* 
 
 So far, therefore, as the foreign commerce of the United 
 States is concerned, it has been said, that from the nature 
 of the subject, the power of Congress to regulate this 
 branch of commerce, is necessarily exclusive,! because of 
 the unrestricted authority of the federal government over 
 the foreign relations of the United States. 
 
 Undoubtedly, one of the primary objects sought to be 
 attained in the establishment of the federal government, 
 was to provide means for a unity of action on the part of 
 the several States, in their international intercourse, and 
 so far as regards their foreign relations, to make them one 
 people and one nation, and, consequently, to cut off all 
 communications between foreign governments and the 
 several State authorities, acting in their individual capaci- 
 ties, as independent States ;t therefore, under the Con- 
 stitution, the several States have no foreign relations.! 
 For this reason, it has been held, that whatever regulations 
 foreign commerce should be subject to, in the ports of 
 the Union, the general government would be held respon- 
 sible for, and that all other regulations except those which 
 
 *Hinsoii v. Lott, 8 Wall., 148. 
 
 fGibbons v. Ogden, 9 Wheat., i (228), per Johnson J. 
 
 JHolmes v. Jennison> et al., 14 Pet., 540. 
 
 §Passenger Cases, 7 How., 283 (ssi), per Woodbury, J.; see 
 also Henderson v. Wickham, 92 U. S., 259 ; Bowman v. Chicago & 
 Northwestern Railroad Co., 125 U. S., 465. 
 
EXCLUSIVENESS OF COMMERCIAL POWER. 55 
 
 Congress may impose, would be regarded, by foreign 
 nations, as trespasses and, therefore, in violation of na- 
 tional faith and comity.* 
 
 But, it is evident, from a reading of the Constituition, 
 that the exclusiveness of the power of the federal govern- 
 ment, over the foreign relations of the Union, does not 
 arise from the grant of the commercial power to Con- 
 gress,t since that power is expressly derived from the 
 authority of the constitutional authorities of the United 
 States to make peace and declare war; from its treaty- 
 making power, and from its exclusive right to send and 
 receive ambassadors and other public functionaries ; and, 
 the intercourse of the United States with foreign nations, 
 in the exercise of these powers, is exclusively with govern- 
 ments and public authorities, and has no connection with 
 private persons, in their capacity as such, whether they 
 be immigrants or passengers, or travellers, by land or 
 water, from a foreign country .t 
 
 The exclusiveness of the authority of the federal gov- 
 ernment over the foreign relations of the United States, 
 therefore, does not arise from the commercial power of 
 Congress; but, it comes directly from those other 
 powers, the all comprehensive one of which is the treaty- 
 making power, the exercise of which is not only exclu- 
 sively vested in the United States, but also prohibited to 
 the States, by the express provisions of the Constitution,§ 
 
 ♦Gibbons v. Ogden, g Wheat., i (228), per Jolinson, J. 
 
 tid., per Johnson, J. rr. .r^ -r 
 
 iPassenger Cases, 7 How., 283 (494). per TanerfC. J. 
 §See Const. U. S., Art. I., sec. X., cl. I ; Art. Il.f sec. II., cl. 2; 
 Art. III., sec. II., cl. i ; Art. VI., cl. 2. 
 
S6 COMMERCIAL POWER OF CONGRESS. 
 
 a circumstance which is not common to the commercial 
 clause of that instrument. 
 
 A treaty is defined to be a compact between sovereign 
 nations, and is considered a rule of reciprocal obligation.* 
 It depends, for the enforcement of its provisions, on the 
 interest and honor of the respective governments which 
 are parties to it. If these fail, its infraction, by either 
 party, becomes the subject of international negotiation 
 and reclaimation, so far as the injured party chooses to 
 seek redress, which may, in the end, be enforced by actual 
 war.t 
 
 Like that of other nations, the treaty-making power of 
 the United States undoubtedly extends to all the usual 
 subjects of diplomacy between nations;:]: and these are 
 necessarily determined by the comity of nations, and the 
 application of the general principles of international law. 
 And, the subject-matter of such diplomacy relates to the 
 usual questions of peace and war; the surrender of pris- 
 oners; the cession of territory and the various other sub- 
 jects which are usually embraced in such compacts be- 
 tween sovereign nations having international relations 
 with each other.§ 
 
 However, the treaty-making power of the United States 
 is by no means unlimited in its extent and field of opera- 
 tion. This power is granted to the federal government 
 in general terms, without an enumeration of the objects 
 intended to be embraced in it, and, consequently, it was 
 
 ♦Cherokee Nation v. Georgia, s Pet., i (45), per Baldwin, J. 
 tEyde v. Robertson, etc., 112 U. S.., 580. 
 jUnited States v. 43 Gallons of Whiskey, 93 U. S., 188. 
 §Cherokee Nation v. Georgia, 5 Pet., i (60), per Thompson, J. 
 
EXCLUSIVENESS OF COMMERCIAL POWER. 57 
 
 designed to include only those subjects, which in the or- 
 dinary intercourse of nations, had usually been made the 
 subjects of negotiation and treaty, and which were con- 
 sistent with our institutions and the distribution of powers 
 between the general and the state governments.* Hence, 
 the treaty-making power of the United States, in order to 
 be legitimately and constitutionally exercised, must be em- 
 ployed, in full recognition and subordination to the con- 
 stitutional powers of the several States ; because, although 
 the treaty-making power, in carrying out the purposes 
 and designs of the framers of the Constitution, excludes 
 the States from all intercourse with foreign nations, still, 
 this power is of no higher order than any other, the 
 powers of the federal government, and, like these, the 
 treaty-making powers must be exercised in full recogni- 
 tion and subordination to the constitutional rights of the 
 several States. 
 
 A treaty between the United States and a foreign na- 
 tion, therefore, cannot annul a state law rightfully and 
 constitutionally enacted, and in reference to matters within 
 the power of its Legislature; and, neither can Congress, 
 by legislation enlarge federal powers and jurisdiction, 
 nor can this be done under the ^treaty-making power.f 
 Hence, it has been held that a treaty, no more than an 
 ordinary statute, can cede away the rights of a State, nor 
 any of its citizens.^ 
 
 But, while a treaty, between the United States and a 
 
 *Holmes v. Jennison, et al, 14 Pet., S40 (569), per Taney, C. J. 
 tMayor, etc., of New Orleans v. United States, 10 Pet, 662. 
 JLicense Cases, s How., 504 (513). per Daniel, J.; see also Pas- 
 senger Cases, 7 How., 283 (507)- 
 
58 COMMERCIAL POWER OF CONGRESS. 
 
 foreign nation, cannot annul a statute, rightly and con- 
 stitutionally enacted by the Legislature of a State, in ref- 
 erence to matters within its constitutional power, if the 
 subject of the treaty be the subject of international diplo- 
 macy it may contravene the statute of a State and still 
 be not objectionable. This is so, not because the United 
 States has any power to override the constitutional enact- 
 ments of a State, but because a State statute interfering 
 with any of the legitimate subjects of the treaty-making 
 power of the federal government, transcends the consti- 
 tutional power of the State, and, for this reason, is invalid 
 and of no effect. 
 
 Therefore, the solution of the question as to whether 
 the power of Congress to regulate the foreign commerce 
 of the United States be exclusively vested in the general 
 government, upon principles underlying the treaty-making 
 power, depends upon the question, whether the regulation 
 of commerce is one of the recognized and usual subjects 
 of diplomacy and negotiation between nations; and, if 
 this be so, whether the power to regulate commerce, by 
 means of treaties, is a power granted to the federal gov- 
 ernment by the Constitution. 
 
 Among commercial nations, the regulation of trade is 
 generally considered to be a legitimate subject of diplo- 
 macy, and, as such, may fall within the province of an 
 ordinary treaty-making power ; but, from this, it does not 
 necessarily follow, that the regulation of foreign com- 
 merce, in this country, falls within the treaty-making 
 power of the United States. This is so, because, the 
 powers of the United States are limited, and must always 
 
EXCLUSIVENESS OF COMMERCIAL POWER. 59 
 
 be exercised in subordination to the constitutional grant, 
 under which they are claimed. Therefore, in order to 
 determine whether the foreign commerce of the United 
 States may be regulated by treaty, the Constitution must 
 needs be the only guide. 
 
 An examination of that instrument will show, that the 
 commercial power of the United States is vested alone 
 in Congress, representing the entire legislative depart- 
 ment of the federal government, while the power to make 
 treaties is vested in the President, by and with the advice 
 and consent of the Senate ; and, from this it is clear, that, 
 if the regulation of foreign commerce may be effected, 
 by the exercise of the treaty-making power, the Presi- 
 dent, with the concurrence of two-thirds of the Senators 
 present, would be enabled to exercise a power which is 
 expressly vested by the Constitution in Congress, as a 
 whole. The commercial power of Congress is, therefore, 
 not embraced within the treaty-making power of the 
 federal government, and this being so, it would be equally 
 as illogical to contend, that this power might be exercised 
 by the Supreme Court, representing the judicial depart- 
 ment of that government. In either case the act would 
 be condemned, as an unauthorized and unconstitutional 
 usurpation of powers, by one department of the govern- 
 ment, which are expressly delegated to another. 
 
 When, therefore, it is said, that commercial regula- 
 tions, on the part of the federal government, fall within 
 the treaty-making power, it can only be meant, that, in 
 the making of treaties^ the President, as the federal Ex- 
 ecutive, may, by and with the advice and consent of the 
 
6o COMMERCIAL POWER OF CONGRESS. 
 
 Senate, incorporate m treaties the provisions and policies 
 of a prior law of Congress relating to commerce; and, 
 that the validity of such treaties, as the embodiment of a 
 system of commercial regulation, between the United 
 States and foreign countries, must depend primarily upon 
 the provisions of an act of Congress, in pursuance of 
 which the treaty is made; for laws which concern the 
 ■exterior relations of the country with other nations and 
 governments are general in their nature, and should pro- 
 ceed from the legislative authority of the nation.* 
 
 But, when, either by silence or non-action. Congress 
 has seen fit to leave the commerce between the United 
 States and foreign nations free from all legislative regu- 
 lation, it is clearly within the power of the President, 
 in the exercise of the treaty-making power, to em- 
 body the principles of this freedom, in all treaties made, 
 by him, with foreign nations. This would not impugn 
 the power of Congress to regulate such commerce, nor 
 enlarge the treaty-making power, beyond its constitu- 
 tional limits. It would only be the declaration of a rule 
 of comity, which is one of the inherent attributes of 
 national sovereignty, subject to be modified by proper 
 authority when the interests of the government demand 
 a change. And, such a change may be accomplished by 
 legislative action, for, as was declared, by Mr. Justice 
 Field, in the case Chae Chan Ping, against the United 
 States, while a treaty is in its nature a contract between 
 nations, and is often merely promissory in character, re- 
 quiring legislation to carry its stipulations into effect, such 
 
 ♦Bowman v. Chicago & Northwestern Railroad Co., 125 U. S., 
 46s (482). 
 
FOREIGN COMMERCE. 6l 
 
 legislation is open to future repeal and amendment ; and, 
 if the treaty operate of its own force, and relates to a 
 subject within the power of Congress, it may be deemed, 
 in that particular, only the equivalent of a legislative act, 
 to be repealed or modified at the pleasure of Congress, 
 and, in either case, the last expression of the sovereign 
 will must control.* 
 
 Unlike the commercial power, the treaty-making power 
 is exclusively vested in the United States ;t and, while 
 many of the principles underlying the exclusiveness of 
 the treaty-making power apply necessarily to the com- 
 mercial power, inasmuch as they both relate to that fed- 
 eral unity, which it was the great design of the Constitu- 
 tion to establish, still, it by no means follows, that, for 
 this reason, the power to regulate commerce is vested 
 exclusively in the United States, because, the two powers 
 are not co-terminous in their effect and operation. -' 
 
 Indeed, the contrary is true ; for, the very nature of the 
 subject of the commercial power is such as to preclude 
 the idea of its exclusiveness in the federal government; 
 and, the principle is well established, that there must nec- 
 essarily be some subjects of a local character, connected 
 even with foreign commerce, which are beyond the scope 
 of the federal power, and therefore, subject to the regula- 
 tion of the several States. 
 
 This question was elaborately discussed, by counsel, in 
 
 *Chae Chan Ping, v. United States, 130 U. S., 581 (600) ; see 
 also. Homer v. United States, 143 U. S., 570; United States v. 
 Lee Yen Tai, 185 U. S., 213. rr o ^ o . ^^ 
 
 tFong Yue Ting, eU., v. United States, 149 U. S., 698 (706) ; 
 Knox V. Lee, 12 Wall., 457. 
 
62 COMMERCIAL POWER OF CONGRESS. 
 
 the leading case of Gibbons against Ogden,* in which he 
 undertook to show the necessity as well as the wisdom of 
 the rule, upon which it is based, by saying: — "It is the 
 only safe and practical rule ; it is one which the extent of 
 our territory would indicate, even if the government were 
 despotic. In China, the Mandarins of provinces must 
 be entrusted with some subordinate authority to make 
 commercial regulations, adapted to local circumstances. 
 With us, the peculiar nature and principles of our free 
 and federative government, make the existence of such 
 subordinate legislation more prudent and politic. There 
 must be even in respect of foreign commerce, local in- 
 terests and details which cannot be presented to the view 
 of Congress, and can be, at least, better provided for by 
 the State Legislature, emanating from the very people to 
 whom they relate. This must have been perceived by the 
 framers of the Constitution, and they must have felt the 
 difficulty of designating the limits of what ought to be 
 permitted to State authority. They did not, therefore, 
 attempt the limitation, except in some plain cases, which 
 they marked by restrictions and prohibitions." 
 
 The application of the principles contended for, in this 
 argument of counsel, to the case then under advisement, 
 did not require a full consideration, by the court, and, in 
 its decision, it went only so far as to determine, that the 
 Act of the Legislature of the State of New York, upon 
 which the case arose, was repugnant to that clause of the 
 Constitution, which authorizes Congress to regulate com- 
 merce, so far as the Act prohibited vessels, licensed ac- 
 
 *g Wheat, i (loi). 
 
LOCAL SUBJECTS OF COMMERCIAL POWER. 63 
 
 cording to the laws of the United States, for carrying on 
 the coasting trade, from navigating the waters of that 
 State by steam vessels. But, the question has been fully 
 considered in subsequent cases, and the principle is now 
 well established, that, when the subjects of the commercial 
 power are local, in their operation, or constitute mere 
 aids to commerce, the respective States may provide for 
 their regulation and management, at least, until Congress 
 intervenes and supersedes their action, by such legislation, 
 as that body may deem appropriate to the subject.* 
 
 The consideration of this subject might be continued 
 further; but, enough has been said to show, that, the com- 
 mercial power of Congress, even in respect to foreign 
 commerce, is not per se exclusively vested in the general 
 government; and, that it is only exclusive, by virtue of 
 the nature of the power, in those cases where a general 
 or a national rule requires, that it should be so, or where 
 the principles of international law, are to be observed in 
 the relations of the United States with foreign nations. 
 
 But, inasmuch as a paramount and controlling authority 
 over the whole subject, within the limits of the constitu- 
 tional grant to Congress, is vested in the federal govern- 
 ment, the extent of the exercise of any regulating power, 
 by the several States must be determined by a considera- 
 tion of this fact, and must depend upon a proper applica- 
 tion of those principles which govern the States, in the ex- 
 ercise of their temporary powers, in respect to subjects 
 of a local character, as well as those which underlie the 
 
 *Pound v. Turck, 95 U. S., 459; Cardwell v. American River 
 Bridge Co., 113 U. S., 203. 
 
64 COMMERCIAL POWER OF CONGRESS. 
 
 legitimate exercise of their reserved power of taxation and 
 police power, in so far as these well recognized powers, 
 on the part of the States, may indirectly affect the federal 
 power of commercial regulation. 
 
 The same, to some extent, is also true of commerce 
 among the several States ; for inter-state commerce, like! 
 foreign commerce, may be as varied as commerce itself, 
 and its regulation may cover the whole commercial field, 
 including the means, instruments and agencies by, and 
 through which it is carried on. 
 
 Commerce among the States, like commerce with for- 
 eign nations, therefore, consists of intercourse and traffic 
 between their citizens. It includes the transportation of 
 persons and property, and the navigation of the public 
 waters for that purpose, as well as the purchase, sale 
 and exchange of commodities, where these are necessary 
 to the exercise of the commercial power of Congress, and 
 the power to regulate inter-state commerce, as well as 
 commerce with foreign nations, vested in Congress, is 
 the power to prescribe the rules by which it shall be 
 governed, that is, the conditions upon which it shall be 
 conducted, and to determine when it shall be free and 
 when it shall be subject to duties or other restrictions. The 
 power to regulate also embraces, within its control, all 
 the intsrumentalities by which that commerce may be 
 carried on, and the means by which it may be aided and 
 encouraged. The subjects, therefore, upon which the 
 power may be exerted are of infinite variety. While 
 with reference to some of those, which are local and 
 limited in their nature or sphere of operation, the States 
 
INTER-STATE COMMERCE. 6$ 
 
 may prescribe regulations until Congress intervenes and 
 assumes control; yet, when they are national in their 
 character and require uniformity of regulation, affecting 
 alike all the States, the power of Congress is exclusive; 
 and, necessarily, Congress alone can prescribe regula- 
 tions which are to govern the whole country. Otherwise, 
 it is said, there would be no protection against conflicting 
 regulations of the different States, each legislating in 
 favor of its own citizens and against those of other 
 States ; and that it was from apprehensions of such con- 
 flicting and discriminating state legislation, and to secure 
 uniformity of regulation, that the power to regulate com- 
 merce with foreign nations and among the States was 
 vested in Congress.* Therefore, the legislative depart- 
 ment of the federal government has the unquestioned 
 power under its authority to regulate commerce to inter- 
 pose, by the exercise of this power, in such a manner as to 
 prevent the States from any oppressive interference with 
 the free interchange of commodities by the citizens of 
 one State with those of another.! 
 
 And, when a commodity has commenced to move as 
 an article of trade or traffic between a place in one State - 
 and a place in another State, it denotes commerce between 
 the States, and the means employed in moving it, from 
 place to place, over every part of the entire line, is an 
 iemployment in that commerce; consequently, the appeal 
 in the case of the Chicago & Northwestern Railroad 
 
 ♦Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 196; Du- 
 buque & Sioux City Railroad Co. v. Richmond, 19 Wall., 584. 
 tWoodruff V. Parham, 8 Wall., 123. 
 
66 COMMERCIAL POWER OF CONGRESS. 
 
 Company against Fuller* was based upon the constitution- 
 al proposition, that from the moment of the consign- 
 ment of goods from one State to another, the goods them- 
 selves, and everything pertaining to their transportation, 
 including compensation, is commerce between the States, 
 and, as such, is not subject to state legislation, in any of 
 its branches, until fully delivered to the consignee, and 
 that, when consigned such goods cease to form items 
 in the common mass of property in the State where the 
 shipment was made, and until delivered and introduced 
 into the common mass of property in the State to which 
 it is consigned, does not fall within the operation of the 
 laws of the several States. 
 
 In considering the subject of the exclusiveness of the 
 power of Congress over inter-state commerce, it will, 
 however, be well to remember that, prior to the adoption 
 of the Constitution, the low condition of trade and the 
 serious embarrassments which had arisen throughout the 
 country respecting its regulation, demonstrated the neces- 
 sity of some practical means for its control, by the gen- 
 eral government, free from the conflicting legislation of 
 the several States; and that, so far as the nature of the 
 subject is concerned, the same reasons, which influenced 
 the framers of the Constitution to recommend the dele- 
 gation of the power to regulate foreign commerce, to the 
 federal government, induced them to incorporate, in their 
 plan of government, the power to regulate commerce, 
 among the several States, the only difference being that 
 the one concerned the establishment of a mode of united 
 
 *io Wall., 557- 
 
INTER-STATE COMMERCE. 67 
 
 action, in the international relations between them and 
 foreign nations, while the other was based upon the 
 necessity of an harmonious relation among themselves. 
 
 In either case, uniformity of regulation was the main 
 object sought to be attained; and the commercial power 
 in respect of foreign and inter-state commerce was 
 granted to Congress to insure this uniformity, the pur- 
 pose of the grant being to place the commerce of the 
 country beyond interruptions and embarrassments arising 
 from conflicting and hostile state regulations.* 
 
 Consequently, it has been said that, in matters of inter- 
 state commerce, the United States are but one country, 
 and are, and must be, subject to one system of regulation, 
 and not to a multitude of systems,t which is the an- 
 nouncement of a doctrine as applicable to foreign as it 
 is to inter-state commerce. 
 
 Being one country, and necessarily subject to one sys- 
 tem of regulation, commerce among the States must 
 be considered as a whole, and the federal power of 
 regulation cannot stop at the boundary line of the several 
 States. It must extend to the interior of every State, 
 and comprehend in the field of its operation, not only that 
 commerce, which is introduced into a State from without, 
 but also that which arises in one State, and passes into 
 another, as well as that which passes through a State 
 upon a continuous voyage, irrespective of the question 
 as to whence it came, or what may be its destination, 
 "because the authority of the United States, within the 
 
 ♦Southern Steamship Co. v. Masters and Wardens, 6 Wall., 31. 
 tRot>l>'ns v. Shelby County Taxing District, 120 U. S., 489. 
 
68 COMMERCIAL POWER OF CONGRESS. 
 
 limits of its constitutional powers, extends over the whole 
 Union."* 
 
 In contravention of this doctrine, however, it has been 
 contended, that commerce among the States means a voy- 
 age from State to State, commencing in one State and 
 terminating, so far as the authority of a license from the 
 United States goes, at the boundary line of the State 
 where the voyage began; and, that the subsequent prog- 
 ress of the voyage then becomes the subject of the regu- 
 lation of the next State in whose territory it is continued. 
 Eut the fallacy of this contention becomes apparent in 
 its naked statement; for, if the argument upon which it 
 is based were sound, the result would be, that a vessel 
 making a voyage from a port in one State must navigate 
 subject to the regulation of the State, in which she com- 
 mences her voyage, until she touches the boundary line of 
 that State, and, at the moment she leaves its jurisdiction 
 and enters the jurisdiction of another, she then navigates 
 subject to the regulation of the State, so entered, until 
 she completes the voyage. In such a case, the vessel 
 would be under the control of state regulations during 
 the whole voyage, and Congress would be ousted of its 
 jurisdiction altogether.f The effect of such a doctrine, it 
 is plain to be seen, would be, that one State could estab- 
 lish, at pleasure, a policy of non-intercourse with other 
 States, and thus defeat the main object of the estab- 
 
 *Kidd V. Pearson, 128 U. S., I (17). See also, Crandall v. 
 Nevada, 6 Wall., 35; Philadelphia & Reading Railroad Co. v. 
 Pennsylvania, 15 id., 232; Wabash, St. Louis & Pacific Railroad 
 Co. V. Illinois, 118 IJ. S., 557; Fargo v. Michigan, 121 id., 230. 
 
 tGibbons v. Ogden, 9 Wheat., i. 
 
INTER-STATE COMMERCE. 69 
 
 lishment of the federal government, so far as tne regula- 
 tion of inter-state commerce is concerned. 
 
 Such a result would not only plainly contravene the 
 commercial power of Congress, but would also be, in a 
 measure, in violation of that other clause of the Con- 
 stitution, which guarantees to the citizens of each State 
 all the privileges and immunities of citizens of the several 
 States^; and hence, it has been very pertinently said, that 
 such action, on the part of the States, would be repug- 
 nant to the Constitution, and would strike at the Union 
 itself.* 
 
 This subject was thoroughly discussed, its result was 
 clearly pointed out, and the true doctrine, in its appli- 
 cation to inter-state commerce, was laid down, in the 
 case of The Daniel Ball against the United States.'^ 
 The plaintiff, in that case, was the owner of a steamer 
 called the Daniel Ball, plying exclusively in the waters 
 of the State of Michigan ; the goods, in question, received 
 by the plaintiff, for transportation, were destined and 
 marked for other States, and the steamer was likewise 
 engaged in transporting, up the Grand River, goods 
 brought within the State of Michigan from without its 
 limits. Upon these facts, it was contended, by counsel, 
 that, inasmuch as the agency of the steamer, in the trans- 
 portation, was entirely within the limits of the State of 
 Michigan, and since she did not run in connection, or in 
 combination with any other line of vessels or railroads 
 leading to other States, she was, therefore, engaged en- 
 
 *Graves et al. v. Slaughter, etc., 15 Pet., 449. 
 tio Wall., SS7- 
 
70 COMMERCIAL POWER OF CONGRESS. 
 
 tirely in domestic commerce, and was not subject to the 
 regulating power of Congress. To the correctness of this 
 contention, however, the Supreme Court of the United 
 States, before which the question came for determina- 
 tion, refused to give its assent; for, in delivering its 
 opinion, the court said that, so far as this steamer was 
 employed in transporting goods, destined for other States, 
 or goods brought from without the limits of the State 
 of Michigan, and destined for places within that State, 
 she was engaged in commerce between the States, and 
 however limited that commerce may have been, she was, 
 so far as it went, subject to the legislation of Congress ; 
 that she was employed as an instrument of that com- 
 merce, for whenever a commodity has begun to move as 
 an article of trade, from one State to another, commerce 
 in that commodity between the States has commenced, 
 and the fact, that several different and independent agen- 
 cies are employed in transporting the commodity, some 
 acting entirely within one State, and some acting through 
 two or more States, does, in no event, affect the char- 
 acter of the transaction. To the extent to which 
 each of such agencies acts in that transportation, it is 
 subject to the regulation of Congress. If, it is concluded, 
 the authority of Congress do not extend to an agency 
 engaged in such commerce, when that agency is confined 
 in its operations, within the limits of a single State, its 
 entire authority, over inter-state commerce, may be de- 
 feated. Several agencies combining, each taking up the 
 commodity at the boundary line, at one end of a State, 
 and leaving it, at the boundary line, at the other end, the 
 
INTER-STATE COMMERCE. 71 
 
 federal jurisdiction would be entirely ousted, and the 
 constitutional provision, vesting in Congress the power 
 to regulate commerce among the several States, would 
 become a dead letter. 
 
 Hence, when a common carrier voluntarily engages in 
 inter-state commerce, by making an arrangement for a 
 continuous carriage or shipment of goods and merchan- 
 dise, it becomes subject to the regulation of Congress, 
 and, in so far as such traffic is concerned, the provisions 
 of the Act of Congress, establishing the Inter-state Com- 
 merce Commission, apply.* 
 
 And, the doctrine is well established that, while such 
 property is in transit, and is the subject-matter of inter- 
 state commerce, it is entirely under the protection of 
 the Constitution of the United States; and, wherever 
 commerce among the States goes, the power of the nation 
 goes with it to protect and enforce its rights ;f so, when 
 the subject of inter-state commerce is property, and that 
 commerce is of a national character, and requires uni- 
 formity of regulation, affecting all the States alike, the 
 power is exclusive in Congress, and the States can do 
 no act with respect to such commerce, when it is carried 
 on by corporations or individuals, which will operate as 
 a burden on the inter-state business of the company or 
 
 ♦Interstate Commerce Commission v. Detroit, Grand Haven & 
 Milwaukee Railway Co., 167 U. S., 633 (642) ; Cincinnati, New 
 Orleans & Texas Railway Co. v. Interstate Commerce Commis- 
 sion, 162 U. S., 184. 
 
 tHall V. De Cuir, 95 U. S., 485- 
 
72 COMMERCIAL POWER OF CONGRESS. 
 
 individual, or impair the usefulness of their facilities for 
 inter-state traffic* 
 
 The power to regulate commerce among the States is 
 vested in Congress, in terms as absolute as those, which 
 delegate to that body, the power to regulate commerce 
 with foreign nations; and, therefore, it has been holden 
 that a State can no more regulate or impede commerce 
 among the several States than it can regulate or impede 
 commerce with foreign nations ;t and, for the same rea- 
 son, no State may pass any act affecting such commerce, 
 although it purports to operate within the limits of the 
 State, provided, however, that the state regulation, com- 
 plained of, be of such a nature as to fall within the im- 
 plied constitutional inhibition, and requires the application 
 of what may be considered the general or national rule.t 
 
 And, it has been said, that it is practically impossible 
 to separate the regulation of foreign commerce and do- 
 mestic commerce among the States from each other, for 
 the reason, that the same policy applies to each, and not 
 a reason can be assigned for confiding the power over 
 the one, which does not conduce to establish the pro- 
 priety of conceding the power over the other ; and that the 
 importance of regulating commerce among the States, 
 for the purposes of the Union, is scarcely less than that 
 of regulating it with foreign nations. 
 
 But, it has been contended that, notwithstanding the 
 power to regulate commerce with foreign nations and 
 
 ♦Cardwell v. American Bridge Co., 113 U. S., 205; Stone v. 
 Fanners' Loan & Trust Co., 116 id., 307. 
 tBrown v. Houston, 114 U. S., 622. 
 JHall V. De Cuir, 95 U. S., 485. 
 
FOREIGN AND INTER-STATE COMMERCE. 73 
 
 among the several States is delegated to Congress, in 
 the same section of the Constitution, and in the same 
 language, nevertheless, it does not necessarily follow 
 that the power to regulate both classes may be exercised 
 to the same extent; and this position was taken by Mr. 
 Justice McLean, in the Passenger Cases, who bases his 
 argument upon the same considerations as those which 
 are given to support the identity of the power of Con- 
 gress to regulate both foreign and inter-state commerce, 
 when he holds, that the United States is considered as a 
 unit in all regulations of foreign commerce, but not so, 
 when the regulations are to operate upon commerce 
 among the several States. But, however this may be, it 
 is clear, that commerce on land between the different 
 States is so strikingly dissimilar, in many respects, from 
 commerce on water, that it has often been found 
 difficult to regard them in the same aspect, in reference 
 to the respective constitutional powers and duties of the 
 state and federal governments. 
 
 This difference was clearly stated, and the reasons 
 for it, were tersely given, by Mr. Justice Bradley, in the 
 case of the Baltimore <S- Ohio Railroad Company against 
 Maryland,* when he said: — "No doubt commerce by 
 water was primarily in the minds of those who framed 
 and adopted the Constitution, although both its language 
 and spirit embrace commerce by land as well." For, 
 said he, "Maritime transportation requires no artificial 
 roadway. Nature has prepared, at hand, those portions 
 of the instrumentality employed. The navigable waters 
 
 *2i Wall., 4s6. 
 
74 COMMERCIAL POWER OF CONGRESS. 
 
 of the earth are recognized public highways of trade and 
 commerce. No franchise is needed to enable the navi- 
 gator to use them. Again: the vehicles of commerce 
 by water being instruments of inter-communication with 
 other nations, the regulation of them is assumed by the 
 national Legislature. So, that State interference with 
 transportation by water, and especially by sea, is at once 
 clearly marked and distinctly discernible. But it is dif- 
 ferent with transportation by land. This, when the Con- 
 stitution was adopted, was entirely performed on com- 
 mon roads and in vessels drawn by animal power. No 
 one, at that day, imagined the roads and bridges of the 
 country (except when the latter crossed navigable streams) 
 were not entirely subject, both as to their construction, 
 repair and management, to state regulation and control. 
 They were all made, either by the States, or under their 
 authority. The power of the State to impose or authorize 
 such tolls, as it saw fit, was unquestioned. No one then 
 supposed that the wagons of the country, which were 
 the vehicles of this commerce, or the horses by which 
 they were drawn were subjects of national legislation. 
 The movement of persons and merchandise, so long as it 
 was free to one person as to another, to the citizens of 
 other States as to the citizens of the State in which it 
 was perfomed, was not regarded as unconstitutionally 
 restricted and trammelled by tolls, exacted on bridges or 
 turnpikes, whether belonging to the State or to private 
 persons. And when, in process of time, canals were 
 constructed, no amount of tolls which was exacted there- 
 on, by the State, or the companies that owned them, was 
 
COMMERCE ON LAND AND WATER. 75 
 
 ever regarded as an infringement of the Constitution. 
 When constructed, by the State itself, they might be 
 the source of revenues, largely exceeding the outlay, 
 without exciting even the question of constitutionality. 
 So, when by the improvements and discoveries of me- 
 chanical science, railroads came to be built and furnished 
 with all the apparatus of rapid and all absorbing trans- 
 portation, no one imagined that the State, if itself owned 
 the work, might not exact any amount whatever of toll, 
 or fare, on freight, or authorize its citizens or corpora- 
 tions, if owners, to do the same." 
 
 But, in delivering a dissenting opinion, in a case* where 
 the validity of an act of the Legislature of the State of 
 Pennsylvania was the subject of litigation, the same 
 learned justice said, "to contend tBat there was any 
 difference between cars, or trains of cars, and ocean 
 steamships," in regard to the power of Congress to regu- 
 late commerce, "is to lose sight of the essential qualities 
 of things." 
 
 However, since no exclusive power to regulate com- 
 merce, in any of its branches, is vested in the federal 
 government in express terms, and since the Constitution 
 contains no prohibition upon the exercise of such a power 
 by the States, any argument for exclusiveness over the 
 matter, either in respect of foreign or inter-state trade, 
 must necessarily be based upon the reason, from which it 
 arises. "So far as the reason exists," says Mr. Justice 
 Woodbury, in delivering a separate opinion in the Pas- 
 senger Cases, "to make the exercise of the commercial 
 
 ♦Pullman's Palace Car Co. v. Pennsylvania, 141 U. S., 18 (32). 
 
76 COMMERCIAL POWER OF CONGRESS. 
 
 power exclusive, as on matters of exterior, general and 
 uniform cognizance, the construction [placed upon the 
 commercial power of Congress by other members of the 
 court in those cases] may be proper to render it exclu- 
 sive, but no further, as the exclusiveness depends in this 
 case wholly on the reasons and not on any express pro- 
 hibition, and hence cannot extend beyond the reasons 
 themselves. Where they disappear the exclusiveness 
 should halt. In such case, emphatically, cessante ra- 
 tione," says he, "cessat et ipsa lex."* 
 
 And, in all cases where the exclusive power of the 
 federal government over inter-state commerce is claimed, 
 it is not enough to establish as a fact, upon which the 
 claim is based, that the instrumentality by which such 
 commerce is carried on, in the State, is used in aid of 
 inter-state commerce. Any state legislation of this kind, 
 to be unconstitutional must be such as will necessarily 
 amount to, or operate, as a regulation of business without 
 the State as well as within.t 
 
 The relation existing between the United States and 
 the Indian tribes, dwelling within its territory and subject 
 to its jurisdiction, is anomalous in its character; and, 
 therefore, the nature of the power of Congress to regu- 
 late the Indian trade is peculiar to itself, in so far, at 
 least, as the nature of the power depends upon that re- 
 lation. 
 
 In some respects, this relation is like that between the 
 United States and foreign nations ; and when this is so, 
 
 *7 How., 283 (559). 
 
 tCardwell v. American Bridge Co., T13 U. S., 205. 
 
COMMERCE WITH INDIAN TRIBES. 'J'J 
 
 the exclusiveness of the commercial power of Congress, 
 as applicable to the Indian trade, is governed by the 
 same principles as those which govern the foreign com- 
 merce of the country. In other respects, however, the 
 relation is quite different, requiring the application of 
 other principles, based upon the peculiar status of the 
 Indians and the general policy of the federal govern- 
 ment toward their respective tribes. 
 
 Except in that provision, which vests in Congress, the 
 power to regulate commerce, the relation of the several 
 States and of the United States to the Indians is no- 
 where expressly referred to in the Constitution. It is 
 true, that the Articles of Confederation vested in the 
 Congress full power of "regulating the trade and man- 
 aging all affairs with the Indians, not members of any 
 State," but the only direct reference to the subject at 
 all, to be found in the present Constitution, is in the 
 commercial clause of that instrument. 
 
 This provision of the Constitution, however, only re- 
 lates to the regulation of the Indian trade, and has noth- 
 ing to do with that other and more extensive power of 
 "managing their affairs," which was vested in the old 
 Congress by the Articles of Confederation, and which is 
 now exercised, by the United States, to the fullest ex- 
 tent, although not expressly granted, by the Constitution. 
 The exclusive power of the United States to hold in- 
 tercourse with the Indian tribes and to manage their 
 affairs, not having been vested in that government by the 
 commercial clause of the Constitution, it must of neces- 
 cessity come from some other source of power. In order. 
 
78 COMMERCIAL POWER OF CONGRESS. 
 
 therefore, to ascertain what this may be, it is necessary 
 to consider the powers of the federal government, in re- 
 spect of the character of the Indian tribes, as nations, 
 and as occupants of the territory within the geographical 
 and territorial limits of the United States. 
 
 Examining the Constitution, with this end in view, it 
 becomes apparent, that the authority exercised by the 
 United States over the Indians can only be expressly 
 derived from the commercial clause of that instrument, 
 but, this as has been shown, is only partial, relating to 
 trade alone ; from the treaty-making power, in connection 
 with those other powers, vested in the general government, 
 which are directly dependent upon this power, or from 
 the power of the United States over its Territories. 
 
 The treaty-making power of the United States, as a 
 source of its authority over the Indian affairs of the 
 country, becomes apparent, when the fact is mentioned, 
 that, these tribes, in their relation with the United States, 
 have always been considered as independent political 
 communities,* although resident within its- territory. 
 But, whatever may be the extent of the power of 
 the federal government, over the Indian affairs, from 
 this source, the legislation of Congress, under the present 
 Constitution, concerning the Indians, is said to have been 
 in the same spirit, and the legislative department of the 
 government has been guided by the same principles 
 which prevailed in the old Congress and under the old 
 Confederation. 
 
 ♦Delaware Indians v. Cherokee Nation, 193 U. S., 127; Chero- 
 kee Trust-Fund, 117 U. S., 288; Fargo v. Hart, id., 490. 
 
COMMERCE WITH INDIAN TRIBES. 79 
 
 These principles are said to have been inherited, by the 
 colonies, from Great Britain; they were transmitted, by 
 them, to the Congress, under the Confederacy, and, by 
 the same authority, it is said, the power is now exercised 
 by the federal government. 
 
 As independent communities, the Indian tribes of the 
 United States have retained their rights, as undisputed 
 possessors of the soil, from time immemorial. The very 
 term "nation," so generally applied to them, signifies a 
 people distinct from others; and, in the management of 
 their internal affairs, the Indian tribes are dependent upon 
 no other nation. Unless, therefore, restrained, by the 
 paramount authority of the United States, these tribes 
 may punish offenses, under their own laws; and, in so 
 doing, they are amenable to no other tribunal, the policy 
 of the government, in this respect, having always been 
 to recognize, in the inhabitants of the Indian country, 
 such power of self-government, as was thought consistent 
 with the safety of the white population, with which they 
 came in contact, in order to encourage them, as much 
 as possible, to raise themselves to a higher standard of 
 civilization.* 
 
 So, as nations, they make war and enter into treaties 
 of peace. The exercise of these, and other rights of a 
 similar nature, give them a distinct character, and consti- 
 tute them, in some respects, at least, independent nations. 
 
 Recognizing such an independent character, on the part 
 of the Indian tribes, particularly in respect to their power 
 
 *In re Mayfield, 141 U. S., 107 ; see also, Talton v. Mayes, 163 
 U. S., 376; Nofire v. United States, 164 U. S. 657. 
 
8c COMMERCIAL POWER OF CONGRESS. 
 
 to make treaties, the United States holds intercourse with 
 them, as it does with other nations. And, while they are 
 not recognized as foreign States,* in the full acceptation 
 of that term, still, they possess that character, to such an 
 extent, as to render all intercourse with them exclusively 
 of federal concern. Hence, all intercourse with the Indian 
 tribes is carried on exclusively by the government of the 
 United States,t or under its authority, and the several 
 States for this reason, are excluded from all intercourse 
 with them, upon the same grounds, that they are excluded 
 from intercourse with foreign nations. 
 
 And, such is said to be the authority of the general 
 government in the management of the Indian affairs, by 
 treaty, that title to any part of the lands of the Indian tribe 
 may be granted to any individual member of the tribe, by 
 a treaty between it and the United States, without any 
 act of Congress, or any patent from the executive au- 
 thority of the United States, irrespective of the commer- 
 cial power.t 
 
 Therefore, the exclusiveness of the power of Congress 
 to regulate that branch of commerce relating to the Indian 
 trade, stands upon the same footing, as that of its power 
 to regulate commerce with foreign nations, in so far as 
 the nature of the power depends upon those principles, 
 which underlie the general treaty-making power of the 
 federal government. 
 
 *Holden v. Joy, 17 Wall., 211 ; Warner v. Joy, id., 253. 
 
 fWorcester v. Georgia, 6 Pet., 515 ; Eastern Band of Cherokee 
 Indians v. United States, 117 U. S., 288; Cherokee Nation v. 
 Southern Kansas Railway Co., 135 U. S., 641. 
 
 tJones V. Meehan, 17s U. S., I. 
 
COMMERCE WITH INDIAN TRIBES. 8l 
 
 Upon these principles it was, therefore, held, that taxes 
 assessed by the State of New York, against the Buffalo 
 Creek, Allegheny and Cataraugas reservations, in that. 
 State, were unconstitutional and void, they being in direct 
 conflict with the tribal rights of the Seneca Nation, as 
 guaranteed by its treaties with the United States.* 
 
 In recognizing in the Indian tribes such a national and 
 independent character, as to render them capable of hold- 
 ing intercourse with the United States, in the ordinary 
 mode of international deaUngs of one nation with another, 
 however, it is not to be understood that these tribes pos- 
 sess that character to an unlimited extent. 
 
 And, referring to the Cherokee Nation, the Supreme 
 Court of the United States has held, that, "the prop- 
 osition, that the Cherokee Nation is sovereign, in the 
 same sense, that the United States is sovereign, or in the 
 sense, that the several States are sovereign, and, that that 
 Nation alone can exercise the power of eminent domain, 
 within its limits, finds no support in the numerous treaties 
 with the Cherokee Indians, or in the decisions of this 
 Court, or in the Acts of Congress defining the relation of 
 that people to the United States."t 
 
 Under the existence of the original States, as British 
 colonies, experience had shown that the colonial relations 
 with the Indian tribes was a matter of general concern, 
 not only to the colonies, but also the British nation 
 itself; and that, under the Confederation, before the 
 
 ♦The New York Indians, S Wall., 761. 
 
 tCherokee Nation v. Southern Kansas Railway Co., 135 U. S., 
 641 (6S3). 
 
82 COMMERCIAL POWER OF CONGRESS. 
 
 adoption of the present Constitution, the only efficient 
 method of dealing with these people was by placing them 
 under the protection and regulation of the federal govern- 
 ment. Their peculiar habits and character required this, 
 and the history of the country, in the early stages of its 
 development, demonstrated the necessity of keeping them 
 "separate, subordinate and dependent."* Hence, it is 
 that the Indian tribes, while they have always been recog- 
 nized, in the laws and treaties of the United States, as 
 nations, nevertheless they have been considered as de- 
 pendent upon the federal government; and, on this ac- 
 count, have been often denominated "domestic dependent 
 nations," holding a relation to the general government 
 resembling that of guardian and ward.t 
 
 Growing out of this relation, therefore, all the powers 
 of government possessed by the Indian tribes, as nations, 
 are necessarily subordinate to the authority of the United 
 States ; and, by virtue of this condition of subordination, 
 they are restricted, in their national or tribal intercourse ; 
 and, of course, can make treaties with no other power 
 than that of the federal government ; and, their laws must 
 always be in conformity with such Acts as Congress 
 may pass in their behalf.t 
 
 Beside the power of the United States over the Indian 
 tribes, growing out of the power to regulate commerce 
 
 ♦United States v. 43 Gallons of Whiskey, 93 U. S., 188. 
 
 tCherokee Nation v. Georgia, 5 Pet., i. 
 
 iUnited States v. Rogers, 4 How., 566; Cherokee Tobacco 
 Case, II Wall., 616; United States v. Kagama, 118 U. S., 375; 
 In re Mayfield, 141 U. S., 107; Stephens v. Cherokee Nation, 
 174 U. S., 445; Cherokee Nation v. Hitchcock, 187 U. S., 294; 
 Lone Wolf v. Hitchcock, id., 553. 
 
COMMERCE WITH INDIAN TRIBES. 83 
 
 and the treaty-making power, as has already been sug- 
 gested, there is still another source, upon which the power 
 of the general government to manage the Indian affairs 
 of the country is based, and which is even more extensive 
 in its operation, and exclusive in its nature, than either 
 of the other two. This is that power which vests in Con- 
 gress, authority "to dispose of and make all needful rules 
 and regulations respecting the territory or other property 
 belonging to the United States."* 
 
 When the Articles of Confederacy were framed and 
 adopted, the fact is, that the United States had no territory 
 of its own, and, therefore, that instrument vested in Con- 
 gress not only the power to regulate the Indian trade, but 
 also, the power to manage all their affairs, provided, they 
 were not members of any State. In the meantime, how- 
 ever, and before the adoption of the present Constitution, 
 certain of the States ceded to the general government their 
 outlying territory in the West, upon which the Indians 
 were principally located, and the cession of these terri- 
 tories, as well as the delegation of the power to the fed- 
 eral government to make all rules and regulations respect- 
 ing them, furnished a sufficient reason, if no other existed, 
 for the omission of the "managing power," delegated to 
 Congress, under the Articles of Confederation, from the 
 present Constitution of the United States. 
 
 While, therefore, the federal government has always 
 recognized in the Indian tribes a certain condition of 
 national existence, and has dealt with them, as independ- 
 ent nations, it possesses, under its power to make rules 
 
 ♦Const. U. S., Art. IV., sec. III., cl. 2. 
 
34 COMMERCIAL POWER OF CONGRESS. 
 
 and regulations respecting its Territories, the right and 
 authority to govern them directly by Acts of Congress, 
 instead of establishing its relations, and governing them 
 by treaty ; because they are within the geographical Hmits 
 of the United States ; are occupants of its Territories, and 
 are necessarily subject to such laws as Congress may, from 
 time to time, enact for the government and management 
 of these Territories, for the security of the several Indian 
 tribes occupying them, and for the protection of those 
 with whom they come in contact.* Therefore, the power 
 to regulate the Indian relations of the country, whether 
 they be commercial or otherwise, is vested exclusively in 
 CongresSjt because the power of Congress over its Terri- 
 tories is general and plenary ;$ it exists independent of 
 the commercial power, and the States have no control, 
 power or government over them, so long as the Indians 
 maintain their distinct tribal relation. And, the authority 
 of the United States over the Indian tribes, is so extensive 
 and exclusive, that it is not limited to territory. It is so gen- 
 eral in its nature, that its mere existence carries with it, 
 the right to exercise the power, wherever there is a sub- 
 ject upon which it may operate, although within the limits 
 of a State ; and, in so far as the Indian trade is concerned, 
 it extends to its regulation, even with the individual 
 members of a tribe, so long as they maintain the tribal 
 
 ♦United States v. Kagama, ii8 U. S., 375; Choctaw Nation v. 
 United States, 119 U. S., i ; Cherokee Nation v. Southern Kansas 
 Railway Co., 135 U. S., 641. 
 
 tWorcester v. Georgia, 6 Pet, 515. 
 
 iLate Corporation of the Church of Jesus Christ of Latter-Day 
 Saints v. United States, 136 U. S., i ; Binns v. United States, 194 
 U. S., 486. 
 
COMMERCE WITH INDIAN TRIBES. 85 
 
 relation. For, says the Supreme Court of the United 
 States, in the case of the United States against Holliday* 
 "the locality of the traffic can have nothing to do with the 
 power. The right to exercise it, in reference to any In- 
 dian tribe, or any person, who is a member of such tribe, 
 is absolute, without reference to the locality of the traffic, 
 or the locality of the tribe, or of the member of the tribe, 
 with whom it is carried on." 
 
 However, the power of the United States over the in- 
 dividual members of an Indian tribe, is limited to those 
 who live together, as a distinct community, under their 
 own laws, usages and customs, and does not extend to 
 the mere remnants of tribes, which are found in many 
 parts of the country, and the members of which have 
 become incorporated with the general population of the 
 States, in which they reside; their national character ex- 
 tinguished ; their usages and customs in a great measure 
 abandoned; self-government surrendered, and, who have 
 voluntarily, or by force of circumstances, gradually be- 
 come a constituent part of the population of, and subject 
 to the laws of the several States, within whose limits 
 they are situated.t Under these circumstances, the au- 
 thority of the general government ceases, and the power 
 of the States over such individuals is the same as over 
 other citizens within its borders, free from any extraordi- 
 nary power of interference by the federal government^ 
 
 *3 Wall., 407; United States v. 45 Gallons of Whiskey, 93 
 
 U. s., isa 
 
 tCherokee Nation v. Georgia, 5 Pet, I, 
 
 i Worcester v. Georgia, 6 Pet., 515; Eastern Band of Cherokee 
 Indians v. United States, 117 U. S., 288. 
 
86 COMMERCIAL POWER OF CONGRESS, 
 
 Recurring again to the Constitution, as the only source 
 of the commercial power of Congress, it will be found, 
 that its language makes no distinction between the extent 
 of the regulating power of the general government, over 
 either of the three classes of commerce, covered by its 
 provisions; and, for this reason, it has been held, that 
 the power, whatever may be the extent of its operation, 
 is equally broad and absolute over the one, as it is over 
 the other.* But, from the very nature of the case, and 
 the peculiar relations existing between the federal gov- 
 ernment and the Indian tribes, in virtue of the treaty- 
 making power and the power to govern its own Terri- 
 tories, it is apparent, that, although the commercial power 
 of Congress is equally broad, in so far as may be gathered 
 from the express terms of the Constitution, never- 
 theless the power of the United States, to regulate the 
 Indian trade, is, and must of necessity, be more extensive 
 in its operation, than its power to regulate either foreign 
 or inter-state commerce; because, it is complete, within 
 itself, and exists independent of the commercial power. 
 
 As to foreign and inter-state commerce, it is also said, 
 that the importance of regulating commerce among the 
 States, for the purposes of the Union, is scarcely less than 
 that of regulating it with foreign nations;! and, this 
 must be so, because, the same reasons which govern the 
 exclusiveness of the power, in the one case, apply in the 
 other, whenever these arise from the nature of the power 
 
 *H:nson v. Lott, 8 Wall., 148; Walling v. Michigan, 116 U. S., 
 446. 
 
 tBrown v. Maryland, 12 Wheat., 419. 
 
NATURE OF THE COMMERCIAL POWER. 87 
 
 itself. But, it is evident, that no rule of exclusiveness, 
 either in respect of foreign or inter-state commerce, may 
 be predicated of the commercial power, when this depends 
 solely upon the nature of the power itself. Hence, if the 
 power over these two branches of commerce, be, for any 
 reason, exclusive, in the federal government, it must be 
 so, not from a mere delegation of the power alone, but be- 
 cause from the nature of the subjects upon which it oper- 
 ates, a general rule of regulation is required. 
 
 This conclusion arises from necessity, and is the result 
 of the doctrine of implication, as applied to powers gen- 
 erally; and where such a rule is applicable to any of the 
 powers of the federal government, the exercise of the 
 power is said to be as exclusive, as it would be in a single 
 government, having, in its constitution, the same restric- 
 tions on its exercise, as are found in the Constitution of 
 the United States* But, it is not always easy to deter- 
 mine what are those subjects of the power, which fall 
 within the exclusive power of Congress, even under the 
 operation of this rule of necessity, since, as has been said, 
 almost all the business and intercourse of modem life 
 may be, more or less, connected with commercial regula- 
 tion ;t and, the only safe rule seems to be contained in 
 the proposition, that the exclusiveness of the power of 
 Congress to regulate foreign and inter-state commerce, 
 must be derived from the nature of the power, as ascer- 
 tained by the causes, which lead to the framing and 
 adoption of the Constitution, and, which may be embodied 
 
 *Gibbons v. Ogden, 9 Wheafc, i (196). 
 tid. (9), Mr. Webster of Counsel. 
 
88 COITMERCIAL POWER OF CONGRESS. 
 
 in that class of legislation of a general nature, wEch 
 from its essential character is national, and, which, so 
 far as it affects the commercial interests of the whole 
 country, belongs exclusively in the federal government;* 
 and this is so, because, as was said, by Mr. Chief Justice 
 Fuller, "by the adoption of the Constitution, the ability 
 of the several States to act upon the matter, solely in 
 accordance with their own will, was extinguished, and 
 the legislative will of the general government substi- 
 tuted,"t in its place. 
 
 Therefore, whatever subjects of the commercial power 
 are in their nature national, and admit of only one uniform 
 rule of regulation, may be justly said to be of such a na- 
 ture as to require the exclusive legislation of Congress ;t 
 and the power is necessarily exclusive, whenever the 
 subjects, upon which it operates, are national in their 
 character, and admit of only one system or plan of 
 regulation.§ And, for this reason, it has been held, that, 
 "commerce with foreign nations and among the States, 
 strictly considered, consists of intercourse and traffic, 
 
 ♦Cooley V. Board of Wardens, 12 How., 299; Hinson v. Lott, 
 8 Wall., 148. 
 
 t/M re Rahrer, 140 U. S., S4S (S6i). 
 
 JCooley V. Board of Wardens, 12 How., 299; Atlantic & Pacific 
 Telegraph Co. v. Philadelphia, 190 U. S., 160. 
 
 §Gibbons v. Ogden, 9 Wheat., i; Brown v. Maryland, 12 id., 
 419 ; Passenger Cases, 7 How., 283 ; Crandall v. Nevada, 6 Wall., 
 35 ; Ward v. Maryland, 12 id., 418; Ex parte McNiel, 13 id., 236; 
 State Freight Tax Cases, 15 id., 284; Chicago & Northwestern 
 Railroad Co. v. Fuller, 17 id., 560; Henderson v. Wickham, 92 
 U. S., 259; Hannibal & St. Joseph Railroad Co. v. Huson, 95 id., 
 46s; County of Mobile v. Kimball, 102 id., 691; Gloucester Ferry 
 Co. V. Pennsylvania, 114 id., 196; Walling v. Michigan, 116 id.. 
 
APPLICATION OF NATIONAL RULE. 89 
 
 including the term navigation, and the transit of property, 
 as well as the purchase, sale and exchange of commodi- 
 ties. For the regulation of commerce, as thus defined, 
 there can be only one system of rules, applicable alike to 
 the whole country, and the authority which can act alone, 
 for all the States, can alone adopt such a system."* 
 
 But, that uniformity of commercial regulation, which 
 the grant to Congress was designed to secure, against 
 conflicting State legislation, was necessarily intended only 
 to apply where such regulation is practical.t Hence, the 
 commercial power of Congress -is held to be exclusive of 
 State authority, only where the subjects, upon which it 
 operates, are national in their character, and require uni- 
 formity of regulation, affecting alike all the States,? in 
 their relation to each other, and to foreign nations. 
 
 In those cases, where a national rule is required to 
 insure uniformity in the regulation of foreign and inter- 
 state commerce, under the principles just stated, the fur- 
 ther doctrine has been announced, that the non-action or 
 silence of Congress is as effectual to exclude the inter- 
 ference of State legislation, as direct or positive action 
 would be; and, this is so, because the silence or non- 
 action of Congress, in such cases, is tantamount to a 
 declaration, that such commerce shall be free and un- 
 
 446; Wabash, St. Louis & Pacific Railroad Co. v. Illinois, 118 id., 
 557 ; Robbins v. Shelby County Taxing District, 120 id., 489. 
 
 ♦County of Mobile v. Kimball. 102 U. S., 691; Welton v. 
 Missouri, 91 id., 275 ; Robbins v. Shelby County Taxing District, 
 120 id 489; Southern Mail Steamship Co. v. Pennsylvania 
 6 Wall.', 31. 
 
 fCounty of Mobile v. Kimball, 102 U. S., 691. 
 
 jCardwell v. American River Bridge Co., 113 U. S., 205. 
 
90 COMMERCIAL POWER OF CONGRESS. 
 
 trammelled,* and, any regulation, on the part of the 
 States, under these circumstances, is repugnant to that 
 freedom, and is, therefore, void.t 
 
 Hence, it has been held, that no State can interfere with 
 foreign or inter-state commerce or put obstructions upon 
 it, without coming in conflict with the superior authority 
 of Congress,^ and, in those cases where the power of 
 Congress is exclusive, it is so far exclusive, that no one 
 of the several States may enact any law or regulation 
 which will affect the free and unrestricted intercourse and 
 trade between the States, as Congress has left it, or which 
 will impose any discriminating burden upon the citizens 
 or products of other States coming into, or brought within 
 its jurisdiction.i 
 
 This being so, it follows that, as to those matters re- 
 lating to commerce, which are vested exclusively in the 
 federal government, the States have no power to supple- 
 ment the action of Congress, even in respect of those tem- 
 
 *County of Mobile v. Kimball, 102 U. S., 691; Welton v. 
 Missouri, 91 id., 275 ; Smith v. Alabama, 124 U. S., 465. 
 
 tGibbons v. Ogden, 9 Wheat, i (222), per Johnson, J.; Pas- 
 senger Cases, 7 How., 283 (462), per Grier, J.; State Freight 
 Tax Cases, 15 Wall., 284; Hannibal & St. Joseph Railroad Co. v. 
 Huson, 95 U. S., 465 ; Welton v. Missouri, 91 id., 275 ; County of 
 Mobile V. Kimball, 102 U. S., 691; Brown v. Houston, 114 U. S., 
 622; Walling v. Michigan, 116 id., 446; Pickard v. Pulman 
 Southern Car Co., 117 id., 34; Wabash, St. Louis & Pacific Rail- 
 road Co. V. Illinois, 118 id., 557; Robbins v. Shelby County Tax- 
 ing District, 120 U. S., 489 ; Corson v. Maryland, id., 502 ; Hall v. 
 De Cuir, 95 U. S., 485; Brennan v. Titusville, 153 U. S., 289; 
 Covington & Cincinnati Bridge Co. v. Kentucky, 154 U. S., 204 
 (212) ; Pittsburg & Southern Coal Co. v. Bates, 156 U. S., 577. 
 
 tHarman v. Chicago, 147 U. S., 396 (406) ; In re Debs, 158 
 U. S., 564 (S8i). 
 
 §Pittsburg & Southern Coal Co. v. Bates, 156 U. S., 577. 
 
STATE ACTION PROHIBITED. 9I 
 
 porary and local subjects, which are admittedly within 
 the jurisdiction of the several States. For, it is a gen- 
 eral principle, that when Congress has the constitutional 
 power to regulate any particular subject, and it does 
 actually regulate it, in a given manner, and in a certain 
 form, the Legislatures of the several States have no right 
 to interfere, and, as it were, by cofnp^ment, prescribe C 
 additional regulations, which they may deem auxiliary 
 provisions, for the same purpose; and, neither can the 
 States subtract anything from the regulation of Con- 
 gress, under the same circumstances.* 
 
 In such case, the legislation of Congress, in what it does 
 prescribe, indicates, that it does not intend, that there 
 shall be any State action on the subject; and the silence 
 of Congress, as to what it does not do is as expressive, 
 upon the point, as any direct provision it may make for 
 this purpose.t 
 
 But, the silence of Congress, considered as a declaration 
 of freedom, operates only when the power is exclusive in 
 the federal government; and, therefore, it is to be re- 
 spected and obeyed, only when the power is exclusive, 
 and the States are deprived of all authority in the matter, 
 by reason of its constitutional exclusiveness. And, for 
 that reason, the power must be shown to be exclusive, 
 before any inference can be drawn, that the silence of 
 Congress speaks.lj: 
 
 ♦Gibbons v. Ogden, 9 Wheat, I (197 et seq.) ; Mayor, etc., of 
 New York v. Miln, 11 Pet., 102 (158). 
 
 fHouston v. Moore, S Wheat., i; Prigg v. Pennsylvania, 16 
 Pet, 539- 
 
 ^Passenger Cases, 7 How., 283 (559) 1 per Woodbury, J. 
 
92 COMMERCIAL POWER OF CONGRESS. 
 
 So, it is said, that "the failure of Congress to legislate 
 can be construed only as an intention not to disturb what 
 already exists, and is the mode by which it adopts, for 
 cases within the scope of its power, the rule of the state 
 law, which, until displaced, covers the subject," and, is 
 evidence of its opinion, that the matter may be regulated 
 by local authority, and proof of its intention, that local 
 regulations may be made, in the absence of congressional 
 legislation;* and as to commerce among the States, 
 it may be, that the same inference is not always to be 
 drawn, from the absence of congressional legislation, as 
 might be drawn, in the case of commerce with foreign 
 nations. 
 
 But, on the other hand, it has been held that, since the 
 absence of any law of Congress on the subject of foreign 
 and inter-state commerce is equivalent to its declaration 
 that it shall be free, it follows, "that as the grant of the 
 power to regulate commerce among the States, so far 
 as one system is required, is exclusive, the States cannot 
 exercise that power without the assent of Congress, and, 
 in the absence of legislation, it is left for the courts to 
 determine when state action does not amount to such 
 exercise, or, in other words, what is, or is not, a regula- 
 tion of such commerce."t 
 
 The extent of the power of Congress to regulate com- 
 merce, in any case, is, therefore, said to depend always 
 upon the solution of the question, as to whether the power 
 
 *Smith V. Alabama, 124 U. S., 465 (477-8, 482) ; Bowman v. 
 Chicago & Northwestern Railroad Co., 125 U. S., 465 (482). 
 tLeisy v. Hardin, 135 U. S., 100 (119). 
 
DOCTRINE OF CONCURRENT POWERS. 93 
 
 is exclusive in that body ; and, if this question be answered 
 in the affirmative, then the power of Congress may be 
 exercised, wholly independent of the States, and state ju- 
 risdictional lines.* And, in so far as the power is ex- 
 clusive, it is entire, and precludes all action on the part 
 of the several States; because the exercise of any such 
 power of regulation, by the States, under the circum- 
 stances, or by any one or more of them, would conflict 
 with the constitutional power of the United States to 
 regulate commerce, and would measurably replace the 
 States in their commercial attitude to each other, as it 
 was after the Declaration of Independence, and under 
 the Articles of Confederation. 
 
 Whenever, therefore, the exclusive exercise of the 
 power of Congress to regulate commerce is predicated 
 upon the nature of the subject-matter, upon which it is 
 intended to operate, the power is complete, and cannot 
 stop at the jurisdictional lines of the several States. If 
 the rule were otherwise, it is apparent, that, it would be 
 a useless power ; and, for this reason, all state legislation 
 in derogation of the power of Congress, in this respect, 
 will be declared null and void-f 
 
 C. 
 
 A concurrent power in the state and federal govern- 
 ment, as the term implies, presupposes its equal existence 
 in both. Its existence in the one is, therefore, neces- 
 
 ♦Gibbons v. Ogden, 9 Wheat., i (194); Passenger Cases, ^ 
 How., 283 (414)- 
 
 tPassenger Cases, 7 How., 283 (504) ; Sinnott v. Davenport^ 
 22 id., 227; Ward v. Maryland, 12 Wall., 418. 
 
94 COMMERCIAL POWER OF CONGRESS. 
 
 sarily independent of its existence in the other; but the 
 exercise of such a power, by either the state or the fed- 
 eral government, does not imply joint-action on their 
 part. 
 
 Although a concurrent power is sometimes referred to 
 as a single power, existing at the same time in both gov- 
 ernments, this cannot be logically true, because the ex- 
 istence of any power, in either government, must be en- 
 tire; and it is evident, that two independent wills cannot 
 operate upon the same subject, at the same time, and leave 
 any residuum for the other to act upon. The action of 
 the one must necessarily precede the action of the other, 
 unless there be an arrangement between them for the 
 joint-action of both, and that, which is first, must exclude 
 the other. However, it has been said that such an ar- 
 rangement cannot be predicated of a concurrent power 
 in the state and federal governments, because they are 
 supreme within their respective constitutional spheres 
 of action, and the very idea of such a power in two dis- 
 tinct sovereignties involves a moral and physical impos- 
 sibility.* 
 
 ♦Passenger Cases, 7 How., 283. The doctrine, that a joint 
 arrangement between the State and federal government cannot 
 be predicated of a concurrent power, as stated in the text, if 
 ever accepted by the Supreme Court of the United States, 
 is now discarded, for in several cases, recently decided by that 
 Court, it ihas been expressly held, that under existing legisla- 
 tion, the right to erect a structure in the navigable waters of the 
 United States, wholly within the limits of a State, depends upon 
 the concurrent or joint-action of the State and national govern- 
 ment. See Willamette Iron Bridge Co., v. Hatch, 125 U. S., i ; 
 Cummings v. Chicago, 188 U. S., 410; Montgomery v. Portland, 
 190 U. S., 89. 
 
DOCTRINE OF CONCURRENT POWERS. 95 
 
 From this, it has, therefore, been contended, that the 
 existence of a concurrent power, in respect of any sub- 
 ject, in the state and federal governments, cannot and 
 does not exist; but whatever may be the correctness of 
 the reasoning in support of the argument, upon which 
 this contention is based, the doctrine of concurrent pow- 
 ers, in the constitutional jurisprudence of this country, is 
 too firmly established, at least so far as its terminology is 
 concerned, to be seriously questioned, and the principle 
 now seems to be well established, that a State may legis- 
 late in all cases of concurrent power, although Congress 
 may have acted, under the same power, and upon the 
 same subject, the only difficulty being to determine what 
 is a concurrent power in both governments. 
 
 In this view of the subject, it is clear, that the power of 
 levying and collecting taxes is a concurrent power ;* and, 
 as such, is constantly exercised by the state and federal 
 governments. The States exercise this power in virtue 
 of their inherent right of sovereignty; while the United 
 States derives its power of taxation, from that clause 
 of the Constitution, which expressly vests in Congress 
 the power "to levy and collect taxes. "t The exercise of 
 the power of taxation is as vital and essential to the very 
 existence of the States, as it is to that of the federal gov- 
 ernment; and, being so, the power of taxation remains, 
 in the States, unabridged and unimpaired, except, in so 
 far as as it has been expressly surrendered, by them, to 
 the United States. With this exception, therefore, the 
 
 *Snyder v. Bettman, 190 U. S., 249. 
 tConst. U. S., Art. 1.," sec. VIII., cl. I. 
 
9^ COMMERCIAL POWER OF CONGRESS. 
 
 taxing power of the States, to the full extent of their 
 territorial jurisdiction, is concurrent and co-extensive 
 with the same power in the federal government. This 
 power, in the States, applies to both persons and prop- 
 erty, and may reach any object brought within their 
 several jurisdictions, to any extent, within the discretion 
 of the Legislature of each, and, other than this, its ex- 
 ercise knows no supreme law nor superior authority.* 
 
 So, the power to provide for the punishment of coun- 
 terfeiting the securities and current coins of the United 
 States, or of any foreign country, within the limits of the 
 United States, is recognized as a concurrent power, which 
 may be exercised, by the State, in which the offense may 
 be committed, as well as by the United States; and the 
 existence of this power, on the part of the States, has 
 been distinctly recognized by Congress, for in all its 
 early acts relating to coin and banknotes it is expressly 
 provided "that nothing, in them contained, shall be so 
 construed as to deprive the courts of the individual States 
 of jurisdiction, under the laws of the several States, over 
 any offense made punishable by these acts;" and while 
 Congress has, in the exercise of its constitutional power 
 on the subject of counterfeiting, made statutory provi- 
 sions for the punishment of the same class of offenses, 
 there has been no question of the validity of the exercise 
 of the same power, by either government.t 
 
 *McCullough V. Maryland, 4 Wheat., 316; Gibbons v. Ogden, 9 
 id., i; Providence Bank v. Billings, 4 Pet, 514 (561); License 
 Cases, 5 How., S04; Weston v. City of Charleston, 2 Pet., 449; 
 Passenger Cases, 7 How., 283. 
 
 U U. S. Stat.. 67. 
 
TAXATION AND PUNISHMENT OF CRIMES. 97 
 
 But, in reference to crimes against the National Bank- 
 ing Act, the rule has been recently laid down that, while 
 the State legislative power to define and punish crimes, 
 by general laws, applicable to all persons, within its juris- 
 diction, is unquestioned, and in pursuance of this power, 
 the State may declare, by special laws, certain acts to be 
 criminal offenses, when committed by oiificers and agents 
 of its own banks and institutions, it is without lawful 
 power to make such special laws, applicable to banks or- 
 ganized and operated, under the laws of the Uniited 
 States.* 
 
 The power to provide for the organization, arming and 
 disciplining the militia is also conceded to be a concur- 
 rent power, subject to be exercised by both governments, 
 at the same time, since it rests upon the same principles 
 as those which underlie the concurrent power of taxation 
 and the punishment of counterfeiters.! 
 
 And, as another instance of a well established concur- 
 rent power, once of considerable importance, but now of 
 little concern, may be mentioned the power to forbid the 
 foreign slave trade. Although the Constitution limited 
 the power of Congress to prohibit the importation of 
 slaves, prior to the year 1808, the power was expressly 
 recognized, as existing in both governments, subject 
 only to the temporary restrictions contained in the Con- 
 stitution, upon the power of the general government, 
 both before and since that date, it having been always 
 recognized, as a concurrent power to be exercised by 
 
 *Easton v. Iowa, 188 U. S., 220. 
 fHouston v. Moore, S Wheat, i. 
 
98 COMMERCIAL POWER OF CONGRESS. 
 
 either the state or federal governments, as occasion re- 
 quired.* 
 
 Recurring to what has already been said, as ,to 
 concurrent powers, in general, and the conflict of opinion 
 as to the nature of this class of powers, it may be well 
 to note, that the term concurrent, as applied to the powers 
 of the state and federal governments, does not imply the 
 existence of the same identical power in both. ' Were 
 it otherwise, a fatal misconception in the use of the term 
 would arise. Therefore, properly applied, the term con- 
 current, when used in reference to the powers of the 
 state and federal governments, means only that the States 
 and the United States, as separate sovereignties, have 
 independent powers of the same character; and when it 
 is said, that a concurrent power, respecting any subject, 
 exists in the two, all that is meant is, that each possesses 
 a separate and independent power, to be exercised upon 
 the same subject-matter, when occasion arises, by either. 
 This necessarily implies, that such a power is distinct in 
 the two governments, or, perhaps, more accurately speak- 
 ing, that there are two powers, one existing in each gov- 
 ernment, which are distinct and separate, in their nature, 
 but coordinate in their operation, rather than that the 
 power is the same, to be exercised by either government 
 whenever it Sliits its will or convenience. Thus, if one 
 passes counterfeit coins of the United States, within a 
 State, the act is an oifense against both governments. It 
 is an offense against the United States, because it dis- 
 
 *Const. U. S., Art. I., sec. IX., cl. i ; Passenger Cases, 7 How., 
 283, per Woodbury, J. 
 
DOCTRINE OF CONCURRENT POWERS. 99 
 
 credits the coin, and it is an offense against the State, 
 because of the fraud, upon him, to whom it is passed. So, 
 if a marshal of the United States be unlawfully resisted 
 while executing the process of the federal courts, within 
 a State, and the resistance is accompanied by an assault 
 on the officer, the sovereignty of the United States is 
 violated, by the resistance, and that of the State by the 
 breach of the peace, committed in the assault.* 
 
 To suppose, that any power is concurrent, in the two 
 governments, upon any other theory of interpretation, 
 would be to confound the true relation of the several 
 States, to each other, and to the United States, as well as 
 the nature and purposes of the whole federal system. 
 This is apparent, for the reason, that all the powers of the 
 federal government are co-extensive with its territory 
 and constitutional jurisdiction ; and, if any power, dele- 
 gated to the United States, be susceptible of a concur- 
 rent exercise, by the States, it must necessarily follow 
 that such exercise, by them, would be co-extensive 
 with the scope of the power, and would operate beyond 
 their territorial and local jurisdictions, which would, in- 
 deed, involve a moral, physical and constitutional impos- 
 sibility. 
 
 To repeat, therefore, for the purpose of making the 
 matter more clear, what has already been suggested, in 
 order to be concurrent, the power must be capable of 
 exercise, without conflict, by both governments ; that is to 
 say independently by each; and, to be so, there must be 
 two distinct powers existing, at the same time, in each 
 
 ♦United States v. Cruikshank, et at., 92 U. S., S42. 
 
lOO COMMERCIAL POWER OF CONGRESS. 
 
 government. Otherwise the exercise of the power, by the 
 one, would be subordinate to its exercise by the other, 
 and this would be inconsistent with the fundamental prin- 
 ciples of the whole doctrine of concurrent powers. 
 
 The powers of the United States, for the purposes of 
 the federal Union, are complete within themselves. Acts 
 done by the federal government, under the legislation of 
 Congress, or under treaties made in its behalf, in pur- 
 suance of these powers, are, therefore, "the supreme law 
 of the land," and under the first clause of the first para- 
 giaph of the sixth Article of the Constitution, it is im- 
 possible to suppose a condition of subordination, in re- 
 spect of the exercise of any of its powers, by the United 
 States. Upon the other hand, it is no less true that, as to 
 those powers which were not delegated to the federal 
 government, for federal purposes, the authority of the 
 States is equally supreme. And, as to these, any 
 argument, based upon the idea of subordination, degrades 
 the States, by making their legislation subject to the 
 will of Congress, or, it may be added, to that of either 
 of the other two departments of the federal government.* 
 
 *"A concurrent power," says Mr. Justice McLean, in the 
 Passenger Cases, "in two distinct sovereignties to regulate the 
 same thing is as inconsistent in principle as it is impossible in ac- 
 tion. It involves a moral and physical impossibility. A joint ac- 
 tion is not supposed, and two independent wills cannot do the 
 same thing. The action of the one, unless there be an arrange- 
 ment, must necessarily precede the action of the other : and that 
 which is first, being competent, must establish the rule. If the 
 power be equal, as must be the case, both being sovereign, one 
 may do what the other does, and this must be the result of their 
 action. But," the learned Justice continues, "the argument is, that 
 a State acting in a subordinate capacity wholly inconsistent in its 
 sovereignty, may regulate foreign commerce until Congress shall 
 
DOCTRINE OF CONCURRENT POWERS. lOI 
 
 This cannot be, because Congress can, in no respect, re- 
 strict or enlarge the powers of the States. State powers 
 are, at all times and under all circumstances, exercised 
 independently of the general government, and are never 
 declared void, except when they transcend state power 
 and state jurisdiction; and, on the same principle, the 
 federal authority should be declared null and void, when 
 exercised beyond its clear constitutional limits. 
 
 Examining the terms of the Constitution, under which 
 the power to regulate commerce is granted to Congress, 
 again, it will be found, that there is nothing, in the lan- 
 guage employed, to indicate, that this power stands upon 
 any different footing from that of the taxing power, the 
 power to provide for the punishment of counterfeiting the 
 securities and current coins of the United States, or from 
 any of those other powers which are said to be concur- 
 rent ; and, if there were no other reason for holding that 
 the commercial power be not concurrent, the terms in 
 which it is granted would seem to place it beyond all 
 doubt; in the same category as those powers which have 
 just been referred to; and, with this as a test, it would 
 be entirely consistent to place this power among the well 
 established concurrent powers of the state and federal 
 governments.* 
 
 act on the same subject; and, that the State must then yield to 
 the paramount authority. A jealousy of the federal powers has 
 often been expressed, and an apprehension entertained that they 
 would impair the sovereignty of the States. But this argument 
 degrades the States, by making their legislation, to the extent 
 stated, subject to the will of Congress." 7 How., 283 (399). 
 
 *In the case of Gibbons vs. Ogden, Mr. Oakley, of counsel for 
 the defendant, argued that the commercial power of Congress was 
 
I02 COMMERCIAL POWER OF CONGRESS. 
 
 But, notwithstanding the fact, that all these powers, 
 conceded to be concurrent, are conferred upon Congress, 
 in the same general terms, and by the same section of the 
 same article of the Constitution, as the power to regulate 
 commerce, nevertheless, it has been said that a concur- 
 rent power to regulate commerce is an anomaly not found 
 in the Constitution ;* and this is declared to be so, because, 
 it is said, the exercise of a concurrent and equal power 
 of commercial regulation, in the state and federal gov- 
 ernments, would result in a direct conflict of powers, ex- 
 isting in the two governments, repugnant to each other, 
 continually thwarting and defeating its exercise by either, 
 and such a result would be nothing but disorder and con- 
 fusion.t The purposes of the establishment of the fed- 
 eral government was to obviate this very condition, and, 
 
 a concurrent power, and as such he claimed that it was fully 
 possessed by the States after the declaration of independence, and 
 had since been constantly exercised by them; that it is one of 
 the attribtttes of sovereignty specially designated in that instru- 
 ment "to establish commerce" ; that it was not granted in express 
 terms to Congress, and that it was not prohibited generally to 
 the States ; that the only express restraints upon the power of the 
 States, in this respect, are against levying any import or export 
 duties (except for the execution of their own inspection laws), 
 or of tonnage; against making any arrangement or compact with 
 a foreign power; and against entering into any treaty, and, 
 the learned counsel further added that "all these prohibitions 
 being partial, are founded on the supposition that the whole power 
 resided in the States. They are accordingly all in restraint of 
 State power" ; and continuing he said, that "it is a clear principle 
 of interpretation, that where a general power is given, but not 
 in exclusive terms, and the States are restrained in express terms 
 from exercising that power in particular cases, that in all other 
 cases the power remains in the State as a concurrent power, 
 p Wheat., I (60). 
 
 ♦Passenger Cases, 7 How., 283 (396), per McLean, J. 
 
 tid., p. 467, per Taney, C. J. 
 
DOCTRINE OF CONCURRENT POWERS. IO3 
 
 it may be concluded, that the commercial power is not a 
 concurrent power, since, to hold it to be so, would be to 
 deny to the federal government the power to answer one 
 of the most important ends for which it was established. 
 
 There can be no question, therefore, but that, the power 
 of Congress over commerce and its regulation, in so far 
 as that power has been delegated to it, by the States, like 
 all other powers vested in the federal government, is com- 
 plete, and may be exercised to its utmost extent, and 
 acknowledges no limitation, other than those, which have 
 been prescribed by the Constitution itself. And if, as 
 has always been understood, the sovereignty of the United 
 States, though limited to specific objects, is plenary, as 
 to those objects, its power over commerce with foreign 
 nations, among the several States and with the Indian 
 tribes, is as absolute, to repeat what has already been 
 said, as it would be in a single government having in its 
 constitution the same restrictions on the exercise of the 
 power as are found in the Constitution of the United 
 States.* 
 
 Hence, if the commercial power of the federal govern- 
 ment be vested, for any purpose, exclusively in Congress, 
 or, for any reason, the power of that government be para- 
 mount to that of the States, it must be conceded, that the 
 power to regulate commerce is not a concurrent power; 
 and that, if, it be shown, that the States have any power 
 to act upon the subject of commerce at all, it must be 
 so, for other reasons, than those which support the ap- 
 plication of the doctrine of concurrent powers. 
 
 *Gibbons v. Ogden, 9 Wheat, i (196). 
 
104 COMMERCIAL POWER OF CONGRESS. 
 
 And, such power, as the States may have, over the 
 subject of commerce, arises from their inherent sover- 
 eignty, and not from any delegation of power, by the 
 federal government; for, it is a fundamental principle, 
 that the power to make laws cannot be delegated* by the 
 authority in which it' is constitutionally vested; and it has 
 been laid down as a doctrine, to which there should be no 
 exception, that Congress cannot delegate powers to a 
 State, nor sanction a state law in violation of the Con- 
 stitution, and, if it may adopt a state law as its own, it 
 must necessarily be one which it would be competent for 
 it to enact itself. 
 
 The use of the term "temporary," as applied to the 
 power of the several States to establish local rules for 
 the regulation of trade, affecting directly those subjects 
 which fall within the scope of the general commercial 
 power of the legislative department of the federal gov- 
 ernment, "until Congress sees fit to act," is, perhaps, to 
 some extent, misleading. For, the use of the term "tem- 
 porary," in this connection, does not necessarily imply, 
 that in the exercise of such a power, the States derive their 
 authority from the action, or from the failure to act, 
 on the part of the federal government ; nor that Congress 
 has, in any sense, delegated its constitutional power to 
 regulate commerce to the States. This cannot be, be- 
 cause it is contrary to the very nature of the constitu- 
 tional powers of the federal government, and the appli- 
 
 *Stoutenburg v. Hennik, 129 U. S., 141 (147). 
 
TEMPORARY POWER OF THE STATES. IO5 
 
 cation of such a doctrine would disturb the fundamental 
 principles which determine the relation of that govern- 
 ment to the several States. Nevertheless, the existence 
 of such a power in the States and the application of the 
 principles underlying its exercise, by them, has been often 
 and repeatedly recognized by competent authority.* 
 
 But, whatever may be the nature of this temporary 
 power, in the States, it has been found difficult to define 
 the extent of its operation with any degree of certainty. 
 While Mr. Justice Field has stated, that "the govern- 
 ment created by the Constitution was not designed for the 
 regulation of matters purely local in their character," 
 without regard to any action on the part of Congress,t tht 
 general rule, as applicable to this power, has been re- 
 peatedly laid down by the Supereme Court of the United 
 States, to be that, when the subjects of the commercial 
 power are local in their operation, or constitute mere aids 
 to commerce, the States may provide for their regula- 
 tion and management, until Congress intervenes and 
 supersedes their action, by such legislation as that body 
 may deem appropriate to the subject.^ 
 
 And, among the subjects falling within the legitimate 
 
 *Cooley V. Board of Wardens, 12 How., 299 ; Gilman v. Phila- 
 delphia, 3 Wall., 713; Willson v. Blackbird Creek Marsh Co., 2 
 Pet., 24s ; Crandall v. Nevada, 6 Wall., 35. 
 
 ifPowell V. Pennsylvania, 127 U. S., 678 (690). 
 
 jPound V. Turck, 95 U. S., 459; Cardwell v. American River 
 Bridge Co., 113 id., 205; Cooley v. Port Wardens, 12 How., 299; 
 Leisy v. Hardin, 135 U. S., 100; Louisiana v. Texas, 176 U. S. i; 
 Compagnie Francaise de Navigation a Vapeur v. Board of Health, 
 
 186 u. s., 380 (399-90). 
 
I06 COMMERCIAL POWER OF CONGRESS. 
 
 operation of this temporary power of the States, is held to 
 be the Hcensing of pilots and the regulation of pilotage 
 by the several States. 
 
 A pilot is defined to be a person who is skilled in the 
 steerage of vessels, upon the high seas, and the guidance 
 of them into ports and havens, where they go for the 
 various purposes of trade and transportation. The term 
 is, therefore, equally applicable to two classes of per- 
 sons — ^those whose employment is to guide vessels into 
 and out of ports, and those who may be intrusted with 
 the management of the helm and the direction of the 
 vessel on her voyage. To the first of these two classes 
 it is, therefore, plain that, for the proper performance of 
 their duties, a thorough knowledge of the port, in and 
 about which they are employed, is essential, with its 
 channels, currents and tides, its bars and shoals, and the 
 various fluctuations and changes to which it is subject 
 from time to time. To the second class, knowledge of an 
 entirely different character is necessary.* 
 
 The authority of Congress to regulate the general sub- 
 ject of pilots and pilotage, under its commercial power, 
 is well settled. It was fully recognized and enforced, in 
 the legislation of that body, at its first session, under the 
 Constitution, when it enacted, by the fourth section of 
 the Act of 1789, "that all pilots, in the bays, inlets, rivers, 
 harbors, and ports of the United States, shall continue 
 to be regulated in conformity with the existing laws of 
 the States respectively, or with such laws as the States 
 may respectively hereafter enact for that purpose, until 
 
 ♦Pacific Mail Steamship Co. v. Joliffe 2 Wall., 450. 
 
REGULATION OF PILOTS. IO7 
 
 further legislative provision shall be made by Congress."* 
 And, in this condition the matter remained, for forty odd 
 years, when, on March 2d, 1837, Congress enacted an- 
 other statute on the subject of pilots. This statute, how- 
 ever, provided only that a vessel approaching or leaving 
 a port situate on waters, which are the boundary between 
 two States, may employ a pilot, licensed by either of 
 such States, any law, usage or custom to the contrary 
 notwithstanding.! 
 
 So, in 1852, Congress passed another Act, which pro- 
 vided for the regulation of the appointment of pilots 
 upon certain classes of steamboats ;$ and this act was 
 afterwards supplemented by the Act of June 23d, 1864, 
 which required pilots, for the class of vessels named in 
 the Act of 1852, to be licensed according to the provisions 
 of that Act, and prescribing the fees to be paid, by such 
 pilots, for their certificates of license.§ 
 
 The Act of Congress of July 13th, 1866, on the same 
 subject, provided that no regulation shall be adopted, by 
 any State, making a discrimination as to the rules of half- 
 pilotage, between certain kinds of vessels, mentioned in 
 the Act, and declared, that existing regulations of the 
 States, which make such discrimination, shall, by this 
 Act, be annulled.lf Although relating to other matters, 
 the Act of Congress of February 25th, 1867, contains a 
 pilot regulation, touching sea-going vessels, with a pro- 
 
 *i U. S. Stat., 54- 
 ts U. S. Stat, 153. 
 $10 U. S. Stat, 63. 
 §13 U. S. Stat, 120. 
 II14 U. S. Stat., 93- 
 
I08 COMMERCIAL POWER OF CONGRESS. 
 
 viso that certain state regulations should not be affected 
 by the Act.* 
 
 Notwithstanding the provisions of the Act of 1789, 
 recognizing and asserting the power of Congress to regu- 
 late pilots, under the commercial clause of the Constitu- 
 tion, the question was early raised as to whether the 
 power of Congress, as to the regulation of pilots, was 
 exclusive, in the federal government, or whether it could 
 be exercised by the States, in any event ; and Mr, Webster, 
 arguing for the most extensive power, in the general 
 government, concerning commercial regulation, contended 
 that pilot laws were not commercial regulations, and, on 
 that account, were not within the power of Congress.t 
 The determination of the question, thus presented, was 
 not, however, necessary to the settlement of the consti- 
 tutionality of the law, in connection with which the con- 
 tention was made, and was, therefore, not determined by 
 the decision of the court. 
 
 The same question was, however, again presented to 
 the Supreme Court of the United States, in the case of 
 Cooley against the Board of Wardens of the Port of 
 Philadelphia, et al., which arose upon the validity of 
 a regulation of pilotage, under the authority of an Act of 
 the Legislature of the State of Pennsylvania, and, upon 
 consideration of the facts, presented by the record in that 
 case, the court determined that a regulation of pilots is 
 a regulation of commerce, within the grant of the com- 
 mercial power to the federal government, and that the 
 
 *i4 U S. Stat., 412. 
 
 tGibbons v. Ogden, 9 Wheat., 1 (ig). 
 
REGULATION OF PILOTS: ACT OF I789. IO9 
 
 subject is, therefore, within the regulating power of Con- 
 gress. In support of this doctrine, it was said by the 
 learned justice, who delivered the opinion of the court, 
 that t^e power of Congress over pilots stands upon the 
 same footing as that over the officers and seamen, who 
 assist him in managing the vessel ; and, in a subsequent 
 case, it was held, that a pilot is as much a part of the 
 commercial marine, as the hull of the ship, and the 
 helm by which it is guided, although it was there ad- 
 mitted, that it by no means follows that the subject of 
 pilotage may not be regulated by the States, at least, 
 until Congress sees fit to act upon the subject.* 
 
 In view of these conclusions, it may be well to note, 
 that much has been said of the effect of the Pilot Act of 
 1789. Some authorities have maintained, that the adop- 
 tion of the State laws, in existence at the time of its 
 passag^, as well as those which should thereafter be 
 enacted by the States, was a declaration on the part of 
 Congress, that the commercial power was not delegated 
 exclusively to the general government — ^thus contending 
 for the application of the doctrine of concurrent powers 
 in its relation to the commercial power, or, at least, of 
 a temporary power, in the States, over the subject— while 
 others have urged, that the adoption of these laws had no 
 such effect, but, that it only amounted to a re-enactment 
 of the laws of the several States, and, when so re-en- 
 acted, they became the laws of the United States. 
 
 The latter view was taken by Mr. Justice McLean, who 
 
 *Ex parte McNiel, 13 Wall., 236. 
 
no COMMERCIAL POWER OF CONGRESS. 
 
 Stated it, as his opinion, in the Passenger Cases,* that, 
 by adoption, the State laws, referred to in the Act of 
 Congress, are the laws of the United States itself, and, 
 as such, effect is given to them. In support of this opinion, 
 he argued that the laws of the States, which regulate 
 the practice of their courts, are adopted by Congress to 
 regulate the practice of the federal courts. And, those 
 laws, he observes, so far as they are adopted, are as 
 much the laws of the United States, as if they had been 
 specifically enacted by Congress. The repeal of them 
 by the States, unless future changes in the Acts be also 
 adopted, does not affect their force in regard to federal 
 action. And, the same learned justice, elsewhere refer- 
 ring to this Act of Congress, also said, "Congress adopted 
 the pilots laws of the States, because it was well under- 
 stood they could have no force as regulations of foreign 
 commerce, or commerce among the States, if not so 
 adopted."! 
 While it is true, as a general proposition, that the 
 
 *7 How., 283. 
 
 tCooIey V. Board of Wardens, 12 How., 299. In the case of 
 Morgan Steamship Co. vs. Louisiana Board of Health (118 U. S., 
 455 ), in considering the effect of the Quarantine Act of April 
 29, 1878 (20 U. S. Stat., 37), as amended by the Act of 1893 (27 
 U. S. Stat., 449), the Supreme Court of the United States have 
 adopted a different view from that which is here expressed, by 
 Mr. Justice McLean, since it declared that those acts "did not 
 impair the power of the States to pass quarantine laws, since it 
 expressly provided that 'there shall be no interference in any man- 
 ner with the quarantine laws or regulations as they now exist 
 or may hereafter be adopted, under State laws,' showing the 
 intention of Congress to adopt those laws, or to recognize the 
 power of the States to pass them." See also Louisiana v. Texas, 
 176 U. S., I (21) ; Compagnie Francaise de Navigation a Vapeur 
 V. Board of Health, 186 U. S., 380 (388-9). 
 
REGULATION OF PILOTS. Ill 
 
 United States, through its legislative department, may 
 adopt the laws of one or more of the several States, as 
 its own, the acceptance of the doctrine, as thus broadly 
 stated by Mr. Justice McLean, has not been uniform; 
 and this is not at all surprising, since it is logically im- 
 possible for Congress to adopt any law of the States, 
 not yet enacted, and, as has been said, it is difficult to see 
 how that body may, by a provision relating to future 
 legislation, confer upon the States power to enact laws, 
 upon any subject, much less upon a subject which is 
 claimed to, and actually does, in some of its aspects, fall 
 within the exclusive power of Congress.* Congress may, 
 undoubtedly, adopt state legislation, when the subject of 
 the legislation in question falls within the constitutional 
 limits of the powers of the federal government, yet it is 
 impossible for that body, by general legislation, such as 
 that of the Pilot Act of 1789, to perpetually confer upon 
 the States powers not left to them, after the adoption of 
 the Constitution, or to enable the States to legislate on 
 subjects clearly within the power of Congress. If the 
 States were divested, by the Constitution, of the power 
 to legislate on the subject of pilots and pilotage, evidently 
 the Act of 1789 could not undo that, which the Consti- 
 tution had done, and confer this power on the States 
 anew. 
 
 As has been shown already, the States do, and have 
 always legislated on the subject of commerce, both in 
 respect of foreign and inter-state commerce; and this is 
 said to imply a constitutional power to do so. Because 
 
 ♦Passenger Cases, S How., 283 (580), per. Taney, C. J. 
 
112 COMMERCIAL POWER OF CONGRESS. 
 
 only a rule established by a sovereign power, acting in 
 its legislative capacity, can be deemed to be a law, en- 
 ,acted by a State ; and, if a State has so limited its sov- 
 ereign power that it no longer extends to a particular 
 subject, manifestly it cannot, in any proper sense, be said 
 to enact laws upon that subject.* 
 
 So, in the same line of argument, it is said, that what- 
 ever may have been the effect of the provisions of the 
 Act of 1789, looking to future state legislation, it is 
 clear, that the body which passed that Act did not doubt 
 the power of the States to legislate upon the subject with 
 which it deals; and it has also been mentioned as a fact 
 of importance, bearing upon the whole subject, that the 
 body which enacted this statute was the first Congress 
 which sat, under the Constitution, and that many of its 
 members were delegates to the convention which framed 
 that instrument and recommended its adoption,! to the 
 people of the several States. 
 
 Concerning the Act of Congress of 1852, it was con- 
 tended, in a case which came to the Supreme Court of 
 the United States from the State of California, that, hav- 
 ing assumed to regulate pilotage, in a certain manner, 
 the Act of Congress repealed the Act of 1789, and super- 
 seded all state legislation concerning port pilotage, in so 
 far as steamers carrying passengers are concerned, at any 
 rate; and, to that extent, modified and repealed the Act 
 of the Legislature of that State, of 1861, the con- 
 stitutionality of which was in issue. Upon this point, 
 
 ♦Cooley V. Board of Wardens, 12 How., 299. 
 ^Ex parte McNiel, 13 Wall., 236. 
 
REGULATION OF PILOTS: ACT OF 1852. II3 
 
 however, the court was of a different opinion. "We 
 do not perceive," it says, referring to the Act of 1852, 
 "in its provisions, any intention to supersede state legis- 
 lation recognized by the Act of 1789, or any inconsistency 
 with the local port regulations, established by the act of 
 California of 1861. The Act of 1852 was intended, as its 
 title indicates, to provide greater security than then ex- 
 isted, for the lives of passengers on board of vessels 
 propelled, in whole or part, by steam. Previous to its 
 passage, frequent accidents, occasioning, in some in- 
 stances, great loss of life, occurred to steamers, arising 
 from the imperfect construction of the vessel, defective 
 machinery, inadequate protection against fires, the carry- 
 ing of dangerous articles, or the want of pumps, life boats 
 and other means of escape, in case of danger. To g^ard 
 against accidents from these, and like sources, was the 
 
 general purpose of the Act of 1852 The Act 
 
 contained few provisions relating to pilots; indeed, it 
 was not directed to the remedy of any evil of the local 
 pilot system. There was no complaint against the port 
 pilots; on the contrary, they were the subject of just 
 praise for their skill, energy and efficiency."* 
 
 Prior to 1852, the whole subject of pilots and pilotage 
 was regulated by the several States, subject to the single 
 limitation imposed by the Act of Congress of 1837. Un- 
 der these conditions, therefore, there was no distinction 
 between the regulation of port and harbor pilots and those 
 engaged in steering vessels upon the high seas. But, in 
 the Act of 1852, a distinction was made in respect of 
 
 *Pacific Mail Steamship Co. v. Joliffe, 2 Wall., 450. 
 
114 COMMERCIAL POWER OF CONGRESS. 
 
 certain sea-going vessels; and it may, perhaps, be cor- 
 rectly said, that inasmuch as Congress has seen fit to 
 regulate this class of pilots, the exercise of the power, 
 by the States, is superseded by the assertion and exercise 
 of the paramount authority of Congress, in this respect.* 
 However, since this applies only to the class of pilots 
 mentioned in that Act, the general regulation of port 
 pilots has remained with the States, subject to such re- 
 strictions as Congress may already, by express enact- 
 ments, have placed upon its exercise by the States.t 
 
 Accordingly, it may be concluded that, although the 
 general subject of pilots and pilotage has an intimate con- 
 nection with, and bears an important relation to com- 
 merce with foreign nations and among the several States, 
 over which it was one of the main objects of the Con- 
 stitution to create a national control, nevertheless, the 
 mere grant of the commercial power to Congress does 
 not forbid the passing of laws to regulate the subject, by 
 the States; and it has been uniformly held that, until 
 Congress shall actually assume control, the States may 
 regulate the subject, in any manner, not inconsistent with 
 such legislation, as that body may have already enacted, 
 and with the ultimate authority of the general government 
 to assume control, whenever its legislative department 
 shall see fit and proper to assume that authority .t 
 
 ♦Pacific Mail Steamship Co. v. Joliffe, 2 Wall., 450. 
 
 fAs to the present status of State regultion of pilots, see 
 Homer Ramsdell Transportation Co. v. Compagnie Genenli 
 Transatlantique, 182 U. S., 406. 
 
 ICooley V. Board of Wardens, 12 How., 299; Pacific Mail 
 Steamship, Co. v. Joliffe, 2 Wall., 450. 
 
LIGHTHOUSES, BUOYS AND BEACONS. I15 
 
 But, however extensive the power of the federal govern- 
 ment to regulate pilot and pilotages may be, it is said 
 that experience has shown that skill and efficiency, on the 
 part of the local pilots, is best secured by leaving the 
 subject primarily to the control of the States. 
 
 The regulation of buoys and beacons has likewise been 
 held to fall within the scope of the temporary power of 
 the States. 
 
 These are, undoubtedly, important aids to commerce, 
 and are sometimes absolutely essential to the safe navi- 
 gation of vessels for the purpose of indicating the chan- 
 nels to be followed at the entrance of harbors and in 
 rivers, and, therefore, their establishment, by Congress, is 
 clearly within the commercial power of the federal gov- 
 ernment. But it has been said, that it would be extending 
 that power to the exclusion of state authority, to an un- 
 reasonable extent, to hold, that, while it remains unex- 
 ercised by Congress, it would be unlawful for the States 
 to provide buoys and beacons, required for the safe navi- 
 gation of its harbors and rivers, and, in case of their de- 
 struction, by storm or otherwise, to temporarily supply 
 their places, until Congress could act, and provide for their 
 re-establishment.* 
 
 So, in like manner, the establishment and regulation 
 of lighthouses have been generally left to Congress; but 
 there is no reason to suppose, that the power of Congress 
 over these establishments is necessarily exclusive. 
 
 Like the Act of Congress of 1789, in relation to pilots 
 and pilotage, the early laws of the United States fully 
 
 ♦County of Mobile v. Kimball, 102 U. S., 691. 
 
Il6 COMMERCIAL POWER OF CONGRESS. 
 
 recognize the right of the States to maintain lighthouses 
 within their several jurisdictions. Thus, the Act of Con- 
 gress, passed, under date of August 7th, 1789, for the 
 establishment and support of lighthouses, buoys and bea- 
 cons, directs that their expense, after a certain date men- 
 tioned in the Act, should be defrayed out of the Treas- 
 ury of the United States, provided, that this expense 
 should not continue over one year, unless the edifices 
 referred to in the Act, should, in the meantime, be ceded 
 to and vested in the United States, by the State in which 
 it may be, with all jurisdiction over them as well as of the 
 lands upon which they stood. 
 
 As a matter of fact, however, the States were slow in 
 making these cessions, and by the Act of 1790, the time 
 was extended to 1791, and so on, from time to time, for 
 five or six years, until all the States finally accepted the 
 provisions of these Acts; but during all this time light- 
 houses, in several of the States, were kept up, by state 
 authority, without any interference or control, on the part 
 of Congress. 
 
 But, since these Acts contemplated the cession not only 
 of the edifices, but also the lands upon which they were 
 built, to the United States, and since the effect of the 
 acceptance of their provisions, by the several States, in 
 which they were situated, was to transfer these lands 
 to the general government, it is apparent that the United 
 States thereupon became seized of these lands and edi- 
 fices, and that their whole management, control and reg- 
 ulation was vested in that government, under its power 
 "to .... make all needful rules and regulations 
 
WHARFSi, WAREHOUSES AND ELEVATORS. II7 
 
 respecting the territory and other property belonging to 
 the United States," irrespective of the extent of its con- 
 stitutional power to regulate commerce ; and, the United 
 States has, with respect to its own lands and property, 
 within the limits of a State, all the rights of an ordinary 
 proprietor,* and the courts of a State can in nowise inter- 
 fere with the control of such property, owned and oper- 
 ated by that govemment.t 
 
 And, so of wharfs, warehouses and elevators, whose 
 regulation, by the States, in which they are situated, is 
 justified, on the ground, that they are, in their nature 
 local, and, as such, require a diversity of rules and regu- 
 lations, which may be prescribed, by the States, in the ab- 
 sence of congressional legislation. The doctrine, appli- 
 cable to this branch of the subject, is forcibly laid down, 
 by Mr. Chief Justice Waite, in the leading case of Munn 
 against the State of Illinois,^ when he said, that "certain 
 until Congress acts in reference to their inter-state rela- 
 tion, the State may exercise all the powers of government 
 over them, even though, in so doing, it may operate upon 
 commerce outside its immediate jurisdiction." 
 
 Hence, it is, that the principle, underlying the doctrine 
 of the temporary power of the States to establish com- 
 mercial regulations of a local character, in respect of 
 
 *Benson v. United States, 146 U. S., 325; Camfield v. United 
 States, 167 U. S., S18. „ „ ^ TT c 
 
 tGreen Bay Canal Co. v. Patten Paper Co., 173 U. S., 179. 
 
 ±94 U. S., 113; see also, Chicago^ Burlington & Qunicy Railroad 
 Co V Iowa id., 155; Peik v. Chicago & Northwestern Railroad 
 Co id 164': Stone v. Farmers' Loan & Trust Co., 116, id., 307; 
 Wabasfi, St. Louis & Pacific Railroad Co. v. Illinois, 118 id., 557; 
 Hall V. be Cuir, 95 id., 485. 
 
Il8 COMMERCIAL POWER OF CONGRESS. 
 
 those subjects falling within the commercial power of 
 Congress, arises not only from the designs of the framers 
 of the Constitution, but also from the nature of the sub- 
 jects upon which the power is intended to operate. 
 
 There can be no doubt, but that, one of these designs 
 was to entrust the care of local interests to the regulating 
 power of local authorities, and, consequently, that the 
 purpose of that instrument was to vest in the federal 
 government, only such powers of a general nature as 
 were found to be necessary to conserve the public inter- 
 ests of that government, and to promote the general 
 welfare of the whole country; and, it is apparent, that, 
 while the power to regulate commerce, embraces a vast 
 field, containing not only many, but exceedingly various 
 subjects and while some of these demand a single uniform 
 rule, operating equally on the commerce of the United 
 States, in every part of the country, there are others which 
 require that diversity of regulation, that can alone meet 
 the local necessities of the case. And, the superior fitness 
 and propriety, not to say the absolute necessity of different 
 systems of regulation, is uniformly recognized, in those 
 cases, where a general rule is not required, of local sub- 
 jects, drawn from local knowledge and experience, and 
 made to conform to local wants and requirements.* 
 
 Therefore, in its operation, upon these local subjects, 
 the power of the States is without limit, and it may be 
 exercised to any extent, not inconsistent with the laws of 
 
 ♦Parkersburg & Ohio River Transportation Co. v. City of Par- 
 kersburg, 107 U. S., 691 ; Cooky v. Board of Wardens, 12 How., 
 299 (319). 
 
WHENCE states' TEMPORARY POWER ARISES. II9 
 
 Congress. Were this not so, the result would be, that 
 those subjects of a purely local and temporary nature, in 
 the absence of congressional action, would be without 
 any regulation whatsoever, and a lawless condition of 
 things would exist, within the heart of the community, 
 and, on a matter vital to the interest of all the States.* 
 For this reason, therefore, the temporary power of the 
 States, in the matter of commercial regulations of a 
 purely local nature, is held to be not incompatible with the 
 commercial power in the general government. 
 
 In all those cases of a local nature, falling within the 
 purview of the temporary power of the States, the State 
 authority, is said to be plenary, and is subject to no limita- 
 tion, until the dormant power of Congress is awakened 
 and made effective, by appropriate legislation, and, the 
 exercise of this power, by the States, in good faith, can- 
 not be made the subject of review by the courts of the 
 United States.t Indeed, these courts have no authority 
 to ignore State laws and regulations of this class, or to 
 declare them invalid, by reason of any supposed repug- 
 nance to the Constitution and laws of the United States. 
 This is so, because the commercial power is essentially 
 legislative, and because, it is to Congress, that the power 
 has been granted, and, the courts can never take the ini- 
 
 *Passenger Cases, 7 How., 283 (562) per Woodbury, J. ; County 
 of Mobile V. Kimball, 102 U. S. 691. 
 
 tWillson V. Blackbird Creek Marsh Co., 2 Pet, 245; Pennsyl- 
 vania V. Wheeling & Belmont Bridge Co., 13 How., 578; Oilman 
 V. Philadelphia, 3 Wall., 7^2; Miller v. Mayer, etc., of New York, 
 109 U. S., 385; Cardwell v. American River Bridge Co., 113 id., 
 205. 
 
120 COMMERCIAL POWER OF CONGRESS. 
 
 tiative. Congress must, therefore, first legislate and es- 
 tablish the federal rule, before the courts of the United 
 States can proceed upon any ground of paramount juris- 
 diction;* for, as was said by Mr. Justice Harlan, in the 
 case of the Interstate Commerce Commission against 
 Brimsonli : — "The test of the power of Congress is not the 
 judgment of the courts, that particular means are the best 
 that could have been employed to eif ect the end contem- 
 plated by the legislative department. The judiciary can 
 only inquire whether the means adopted in the execution 
 of a power granted are forbidden by the Constitution." 
 
 From its very nature, therefore, the local and tempor- 
 ary power of the State, extends both to foreign and inter- 
 state commerce, since, there is much, even in connection 
 with foreign commerce, which is local to the several 
 States, convenient for their regulation, and useful to the 
 public, to be acted upon by each State, as occasion re- 
 quires, until the power is abused or some course is taken 
 by Congress, conflicting with such State regulation.^ 
 
 This power of the States being, essentially, temporary 
 in its nature and operation, and being based alone upon 
 their inherent power to legislate upon all subjects of a 
 local character ; and, the power of Congress to supersede 
 the exercise of this power, on the part of the States, be- 
 ing general and paramount, it necessarily follows, that 
 
 *Parkersburg & Ohio River Transportation Co., v. City of Par- 
 kersburg, 107 U. S., 691 ; Wabash, St. Louis & Pacific Railroad 
 Co., V. Illinois, 118 id., 557; Northern Securities Co., v. United 
 States, 193 U. S., 197 (352). 
 
 tiS4 U. S., 447 (473) ; see also. Sinking Fund Cases, 99 U.S., 
 700 (718). 
 
 ^License Cases, 5 How., 504 (624), per Woodbury, J. 
 
WHEN states' power CEASES. 121 
 
 the exercise of this power, by the States, may be termi- 
 nated, at any time, by Congress assuming control and 
 acting upon the subject itself;* and, it also follows, that, 
 when Congress does assume control, by appropriate legis- 
 lation, the power of the States ceases to be operative, and 
 the congressional rule must prevail; and, having the 
 power to act upon the subject, in any event, an Act of 
 Congress, or a treaty made, in pursuance of the Consti- 
 tution is supreme, and the laws of the States, although 
 enacted in the exercise of powers not controverted, must, 
 in such case, yield to the paramount authority of the fed- 
 eral government.t 
 
 The power of the States, in such cases, has, therefore, 
 been said, to be sustained only by reason of the absence 
 of congressional legislation,! and, where the subject of 
 its exercise has been covered by such legislation, the law 
 of the State must give way;§ and all local state legis- 
 lation covering the same ground will cease to have any 
 force, whether formally abrogated or notl 
 
 But, unlike those powers of a general nature, falling 
 within the scope of the exclusive powers of Congress, 
 affecting all the States, in their relation to each other and 
 
 *The Lattawana, 21 Wall., 558; Cardwell v. American River 
 Bridge Co., 113 U. S., 205. 
 
 tGibbons v. Ogden, 9 Wheat, i; Henderson v. Wickham, 92 
 U. S., 259- 
 
 JGulf, Colorado & Santa Fe Railway Co. v. Hefly, 158 U. S., 
 
 SInterstate Commerce Commission v. Detroit, Grand Haven & 
 Milwaukee Railway Co., 167 U. S., 633 (642) ; Green Bay & Mis- 
 sissippi Canal Co., v. Patten Paper Co., 173 U. S., 179; Wisconsin 
 V. Duluth, 96 U. S., 379„(387). , ^ 
 
 IJReid v. Colorado, 187 U. S., 137 (i47). 
 
122 COMMERCIAL POWER OF CONGRESS. 
 
 with foreign nations, requiring uniformity of regulation, 
 the non-action of Congress, upon these subjects of a local 
 nature, is not to be taken as a declaration, that nothing 
 shall be done in respect of them, by the States; but, is 
 rather to be deemed to be a declaration, that, for the time 
 being, and until Congress shall see fit to act, they may be 
 regulated, by State authority.* 
 
 In considering the subject of the concurrent powers 
 of the State and federal governments, it was said, that, 
 as to those powers not delegated to the United States, for 
 federal purposes, the authority of the several States, 
 within the scope of their reserved powers, is supreme, 
 and in the exercise of these powers, it acts coordinately 
 with the government of the United States; and that, the 
 power, when the occasion for its suspension seems to re- 
 quire, may be resumed, at any time, when the paramount 
 authority of the United States over the subject-matter 
 of the power, is, for any reason, withdrawn.! 
 
 To summarize what has already been said of the nature 
 of the commercial power of Congress, it needs only to be 
 added, that, upon subjects of a general nature, the con- 
 troling and supreme power to regulate commerce with 
 foreign nations, among the several States and with the 
 Indian tribes, is vested in the legislative departments of 
 the federal government, although the mere grant of the 
 power does not necessarily make it exclusive ;$ that, in 
 the grant of the commercial power to Congress, the lan- 
 
 *County of Mobile v. Kimball, 102 U. S., 691 ; Escanaba & 
 Lake Michigan Transportation Co. v. Chicago, 107 id., 678. 
 tSee Reid v. Colorado 187 U. S., 137. 
 JLicense Cases, 5 How., 504 (579), per Taney, C J. 
 
MONOPOLY AND PRIVATE CONTRACTS. I23 
 
 guage of the Constitution does not, in terms, exclude the 
 States from the exercise of some authority over the sub- 
 ject-matter;* that, while there are some subjects embraced 
 within the commercial power of Congress, which require 
 a general or uniform rule, applicable alike to the whole 
 country, the nature of the power itself does not render 
 it exclusive in the federal governmentf for all purposes, 
 and, that some of the subjects of the commercial power 
 are temporary and local in their nature, and may be regu- 
 lated by the States, until Congress shall, in the exercise 
 of its paramount power, cover the same ground, by such 
 legislation as it may deem appropriate to enact| upon the 
 subject. 
 
 To these limitations of the power of Congress to regu- 
 late commerce, growing out of the nature of the subject- 
 matter of the power, it has also been held, that, whatever 
 may be its extent, it cannot be exercised, by the federal 
 government, so as to create a monopoly, nor can it be 
 invoked to impair the obligations of private contracts. 
 Thus, in the case of Pennsylvania against Wheeling &" 
 Belmont Bridge Company,^ it was said, by Mr. Justice 
 Daniel, in a dissenting opinion, that, "The power to regu- 
 late commerce was given to the federal government, whose 
 functions were designed to be general and co-extensive 
 with the entire confederacy, because, its duties embrace 
 
 *Cooley V. Board of Wardens, 12 How., 299; Pacific Mail 
 Steamship Co. v. Joliffe, 2 Wall., 450. 
 
 fLicense Cases, S How., S04 (608), per Carton, J. 
 
 JCooIey V. Port Wardens (supra), Oilman v. Philadelphia, 3 
 Wall , 713 ; Willson v. Blackbird Creek Marsh Co., 2 Pet., 245 ; 
 Cran'dall v. Nevada, 6 Wall., 35 ; Pound v. Turck, 95 U. S. 459- 
 
 §13 How., ^18. 
 
124 COMMERCIAL POWER OF CONGRESS. 
 
 the equal rights and interests of all the members of the 
 confederacy, and of the means of the widest diffusion of 
 commercial facilities and intercourse, within the powers 
 vested by the Constitution. It, therefore, cannot be ra- 
 tionally concluded, that a provision, palpably intended to 
 protect commerce from unequal and invidious restrictions, 
 the power was given to advance, so far towards restric- 
 tion or monopoly, as to limit commerce to particular 
 channels ; thereby crippling or wholly preventing its diffu- 
 sion and activity, and, by the same process, conferring 
 upon particular points or sections of the country, arbi- 
 trary and unjust advantages, and visiting upon those por- 
 tions affected by such procedure, loss and even ruin." 
 The statement of this plain limitation upon the commer- 
 cial power of Congress, would seem to justify the con- 
 clusion, that that body has no authority to destroy the 
 navigation of one State to improve the navigation of 
 another; yet Congress has always taken a different view 
 of the subject, and, in upholding the action of the legisla- 
 tive department, the Supreme Court of the United States 
 has held, that the matter is wholly within the discretion of 
 Congress ; and, an appropriation for the improvement of a 
 harbor or a navigable stream, to be expended, under the 
 direction of the Secretary of War, confers upon that 
 officer, the discretion to determine the mode of improve- 
 ment, and authorizes the diversion of the waters from one 
 channel into another, if, in his judgment, such is the best 
 mode ; and, that such diversion is not giving the ports of 
 one State preference over those of another.* 
 
 ♦South Carolina v. Georgia, 93 U. S., 4. 
 
SUPPRESSION OF MONOPOLY. I25 
 
 But, it has been held, that Acts of Congress, for the im- 
 provement of the navigation of a river, are not sufficient 
 to establish the police power of the United States over 
 the navigable streams to which they relate.* 
 
 While the doctrine laid down, by Mr. Justice Daniel, 
 in the Wheeling & Belmont Bridge case, above referred 
 to, contains a clear limitation upon the authority of Con- 
 gress, so far as the establishment of monopoly, by the 
 exercise of its power to regulate commerce, is concerned, 
 the question of its authority to suppress i monopolies first 
 came to the Supreme Court of the United States, for 
 determination, after the Anti-Trust legislation of Con- 
 gress of 1890, in the case of the United States against 
 the E. C. Knight Company.^ In that case, the Court ad- 
 mitted, that "the relief of the citizens of each State from 
 the buidens of monopoly and the evils resulting from the 
 restraint of trade, among such citizens was left [by the 
 ■ Constitution] with the States to deal with, and that this 
 court has recognized their possession of that power, even 
 to the extent of holding, that an employment or business 
 carried on by private individuals, when it becomes a mat- 
 ter of such public interest and importance as to create a 
 common charge or burden upon the citizen — in other 
 words, when it becomes a practical monopoly, to which the 
 citizen is compelled to resort, and by means of which a 
 tribute can be exacted from the community, — it is subject 
 to regulation by state legislative power;" and while this 
 rule was applied, in that case, nevertheless, the doctrine 
 
 ♦Willamette Iron Bridge Co., v. Hatch, 123 U. S., i (13). 
 tis6 U S., I (II, 12). 
 
126 COMMERCIAL POWER OF CONGRESS. 
 
 was laid down, that, since the power to regulate commerce 
 is the power to prescribe the rules by which it shall 
 be governed, and, is a power independent of the power 
 to suppress monopoly, it may operate in reference to 
 monopoly whenever it comes within the rules by which 
 commerce is governed, or whenever the transaction is 
 itself a monopoly of commerce; and, in the case of the 
 Addyston Pipe & Steel Company against the United 
 States* referring to the facts found by the court below, 
 and upon which that case came up, for final determina- 
 tion, it was held, that the appellant's contention, to the 
 effect that, even if the contract or combination complained 
 of did, in fact, affect inter-state commerce, it was only a 
 reasonable restraint upon a ruinous competition, among 
 themselves, and was formed only for the purpose of pro- 
 tecting the parties thereto, thus enabling them to obtain 
 prices for their products which were fair and reasonable, 
 was unworthy of consideration; that the commercial 
 power of Congress, extends to all monopolies, in restraint 
 of inter-state trade, and, that, since the effect of the com- 
 bination in question was to enhance prices beyond a sum 
 which was reasonable, it was in violation of the Anti- 
 Ttust Act of Congress, and, therefore, void. 
 
 So, in the Northern Securities case,^ this principle 
 was extended, by the holding, that, in order to vitiate 
 such a combination, as the Anti-Trust Act condemns, it 
 need not be shown, that it, in fact, amounts to, or will re- 
 sult in a total suppression of trade, or in a complete 
 
 *i7S U. S., 211 (235). 
 ti93 U. S., 197 (332). 
 
SUPPRESSION OF MONOPOLY. 127 
 
 monopoly, but it is only essential to show, that, by its 
 necessary operation, it tends to create a monopoly in such 
 trade or commerce, and to deprive the public of the ad- 
 vantages that flow from free competition. 
 
 As to the application of the commercial power of Con- 
 gress to private contracts, the same court has held, that, 
 although this power was vested in the federal govern- 
 ment, in order to insure equality and freedom in com- 
 mercial intercourse, against discriminating state legis- 
 lation, it was never intended, that the power should be 
 exercised by Congress, so as to interfere with the freedom 
 of private contracts, not designed, at the time they were 
 made, to create impediments to such intercourse. This 
 principle was announced in the case of the Dubuque & 
 Sioux City Railroad Company, et al., against Richmond, 
 et al.,* in which the appellant urged, that the contract, 
 involved in that action, was repugnant to the commercial 
 power of Congress, as exercised, in the passage of the 
 Acts of Congress of June 15th, 1866, and of July 25th, 
 1866, and was, therefore, void. But, in its determination 
 of the case, the court held, that these Acts were intended 
 to reach trammels interposed by state enactment or by ex- 
 isting laws of Congress, and, that they were not intended, 
 even if it were competent for Congress to authorize such 
 proceedings, to invade the domain of private contracts, 
 and annul all such contracts, as had been made on the 
 basis of existing legislation and existing means of inter- 
 state communication ; and, the learned justice, who deliv- 
 ered the opinion of the court, in that case, declared, not 
 
 *86 U. S. 584. 
 
128 COMMERCIAL POWER OF CONGRESS. 
 
 only, that the argument of the plaintiff in error was erro- 
 neous, but also, that its application would lead to the 
 abrogation of all contracts, which might prove, from sub- 
 sequent events, to be more onerous, than contracts made 
 after such events had happened. As an instance of this, 
 he cited a contract for the supply of coal, made upon 
 terms, which were, at the time, reasonable, but, which 
 might be felt to be very hard and oppressive, if, before 
 its termination, the discovery of new fields of coal, in the 
 vicinity, should reduce the market-price of the article 
 one-half ; and, in conclusion, he said, that to assent to the 
 proposition, that the enforcement of a contract of this 
 kind, would be repugnant to the commercial power ot 
 Congress, because, the expense of transportation would 
 be less, if the contract were annulled, would not be more 
 extraordinary, than the position assumed by the appellant, 
 in the case at bar, and would be equally entitled to con- 
 sideration. Therefore, "when counsel speaks," he adds, 
 "of public policy estabhshed by the Acts of Congress 
 mentioned, he must mean nothing more than, that the Acts 
 were intended to facilitate commercial intercourse among 
 the States. Undoubtedly, such was the case, and it is of 
 great public interest, that such intercourse should be free 
 and untrammelled. But, if comparison may be made with 
 respect to a subject of this nature, we should say, that 
 the observance of good faith between parties, and the 
 upholding of private contracts and the enforcement of 
 their obligation, are matters of higher moment and im- 
 portance to the public welfare and far more reaching in 
 their consequences." 
 
ITS OPERATION ON PRIVATE CONTRACTS. I29 
 
 So, in another case,* it was held, that if power to 
 regulate commerce applied to all the incidents to which 
 commerce might give rise, and to all contracts which 
 might be made in the course of its transaction, that power 
 would embrace the entire sphere of mercantile activity, 
 and would exclude state control over many contracts 
 purely domestic in their nature; and, on another occa- 
 sion,t it was also said, that the "slightest reflection will 
 show, that, if the national power extends to all contracts 
 and combinations in manufacture, agriculture, mining 
 and other productive industries, whose ultimate result 
 may affect external commerce, comparatively little of 
 business operations and affairs would be left for State 
 control."* 
 
 Relying upon the doctrine, laid down in these and sim- 
 ilar cases, it was argued, by counsel for the appellant, in 
 the case of the Addyston Pipe &" Steel Company against 
 the United States,% that, the power of Congress to 
 regulate commerce does not include the general power 
 to interfere with, or prohibit, private contracts between 
 citizens, even though such contracts have inter-state 
 commerce as their object, and result in a direct and 
 substantial obstruction to, or regulation of such trade; 
 but, the court held otherwise, and laid down the rule, 
 that, under this grant of power t» Congress, that body 
 may enact such legislation as shall declare void and 
 
 ♦Hooper v. California, ISS U. S. 648 (655), Per Mr. Justice 
 White. 
 tUnited States v. E. C. Knight Co., 156 U. S. i (16). 
 $Kidd v. Pearson, 128 U. S. I (23). 
 
 §i7S U. S., 211 (228-30). 
 
130 COMMERCIAL POWER OF CONGRESS. 
 
 prohibit the performance of any contract between indi- 
 viduals and corporations, where the natural and direct 
 effect of such contract will be, when carried out, to direct- 
 ly, and not as a mere incident to other and innocent pur- 
 poses, regulate, to any substantial extent, inter-state (and 
 foreigfn) commerce ; Mr. Justice Peckham, who delivered 
 the opinion of the court, saying : — "While unfriendly and 
 discriminating legislation of the several States may have 
 been the chief cause for granting to Congress the power 
 to regulate inter-state commerce, yet we fail to find, in 
 the language of the grant, any such limitation of that 
 power as would exclude Congress from legislating on the 
 subject, and prohibiting those private contracts which 
 would directly and substantially, and not as a mere inci- 
 dent, regulate inter-state commerce," and, quoting from 
 the Dehs case, the learned justice pertinently asks, "If 
 a State, with its recognized power of sovereignty, is im- 
 potent to obstruct inter-state commerce, can it be, that any 
 m.ere voluntary association of individuals, within the lim- 
 its of a State has a power which the State does not itself 
 possess ?" To this question, the decision of the court in 
 the case, at bar, was a sufficient answer, although the 
 same conclusion had already been reached, in the case re- 
 ferred to,* and in the Trans-Missouri Freight Association 
 case,'^ where it was expressly held, that the principle, 
 that the States may not enact any law in restraint of 
 those subjects which are vested in Congress, applies 
 
 *In re Debs, 158 U. S., 564. 
 
 tUnited States v. Trans-Missouri Freight Association, 166 
 U. S. 290 (341). 
 
ANTI-TRUST LEGISLATION OF I89O. I3I 
 
 equally to individuals and to corporations engaged in Inter- 
 state commerce, and falls under the regulating power of 
 Congress, as exercised in the passage of the Act of July 
 2d, 1890, known as the Anti-Trust Law.* 
 
 In pursuance of this doctrine, it has, likewise, been 
 held, that an agreement between manufacturers and deal- 
 ers belonging to an association, in which its members agree 
 not to purchase from manufacturers, not members of the 
 association, and to sell to no one, not a member, for less 
 than the list price, is a combination in restraint of trade, 
 and when the subject of such an agreement, concerns 
 inter-state commerce, it falls within the prohibitions of 
 the Anti-Trust Lawjf and so, where a corporation, con- 
 trolled by a railroad company, purchases coal, at the 
 mines or breakers, under an agreement, fixing the price 
 to the vendor, on the basis of a percentage of the average 
 price received at tide-water, in another State, it being 
 claimed, that the transaction was the means whereby the 
 railroad company gave preferential rates to the selling 
 company, it was held, that the Inter-state Commerce 
 Commission may, in a proceeding properly instituted, in- 
 quire into the manner in which the business is done, and 
 compel, through the Circuit Court, the testimony of wit- 
 nesses, as well as the production of the contracts relating 
 to such agreement.^ under the provisions of the Act of 
 Congress establishing that Commission.! 
 
132 COMMERCIAL POWER OF CONGRESS. 
 
 However, not all contracts affe_ctmg inter-state an3 
 foreign commerce, or involving transactions between cit- 
 izens of the several States, are within the regulating 
 power of Congress, since it has been held, that, the con- 
 tract of an emigrant agent, engaged in the business of 
 hiring laborers in one State to be employed,, beyond the 
 limits of that State, although it may involve questions of 
 international concern between the United States and the 
 foreign nation, from which such emigrants may come 
 into its jurisdiction, and although the "transaction must 
 eventually take place, as the result of such a contract," 
 it does not follow, that such agent is engaged in trans- 
 portation, or that a state tax on his occupation was levied 
 on transportation, as a means of inter-state commerce;* 
 so, the business of insurance is not commerce ; and being 
 a mere incident of commerce, a contract of insurance 
 does not fall within the regulating power of Congress.t 
 even though such contract be between a company of one 
 State and a citizen of another ; and, where a foreign cor- 
 poration has become localized in a State, and accepts the 
 laws of that State, as a condition of doing business there, 
 it cannot abrogate those laws, by attempting to make 
 contract stipulations, in contravention thereof ;$ and the 
 principle is well settled, that, a statute of a State, which 
 does not attempt to substantially regulate or control con- 
 
 ♦Williams v. Fears, 179 U. S., 270. 
 
 tNew York Life Insurance Co. v. Cravens, 178 U. S., 389, see 
 also, Paul V. Virginia, 8 Wall., 168; Liverpool and London In- 
 surance Co. V. Massachusetts, 10 id., 566. 
 
 JNational Building & Loan Association v. Brahan, 193 U. S., 
 635. 
 
INTER-STATE COMMERCE COMMISSION. I33 
 
 tracts as to inter-state shipment, but simply establishes a 
 rule of evidence, determining the proof, by which a car- 
 rier may prove the contract, is not unconstitutional, as 
 being in contravention of the provisions of the commer- 
 cial clause of the federal Constitution* 
 
 And, in construing the provisions of the Act of Con- 
 gress establishing the Inter-state Commerce Cormnission, 
 the Supreme Court of the United States has laid down the 
 doctrine, that although the purpose of that Act was to 
 obviate the insufficiency of the laws of the several States, 
 and to secure the public against unreasonable and unjust 
 discriminations, in the business of transportation, it was 
 not designed "to prevent the customary arrangements, 
 made by railway companies for reduced fares, in con- 
 sideration of increased mileage, where such reduction 
 does not operate as an unjust discrimination against other 
 persons," traveling over their roads, under like circum- 
 stances.f 
 
 It has also been held, that, since only such acts as di- 
 rectly interfere with the freedom of inter-state commerce, 
 are prohibited by the Constitution, the Anti-Trust Act, 
 is not applicable to contracts which have only a remote 
 and indirect bearing on commerce between the States 
 and with foreign nations, and, therefore, the require- 
 ments of an ordinance of a municipal corporation of one 
 of the States, enacted in pursuance of legislative author- 
 ity, that a particular kind of asphalt, produced only in a 
 
 ♦Richmond & Alleghany Railroad Co. v. Patterson Tobacco Co., 
 169 U. S., 3" (313)- 
 
 flnterstate Commerce Commission v. Baltimore & Ohio Rail- 
 road Co., 14s U. S., 263. 
 
134 COMMERCIAL POWER OF CONGRESS. 
 
 foreign country, shall be used in paving its streets, does 
 not violate the federal right of commercial regula- 
 tion, and is not inhibited by the provisions of the Anti- 
 Trust Act ;* that, that Act does not declare illegal, sales 
 made by a combination mentioned therein, or by its agents, 
 of property acquired, or which came into its possession, 
 for the purpose of being sold, such property being, at the 
 tirne, in course of transportation from one State to an- 
 other, or to foreign countries,t and that, under the Act, 
 if merchandise be in transit, by one connecting line of 
 inter-state communication, such connecting line is n6l 
 required to deliver the merchandise to another line, with- 
 out a contract for that purpose, and the courts are with- 
 out authority to dictate the terms of such a contract, 
 or to require one to be made.t 
 
 However, in the case of the Northern Securities Com- 
 pany against the United States^^ it was determined, that 
 the Anti-Trust Act is not limited to restraints of inter- 
 state and foreign trade which are unreasonable in their 
 nature, but embraces all restraints, imposed by combina- 
 tion, conspiracy or monopoly upon such trade, and, that 
 combinations, even among private manufacturers and 
 dealers, whereby inter-state or foreign commerce is re- 
 stricted, are equally embraced within the provisions of the 
 Act. 
 
 ♦Field V. Barbour Asphalt Co., 194 U. S., 618. 
 
 tConnoIly v. Union Sewer Pipe Co., 184 U. S., 540. 
 
 iCentral Stock Yards Co. v. Louisville & Nashville Railroad 
 Co., 192 U. S., 568; Atchison, Topeka & Santa Fe Railway Co. v. 
 Denver & New Orleans Railway Co., no U. S., 667. 
 
 §193 U. S., 197- 
 
ITS OPERATION UPON MANUFACTURES. I35 
 
 Although the definition of the term commerce, and the 
 scope of the power of Congress over its regulation, have 
 been sometimes extended, so as to include the manu- 
 facture, as well as the sale, and ultimate disposi- 
 tion of manufactured articles, the mere fact, that such 
 articles are manufactured, in one State, for export to an- 
 other, does not, of itself, constitute them articles of inter- 
 state commerce, within the purview of the Constitution. 
 Hence, it has been held, that the intent of the manufac- 
 turer does not determine the time when such articles pass 
 from the control of the States, and become articles of 
 commerce,* subject to regulating power of Congress; 
 the reason assigned for this, being, that although the 
 power to control a given thing, may involve, in a certain 
 sense, the control of its disposition, this is its secondary, 
 and not its primary object; and, although the exercise of 
 that power may result in bringing the operation of com- 
 merce into play, it does not control it.t 
 
 Therefore, until a manufactured article has become the 
 subject of that commerce, the regulation of which is vested 
 in the federal government, it is for the Legislatures of 
 each of the States, and not for Congress, to determine 
 whether its manufacture, or sale, will injuriously affect 
 the public morals, health and safety of its inhabitants ;$ 
 and, for this reason, it was held, that a law of the State 
 of Ohio, relating to the manufacture and sale of oleomar- 
 
 *Coe V. Errol, 116 U. S., Si7; Kidd v. Pearson, 128 U. S., i 
 (24) ; United States v. E. C. Knight Co., 156 U. S., I (13) ; see 
 also Diamond Glue Co. v. United States Glue Co., 187 U. S., Oil. 
 
 tUnited States v. E. C. Knight Co., 156 U. S., I. 
 
 JLeisy v. Hardin. 135 U. S., 100 (123). 
 
136 COMMERCIAL POWER OF CONGRESS. 
 
 garine, in that State, does not conflict with the commercial 
 power of Congress,* although that body may have enacted 
 a law upon the same subject.f 
 
 iThe whole subject of the relation of the power of the 
 several States, in respect of their control over the manu- 
 facture of products, within their respective limits, to the 
 regulating power of Congress, was ably discussed, by 
 Mr. Justice Lamar, in the case of Kidd against Pearson;% 
 and, "If it be held," says he, "that the term includes the 
 regulation of all such manufactures as are intended to be 
 subjects of commercial transactions, in future, it is im- 
 possible to deny, that it would also include all productive 
 industries that contemplate the same thing. The result 
 would be, that Congress would be invested, to the exclu- 
 sion of the States, with the power to regulate, not only 
 manufactures, but also agricultural, mining — in short, 
 every branch of industry. . . . The power being 
 vested in Congress and denied to the States, it would 
 follow, as an inevitable result, that the duty would devolve 
 on Congress to regulate all those delicate, multiform and 
 
 ♦Capital City Dairy Co. v. Ohio, 183 U. S., 238. 
 
 fAct of August 21, 1886, 24 U. S. Stat. 209. This Act, however, 
 it has been held, was not intended as a regulation of commerce, 
 but only to relieve the manufacturer or seller, from punishment, 
 so far as the general government is concerned. See Plumley v. 
 Massachusetts, 155 U. S., 461 (467), in which it was also held, 
 that "taxes, prescribed by that act, were imposed for national 
 purposes, and, [that] this imposition did not give authority to 
 those who paid them to engage in the manufacture or sale of 
 oleomargarine in any State which lawfully forbade such man- 
 ufacture or sale, or to disregard any regulation which the State 
 might lawfully prescribe in reference to that article" id., (466). 
 
 ti28 U. S., I. 
 
ITS OPERATION UPON MANUFACTURES. I37 
 
 vital interests — ^interests which, in their nature, are, and 
 must be, local in all the details of their successful man- 
 agement," and the learned justice, therefore, very properly 
 concluded, that the mere manufacture of articles of com- 
 merce, did not of itself subject them to the regulating 
 power of Congress. 
 
 But, in so far as the legislation of Congress of 
 1890, applies to manufactures, Mr. Justice Harlan says, 
 "that although the Act of Congress, known as the Anti- 
 Trust Act, has no reference to the mere manufacture or 
 production of articles or commodities, within the limits 
 of the several States, it does embrace and declare to be 
 illegal every contract, combination or conspiracy, in what- 
 ever form, or whatever nature, and whoever may be the 
 parties to it, which directly or necessarily operates in 
 restraint of trade or commerce among the several States, 
 or with foreign nations."* 
 
 Aside from the limitations upon the power of Con- 
 gress to regulate commerce, indicated' and suggested 
 above, it is also subject to the express constitutional pro- 
 vision, that, "no preference shall be given to any regula- 
 tion of commerce ... to the ports of one State over 
 those of another;"! and, it gOes without saying, that if 
 such preference be given by the legislative action of the 
 federal government, the regulation attempted, in pursu- 
 ance of such action, would be necessarily void4 
 
 ♦Northern Securities Co. v. United States, 193 U. S., 197. 
 tConst. U. S., Art. I., sec. IX., cl. 6. 
 
 ^Pennsylvania v. Wheeling, and Belmont Bridge Co., 13 How., 
 421, per McLean, J. 
 
138 COMMERCIAL POWER OF CONGRESS. 
 
 And, considering the wording of the Constitution itself, 
 it would seem to be unnecessary to add, that the com- 
 mercial power of Congress does not extend to the regula- 
 tion of the internal or domestic commerce of the several 
 States; but, inasmuch as this branch of the subject has 
 received the attention of the courts, it may not be inap- 
 propriate to state, that the conclusion has always been 
 accepted, that Congress can no more regulate com- 
 merce of this character, than a State can regulate that 
 commerce which falls within the exclusive power of the 
 federal government,* since it has been held, that the 
 constitutional provision is not that Congress shall have 
 power to regulate all commerce, but only such as has been 
 expressly delegated to it, by the Constitution ; that, there- 
 fore, Congress has no power to regulate that commerce 
 wihich is carried on entirely within a State, and among 
 its own citizens,t and that the transportation of persons 
 and property between two places in the same State is no 
 less domestic commerce, by reason of the fact, that these 
 places are reached by a deviation to the soil of another 
 State.* 
 
 But, a corporation engaged in inter-state commerce 
 cannot claim, under the provisions of the Act of Con- 
 gress establishing the Inter-state Commerce Commission, 
 the privilege of domestic rates upon goods shipped within 
 a State, from without, where the shipment is made on 
 a through bill-of-lading, for the reason, that, while the 
 
 *Paul V. Virginia, 8 Wall, 168. 
 
 tStoutenburgh v. Hennick, 129 U. S., 141 (150), per Miller, J. 
 JLehigh Valley Railroad Co. v. Pennsylvania, 145 U. S., 192 
 (201). 
 
DOMESTIC COMMERCE OF THE STATES. I39 
 
 corporation is not compelled, under that Act, to subject 
 itself to such a contract, having once elected to enter 
 upon the carriage of inter-state freight, and thus sub- 
 jecting itself to the control of the Commission, it would 
 not be competent for it to limit that control, in respect 
 of foreign traffic, to certain points on its road, and ex- 
 clude other points from the operation of the contract.* 
 
 The internal or domestic commerce of a State was de- 
 fined by counsel in the case of Gibbons against Ogden,^ to 
 be, that trade, "which is wholly carried on within the 
 limits of a State, as when the commencement, progress 
 and termination of the voyage are wholly confined to the 
 territory of the State;" and, this branch of commerce, 
 says the same authority, "includes a vast range of state 
 legislation, such as turnpike-roads, toll-bridges, auction 
 licenses, licenses to retailers, and to hawkers and ped- 
 dlers, ferries over navigable rivers and lakes, and all ex- 
 clusive rights to carry goods and passengers, by land and 
 water." 
 
 Although this definition, taken as a whole, may not 
 be technically correct, the principles upon which it is 
 based, have never been denied ; and, in the same case, Mr. 
 Chief Justice Marshall, commenting upon the word 
 "among," as used in the commercial clause of the Consti- 
 tution, said, it means "intermingled with," and from 
 
 ♦Cincinnati, New Orleans & Texas Railway Co. v. Interstate 
 Commerce Commission, 162 U. S., 184. 
 
 tp Wheat, I (65) ; see also The Daniel Ball v. United States, 
 10 Wall., SS7; Hall v. De Cuir, 95 U. S., 465; Western Union 
 Telegraph Co. v. Texas, 105 id., 460 ; Wabash, St. Louis & Pacific 
 Railroad Co. v. Illinois, 118 id., 557. 
 
I40 COMMERCIAL POWER OF CONGRESS. 
 
 this he concluded, that it was not intended, that the 
 language used in the Constitution, comprehended that 
 commerce, which is carried on between different 
 parts of the same State; hence, it was necessary, he 
 said, that, in order that the commercial power of Con- 
 gress should apply to state commerce, such commerce 
 should extend to, and affect, other States; and, that, 
 "comprehensive as the word 'among' is," he added, "it 
 may be very properly restricted to that commerce which 
 concerns more States than one;" for a more extensive 
 power would be not only inconvenient, but unnecessary, 
 "The phrase is not one," he continues, "which would 
 probably have been selected to indicate the completely 
 interior traffic of a State, because it is not an apt phrase 
 for that purpose ; and the enumeration of the particular 
 classes of commerce to which the power was to be ex- 
 tended, would not have been made, had the intention been 
 to extend the power to every description. The enumera- 
 tion presupposes something not enumerated, and that 
 something, if we regard the langiS^e of the subject of 
 the sentence, must be exclusively internal commerce of a 
 State. The genius and character of the whole govern- 
 ment seems to be, that its action is to be applied to all the 
 external concerns of the nation, and to those internal 
 concerns, which affect the States generally ; but not those 
 which are completely within the particular State, and with 
 which it is not necessary to interfere, for the purpose of 
 executing some of the powers of .government." 
 
 It is, therefore, an established doctrine, to which there 
 is no exception, that the internal commerce of a State is 
 
DOMESTIC COMMERCE OF THE STATES. I4I 
 
 as much under its control, as foreign and inter-state com- 
 merce is under the control of the general government;* 
 and, the existence of the federal right of supervision over 
 inter-state and foreign commerce, and the consequent 
 obligation upon the federal courts to protect that right 
 from encroachment, on the part of the States, is not 
 inconsistent with the powrer of each State to control its 
 own internal commerce to any extent whatever.t 
 
 And, since the power to regulate their internal or do- 
 mestic trade belongs exclusively to the several States, 
 it follows, that Congress has no power of regulation, nor 
 any direct control over it; and no interference by Con- 
 gress, with the business of citizens, transacted within the 
 limits of a State, is warranted by the Constitution, except 
 such as is strictly incidental to the exercise of powers 
 granted to the legislative department of the federal gov- 
 ernment.J 
 
 These principles, however, apply only to that trade, 
 which is confined to the territorial limits of the several 
 States, and which forms the subject-matter of their inter- 
 nal, or domestic commerce. Hence, the doctrine, from 
 which they arise, has never been extended, so as to in- 
 clude foreign and inter-state commerce, the regulation of 
 
 *Harman v. Chicago, 147 U. S., 396 (412) ; Reagan v. Mercan- 
 tile Trust Co., IS4 U, S., 413 ; Northern Securities Co. v. United 
 States, 193 U. S., 197 (349) ; see also Sands v. Manistee River 
 Improvement Co., 123 U. S., 288; Thompson v. Union Pacific 
 Railroad Co., 9 Wall., 579; Railroad Co. v. Richmond, 15 id., 3. 
 
 tNew York, Lake Erie & Western Railroad Co. v. Pennsylva- 
 nia, 158 U. S., 431 (437) ; Lehigh Valley Railroad Co. v. Penn- 
 sylvania, 14s U. S., 192. 
 
 ^License Tax Case, 5 Wall, 462. 
 
142 COMMERCIAL POWER OF CONGRESS, 
 
 which is expressly vested, by the Constitution, in Con- 
 gress, nor to the means, through which it is carried on; 
 and, the power of the State to regulate this internal or 
 domestic commerce, being, therefore, independent of that 
 of the federal government, it has been said, that there is no 
 reason, why, in the exercise of these respective powers, 
 any collision should occur to disturb the harmonv of the 
 federal and state governments, unless the former takes 
 under its immediate control, and exclusive supervision, 
 the entire subject to which the state legislation may re- 
 fer;* and, in this case, the rule is, that, while the power 
 of the courts to declare an act of state legislation uncon- 
 stitutional, undoubtedly exists, it is one of great delicacy, 
 particularly when brought to bear upon the legislative 
 acts of another sovereignty .t 
 
 It is also a well recognized constitutional principle, that 
 notwithstanding the delegation of the commercial power 
 to Congress, the several States have surrendered none of 
 their inherent powers over trade and commerce, except as 
 to those branches, which are expressly enumerated in the 
 Constitution; and, therefore, they may still exercise this 
 power, free from the controlling power of the federal 
 govemment,:|: in all those cases where its exercise is es- 
 sential to the maintenance of the constitutional integrity 
 of the States, or, where it is not necessary/ to the exer- 
 
 ♦Missouri, Kansas and Texas Railway Co. v. Haber, 169 U. S., 
 613 (627). 
 
 tScott V. Donald, 165 U. S., 58 (106), per Brown. J., citing 
 Fletcher v Peck, 6 Cranch, 87 (128); Sinking Fund Cases, 99 
 U. S., 700 (718). 
 
 ^License Cases, 5 How., 504 (S74). 
 
RESERVED POWERS OF THE STATES. I43 
 
 cise of some power clearly granted to the federal govern- 
 ment. This follows, not only from the language, in 
 v/hich the commercial power is vested in Congress, by 
 the Constitution itself, but, also, from the nature of the 
 subjects, upon which it is intended to operate, as well as 
 from the effect of a contrary doctrine upon the whole 
 mass of state powers. Hence, in the exercise any of its 
 reserved powers, each State may regulate commerce, 
 when such regulation does not fall within the range of 
 the federal power, as defined in the constitutional grant,* 
 or, when it is necessary to the exercise of some power, 
 not delegated to the federal government, and which is 
 required to maintain its separate political existence. 
 
 Besides the exclusive power of the States over their 
 strictly internal or domestic commerce, and those sub- 
 jects of a local nature which may be temporarily regu- 
 lated, by state legislation, until Congress intervenes and 
 establishes a national rule, there are other subjects falling 
 within the scope of their reserved powers, which may' 
 still be exercised by them, notwithstanding the delegation 
 of the commercial power to the federal govemment.f 
 
 Among these subjects are those which fall within the 
 general power of the several States to legislate, concern- 
 ing all matters, relating to persons and property, resident 
 and being within their respective jurisdictions ; to estab- 
 lish and control their own civil and political institutions, 
 designed for the development of the resources, or for the 
 advancement of the material prosperity of the State; to 
 
 ♦Cooley v. Board of Wardens, 12 How., 299. 
 tGilman v. Philadelphia, 3 Wall., 713. 
 
144 COMMERCIAL POWER OF CONGRESS. 
 
 determine its public policy, by the exercise of its police 
 power, and to maintain the political integrity of its gov- 
 ernment, and secure its successful administration, through 
 the operation of the power of taxation 
 
 Concerning the general legislative power of the several 
 States, the principle is well recognized, that, without some 
 express limitation, contained in its own Constitution, each 
 State has the right to declare the duties and obligations 
 of its citizens and residents, to each other, and to the 
 State; and this power necessarily includes the right to 
 determine the social and political condition and status 
 of those, who may fall within the scope of its operation ; 
 it relates to persons and property, and embraces acts of 
 non-feasance as well as of misfeasance, and carries with 
 it full authority to define and enforce the penalties, which 
 may be considered necessary for the execution of the 
 power, together with the right to establish the methods, 
 through which its legislation shall be enforced, 
 y The magnitude of the power itself, and the extent of 
 its operation, is such as to render its further considera- 
 tion here, impracticable ; but, the general principles upon 
 which it is based, with its relation to the power of Con- 
 gress to regulate commerce, is very fully and clearly 
 stated and illustrated, in the case of Sherlock against Ai- 
 ling* which was determined by the Supreme Court of the 
 United States, upon an appeal from the Supreme Court 
 of the State of Indiana. The facts in that case were, that 
 at the time the cause of action accrued, the defendant 
 was the owner of a line of steamers, employed in navi- 
 
 ^^93 U. S., 99 (133 et seq.}. 
 
LEGISLATIVE POWER OF THE STATES. I45 
 
 gating the Ohio River, between the ports of Cincinnati, in 
 the State of Ohio, and Louisville, in the State of Ken- 
 tucky, for the purpose of carrying passengers and freight 
 and the United States mail ; that, during one of their cus- 
 tomary voyages, two boats of the same line collided, at 
 a point on the river opposite the main-land of the State of 
 Indiana; that, by the collision, the hull of one of the 
 steamers was stove in, and a fire was started which burned 
 the boat to the water-edge, destroying it, and causing the 
 death of one of its passengers, a citizen of the State of 
 Indiana. Upon these facts, the administrator of the de- 
 ceased brought an action in the state courts of Indiana, 
 under a statute of that State, which provided, "that when 
 the death of one is caused, by the wrongful act or omis- 
 sion of another, the personal representative of the former 
 may maintain an action therefor, against the latter, if the 
 former might have maintained an action, had he lived, 
 against the latter, for an injury from the same act or omis- 
 sion." Among the defenses set up, in bar of this action, 
 was, "that at the time of the alleged injuries, the collid- 
 ing boats were engaged in carrymg on inter-state com- 
 merce, under the laws of the United States, and the de- 
 fendant, as their owner, was not liable for injuries oc- 
 curring in their navigation, through the carelessness of 
 their officers, except as prescribed by those laws ; and, that 
 these did not cover the liability under the statute of In- 
 diana." But the court, denied the sufficiency of this plea, 
 and affirmed the judgment of the state court, in favor of 
 the plaintiff, from which the appeal had been taken. 
 In delivering the opinion of the Supreme Court of the 
 
146 COMMERCIAL POWER OF CONGRESS. 
 
 United States, in this case, Mr. Justice Field, referring to 
 the defendant's plea of immunity, said: — "Under this 
 head, it is contended, that the statute of Indiana creates 
 a new Hability, and could not, therefore, be applied to 
 cases where the injury complained of was caused by 
 marine torts, without interfering with the exclusive power 
 of commerce vested in Congress. The position of the 
 defendants, as we understand it, is, that, as, by both the 
 common and maritime law, the right of action for per- 
 sonal torts, dies with the person injured, the statute whicn 
 allows actions for such torts, when resulting in the death 
 of the person injured, to be brought by the personal rep- 
 resentatives of the deceased, enlarges the liability of par- 
 ties for such torts, and such enlarged liability, if applied 
 to cases of marine torts would constitute a new burden 
 upon commerce. In supposed support of this position, 
 numerous decisions of this court are cited, by counsel, to 
 the effect, that the State cannot, by legislation, place 
 burdens upon commerce with foreign nations and among 
 the several States. The decisions go to that extent, and 
 their soundness is not to be questioned. But, on examina- 
 tion of the cases in which they were rendered, it will be 
 found, that the legislation, adjudged to be invalid, im- 
 posed a tax upon some instrument or subject of com- 
 merce; or exacted a license fee from parties engaged in 
 commercial pursuits; or created an impediment to the 
 free navigation of some public water ; or prescribed con- 
 ditions, in accordance with which, commerce in particular 
 articles or between particular places was required to be 
 conducted. In all these cases the legislation condemned 
 
LEGISLATIVE POWER OF THE STATES. I47 
 
 Operated directly upon commerce, either by way of tax 
 upon its business, license in its pursuit in particular chan- 
 nels, or conditions for carrying it on. Thus, in the Pas- 
 senger Cases, the law in New York and Massachusetts 
 exacted a tax from the captains of vessels bringing pas- 
 sengers from foieign ports for every passenger landed. 
 In Pennsylvania vs. Wheeling Bridge, the statute of Vir- 
 ginia authorized the erection of a bridge, which was held 
 to obstruct the free navigation of the River Ohio. In the 
 case of Sinnott vs. Davenport, the statute of Alabama 
 required the owner of a steamer navigating the waters 
 of the State to file, before the boat left the Port of Mobile, 
 in the office of the probate judge of Mobile County, a 
 statement, in writing, setting forth the name of the 
 vessel and of the owner or owners, and his or their place 
 of residence and interest in the vessel, and prescribed pen- 
 alties for neglecting the requirement. It thus imposed 
 conditions for carrying on the coasting trade, in the 
 waters of the State, in addition to those prescribed by 
 Congress. And in all the other cases where legislation 
 of a State has been held to be null and void, for inter- 
 fering with the commercial power of Congress, as in 
 Brown vs. Maryland, State Tonnage Tax Cases, and, 
 Welton vs. Missouri, the legislation created, in the way 
 of a tax, license or condition, a direct burden upon com- 
 merce, or in some way directly interfered with its free- 
 dom. In the present case no such operation can be as- 
 cribed to the statute of Indiana. That statute imposes 
 no tax, prescribes no duty, and in no respect interferes 
 with any regulation for the navigation or use of vessels. 
 
148 COMMERCIAL POWER OF CONGRESS. 
 
 It only declares a general principle respecting the liability 
 of all persons within the jurisdiction of the State, for 
 torts resulting in the death of parties injured. And, in 
 the application of the principle, it makes no diiference 
 where the injury complained of occurred in the State, 
 whether on land or water. Generally legislation of this 
 kind, prescribing the liabilities and duties of citizens of 
 a State, without distinction as to pursuit or calling, is 
 not open to any valid objection, because it may aflfect 
 persons engaged in foreign or inter-state commerce. Ob- 
 jection might, with equal propriety, be urged against 
 legislation prescribing the form in which contracts shall 
 be authenticated, or property descend or be distributed, 
 on the death of its owner, because applicable to contracts 
 or estates of persons engaged in such commerce." 
 
 To the same effect is the opinion of Mr. Justice Mat- 
 thews, in the case of Smith against the State of Alabama* 
 when he said, that "A carrier, exercising his calling within 
 a particular State, although engaged in the business of 
 inter-state commerce, is amenable, according to the law 
 of the State, for acts of nonfeasance and misfeasance, 
 committed within its Hmits. If he fail to deliver goods to 
 the proper consignee, at the time and place, he is liable 
 in an action for damages, under the laws of the State, in 
 its courts; or, if by negligence in transportation he in- 
 
 *i24 U. S., 46s (477, 482) ; see also, Chicago, Milwaukee & St. 
 Paul Railway Co., v. Solan, 169 U. S., 133; Missouri, Kansas & 
 Texas Railway Co., v. Haber, id., 613 ; Atchison, Topeka & Santa 
 Fe Railway Co., v. Matthews, 174 U. S., 96; Missouri, Kansas 
 & Texas Railway Co., v. McCann, 174 U. S., 580. 
 
LEGISLATIVE POWER OF THE STATES. I49 
 
 flicts an injury upon the person of a passenger brought 
 from another State, a right of action for the consequent 
 damage is given by the local laws. In neither case would 
 it be a deTense, that the law giving the right to redress 
 was void, as being an unconstitutional regulation of com- 
 merce by the State. . . , It is that law which defines 
 who are or may be common carriers, and prescribes the 
 means they shall adopt for the safety of that which is 
 committed to their charge, and the rules, according to 
 which, under varying conditions, their conduct shall be 
 measured and judged, which declares that the common 
 carrier owes the duty of care, and what shall constitute 
 that negligence for which he shall be responsible. But 
 for the provisions on the subject found in the local laws 
 of each State, there would be no legal obligation on the 
 part of the carrier, whether ex contractu, or ex delicto, 
 to those who employ him ; or if the local law is held not 
 to apply where the carrier is engaged in foreign or inter- 
 state commerce, then in the absence of laws passed by 
 Congress, or presumed to be adopted by it, there can be 
 no rule of decision based upon rights and duties supposed 
 to grow out of the relation of such carriers to the public 
 or to individuals. In other words, if the law of the par- 
 ticular State does not govern that relation, and prescribe 
 the rights and duties which it implies, then there is and 
 can be no law that does, until Congress expressly sup- 
 plies it, or it is held by implication to have supplied it, in 
 cases within its jurisdiction over foreign and inter-state 
 commerce." In conformity with this opinion it was, 
 therefore, held, that the rules, prescribed by a State, for 
 
ISO COMMERCIAL POWER OF CONGRESS. 
 
 the construction, management and operation of railroads, 
 within its territory, which are designed to protect persons 
 and property, otherwise endangered by their use, are 
 strictly within the limits of the local law, and are not 
 per se regulations of commerce ; and that, it is only when 
 they operate, as such, in the circumstances of their appli- 
 cation, and conflict with the expressed, or presumed, will 
 of Congress exerted on the same subject, that they can 
 be required to give way to the superior authority of the 
 Constitution. 
 
 The doctrine, laid down, in these cases, is, therefore, 
 that the legislation of a State, which is not directed against 
 commerce, or its regulation, but relates to the rights, 
 duties and liability of its citizens, to each other, and to 
 the conduct by those who may be within such legislation, 
 and which only indirectly and remotely affects the opera- 
 tions of that commerce, the regulation of which is vested 
 in Congress, is obligatory upon all persons within their 
 territorial jurisdiction, whether on land, or water, or 
 engaged in commerce, foreign or inter-state, or in any 
 other pursuit or calling. But, notwithstanding the in- 
 herent power of the States, in regard to these subjects, 
 the doctrine has often been announced, that, so far as 
 common carriers, engaged in the business of inter-state 
 commerce, are concerned. Congress has the right un- 
 der its power to regulate commerce, to exact, any guar- 
 antee, it may deem necessary for the public security, and 
 for the faithful transaction of their business, including 
 the authority to provide for contracts limiting their lia- 
 bility in any manner, where the subject of such regula- 
 
LEGISLATIVE POWER OF THE STATES. I5I 
 
 tion, concerns the business of foreign or inter-state com- 
 merce.* 
 
 Of the civil institutions of the several states, designed 
 for commercial purposes, and concerning which they have 
 an inherent power of legislation, are highways, public 
 banks, and other fiscal agencies, elevators and ware- 
 houses, and all similar institutions of a public, or quasi 
 public nature, established, by their authority, for the con- 
 venience of tra-nsportation and traffic, and the corpora- 
 tions, through the instrumentality of which they are 
 inaugurated and maintained. 
 
 Owing to the purposes for which it is established, a 
 highway is a public road, which every citizen has the 
 right to use. The term is generic, and, therefore, includes 
 all public roads, whether they be formed by nature, 
 such as rivers, lakes and other navigable waters, or 
 whether they be artificial ways established for the con- 
 venience of the citizens of the State, by public authority, 
 such as turnpikes, canals, railroads, ferries and bridges, 
 operated independently, or in connection with some other 
 road, the convenience of which they are built to conserve ; 
 and notwithstanding the fact, that highways may be creat- 
 ed by dedication, there is no limit to the power of the State, 
 in the matter of their establishment and regulation, other 
 than that, which may be contained in its own Constitu- 
 tion, or in that of the United States. Therefore, public 
 roads may be laid out, by the legislative action of the 
 several States, exercised, either directly by the State, or 
 
 *See, Smith v. Alabama, 124 U. S., 465 ; Crutcher v. Kentucky, 
 141 U. S., 47 ; Pennsylvania Railroad Co. v. Hughes, 191 U. S., 477. 
 
152 COMMERCIAL POWER OF CONGRESS. 
 
 by delegated authority to its grantees, for that purpose, 
 against the will of the original owner of the soil, over 
 which it goes, or against the public right, and the Legis- 
 lature of a State, may, at any time, discontinue their use, 
 without restraint, from private citizens, claiming to be 
 interested in their continued maintenance, as adjoining 
 owners or otherwise. 
 
 Indeed, the establishment and maintenance of high- 
 ways, for the convenience of the State and its people, 
 has always been held to be one of the proper and im- 
 portant aims of civil government; and the authority, un- 
 der which they are established and maintained, being, at 
 the common law, a prerogative of the Crown, its exercise, 
 by indi^-iduals involves the grant of a sovereign franchise, 
 which, in this country, emanates from the legislative au- 
 thority of the several States, as separate political com- 
 munities, and as the legitimate successors to the preroga- 
 tives and jurisdiction of the British Crown, at the com- 
 mon law.* 
 
 Concerning the subject of highways, there is no refer- 
 ence, in the Constitution of the United States, nor is 
 there any mention made, in that instrument, of the nav- 
 igable streams of the country. Whatever power the gen- 
 eral government has exercised or attempted to exercise 
 over them, therefore, has always been done, in pursuance 
 of some implied power,- emanating from its military 
 power; its treaty-making power; its power to regulate 
 commerce; its power to establish post-of3fices and post- 
 roads, or from the admiralty and maritime jurisdiction, 
 
 ♦Gibbons v. Ogden, 9 Wheat, I. 
 
highways: navigable streams. 153 
 
 conferred by the Constitution, upon the courts of the Uni- 
 ted States, 
 
 And, it was in the application of the doctrine of impli- 
 cation, based upon one or more of these general powers, 
 that, as early as 1806, the Congress authorized the con- 
 struction of the National or Cumberland road; enacted a 
 statute,* in 1824, authorizing the President to cause sur- 
 veys, plans and estimates to be made of the routes of 
 such roads and canals, as he might deem of national im- 
 portance, in a commercial and military point of view, or 
 such as might be necessary for the transportation of the 
 mails ; and, at a much later date, incorporated the Union 
 and Central Pacific Railroad Companies, as well as other 
 trans-continental railways, and authorized the establish- 
 ment of telegraph lines between important military posts 
 of the West. To whatever extent this power may have 
 been exercised, however, the inauguration of the policy 
 upon which it was based, always met with strenuous op- 
 position, on constitutional grounds, and its final adoption 
 was only justified on the score of necessity, and, in order, 
 the more effectually to carry out the purposes of some of 
 the express constitutional powers of the United States.t 
 
 ♦Act of Cong., Apr. 30, 1824; 4 U. S. Stat., 22. 
 
 tAlthough Mr. Justice Bradley, speaking of the law's under 
 which the several transcontinental railroad companies were in- 
 corporated and granted federal aid, in the construction of their 
 lines, said, in the case of California vs. the Central Pacific Railroad 
 Co. et al, that "It cannot at the present day be doubted, that 
 Congress, under the power to regulate commerce among the 
 several States, as well as to provide for postal accommodations 
 and military exigencies had authority to pass these laws," (as- 
 signing as a reason therefor, that the power to_ construct nation- 
 al highways and bridges from State to State, is essential to the 
 
154 COMMERCIAL POWER OF CONGRESS. 
 
 The navigable rivers and bays of the several States of 
 the Union are their natural highways, and each State 
 owns the bed of all such streams and tide waters within 
 its territory;* and this ownership extends to the do- 
 minion and sovereignty over these waters, with the con- 
 sequent right to use and dispose of any portion thereof, 
 when that may be done, without substantial impairment, 
 to the interest of the public, in them, subject only to 
 the paramount authority of Congress, in the exercise of 
 its commercial power, to control their navigation, so far 
 
 complete control and regulation of inter-state commerce) this 
 statement has not been universally accepted, as historically true. 
 Concerning the incoiporation of the Union and Central Pa- 
 cific Railroad Companies, and the necessity which called for their 
 construction, Mr. Frank H. Spearman, writing for a recent issue 
 of Harper's Magazine, says : "The political aspect of extend- 
 ing government aid to the building of the trans-continental rail- 
 ways must always remain an extraordinary feature of our 
 national legislation. The Civil War alone made such a step 
 possible. The period had rudely brushed aside constitutional and 
 laissez-faire legislators and reasoning, and the men who stood 
 in Congress for action went in this case to the other extreme. 
 The building of the Pacific road had every war argument in its 
 favor. Such a line, it was urged, would bind California tnore 
 closely to the northern interest, and would enable the United 
 States more promptly to repel any attack on the Pacific coast 
 ports. Moreover, it would enable the government easily to con- 
 trol Indian outbreaks among those tribes still unreasonable enough 
 to object to being exterminated." (The First Trans-continental 
 Railroad, Harper's Magazine, Oct., 1904.) And in accordance with 
 this view, in the case of Smith vs. Ames (169 U. S., 466-519), 
 the Supreme Court of the United States has also declared, that the 
 avowed purpose of the incorporation of these companies was "to 
 secure the safe and speedy transportation of the mails, troops, 
 munitions of war and public stores of the United States." As 
 to the several statutes, under which these companies were in- 
 corporated, see United States vs. Northern Pacific Railroad Co., 
 152 U. S., 284. 
 "•■Manchester v. Massachusetts, 139 U. S., 240 (259). 
 
highways: navigable streams. 155 
 
 as it may be necessary for the regulation of commerce 
 with foreign nations, among the several States, and with 
 the Indian tribes* This is an ancient principle of law, 
 for as was said, by Mr. Chief Justice Marshall, 
 in the case of Martin against Waddell;^— "When the 
 Revolution took place, the people of each State became 
 themselves sovereign; and, in that character, held the 
 absolute right to all their navigable waters, and the soil 
 under them, for their own common use, subject only to 
 the right, since surrendered by the Constitution to the 
 general government." Subject to this right, therefore, 
 the soil under all navigable streams, within the terri- 
 
 *Illinois Central Railroad Co. v. Illinois, 146 U. S., 387 (410) ; 
 Shively v. Bowlby, 152 U. S., i; Illinois v. Illinois Central RaiJ,- 
 road Co., 184 U. S., 77; United States v. Mission Rock Co., 189 
 U. S., 391 (404) ; see also, Pollard's Lessee v. Hagan, 3 How., 
 212; Weber v. Harbor Commissioners, 18 Wall., 57; McCreadyv. 
 Virginia, 94 U. S., 391 (394) ; Hardin v. Jordan, 140 U. S., 371 
 (381). "Although the power of changing the common law rule 
 as to streams within its dominion belongs to each State, two 
 limitations must be recognized," says the Supreme Court of the 
 United States, "First, that in the absence of specific authority 
 from Congress a State cannot, by its legislation destroy the 
 rights of the United States, a- owners of lands bordering on a 
 stream, to the continued flow of its waters ; ao far, at least, as it 
 may be necessary for the beneficial uses of the government 
 property; and secondly, that it is limited by the superior power 
 of the general government to secure the uninterrupted navigability 
 of all navigable streams within the limits of the United States. 
 In other words, the jurisdiction of the general government over 
 interstate commerce and its natural highways vests in that govern- 
 ment the right to take all needed measures to preserve the naviga- 
 tion of the navigable water courses of the country, even against 
 any State action." See United States v. Rio Grande Dam & Ir- 
 rigation Co., 174 U. S., 690. 
 
 ti6 Pet, 367; St. Anthony Falls Water Power Co. v. St. Paul 
 Water Commissioners, 168 U. S., 349. 
 
156 COMMERCIAL POWER OF CONGRESS. 
 
 torial limits of a State, is ovmed by the State, in which 
 they are located, and are governed by the local laws of 
 that State, and its jurisdiction extends even to the waters 
 of such streams,* Hence, in the case of Prosser against 
 the Northern Pacific Railroad Company,\ Mr. Justice 
 Gray, laid down the doctrine, "that a State, by its legis- 
 lature, or through a Board of Harbor Commissioners, 
 may establish, for the purpose and benefit of commerce 
 and navigation, harbor lines, in navigable waters, not in- 
 consistent with any legislation of Congress limiting the 
 building of wharfs and other structures, upon lands not 
 already built upon." And, to the same effect, it has also 
 been held, that, subject to the paramount jurisdiction of 
 Congress, the several States have the power to authorize 
 the construction and maintenance of levees, drains and 
 other works, necessary and suitable for the reclamation 
 of swamp and overflowed lands, within their limits.f 
 
 Therefore, each of the several States may, at any time, 
 exercise full authority and control over its navigable 
 streams, .except as restrained by the federal Constitution, 
 
 *Shively v. Bowlby, 152 U. S., i ; Atlee v. Union Packet Co., 
 21 Wall., 389; Davenport & Northwestern Railroad Co. v. Ren- 
 wick, 102 U. S., 180; Barney v. Keokuk, 94 U. S., 324. 
 
 tiS2 U. S., 59. 
 
 $Leovy v. United States, 177 U. S., 621 (625). In this case, it 
 was held, that the Act of Congress of September 19, 1890 (26 
 U. S. Stat. 423), which prohibits the building of wharves, piers, 
 etc., upon navigable streams, without the permission of the Sec- 
 retary of War, did not deprive the States of authority to bridge 
 such streams, or render lawful all bridges previously built without 
 authority, but, that it simply created an additional and cumulative 
 remedy to prevent such structures, although lawfully authorized, 
 from interfering with commerce. 
 
HIGHWAYS : NAVIGABLE STREAMS. I57 
 
 and the laws of Congress enacted in pursuance of its 
 provisions.* 
 
 The authority of the federal government over the nav- 
 igable streams of the United States, however, being im- 
 plied alone from the meaning of the term commerce, as 
 defined by the Supreme Court of the United States, it is 
 clear, that the power of Congress over their regulation, 
 extends only to the control of their navigation as means 
 of commercial intercourse between the United States and 
 foreign nations and among the several States; and this 
 view of the subject was the basis of the contention of 
 counsel, in the case of Veazie against Moor,^ by whom 
 it was urged, that Congress has no constitutional author- 
 ity to interfere with, or regulate the navigable streams 
 of any State, even where they are common to two or 
 more States, except in so far as their navigation is used 
 for the purposes of that commerce, which falls legitimate- 
 ly within the regulating power of the general govern- 
 ment; for, as it was argued, neither the land nor the 
 waters, within a State, compose any part of commerce, 
 but are only subject to be adopted, as ways or thorough- 
 fares of commercial intercourse over them, whenever 
 they may be required for the wants of either. If this be 
 so, and such seems to have been the conclusion of the 
 
 *Sands v. Manistee River Improvement Co., 123 U. S., 288 
 (296), citing Permoli v. First Municipality of New Orleans, 3 
 How., 589; Pollard's Lessee v. Hagan, id., 212; Escanaba & 
 Lake Michigan Transportation Co., v. Chicago, 107 U. S., 678; 
 Van Brocklin v. Tennessee, 117 U. S., 151; Huse v. Glover, I19 
 U. S., 543. 
 
 ti4 How., 568. 
 
158 COMMERCIAL POWER OF CONGRESS. 
 
 court, in that case, then it is apparent, that the federal 
 government can do no act concerning the navigable -wat- 
 ers within the limits of the United States, which, or a cor- 
 responding act to which, it cannot do on the land within 
 the same limits, unless the very act, the constitutionality 
 of which is brought in question, be one arising under the 
 admiralty and maritime jurisdiction of the United 
 States* Hence, the navigable waters of the United 
 States belong no more to the federal government, and 
 are not otherwise affected by the Union, nor the grant 
 of the power to regulate commerce, than the land itself. 
 Both are equally subject to the jurisdiction of the general 
 government, for the exercise of all those powers which 
 have been delegated to it, by the Constitution, and both 
 are equally subject to the jurisdiction of the several 
 States, for the exercise of those powers, which are in- 
 herent in their sovereignty as independent States; and 
 this jurisdiction extends even to those navigable streams, 
 
 *The admiralty and maritime jurisdiction of the United States 
 is entirely separate and distinct from, and operates wholly inde- 
 pendent of the commercial power of Congress. It does not affect 
 the jurisdiction nor the legislation of the several States, over their 
 territory, except in so far as such jurisdiction and legislation be 
 exercised so as to conflict with the admiralty jurisdiction of the 
 federal government, and with such laws as may have been passed 
 by Congress in pursuance thereof. (See United States vs. Bevans, 
 3 Wheat., 336; Smith v'. Maryland, 18 How., 71; Manchester v. 
 Massachusetts, 139 U. S., 240-261.) The admiralty jurisdiction 
 does not, therefore, depend upon the commercial power of Con- 
 gress at all; but exists even where the voyage or contract, if 
 maritime in its character, is made, or is to be performed, wholly 
 within a single State. (In re Garnett, 141 U. S., I (45) ; The 
 Robert W. Parsons, 191 U. S., 17.) 
 
highways: navigable streams. 159 
 
 which are employed for the purposes of foreign and inter- 
 state commerce.* 
 
 But, if a navigable stream, wholly within the territory 
 of a State, connect with other rivers or bodies of water, 
 through which vessels starting, upon it, may proceed to 
 adjoining States or foreign countries, it is held to be a 
 navigable river of the United States, and as such, is 
 under the control of the general government, to the full 
 extent of its power to regulate foreign and inter-state 
 commerce, and so far as may be necessary to insure its 
 free navigation for that purpose ; and whenever this limi- 
 tation upon the power of the States applies, the power of 
 Congress is paramount, and extends even to the abate- 
 ment of any obstruction to their navigation, erected by 
 authority of the State.f for "when Congress chooses to 
 act, it is not concluded by anything that the States, or 
 that individuals, by their authority or acquiescence, have 
 done, from assuming entire control of the matter, and 
 abating any obstruction that may have been made, and 
 preventing others from being made, except, in conform- 
 ity with such regulations as it may impose."^ And, the 
 application of the same principle has been extended, so 
 as to include those cases where the waters, within the 
 
 *Willson V. Blackbird Creek Marsh Co., 2 Pet., 245 ; Gilmaii v. 
 Philadelphia, 3 Wall., 713 ; Pennsylvania v. Wheeling & Belmont 
 Bridge Co., 18 How., 421 ; Cooley v. Board of Wardens, 12 How., 
 299; Ex parte McNiel, 13 Wall., 236; The James Gray v. The 
 Thomas Frazer, 21 How., 184; Chicago & Northwestern Railroad 
 Co. V. Fuller, 17 Wall., 560. 
 
 tSee Chicago & Northwestern Railroad Co., v Fuller, 17 Wall., 
 560; Cardwell v. American Bridge Co., 113 U. S., 205. 
 
 ^United States v. Billingham Bay Broom Co., 176 U. S., 211 
 '(215). 
 
l6o COMMERCIAL POWER OF CONGRESS. 
 
 States, are non-navigable and are merely tributaries to 
 Other streams, which, by the process of accretion, become 
 navigable streams, beyond the limits of those States, in 
 which they take their rise. Thus in referring to the 
 Acts of Congress of July 26th, 1866,* of March 3d, 
 i877,t and of March 3, 1893,$ relating to the possession of 
 and the right to use waters of non-navigable streams, for 
 mining, agriculture, manufacturing and other purposes; 
 to the irrigation of arid lands, and to timber culture, it 
 was held that the purpose of these Acts was to determine 
 the assent of Congress to the appropriation of water, in 
 contravention of the common law rule as to continuous 
 flow, but, that no inference could be drawn, from them, 
 that Congress, intended to release its control over the 
 navigable streams of the country, and to grant, in aid of 
 mining and other industries and for the reclamation of 
 arid lands, the right to appropriate the waters on the 
 sources of navigable streams, to such an extent as to de- 
 stroy their navigation ; and, in this connection, it has been 
 said, by the Supreme Court of the United States, that, 
 "To hold, that Congress, by these acts meant to confer, 
 upon any State, the right to appropriate all the waters of 
 such tributary streams, which unite into a navigable Water 
 course, and to destroy the navigability of that water- 
 course, in derogation of the interests of all the people of 
 the United States, is a construction which cannot be tol- 
 erated.§ 
 
 *i4 U. S. Stat, 253. 
 
 tio U. S. Stat., 77. 
 
 $26 U. S. Stat, iioi. 
 
 §United States v. Rio Grande Irrigation Co., 174 U. S., 690. 
 
NON-NAVIGABLE STREAMS: ACT OF 1866, ETC. 161 
 
 However, although the power of Congress to pass laws 
 for the regulation of the navigation of public rivers, 
 within the United States, and to prevent all obstructions 
 therein, cannot be questioned, it has been held, that, until 
 it does pass some such law, there is no common law of 
 the United States, which prohibits obstructions £md nui- 
 sances in navigable rivers, unless it be the maritime law, 
 administered by the courts of admiralty and maritime 
 jurisdiction; and, that without an Act of Congress, on 
 the subject, such obstructions and nuisances are offenses 
 against the laws of the States, within which the navigable 
 streams lie, and as such, may be indicted or prohibited 
 by these laws, since they are not offenses against United 
 States laws, which do not exist;* but when Congress 
 does take affirmative action in the matter, waters which 
 are navigable, in themselves, or which connect with 
 other navigable streams, so as to form a continuous water 
 way to other States and foreign countries, cannot be ob- 
 structed or impeded, so as to impair, defeat or place bur- 
 dens upon a right to their navigation granted by Con- 
 gress.t 
 
 So, it has been said, that the authority of Congress to 
 regulate the navigation of the public waters of the United 
 States, under its commercial power, has reference only 
 to their navigation, in their natural state; for 
 the Constitution does not contemplate, that such naviga- 
 tion might not be improved, by artificial means, in the re- 
 
 *WilIaniette Iron Bridge Co., v. Hatch, 125 U. S., i; see also, 
 
 Mann v. Tacoma Land Co., 153 U. S., 273, 
 tHarman v. Chicago, 147 U. S., 396. 
 
l62 COMMERCIAL POWER OF CONGRESS. 
 
 moval of obstructions; the making of dams, or, by 
 deepening the waters, or turning, into a river, waters, 
 from other streams, to increase their depth. Hence, it has 
 been held, that that provision of the Ordinance of 1787, 
 which requires, that all navigable streams, within the 
 Territory, for the government of which that ordinance 
 was passed, "shall be highways without any tax, imports 
 or duties," has reference to their navigation, in their 
 natural state, and does not contemplate, that such naviga- 
 tion might not be improved, by artificial means, under the 
 authority of the States through which these streams may 
 flow.* So, of the Act of Congress of February 14th, 
 1859, providing for the admission of Oregon, as a State 
 in the Union, it was held, that the section of the Act, 
 which declares, that all the navigable waters of that 
 State shall be common highways, and forever free to all 
 the citizens of the United States, does not refer to "phy- 
 sical obstructions," upon those streams, but to "political 
 regulations," which would hamper the freedom of com- 
 merce.t And, in further recognition of the right of the 
 several States to exercise governmental control over 
 the navigable streams, within their limits, even in the 
 face of congressional action, the Supreme Court of 
 the United States has declared, that the Act of 
 Congress of March i, 1817, which provides for the free 
 navigation of the Mississippi River and its navigable 
 tributaries, was not designed to inhibit the power of the 
 States — ^which is "inseparable from every sovereign and 
 
 *Huse v. Glover, 119 U. S., 543; Sands v. Manistee River Im- 
 provement Co., 123 U. S., 288 (296). 
 tWillamette Iron Bridge Co., v. Hatch, 125 U. S., i. 
 
NAVIGABLE STREAMS: ACTS OF 1859 ^ND 1817. 163 
 
 efficient government" — ^to devise means and to execute 
 measures for the improvement of the State, and for the 
 advancement of its general welfare, although such means 
 might induce, or render necessary, changes in the chan- 
 nels or courses of rivers within the interior of the States, 
 or might be productive of a change in the value of pri- 
 vate property ;* and, that, neither the Act of Congress 
 of March 3d, 1899, nor any previous Act of Congress, 
 relating to the erection of structures in the navigable 
 waters of the United States, manifests any purpose, on 
 the part of Congress to assert the power to invest private 
 persons, with the right to erect such structures, in such 
 waters wholly within the territorial limits of a State, 
 without regard to the wishes of that State, or without its 
 authority;! ^^^' the mere fact, that Congress may have 
 made appropriations for the improvement of rivers, with- 
 in the limits of a State, does not constitute an assumption 
 of judisdiction over such rivers, by the federal govern- 
 ment, so as to prevent the State from legislating upon 
 the subject,! ^ doctrine which is in full accord with 
 the conclusion reached in the case of the Hen- 
 derson Bridge Company against the Commonwealth of 
 Kentucky,^ that the purpose of the Act of Congress of 
 December 17th, 1872, entitled "An Act to authorize the 
 construction of bridges across the Ohio River, etc.," was 
 merely to regulate the height of bridges over that river 
 
 ♦Withers v. Buckly, 20 How., 84; Leovy v. United States, 177 
 U. S., 621 (631). 
 tCummings v. Chicago, 188 U. S., 410. 
 jUnited States v. Billingham Bay Broom Co., 176 U. S., 211. 
 §166 U. S.. ISO. 
 
164 COMMERCIAL POWER OF CONGRESS. 
 
 and the width of their spans, in order that they might 
 not interfere with navigation, and that the Act confers 
 no right or franchise, on the company to erect a bridge 
 or collect tolls for its use. 
 
 And, whatever may be the extent of the power of the 
 several States, over the navigable waters within their 
 limits, the doctrine has long since been established, that 
 the nature of the commercial power of Congress is such, 
 that, when, in its judgment, the action of a State 
 respecting the improvement of one of its navigable 
 streams, is deemed to encroach upon its navigation, as 
 a means of foreign or inter-state commerce, that body 
 may interfere and control the whole matter, and entirely 
 supercede state action, by some action of its own; and 
 when Congress has, by any expression of its will, occu- 
 pied the field, its determination is conclusive of any right 
 to the contrary, asserted under State authority.* 
 
 This power on the part of the several States is, there- 
 fore, temporary in its nature, and may be superceded, at 
 any time, by the exercise of the paramount authority 
 of Congress; and the exercise of this authority, on the 
 part of Congress, has been accomplished, to some extent, 
 at least, by the passage of the Act of September 19th, 
 1890,1 which provides, that "the creation of any ob- 
 struction, not affirmatively authorized by law, to the 
 navigable capacity of any waters, in respect of which 
 the United States has jurisdiction, is hereby prohibited; 
 
 *Green Bay & Mississippi Canal Co., v. Patten Paper Co., 173 
 U. S., 58 (81) ; Wisconsin v. Duluth, 96 U. S., 379 (387). 
 
 t26 U. S. Stat., 454- 
 
NAVIGABLE STREAMS: ACT OF 189O. 165 
 
 and, in passing upon the scope and effect of this Act of 
 Congress, Mr. Justice Brewer, said, in the case of the 
 United States against the Rio Grande Dam & Irrigation 
 Company* "whatever may be said, in reference to obstruct 
 tions existing, at the time of the passage of the Act, 
 under the authority of state statutes, it is obvious, that 
 Congress meant, that thereafter no State should interfere 
 with the navigability of a stream, without the condition 
 of national assent ;" that the Act "is not a prohibition of 
 any obstruction to navigation, but an obstruction to the 
 navigable capacity, and anything, wherever done, or how- 
 ever done, within the limits of the jurisdiction of the 
 United States, which tends to destroy the navigable 
 waters of the United States, is within the terms of the 
 prohibition," and that, "evidently. Congress perceiving 
 that the time had come when the growing interests of 
 commerce required, that the navigable waters of the 
 United States should be subject to the direct control of 
 the National Government, and that nothing should be 
 done, by any State tending to destroy that navigability, 
 without the explicit assent of the National Government 
 enacted the statute, in question." 
 
 In the exercise of this paramount power, over the nav- 
 igable streams of the Union, Congress has never hesitated 
 to authorize the improvement of such streams withfti the 
 limits of any State, whenever the requirements of com- 
 merce has seemed to require such improvement. And, 
 under the doctrine suggested in the case of Gibbon against 
 Ogden, and more positively, succinctly and affirmatively 
 
 *i74 U. S., 690. 
 
l66 COMMERCIAL POWER OF CONGRESS, 
 
 laid down, in other cases,* since determined by the Su- 
 preme Court of the United States, this power extends not 
 only to the improvement of such streams, but also to their 
 regulation in other respects, and although the title to the 
 shore, as well as to the submerged soil, under them, is 
 conceded to be in the several States, through which they 
 flow, this title is nevertheless subject to the servitude, cre- 
 ated in favor of the citizens of all the States as well as the 
 subjects of foreign nations, by the delegation of the power 
 to regulate commerce to the federal government. 
 
 Subsidiary to, and dependent upon the power of the 
 States over the navigable waters, ^ithin their respective 
 territories is the power of establishing and regulating 
 ferries and bridges, since these are but means of crossing, 
 and, the power concerning the one, implies the power in 
 respect of the other. 
 
 A ferry is said to be a public highway of a special 
 description, and its termini must be in places where the 
 public have rights, such as towns or villes, or highways 
 leading to towns or villes. 
 
 The right to establish and maintain a ferry, like that of 
 maintaining any other highway, is, therefore, a franchise, 
 because it does -not exist of common right, and must nec- 
 essarily emanate from the sovereign power of the State, 
 in whose limits and dominion it is intended to operate; 
 and although there may be a preference given to the own- 
 ers of the soil where the termini are fixed, it is neverthe- 
 
 *Scranton v. Wheeler, 179 U. S., 141, citing South Carolina v. 
 Georgia, 93 U. S., 4 ; Shively v. Bowlby, 152 U. S., i ; Eldridge v. 
 Trezevant, 160 U. S., 452. 
 
 fSee Charles River Bridge Co., v. Warren Bridge, 11 Pet., 419. 
 
NAVIGABLE STREAMS: FERRIES. I67 
 
 less a franchise, and authority from the State must be 
 shown, in order to justify the exercise of any right there- 
 in, by an individual, or a collection of individuals, to whom 
 it is granted. And, since the right of establishing fer- 
 ries, at the common law, was a perogative of the Crown, 
 it follows, that its exercise, in this country, has always 
 been recognized as being within the inherent power of the 
 several States; and, for this reason. Congress has 
 never undertaken to grant the franchise of maintaining 
 and operating a ferry; and being a sovereign franchise, 
 belonging to the several States, it is necessarily subject to 
 state regulation, in all matters not inconsistent with the 
 power vested in Congress to regulate commerce con- 
 ducted over the navigable streams upon which it is used ;* 
 but, in a recent case, it was held, by the Supreme Court 
 of the United States, that even conceding, that the police 
 power of a State extends to the establishment, regulation 
 and licensing of ferries on navigable rivers, which are 
 boundaries, between it and another State, "there is no 
 decision of this court, importing power in a State to 
 directly control inter-state commerce, or any transporta- 
 tion by water, across such a river, which does not consti- 
 tute a ferry, in the strict technical sense of the term."t 
 
 So, the power of the several States, to construct or au- 
 thorize the construction and maintenance of bridges across 
 navigable streams, upon like principles, has always been 
 conceded to be within the inherent power of the respective 
 
 *Mintum v. La Rue, 64 U. S., 435; Fanning v. Gregoire, 16; 
 
 tSt Clare County v. Interstate Sand & Car Transfer Co., 192 
 U. S., 454- 
 
l68 COMMERCIAL POWER OF CONGRESS. 
 
 States, and that, therefore, it does not pertain to the com- 
 mercial power of Congress; for it is said, that neither 
 the business of keeping a ferry nor the operation of a 
 bridge, is commerce within the meaning of the Consti- 
 tution of the United States, in the sense that it must be 
 free from state control;* and, while such establishments 
 are merely connecting links of turnpikes, streets and rail- 
 roads, and the commerce over them may be greater than 
 over the streams which they cross, a break in the line of 
 communication, from the want of a bridge, may produce 
 greater inconvenience to the public, than the obstruction 
 to navigation caused by such a structure, with proper 
 draws ; and, for this reason, it is urged, that the local au- 
 thorities of the States, can best determine which of two 
 modes of transportation should be favored, and how far 
 either should be subservient to the other. 
 
 Therefore, the United States Supreme Court has often 
 held, that, when this authority is exercised, by the 
 States, in the building of bridges, what the form and 
 character of the structures shall be, at what height they 
 shall be erected, of what material constructed, and 
 whether they shall be with or without draws, are matters 
 for State regulation, subject only to the power of Con- 
 gress to prevent any unnecessary obstruction to the navi- 
 gation of the streams over which they are built ; and until 
 Congress intervenes in such cases, and exercises its au- 
 thority, the power of the State is plenary. When, there- 
 fore, the State provides for the form and character of 
 such a structure, its direction will control, except as 
 
 *Semhle County of Mobile, v, Kimball, 102 U. S., 691 (702J . 
 
NAVIGABLE STREAMS: BRIDGES. 169 
 
 against the action of Congress, whether the bridge be 
 with, or without, draws, and irrespective of its effect 
 upon navigation.* 
 
 Hence, for outlays, caused by the erection and main- 
 tenance of such structures, the States may exact, or au- 
 thorize the exaction of reasonable tolls, they being in the 
 nature of charges for the use of docks and wharfs and 
 other local facilities constructed for the landing of per- 
 sons and freight, and the taking of them on board, or for 
 the repairs of vessels, and the storage of merchandise. 
 This power on the part of the States arises from 
 its authority to authorize any improvement to be 
 made, upon its navigable streams, which, in its 
 judgment, will enhance their value, as means of trans- 
 portation, from one part of the State to another, and to 
 meet the cost of such improvement, the State may levy 
 a general tax, or exact a toll, or authorize its grantees to 
 collect a charge, from all, who avail themselves of the 
 improvement thus authorized and maintained ;f and, the 
 exaction of tolls, authorized by the statute of a State, 
 for this purpose, is not in contravention of the Four- 
 teenth Amendment of the Constitution, which declares, 
 that no State shall deprive any person of life, liberty or 
 property, without due process of law.J The tolls, so ex- 
 acted, however, must be compensatory and not discrim- 
 inatory in their nature; and, therefore, it has been held, 
 that a local ordinance, exacting from vessels, using the 
 
 *See, Gilman v. Philadelphia, 3 Wall., 713 ; Hamilton v. Vicks- 
 burg Shrevesport & Pacific Railroad Co., 119 U. S., 280. 
 tLindsley & Phelps Co. v. Mullen, 176 U. S., 126. 
 iSands v. Manistee River Improvement Co., 123 U. S., 288. 
 
170 COMMERCIAL POWER OF CONGRESS. 
 
 wharfs of a city, and ladened with products from other 
 States, higher rates of wharfage, than from vessels laden- 
 ed with products of the State in which it is located, 
 is a burden upon inter-state commerce, and, for that rea- 
 son is void.* 
 
 However, since these Establishments are important 
 means and instruments of commerce, falling within the 
 definition of that term, as given by the Supreme Court 
 of the United States, and, since they may be employed 
 in that commerce which falls within the regulating power 
 of Congress, the application of these doctrines cannot be 
 lawfully and successfully invoked, when it becomes nec- 
 essary to insure that freedom of intercommunication, 
 which is essential to the unobstructed movement and oper- 
 ation of foreign and inter-state commerce, and which it 
 was one of the designs and purposes of the f ramers of the 
 Constitution to guard and protect from hostile state 
 legislation; and, it is in pursuance of the power, vested 
 in the federal government to regulate commerce, that 
 Congress has always exercised its authority to legalize 
 bridges over navigable streams, built under state au- 
 thority, whenever the structure, in question, after its 
 erection, interferes with the navigation of the stream; 
 or, before it is built, to prescribe the manner of its con- 
 struction, either by determining the height of its piers, 
 the length of its spans, the place where such spans may 
 be located, in reference to the current, to fix the draws, 
 or make any other regulation of a like nature ; or, after its 
 
 *Guy V. Baltimore, 100 U. S., 434; see also, Minnesota v. Bar- 
 ber, 136 U. S., 313 (325). 
 
NAVIGABLE STREAMS: BRIDGES. I7I 
 
 construction, to cause an abatement of the bridge, as a 
 nuisance, obstructing the free navigation of the stream, if 
 it shall prove to be an interference with commerce, carried 
 on over a navigable stream, with foreign nations and 
 among the several States.* 
 
 Upon the theory, that the power to regulate commerce, 
 delegated by the Constitution to Congress, was not the 
 power to establish commerce, nor the means and instru- 
 ments through which it should be carried on, but, that 
 it was only the power to regulate such means and in- 
 struments, after their establishment by individual enter- 
 prize, or by the State itself, it was early contended, that 
 Congress had no right to construct or authorize the con- 
 struction of bridges, or other highways, within the limits 
 of any of the States ; and, that, therefore, its powers over 
 these institutions of the States extended only to the right 
 to regulate them when adopted for the uses of inter- 
 state and foreign commerce. 
 
 In support of this theory, Mr. Justice McLean, de- 
 livering a dissenting opinion, in the case of the State of 
 Pennsylvania against the Wheeling & Belmont Bridge 
 Company,^ very aptly said : — "This power may have been 
 asserted, in regard to post-roads, but, the settled opinion 
 now, seems to be, that to establish post-roads, within the 
 meaning of the Constitution, is to designate them. In 
 this sense Congress may establish post-roads, extending 
 over bridges, but it can neither build them, nor exercise 
 
 *Conway v. Taylor's Executors, i Black, 603; Gibbons v. 
 Ogden, 9 Wheat., i ; Fanning v. Gregoire, 16 How., 524 ; Wig- 
 gins Ferry Co. v. East St. Louis, 107 U. S., 365. 
 
 ti8 How., 421. 
 
172 COMMERCIAL POWER OF CONGRESS. 
 
 any control over them, except the mere use, for the con- 
 venience of the mails, on paying tolls;" to which he 
 added, that "the same power that would enable Congress 
 to build a bridge, over a navigable stream, would au- 
 thorize it to construct a railroad or turnpike road, through 
 the States of the Union, as it might deem expedient." 
 
 And, without passing upon the question of the power of 
 Congress to construct or authorize the construction of 
 bridges, railways or turnpikes, the same views were sub- 
 stantially set forth, with the approval of the Supreme 
 Court of the United States, in the more recent case of 
 Gilman against the City of Philadelphia, when Mr. 
 Justic Swayne, delivering its opinion, said: — "It must 
 not be forgotten, that bridges, which are connecting 
 parts of turnpikes, streets and railroads, are means of 
 commercial transportation, as well as navigable waters, 
 and that the commerce, which passes over a bridge may 
 be much greater than would be ever transported on the 
 waters it obstructs. It is for the municipal power to 
 weigh the considerations, which belong to the subject, 
 and to decide which shall be preferred, and how far 
 either shall be subservient to the other. The States have 
 always exercised the power, and, from the nature and 
 objects of the two systems of government, they must al- 
 ways continue to exercise it, subject, however, to the 
 paramount power of Congress, whenever the power of 
 the States shall be exerted within the sphere of the com- 
 mercial power which belongs to the nation." 
 
 Subject to this single exception, therefore, it is an old 
 and familiar doctrine, that the power of the several States 
 
HIGHWAYS : TURNPIKES, CANALS AND RAILWAYS. I73 
 
 to establish highways, within their respective domains, 
 to determine the means, through which they may be con- 
 structed, and to control the manner of their operation, so 
 as to secure their equal and impartial use to the public, 
 is without limitation; and, this doctrine has been held to 
 apply, not only to rivers, lakes and navigable arms of the 
 sea, which constitute the natural highways of the State, 
 but also, to those artificial highways, which form a part 
 of its general system of internal improvements, such as 
 turnpikes,, canals and railways, as well as to warehouses, 
 elevators and wharfs, the right to construct and maintain 
 which is based upon a public franchise, or, the business 
 of which, from its essential nature, is charged with a 
 public interest ; and, the unimpaired exercise of this power 
 has always been justified, on the ground, that it is one of 
 those powers, inherent in every State, to the extent of 
 its dominion, to determine the character of its own politi- 
 cal and civil institutions, as well as the conditions, under 
 which they shall be established and allowed to exist. It 
 was never surrendered to the federal government, by the 
 Constitution of the United States, and the right of the 
 States to regulate their operations, extends as well to the 
 tangible property, as to the individuals and corporations, 
 by and through the means of which such improvements 
 are established and maintained, for the public use. 
 
 Nevertheless, a distinction has sometimes been attempt- 
 ed to be made, between the powers of the States, to con- 
 trol corporations created, and organized, for these pur- 
 poses, and the business of individuals, engaged in like 
 pursuits. 
 
174 COMMERCIAL POWER OF CONGRESS. 
 
 And, this distinction finds support, in the fact that a 
 corporTion, created and organized for the purpose of con- 
 structing, maintaining and operating a public highway, 
 like all other corporations, is a creature of the law, and, 
 as such only exists and exercises its franchises, in virtue 
 of a grant, emanating from the legislative authority of 
 the State, to which it owes its existence; and, it is also 
 a fact, of no less importance, that if the corporate busi- 
 ness is intended to be conducted in other States, it must 
 show the consent or acquiescence of such States, in order 
 to justify its operations, within their territory. 
 
 The power of the several States to create corportions 
 for the improvement of its highways, or for any other 
 purpose, has never been denied ; and, unless restrained by 
 some positive provision of its own Constitution, or of the 
 Constitution of the United States, it is a general principle 
 that each State has the inherent power to create corpora- 
 tions, for the construction, and maintenance of its high- 
 ways; to determine the conditions, under which their 
 charter may be granted, and to regulate the manner of 
 their operation, after their establishment; and, being a 
 matter resting wholly within the discretion of the State, 
 granting the franchise, charters to such corporations may 
 be withheld altogether, or they may be granted, upon such 
 terms and conditions as the State may deem proper to 
 impose, in the interest of the public, or for the general 
 welfare of the State, as well as in justice to the incorpora- 
 tors,* to which such charters may be granted. 
 
 ♦Louisville & Nashville Railroad Co. v. Kentucky, 183 U. S., 
 503- 
 
REGULATION OF STATE CORPORATIONS. I7S 
 
 Therefore, any State, granting a charter of incorpora- 
 tion to construct, maintain and operate one of its high- 
 ways, may impose, as a condition of the grant, the 
 payment of a specific sum, at the time of incorpora- 
 tion, or it may exact a like condition for the exercise 
 of the franchise, by requiring the payment of a certain 
 portion of its gross receipts, to be determined by the 
 future operations of the corporation.* 
 
 It is also a principle, applicable to all bodies-politic 
 and corporate, that being a creature of the law, existing 
 and exercising its functions, only in virtue of its charter, 
 a corporation is essentially local in its character; and, 
 for this reason, no corporation can have any legal exist- 
 ence, nor can it exercise and enjoy any of its rights, 
 powers and immunities, beyond the limits of the State, 
 to which it owes its existence, unless so empowered, by 
 its charter ; nor can it enter the bounds of another State, 
 for the transaction of business there, except upon the 
 consent or acquiescence of that State. 
 
 Each of the several States have, therefore, the inher- 
 ent power to fix the terms upon which its own corpora- 
 tions may be created, and the conditions under which 
 their corporate franchises may be exercised, and it must 
 necessarily follow, that they may impose the same condi- 
 tions, upon corporations created by other States, seeking 
 to transact business within its territory; and, its power, 
 in this respect, implies the power to exclude them alto- 
 gether, and includes the right to enact and enforce all 
 
 *See Maine v. Grand Trunk Railroad Co., 142 U. S., 217 (228) ; 
 Horn Silver Mining Co. v. New York, 143 U. S., 30S (313) • 
 
176 COMMERCIAL POWER OF CONGRESS. 
 
 legislation, which may be directly or incidentally requi- 
 site, to render the enforcement of this implied power 
 efificacious ;* and the exercise of this power, of course, 
 carries with it, the right to discriminate, in favor of its 
 own corporations, and, without some constitutional limita- 
 tion, to the contrary, a State, in permitting a foreign 
 corporation to become one of the constituent elements 
 of a consolidated corporation, organized under its laws, 
 may impose such conditions, as it may deem proper, and 
 the acceptance of these conditions, implies a submission 
 to the terms, without which the franchise could not have 
 been obtained.f 
 
 And, to the same effect, is a recent decision of the 
 Supreme Court of the United States, under which it was 
 determined that the purchasers of a railroad, having no 
 right to be incorporated, under the laws of the State in 
 which the road is located, but, who voluntarily accept the 
 privileges and benefits of an incorporation law of that 
 State, are bound by the provisions of a statute, regu- 
 lating the rates of fares to be charged, for transportation 
 over the road, and they are estopped from repudiating 
 the burdens attached, by the law, to the privilege of be- 
 coming a corporation.^ 
 
 Indeed, such is the extent of this doctrine, that it has 
 often been held, that Congress has no authority to permit 
 
 *Hooper v. California, 155 U. S., 648 (656) ; Crutcher v. Ken- 
 tucky, 141 U. S., 47; Chattanooga National Building & Loan As- 
 sociation V. Denson, 189 U. S.. 408. 
 
 tAshley v. Ryan, 153 U. S., 436. 
 
 $Grand Rapids & Indiana Railroad Co. v. Osborne, 193 U. S., 
 17- 
 
REGULATION OF STATE CORPORATIONS. 17/ 
 
 corporations, created by one State to enter and transact 
 business in another State, without the permission or con- 
 sent of the latter;* and, that the power of one State to 
 determine the conditions upon which corporations, cre- 
 ated by another State, may enter and transact business 
 within its territory, is not restricted by that clause of the 
 federal Constitution,f which guarantees, to the citizens of 
 each State, all the privileges and immunities of the citizens 
 of the several States, nor does the exercise of this power, 
 on the part of the several States, conflict with the pro- 
 
 ♦Bank of Augusta v. Earle, 13 Pet., 519; Laffayette Insurance 
 Co. V. French, 18 How., 404; Society for Savings v. Coite, 6 
 Wall., S94; Provident Institution v. Massachusetts, id., 611; 
 Hamilton Co. v. Massachusetts, id., 632; Paul v. Virginia, 8 id., 
 168; Ducat V. Chicago, 10 id., 410; State Tax on Gross- 
 Receipts, IS id., 284; Union Pacific Railroad Co. v. Peniston, 
 18 id., 5; Delaware Railroad Tax Case, id., 206; State Railroad 
 Tax Cases, 92 y.S.,S7S; Cooper Manufacturing Co. v. Ferguson, 
 113 U. S., 727 (732) ; Philadelphia & Southern Mail Steamship 
 Co. V. Pennsylvania, 122 U. S., 326; Pembina Mining Co. v. 
 Pennsylvania, 125 U. S., 184; California v. Central Pacific Rail- 
 road Co., 127 U. S., I ; Home Insurance Co. v. New York, 134 
 U. S., 594; Maine v. Grand Trunk Railroad Co., 142 U. S., 217; 
 Ashley v. Ryan, 153 U. S., 436 (445) ; Hooper v. California, ISS 
 U. S., 648; Waters-Pierce Oil Co. v. Texas, 177 U. S., 28; Chat- 
 tanooga National Building & Loan Association v. Denson, 189 
 U. S., 405. See also, St. Clair v. Cox, 106 U. S., 350 ; Crutcher 
 V. Kentucky, 141 U. S., 47; Blake v. McClung, 172 U. S., 239. 
 
 tConst. U. S., Act. iv., Sec. ji., ce. i ; Bank of Augusta v. Earle, 
 13 Pet., S19; Paul v. Virginia, 8 Wall., 168; Ducat v. Chicago, 
 10 Wail., 410; Memphis & Charleston Railroad Co. v. Alabama, 
 107 U. S., S8i; Philadelphia Fire Association v. New York, 119 
 U S., no; Pembina Mining Co., v. Pennsylvania, 125 U. S., 
 184 (187) ; Norfolk & Western Railroad Co. v. Pennsylvania. 
 136 U S. 114; St. Louis & San Francisco Railroad Co. v. 
 James," 161 U. S., S4S; St. Joseph & Grand Island Railroad Co. v. 
 V. Steele, 167 U. S., 6S9- 
 
178 COMMERCIAL POWER OF CONGRESS. 
 
 visions of the Fourteenth Amendment of that instru- 
 ment* 
 
 In consequence of the application of these general prin- 
 ciples, therefore, it has sometimes been held, that, the 
 power of the States to control all corporations doing 
 business within their jurisdiction, even appUes to cor- 
 porations created for the purpose of inter-state carriage 
 of persons and property, and, that the mere fact, that 
 they are established for the purpose of engaging in that 
 commerce, the regulation of which falls within the consti- 
 tutional power of Congress, does not of itself take from 
 the several States, in which they operate, the right to 
 determine the conditions, under which their business may 
 be conducted.! 
 
 These conclusions, it is apparent, result from a logical 
 consideration of the general principles, underlying the 
 whole law of bodies-politic and corporate, and arise 
 from the relation, which all corporations bear to the cre- 
 ating power of the State, from which their charters are 
 derived, as well as from the power of the States, in 
 which they desire to exercise those rights, privileges and 
 
 *Pembina Mining Co. v. Pennsylvania, 125 U. S., 184; Barbier 
 V. Connolly, 113 U. S., 27; Soon Hing v. Crowley, id., 703; 
 Missouri v. Lewis, loi U. S., 22 (30) ; Missouri Pacific Railroad 
 Co. V. Humes, 115 U. S., 512; Yick Wo v. Hopkins, 118 U. S., 
 356; Hayes y. Missouri, 120 U.S., 68; see, however, Santa Clara 
 County V. Southern Pacific Railroad Co., 118 U. S., 394; Smith 
 V. Ames, 169 U. S., 466. 
 
 tChicago & Northwestern Railroad Co. v. Wittan's, Adminis- 
 trator, 13 Wall., 270; Ohio & Mississippi Railroad Co. v. 
 Wheeler, i Black, 286 ; Baltimore & Ohio Railroad Co. v. Mary- 
 land, 21 Wall., 456; Stone v. Farmers' Loan & Trust Co., 116 
 
 U. S., 307. 
 
REGULATION OF STATE CORPORATIONS. 1 79 
 
 immunities, which are granted to them by the act of in- 
 corporation. 
 
 If, therefore, the subject be considered in relation to 
 these principles alone, the conclusions derived from them 
 would be sound; but, inasmuch as the Constitution of 
 the United States constituted and established a govern- 
 ment, capable of acting, and exercising its functions, 
 independently of the States, and since the States, 
 by the adoption of that Constitution, surrendered to 
 the federal government, the power to regulate com- 
 mei;ce, it follows, that no State may exercise any 
 authority over its own corporations, or those of other 
 States, doing business within its domain, where the sub- 
 ject-matter of its exercise is commerce with foreign na- 
 tions, among the several States and with the Indian 
 tribes ; or where the corporation is created, by the United 
 States, for the accomplishment of any of its constitu- 
 tional purposes, or, where, for like purposes, corpora- 
 tions created by any of the States, is vested with some 
 privilege, granted by the federal government. 
 
 Hence, it has been held,* that the general principles, 
 applicable to the power of the States, concerning cor- 
 porations, are always to be taken with the qualification, 
 that no State, may under the guise of corporate regula- 
 tion, interfere with the operations of corporations, cre- 
 ated by Congress, for federal purposes; nor, may it 
 
 *McCulloch V. Maryland, 4 Wheat, 316 (411, 422) ; Luxton v. 
 North River Bridge Co., 153 U. S., 525 (529). See also Fort 
 Levenworth Railroad Co. v. Lowe, 114 U. S., S2S; Chicago, 
 Rock Island & Pacific Railroad Co. v. McGlinn, id., 542; Easton 
 v. Iowa, 188 U. S., 220 ; Benson v. United States, 146 U. S., 325. 
 
l80 COMMERCIAL POWER OF CONGRESS. 
 
 impose conditions, for the privilege of doing business 
 within its jurisdiction, upon corporations, created by one 
 State, and whose right to enter another, depends upon 
 the federal business for which they are created,* Conse- 
 quently, the principle is now well settled, that a corpora- 
 tion, created by Congress, or a corporation or a citizen 
 of one State, employed in the business of the general 
 governmentf or engaged in the performance of, or in the 
 exercise of any privilege enjoined by, or bestowed, upon 
 them, by the Constitution and laws of the United States, 
 are free from all state control4 
 
 In arriving at these conclusions, however, the decisions 
 have not always been uniform ; and at the very beginning 
 of its existence, as a nation, it was contended, by eminent 
 authority, that the United States had no power to create 
 corporations, the contention to this effect having been 
 based upon the assumption, that the power to create cor- 
 porations is an inherent sovereign power, belonging to the 
 States, prior to the adoption of the federal Constitution, 
 that it was not expressly enumerated, among the powers 
 
 ♦Hooper v. California, ISS U. S., 648, citing Western Union 
 Telegraph Co. v. Texas, 105 U. S., 460; Gloucester Ferry Co. v. 
 Pennsylvania, 114 U. S., 196; Philadelphia St^mship Co. v. 
 Pennsylvania, 122 U. S., 326; McCall v. California, 136 U. S., 
 104; Norfolk & Western Railroad Co. v. Pennsylvania, id., 114; 
 Pickard v. Pullman Southern Car Co., 117 U. S., 34; Robbins v. 
 Shelby County Taxing District, 120 U. S., 489; Leloup v. Port 
 of Mobile, 127 U. S., 640; Asher v. Texas, 128 U. S., 129; 
 Stoutenburgh v. Hennick, 129 U. S., 141 ; Crutcher v. Kentucky, 
 141 U. S., 47. See also, New York v./Roberto, 171 U S., 658. 
 
 tPembina Mining Co. v. Pennsylvania, 125' U. S., 184. 
 
 JPuUman's Palace Car Co. v. Pennsylvania, 141 U. S., 18; 
 Same v. Hayward, id., 36. 
 
FEDERAL CORPORATIONS. l8l 
 
 granted to the federal government, by that instrument, 
 and, that it, therefore, remained, with the States, unim- 
 paired by any of its provisions, and that the power could 
 not be exercised by Congress, for any purpose.* 
 
 Although this question was ultimately determined ad- 
 versely to the claim, then made in favor of the exclusive 
 existence of the power in the several States, at least, in 
 so far as corporations created for federal purposes are 
 concerned, the question, as to the power of Congress to 
 interfere with state corporations, either by restricting the 
 powers granted to them, by their charters, by enlarging 
 these powers, or, by conferring franchises, not granted, to 
 them, by the States was not settled for many years. Thus, 
 
 *As is well known, the question of the power of the United 
 States to create corporations was first raised, and the existence 
 of this power was determined, both by the executive and legisla- 
 tive branch of the government, in the establishment of the original 
 United States Bank, under the plan proposed by Mr. Hamilton. 
 The plan was opposed by Mr. Jefferson and other members of the 
 President's cabinet, upon the grounds, stated in the text; but the 
 views of its author were adopted, and the bank was established, 
 under an act of incorporation granted by Congress. When the 
 question of the constitutionality of that act came to the Supreme 
 Court of the United States for determination, it was sustained, 
 the court holding, that, although the power, under which this 
 act was passed, was not expressly enumerated, in the Constitu- 
 tion, it was nevertheless a substantial power, which arose, by im 
 plication, from other enumerated powers, and might be exercised 
 in all cases, where it is shown to be necessary to the full enjoy- 
 ment of any express power to which it was an incident; or, 
 where the creation of a corporation was necessary to the attain- 
 ment of any of the purposes, for which the United States was 
 established. See McColloch v. Maryland, 4 Wheat., 316 (411, 
 422); Fort Leavenworth Railroad Co. v. Lowe, 114 U. S., 525; 
 Chicago & Pacific Railroad Co. v. McGlinn, id., 542; Benson v. 
 United States, 146 U. S., 325; Luxton v. North River Bridge 
 Co., IS3 U. S., 52s (529). 
 
l82 COMMERCIAL POWER OF CONGRESS. 
 
 in the case of the Central Pacific Railroad Company 
 against Gallatin, Mr. Justice Field, dehvering a dissenting 
 opinion, maintained, that the legislative power of the Uni- 
 ted States could not, under the guise of regulation, either 
 add to, or substract from the powers conferred upon 
 corporations created by the States;* and, in the case of 
 the Pensacola Telegraph Company against the Western 
 Union Telegraph Company, the same learned justice also 
 took issue with the opinion of a majority of the court, by 
 saying, that, "were the principle otherwise, it would be 
 utterly subversive of our system of local state govern- 
 ment ;"t and, it may be well to note, that the dissenting 
 opinion, in the more recent case of the Northern Securi- 
 ties Company, against the United States, was practically 
 based upon the same grounds. 
 
 However, whatever may have been the grounds of this 
 diflference of opinion, or the reasons upon which it is 
 based, the doctrine has long been settled, that Congress 
 has the power to grant to corporations created by the sev- 
 eral States, franchises in addition to those conferred upon 
 them by their respective charters, provided only, that the 
 franchises so granted, be similar to those granted by the 
 State, and which may be convenient to the business for 
 which they were created, and endowed with their cor- 
 porate powers; and provided, the establishment, encour- 
 agement or regulation of such business be within the 
 legitimate powers of that body, under the Constitution of 
 the United States. Hence, in the Western Union Tele- 
 
 *99 U. S., 700. 
 t96 U. S., I. 
 
STATE CORPORATIONS : FEDERAL PRIVILEGES. 1 83 
 
 graph case, above referred to, as well as in other cases, 
 since determined, by the Supreme Court of the United 
 States, the conclusion was reached, by a majority of 
 the court, that under the power, vested in Congress, to 
 regelate commerce, between the several States, the Act 
 of Congress of July 24th, 1866,* entitled, "An Act to 
 Aid the Construction of Telegraph Lines, and to secure 
 to the Government the same for Postal, Military and 
 other purposes," was a valid act, and was in effect, a 
 prohibition on all state monopolies in telegraphing, and 
 that the consent of a State, to a corporation of its own 
 creation, seeking the privileges of the Act, was not neces- 
 sary to enable it to accept its provisions ;f and, in the 
 subsequent case of the United States against the Union 
 Pacific Railroad Company, et al,% the object of that Act 
 was declared to be, "not only to promote and secure the 
 interests of the government, but to obtain, for the benefit 
 of the people of the entire country, every advantage, in 
 the matter of communication by telegraph, which might 
 come from competition between corporations of different 
 States." 
 
 So, in considering the provisions of the National Bank- 
 ing Act,§ which provides for the creation of national 
 banks, and confers certain privileges upon banks, in- 
 corporated under state laws, which enables them to be- 
 come national banking associations, the United States 
 
 *94 U. S., I ; Pembina Mining Co. v. Pennsylvania, 125 U. S., 
 
 184. 
 ti6o U. S., I. 
 ti6o U. S., I (44). 
 §13 U. S. Stat., 112. 
 
184 COMMERCIAL POWER OF CONGRESS. 
 
 Supreme Court has declared, that the consent of the 
 State, under whose laws such banks are incorporated, to 
 the change provided for in the Act of Congress, is not 
 necessary, since it was as competent for CongresI to au- 
 thorize the transmutation, as it is to create such an in- 
 stitution originally.* 
 
 And, it has also been held, that, to the extent of the 
 powers, rights, privileges and immunities granted to state 
 corporations, by the United States, Congress retains the 
 right of amendment, and in that way, it may regulate the 
 administration of the affairs of the corporation, in re- 
 spect of debts, created under its authority, in any manner 
 not inconsistent with the requirements of its original 
 charter, ;ais modified by subsequent acts of the state 
 Legislature, accepting what has been done by Congress, 
 in behalf of the corporation.f But, in the case of Thomp- 
 son against the Union Pacific Railroad Company,^ it was 
 held, that a corporation, accepting benefits of this char- 
 acter, from the government of the United States, and 
 submitting itself to certain duties, under the legislation 
 of Congress, is no less a corporation of the State of its 
 incorporation; and, it has also been held, that the con- 
 version of a state bank into a national bank does not 
 destroy its identity, nor affect its existence, as an insti- 
 tution of the State to which it owes its existence,§ and 
 in other cases, the doctrine has been laid down that, 
 the mere fact, that a corporation is organized under a 
 
 *Casey, as Receiver, etc., v. Galli, 94 U. S., 673. 
 tCentral Pacific Railroad Co. v. Gallatin, 99 U. S., 700. 
 te Wall., 579. 
 §Metropolitan National Bank v. Claggett, 141 U. S., 520. 
 
STATE CORPORATIONS : FEDERAL PRIVILEGES. l8s 
 
 Statute of the United States, receiving therefrom the 
 corporate power to charge and collect tolls and rates 
 for transportation, does not remove it from the opera- 
 tion of a state law, establishing a Railroad Commis- 
 sion, as to business done wholly within the State, and 
 that such business is subject to the control of the 
 State in all matters of taxation, the establishment of 
 tolls and rates and other police regulations;* and, suits, 
 brought against a State, by a corporation created by au- 
 thority of Congress, are held to be excluded from the 
 judicial power of the United States, unless by the consent 
 of the State, even though the subject-matter of the suit be 
 one arising under the Constitution and laws of the federal 
 government.f 
 
 So, notwithstanding the power of Congress to cre- 
 ate corporations, which may be necessary to enable 
 the federal government to carry out its constitutional au- 
 thority, in any case, and, for this purpose, to confer, 
 rights, powers and immunities upon corporations de- 
 riving their existence from the several States, the relation 
 which that government sustains to the grant thus con- 
 ferred, by Congress, does not necessarily determine the 
 rights of the respective States, in respect to those corpor- 
 ations. Indeed, there are certain matters, concerning 
 such corporations, which are governed, in the course of 
 their dealings, far more by the laws of the States, than 
 by those of the United States. Thus, without some special 
 
 ♦Reagan v. Mercantile Trust Co., IS4 U. S., 413; see also 
 Thompson v. Union Pacific Railroad Co., g Wall., 579; Union 
 Pacific Railroad Co. v. Peniston, 18 id., 5. 
 
 tSmith V. Reeves, 178 U. S., 436- 
 
l86 COMMERCIAL POWER OF CONGRESS. 
 
 regulation of Congress, respecting its own corporations, 
 or the franchises conferred upon state corporations for 
 federal purposes, all corporate contracts are governed 
 and construed, by the laws of the State, in which they are 
 made or sought to be enforced; their right to collect 
 debts, and their liability to be sued, for the enforcement 
 of obligations, whether sounding in contract or in tort, 
 are based upon the laws of the several States, and the 
 States may exercise their general power of taxation, upon 
 all corporations doing business within their jurisdiction, 
 notwithstanding the fact, that they owe their existence, 
 or the enjoyment of some, or all, of their privileges to the 
 federal government, and, it is only when the state law, 
 upon these subjects, incapacitates such corporations from 
 discharging their duties to the general government, that 
 it becomes inoperative, by reason of its unconstitutional- 
 ity.* 
 
 However, on account of the extent of the operation of 
 the power of the United States, to regulate commerce 
 among the several States, it was argued, by counsel, in 
 the case of Smith against the State of Alabama,^ that, 
 foreign corporations (a term as applicable to corporations, 
 created by the several States, as it is to those created by 
 foreign nations), carrying on the business of inter- 
 state commerce cannot be excluded from a State, nor 
 can they be required to conform to any regulation, by 
 
 ♦First National Bank v. Kentucky, g Wall., 353 ; McCulloch v. 
 Maryland, 4 Wheat., 316. See also Northern Securities Co. y. 
 United States, 193 U. S., I97- 
 
 ti24 U. S., 465. 
 
STATE CORPORATIONS : FEDERAL PRIVILEGES. 1 87 
 
 the State, in which its business is conducted, as a condi- 
 tion precedent to the right to carry on such business ; and 
 this contention, if not applicable to the facts, presented 
 by the record in that case, has been approved in other 
 cases determined by the Supreme Court of the United 
 States, among which are to be foupd, the case of the 
 Postal Telegraph Company against Adams* where it was 
 expressly held, that "a State cannot exclude, from its 
 limits, a corporation engaged in inter-state or foreign 
 commerce, . . . either directly or indirectly, by the 
 imposition of inadmissible conditions;" and, in applying 
 this principle to the facts in the Northern Securities 
 case,% the court said, that "no State can, by merely creat- 
 ing a corporation, or in any other mode, project its au- 
 thority into other States, and across the continent, so' as 
 to prevent Congress exerting the power it possesses under 
 the Constitution, over inter-state and international com- 
 merce, or so as to exempt its corporations, engaged in 
 inter-state commerce, from obedience to any rule lawfully 
 established by Congress, for such commerce, [for] it 
 cannot be said, that any State may give a corporation, 
 created under its laws, authority to restrain inter-state 
 or international commerce, against the will of the Nation, 
 as lawfully expressed by Congress." To which it was 
 added : "The federal court may not have power to for- 
 feit the charter of the Securities Company ; it may not de- 
 clare how its shares of stock may be transferred, on its 
 
 *iSS U. S., 688. See also Horn Silver Mining Co. v. New 
 York, 143 U. S., 30s (314). 
 ti93 U. S., 197 (346). 
 
l88 COMMERCIAL POWER OF CONGRESS. 
 
 books, nor prohibit it from acquiring real estate, nor 
 diminish or increase its capital stock. All these and like 
 matters are to be regulated by the State which created 
 the company. But, to the end, that effect be given to the 
 national will, lawfully expressed. Congress may prevent 
 that company, in its capacity as a holding corporation 
 and trustee, from carrying out purposes of a combination 
 formed in restraint of inter-state commerce ;" and, so it 
 has been held, that a State cannot, under the guise of a 
 license tax, exclude from its Jurisdiction a foreign cor- 
 poration engaged in such commerce, or impose any 
 burden upon it, within its limits.* 
 
 The reason of this has been declared to be, that 
 the business of carrying on inter-state commerce, and 
 the right to enjoy its benefits, is not a franchise or a 
 privilege granted by the State, to any one of its corpora- 
 tions ; but it is a right which every citizen of the United 
 States is entitled to exercise under the Constitution, upon 
 such conditions only as may be prescribed by federal 
 laws ; and, that the accession of mere corporate facilities, 
 as a matter of convenience in carrying on their business, 
 cannot have the effect of depriving them of such right, 
 unless Congress should see fit to interpose some contrary" 
 regulation on the subject-f But, the authority conferred, 
 by the Act of Congress of June 15th, i866,:j: upon rail- 
 road companies engaged in commerce among the States, 
 whatever may be the extent of such authority, it has been 
 
 ♦Norfolk & Western Railroad Co. v. Pennsylvania, 136 U. S. 
 114 (118). 
 fCrutcher v. Kentucky, 141 U. S., 47 (57). 
 tU U. S. Stat., 66. 
 
POLICE AND TAXING POWER OF THE STATES. 189 
 
 determined, does not interfere with the passage, by the 
 several States, of laws having for their object the per- 
 sonal safety of passengers, while travelling within their 
 respective limits, from one State to another in the exer- 
 cise of the police power;* nor is the existence of the 
 federal power of supervision, and the consequent obliga- 
 tion of the courts of the United States to protect that 
 power from encroachment, on the part of the States, in- 
 consistent with the power of each State to control its 
 own internal commerce, and to tax its own corporations, 
 nor with its power to tax foreign corporations, engaged 
 in such commerce, on account of their property within 
 the State.f 
 
 Generally speaking, the police power of a State is that 
 power, in virtue of which it is enabled to regulate its own 
 institutions, civil and municipal, and which are estab- 
 lished, and maintained, by its political and governmental 
 authority, for the use and convenience of its people. The 
 term embraces its whole system of internal regulation, 
 and includes all the means, by which it seeks not only to 
 preserve the public order, and to punish and prevent the 
 commission of offenses against its laws, but also, to es- 
 tablish, for the intercourse of all its citizens, those rules of 
 good neighborhood, which are calculated to prevent a 
 conflict of rights, and to insure to each, the uninterrupted 
 enjoyment of his own, so far as is reasonably consistent 
 with a like enjoyment of the right of others. The police 
 
 *New York, New Haven & Hartford Railroad Co. v. New 
 York, i6s U. S., 628 (633). 
 
 tNew York, Lake Erie & Western Railroad Co. v. Pennsyl- 
 vania, 158 U. S., 431 (437). 
 
igo COMMERCIAL POWER OF CONGRESS. 
 
 power, is, therefore, said to be nothing more nor less, than 
 the power of government, inherent in every sovereign- 
 ty, to the extent of its dominions; and, whether a State 
 enacts a quarantine law, or a law to punish offenses, or 
 to establish courts of justice, or to provide for the record- 
 ing of instruments, or to regulate commerce, within iti 
 own limits, it acts only in pursuance of that inherent and 
 comprehensive sovereign power, which every independent 
 State possesses, and which enables it to govern men and 
 things within the limits of its jurisdiction. It is, there- 
 fore, that power of self-preservation, which is inherent 
 in every well organized community, and, in virtue of 
 which, it may legislate in all matters, which may be 
 deemed necessary to guard its inhabitants against any- 
 thing which may corrupt the morals, or endanger the 
 health and lives of the community,* or which may be 
 contrary to the general welfare of its people.f 
 
 This power of the several States not having been sur- 
 rendered, to the federal government, by the Constitution, 
 it follows, that its exercise, by them, extends to the enact- 
 ment of all laws, the purpose of which is to prevent the 
 introduction, within their limits of articles of trade, which 
 on account of their unwholesome condition, would bring 
 in, and spread disease, pestilence and death, or which 
 would be unfit for human use or consumption ;:f i± in- 
 
 ♦Passenger Cases, 7 How., 283 (400) ; Mugler v. Kansas, 123 
 U.S., 623 (6S9). 
 
 tDent V. West Virginia, 129 U. S., 114 (122). 
 
 JBowman v. Chicago & Northwestern Railroad Co., 125 U. S., 
 46s (489). The power of the States to exclude noxious and un- 
 healthful articles from their territory was elaborately considered 
 by the Supreme Court of the United States, in the License Cases 
 
POLICE POWER OF THE STATES, I9I 
 
 eludes the power to prevent deception, fraud and injury, 
 in the sale of articles of commerce,* and extends to the 
 prevention of crime, and includes the power to exclude, 
 from the limits of the State, convicts, persons likely to be- 
 come a public charge, and persons afflicted with contag- 
 ious or infectious diseases,t as well as to such legislation 
 as may tend to increase the industries of the State, develop 
 its resources and add to its wealth and general prosperity.^ 
 The police power of the several States also extends to 
 the control and regulation of all those things, which, when 
 used in a lawful manner, are legitimate subjects of prop- 
 ,erty and of commerce,§ but, which in their use, may be 
 detrimental to the health and morals of the people, and 
 contrary to the policy of the State ; and, the power of the 
 States, to regulate the use of such articles of commerce, 
 embraces the right to exclude them from their territory 
 altogether, and includes the power to enforce all legisla- 
 
 (5 How., 504), and the doctrine was announced, that this power 
 was not in conflict with the commercial power of Congress for 
 the reason that they were not the legitimate subj ects of com- 
 merce, Mr. Justice Catron saying that, "If, from its nature," "a 
 noxious or unwholesome article does not belong to commerce, 
 or if its cond'tion, from putrescence or other cause, is such, 
 when it is about to enter the State, that it no longer belongs to 
 commerce, or, in other words, is not a commercial article, then 
 the State power may exclude its introduction," and as an incident 
 to this power a State may use any means to ascertain the fact. 
 See also In re Rahrer, 140 U. S., 545 (SS7)- 
 
 *Plumley v. .-assachusetts, 155 U. S., 461; Machine Co. v. 
 Gage, 100 U. S., 676; Emert v. Missouri, 156 U. S., 296; Capital 
 City Dairy Co. v. Ohio, 183 U. S., 238. 
 
 tPlumley v. Massachusetts, 155 U. S., 461 (4B7). 
 
 JBrennan v. Titusville, 153 U. S., 289; Barbier v. Connolly, 
 113 U. S., 27. 
 
 §Leisy v. Hardin, 135 U. S., 100 (158-9), per Gray, J. 
 
192 COMMERCIAL POWER OF CONGRESS. 
 
 tion which may be, considered, directly, or indirectly, 
 requisite, to the effectual enforcement of the power in 
 question.* Hence, all property, within a State, whether 
 owned by private persons, or by corporations, is held sub- 
 ject to the power of the State to regulate its use, in such 
 manner as not to necessarily endanger the health, lives 
 and personal safety of its inhabitants.! 
 
 For this reason, it is, that the legislation of the several 
 States, relating to the regulation of the manufacture and 
 sale of intoxicating liquors,:|: requiring the inspection of 
 cattle, brought within a State from without,§ and for the 
 regulation of the sale of cigarettes within its territory,1[ 
 has always been sustained. 
 
 And, notwithstanding the announcement of the doc- 
 trine, that no State has the power to control and regulate 
 the management and operation of corporations, created 
 by its own authority, or by the authority of other States, 
 where the purpose of their incorporation is the business 
 of inter-state and foreign commerce, as already stated, the 
 several States may still legislate concerning such corpora- 
 tions, where their legislation falls within the legitimate 
 exercise of the police power; and, therefore, it has been 
 held, that, in the exercise of this power, a State may 
 make all needful regulations of a police character, affect- 
 
 *Hooper v. California, 155 U. S., 648 (656). 
 
 fChicago, Burlington & Quincy Railroad Co. v. Chicago, 166 
 U. S., 226. 
 
 JBartemeyer v. Iowa, 18 Wall., 129; Mugler v. Kansas, 123 
 U. S., 623. 
 
 §Kimmish v. Ball, 129 U. S., 217; Vance v. W. A. Vandercook 
 Co., 169 U. S., 438; Reid v. Colorado, 187 U. S., 137. 
 
 IfAustin V. Tennessee, 179 U. S., 343. 
 
EXTENT OF THE POLICE POWER. I93 
 
 ing the business of such corporations, while operating 
 within its jurisdiction; and, in this way, it may require a 
 railroad company to keep its road-way clear of noxious 
 plants;* to fence so much of its road as lies within the 
 State; to stop trains at railroad-crossings ;t to slacken 
 speed, while running in crowded thoroughfares; to fix 
 its rates of transportation,:!: and to post its tariffs and 
 time-tables, at proper places ; to determine the number of 
 passenger trains to be run over its lines daily,§ and to 
 prohibit the running of trains on the Sabbath day;lf to 
 set apart coaches for different classes of passengers car- 
 ried over its road;|| to determine the method of heating 
 its passenger cars ;** to establish stations, at villages and 
 
 ♦Missouri, Kansas & Texas Railway Co. v. May, 194 U. S., 267 
 tCleveland, Cincinnati & St. Louis Railroad Co. v. Illinois, I77 
 U. S., 514. However, in the case cited, it was held, that, while 
 the State may enact laws requiring the stoppage of trains, at 
 certain stations, for local accommodation, "after all local con- 
 ditions have been adequately met, railways have the legal right 
 to adopt special provisions for through traffic, and legislative 
 interference therewith is unreasonable, and [is] an infringement 
 upon that provision of the Constitution, which requires . . . 
 that commerce between the States shall be free and unob- 
 structed." 
 JCrutcher v. Kentucky, 141 U. S., 47; Erb v. Morasch, 177 
 
 U. S., 584- 
 
 §Stone V. Farmers' Loan & Trust Co., 116 U. S., 307; Chica- 
 go & Northwestern Railroad Co. v. Fuller, 17 Wall., 560. 
 
 ULake Shore & Michigan Southern Railway Co. v. Ohio, 173 
 U. S., 28s. 
 
 ||Hennington v. Georgia, 163 U. S., 299. 
 
 **Plessy V. Ferguson, 163 U. S., S37; United States v. Perkins 
 id., 62s ; Chesapeake & Ohio Railroad Co., v. Kentucky, 179 U. S., 
 388. 
 
194 COMMERCIAL POWER OF CONGRESS. 
 
 boroughs on its line,* and to compel telegraph companies 
 operating, wholly or partly in the State, to receive, trans- 
 mit and deliver messages with due diligence upon the pay- 
 ment of the usual charges ;t and to do other things, of a 
 kindred character, affecting the comfort, convenience or 
 safety of those who are entitled to look to the State for 
 protection against the wrongful and negligent conduct of 
 others, although such corporations, may be engaged in 
 the business of foreign or iner-state transportation.^ 
 
 Therefore, a corporation, created, by state authority, 
 for the purpose of, and engaged in the business of com- 
 mon carriage, extending from one State to another, or 
 into a foreign country, is not relieved from state control, 
 simply because, it has been incorporated by, and is carry- 
 ing on the business of foreign and inter-state commerce, 
 in such other States or countries, through which its 
 road runs, the reason of which is declared to be, that "per- 
 sons travelling on inter-state trains are as much entitled, 
 while within the State, to its protection, as those who 
 travel on domestic trains,"§ and railroad corporations 
 are subject to such legislative control, by the States, as 
 may be necessary to protect the public against danger, 
 injustice and oppression.^ 
 
 *New York, New Haven & Hartford Railroad Co. v. New 
 York, i6s U. S., 628. 
 tMinneapolis & St. Louis Railroad Co. v. Minnesota, etc., 193 
 
 U. s.. 53. 
 
 ^Western Union Telegraph Co. v. James, 162 U. S., 650. 
 
 §New York & New England Railroad Co. v. Bristol, 151 U. S„ 
 SS6. 
 
 1[New York, New Haven & Hartford Railroad Co. v. New 
 York, i6s U. S., 628 (632). 
 
EXTENT OF THE POLICE POWER. IQS 
 
 The general principle, through the application of which 
 these results have been reached, is well illustrated, in the 
 case of the Chicago & Northwestern Railroad Company 
 against Fuller* where the question of the power of a 
 State to regulate the fares to be charged by the plaintiff 
 in error, upon its business of transportation was directly 
 in issue, and in which counsel took the position, that, if 
 the power to regulate commerce among the several States 
 be vested exclusively in Congress ; and, if the carrying of 
 passengers and freight, from one State to another, for 
 hire and compensation, be commerce, then, it must neces- 
 sarily follow, that a State cannot, in any manner, regu- 
 late the hire and compensation of such carriage, nor can 
 it restrict the carriage of goods and persons, and, it was 
 urged, that a State cannot do, indirectly, that which it 
 has no power to do directly. But, in disposing of this 
 argument, the Supreme Court of the United States held, 
 that the statute of the State of Illinois, the constitution- 
 ality of which was attacked, and which required, that 
 each railroad company in the State should, at stated pe- 
 riods, fix its rates, for the transportation of passengers 
 and freight, and cause a copy to be posted, was not an 
 unreasonable exercise of the police power of the State, 
 nor was it unconstitutional, as being in conflict with the 
 commercial power of Congress ; and, it was likewise held, 
 that the statute in question was not a regulation of com- 
 merce, within the meaning of the Constitution — it being 
 merely a police regulation within the power of the State 
 to prescribe. 
 
 *i7 Wall., 560. 
 
196 COMMERCIAL POWER OF CONGRESS. 
 
 So, in the case of Peik against the Chicago & North- 
 western Railroad Company* it was contended, that even 
 where the policy of the law of a State declares, that the 
 compensation charged, by common carriers, for the car- 
 riages of persons and property, should be reasonable, the 
 question as to what is reasonable is for the courts to deter- 
 mine, and not for the Legislature. Upon this contention, 
 however, it was determined, that where, in any case, 
 property is clothed with a public interest, it is competent 
 for the Legislature to fix the limit to that, which shall, in 
 law, be a reasonable compensation for its use; that the 
 limit, so fixed, is binding upon the courts, as well as upon 
 the public authorities of the States, and, that if such 
 limit be improperly fixed, the Legislature and not the 
 courts must be appealed to for a change. 
 
 Therefore, without some limitation, upon this power of 
 the several States, contained in the Constitution of the 
 United States, the power to fix the rate of compensation 
 to be charged, by common carriers, for the carriage of 
 persons and freights, or for the use of any property dedi- 
 cated to a public use, and clothed with a public interest, 
 falls within the legitimate operation of the police power 
 of the several States. And, being a matter resting en- 
 tirely within the discretion of the state Legislatures, it 
 has been held, that, any security, which the individual or 
 the public may have, against its abuse, must rest alone 
 in the responsibility of those, who, for the time being, 
 are vested with the exercise of the power, and, that the 
 
 *94 U. S., 164. See also, Chicago & Northwestern Railroad Co. 
 V. Ackley, id., 179. 
 
EXTENT OF THE POLICE POWER. I97 
 
 courts will never presume/ that their discretion has been, 
 or will be, exercised detrimentally to the public interest 
 of the State, nor to the rights of its citizens, or other in- 
 habitants, who are entitled to the equal protection of its 
 laws.* 
 
 Whatever may be the extent of their operation, these 
 principles have never been questioned, in so far, at least, 
 as the highways of the State are concerned, whether they 
 be constructed, maintained and operated, by the State 
 itself, or by individuals or corporations, under its author- 
 ity ; but, Mr. Justice Field, in the case of Munn against 
 the State of Illinois,'^ expressed a very serious doubt, as 
 to the power of the State to regulate the compensation of 
 commercial agencies, which did not derive the franchise 
 of transacting their business from the State, upon the 
 theory, that it is only when some right or privilege is con- 
 ferred, by the legislative authority of the State, upon the 
 owner, which he may use in connection with his property, 
 and, by means of which, the use of his property is ren- 
 dered more valuable, or through which he enjoys ad- 
 vantages over others, that the compensation to be re- 
 ceived by him, becomes the legitimate subject of state 
 regulation; for, "submission to the regulation of com- 
 pensation, in such cases," he observes, "is an implied 
 condition of the grant, and the State, in exercising its 
 power of prescribing the compensation, only determines 
 the conditions upon which its concessions shall be en- 
 joyed ;" and, "when the privilege ends, the power of regu- 
 
 *Baltimore & Ohio Railroad Co. v. Maryland, 21 Wall., 456. 
 t94 U. S., 113. 
 
198 COMMERCIAL POWER OF CONGRESS. 
 
 lation ceases." This argument, however, did not receive 
 the approval of a majority of the Court, in that case, and 
 the result of its decision was the establishment of the 
 doctrine, that, the power of the several States to reglate 
 the compensation of individuals and corporations, charged 
 by them, for a public service, extends, not only to the 
 operation of the highways of the State, but also to all 
 the agencies of commerce, the property and business of 
 which are clothed with a public interest, such as ware- 
 houses, elevators and wharfs, whether such property be 
 acquired or such business be conducted, under a fran- 
 chise, emanating directly from the State, or not. 
 
 And, such has always been held to be the sovereign 
 nature of the police power of the several States, it may be 
 added, that they have no constitutional right to barter 
 away this power, and, by contract, limit its exercise to 
 the prejudice of the public health and morals ;* and, one 
 injured by the exercise of the power, in his property or 
 personal rights, has no protection, either under the pro- 
 vision of the Constitution of the United States, which in- 
 hibits the States from passing any law, impairing the 
 obligation of contracts,t or under the terms of the Four- 
 teenth Amendment of that instrument ;t and, in its ap- 
 
 *Powell V. Pennsylvania, 127 U. S., 687. While the police 
 power of the State is inalienable, it may for local purposes, be 
 delegated to a municipal corporation, and the principle is well 
 settled, that any alleged surrender or suspension of a power of 
 government, respecting any matter of public _ concern, must be 
 shown by clear and unequivocal language. Fisher v. St. Louis', 
 194 U. S., 361 ; Belmont Bridge v. Wheeling Bridge, 138 U. S., 287. 
 
 fFisher v. St. Louis, 149 U. S., 361. 
 
 JBartemeyer v. Iowa, 18 Wall., 129; Barbier v. Connolly, 113 
 U. S., 27 ; Mugler v. Kansas, 123 U. S., 623. 
 
EXTENT OF THE POLICE POWER. I99 
 
 plication to intoxicating liquors, it has been declared that, 
 as a measure of police regulation, looking to the preser-. 
 vation of public morals, a state law prohibiting the manu- 
 facture and sale of such liquors, is not repugnant to any 
 clause of the Constitution,* since the grant to Congress, 
 of authority to regulate commerce, did not involve a sur- 
 render of the police power of the States.f 
 
 The nature of the police power of the States, as well 
 as the extent of its operation, was briefly defined and 
 stated, by Mr. Chief Justice Fuller, in the case of United 
 States against the E. C. Knight Company, when he 
 said, that it "is a power originally and always be- 
 longing to the States, not surrendered by them to the 
 general government, nor directly restrained by the Con- 
 stitution of the United States, and [is, therefore], essen- 
 tially exclusive;":): to which Mr. Justice Harlan, in the 
 case of the Missouri, Kansas & Texas Railway Company 
 against Haber.% has added, that "This court, while sus- 
 taining the power of Congress to regulate commerce 
 among the States, has steadily adhered to the principle, 
 that the States possess, because they have not surren- 
 dered it, the power to protect the public health, the 
 public morals and the public safety, by any legislation 
 appropriate to that end, which does not encroach upon 
 the rights guaranteed by the National Constitution, nor 
 
 *Beer Co. v. Massachusetts, 97 U. S., 25 (33) ; Mugler v. 
 Kansas, 125 U. S., 623 (659). 
 
 tNew Orleans Gas Co. v. Louisiana Light Co., 115 U. S., 650; 
 Plumley v. Massachusetts, 155 U. S., 461 (471 )• 
 
 $156 U. S., I (hi) ; see also. In re Rabner, 140 U. S., 545 (554). 
 
 §169 U. S., 613 (628). 
 
200 COMMERCIAL POWER OF CONGRESS. 
 
 come in conflict with Acts of Congress passed in pur- 
 suance of that instrument." 
 
 While these principles are well established, they are, 
 and must always be subject to the limitations, growing 
 out of the commercial power of the federal govern- 
 ment; and although the States may regulate the opera- 
 tions of individuals and corporations engaged in the 
 business of transportation, and other commertial pur- 
 suits, in the exercise of the police power, in all things, 
 which have not been placed, by the Constitution of the 
 United States, within the exclusive jurisdiction of Con- 
 gress, it is a well-established doctrine, that nothing can 
 be done by the state governments, in the exercise of this 
 power, which will operate as a burden upon foreign or 
 inter-state commerce, or impair the usefulness of its facil- 
 ities ; and, while Congress has no power to interfere with 
 the police regulations of a State, relating exclusively to 
 its internal or domestic trade,* the State can do no act, 
 in the exercise of its police power, which would, in ef- 
 fect, be a regulation of, or amount to a burden upon 
 foreign or inter-state commerce. Hence, it has been 
 held, that where the necessary result of enforcing the 
 provisions of a state law, prohibiting a higher rate, for 
 the transportation of merchandise, for a short haul, than 
 for a long haul, although operating only on transporta- 
 tion of articles wholly within the State, may be to limit 
 or prohibit their transportation from a point without the 
 
 *Covington & Cincinnati Bridge Co., v. Kentucky, 154 U. S, 
 204 (210), citing United States v. De Witt, 9 Wall., 41; Patter 
 son V. Kentucky, 97 U. S., 501. 
 
EXTENT OF THE POLICE POWER. 201 
 
 State to a point within, or from a point within, to a point 
 without, inter-state commerce is thereby affected, and 
 may be regulated, to that extent, since, in that event, the 
 effect of the law would be direct and important, and not 
 merely incidental, and, in such case, it has been held, that 
 the regulation is unconstitutional, under the operation of 
 the commercial clause of the Constitution * So, in the 
 
 ♦Louisville & Nashville Railroad Co. v. Eubank, 184 U. S., 27 
 (36) ; see also, Wabash, St. Louis & Pacific Railroad Co., v. Illi- 
 nois, 118 U. S., 557. In the Eubank case, above cited, the ruling 
 of the Supreme Court of the United States, upon which its deci- 
 sion was based, involved a construction of a statute of the State 
 of Kentucky, which did not undertake to establish any specific 
 rate upon interstate travel, but only provided that passengers 
 shall be charged no higher rate for local fares, than those which 
 had beeH fixed, on interstate traffic. The contention was, to 
 the effect, that since Congress had acted upon the subject, in the 
 enactment of the Interstate Commerce Act, the State had no 
 power to prescribe any rate whatever, even though that rate was 
 the same as that fixed by Congress, or, by the Commission, 
 under the Act, and this view was accepted by a majority of the 
 court; but its correctness was challenged by Mr. Justice Brewer, 
 in a dissenting opinion, delivered by him, his argument being 
 based upon considerations involved in the quaere, as to whether 
 it is "interfering with interstate commerce, when the State, not 
 prescribing the charges for interstate travel, simply requires, that 
 passengers shall be charged no higher rate for local travel?" In 
 the course of his argument he said : — "The form in which the 
 State legislation is cast cannot be vital in determining the ques- 
 tion of power. If an act, which in terms prescribes a rate per 
 mile, for travel, the same as has been prescribed by Congress, 
 for interstate travel, is within the powers of the State (and that 
 it is, cannot be doubted), surely one accomplioximg the same 
 thing, by simply forbidding the carrier to charge more for a short 
 haul than for a long haul is likewise within its power. The 
 State is merely using the standard fixed by Congress, and en- 
 forcing that standard in respect of local rates (Miller's Executors 
 V. Swann, 150 U. S., 132) ; and, if a State may select as a stan- 
 dard the interstate rates prescribed by Congress, and make local 
 rates the same, without interfering with interstate commerce, it 
 would certainly seem, that it would in like manner take the inter- 
 
202 COMMERCIAL POWER OF CONGRESS. 
 
 application of the same rule, it has been held, that a State 
 Railroad Commission, has no power to fix and enforce 
 rates for transportation, between points within the' State 
 and points without in any event.* And, such is the public 
 nature of the business of corporations, engaged in foreign 
 and inter-state transportation, that the State's power to 
 establish rates, for such transportation, cannot be exer- 
 cised so as to require them to carry persons and property 
 without reward, for this would be not only a burden upon 
 commerce, but it would amount to the taking of private 
 property without just compensation, and without due 
 process of law.f 
 
 Therefore, in those cases, where the regulation of rates, 
 on inter-state commerce has been upheld, as being admit- 
 tingly within the scope of the legitimate exercise of the 
 police power of the States, it has been so, only by reason 
 of the absence of congressional action on the same sub- 
 state rate which the carrier himself prescribes, and compel con- 
 formity of local rates thereto, and still not be subject to the 
 charge of interfering with interstate commerce. It is strange to 
 be told, that the action of a carrier in fixing interstate rates is 
 potent to render unconstitutional the legislation of the State re- 
 specting local rates, when the like action of Congress in prescrib- 
 ing interstate rates is not so potent. In other words, action by the 
 carrier, in pursuit of its own financial interest overturns the 
 Constitution and statute of a State, when like action by Congress, 
 in the exercise of its constitutional power does not" (pp. 44, 45). 
 
 *Handley v. Kansas City Southern Railway Co., 187 U. S., 617. 
 
 tSmith V. Ames, etc., 169 U. S., 466 (523) ; see also. Railroad 
 Commission Cases, 116 U. S., 307 (325, 331) ; Dow v. Beidleman, 
 125 U. S., 680 (689) ; Georgia Railroad & Banking Co., v. Smith, 
 128 U. S., 174 (179) ; Chicago, Milwaukee & St. Paul Railway 
 Co. V. Minnesota, 134 U. S., 418 (458) ; Chicago & Grand Trunk 
 Railway Co. v. Wellman, 143 U. S., 339 (344) ; Budd v. New 
 York, 143 U. S., S17 (647) ; Reagan v. Farmers' Loan & Trust 
 Co., 154 U. S., 362 (399). 
 
CONTINUING NATURE OF THE POLICE POWER. 203 
 
 ject, and in these cases, it has also been held, that when 
 Congress has acted, under its constitutional power to 
 regulate commerce, and the subject-matter of its legisla- 
 tion has been covered by such action, the law of the States 
 must give way to the paramount authority of the federal 
 gas^mment, although the subject of such legislation be 
 within the scope of the police power of the States ;* but, 
 from this, it does not necessarily follow, that the Act of 
 Congress establishing the Inter-state Commerce Commis- 
 sion has this effect, since it has been held, that that Act 
 confers upon the Commission no power to fix the rates 
 charged by corporations engaged in the business of trans- 
 portation, and that, subject to the prohibition, that their 
 charges shall not unjustly discriminate, so as to give un- 
 due preference or advantage, to persons or traffic similarly 
 situated, it leaves the subject as it was at the common law.f 
 Concerning the police power, it has been said, that, in 
 the progress of civilization, population and wealth, new 
 and vicious indulgences spring up, which require re- 
 
 *Gulf, Colorado & Santa Fe Railway Co. v. Hefley, 158 U. S., 
 98; see also, Willson v. Blackbird Creek Marsh Co., 2 Pet., 245; 
 Cooley V. Board of Wardens, 12 How., 299; Pennsylvania v. 
 Wheeling & Belmont Bridge, 18 id., 421 ; The James Gray v. The 
 John Fraser, 21 id., 184; Oilman v. Philadelphia, 3 Wall., 713; 
 Ex parte McNiel, 13 id., 236; Pound v. Turck, 95 U. S., 459; 
 Hall v. De Cuir, id., 485; County of Mobile v. Kimball, 102 
 U. S., 691; Ohio River Packet Co. v. Catletsburg, 105, U. S., 
 SS9; Parkersburg & Ohio River Transportation Co. v. Parkers- 
 burg, 107 U. S., 691 ; Escanaba & Lake Michigan Transportation 
 Co. v. Chicago, 107 U. S., 678; Morgan Steamship Co. v. Louisi- 
 ana Board of Health, 118 U. S., 455- 
 
 flnterstate Commerce Commission v. Cincmnati, New Orleans 
 & Texas Railway Co., 167 U. S., 479 (493) ; Interstate Commerce 
 Commission v. Alabama Midland Railway Co., 168 U. S., 144 
 (162). 
 
204 COMMERCIAL POWER OF CONGRESS. 
 
 straints, and which can only be imposed by the legislative 
 power of the several States; that when the power shall 
 be exerted, how far it may be carried, and where it shall 
 cease, are questions, the solution of which must neces- 
 sarily depend upon the evil to be corrected, and that it 
 must always be exercised under the changing exigencies 
 of society. Therefore, when it is said, that the police 
 power of the States must yield to the higher power of 
 Congress, nothing more is to be intended, than that, in 
 the exercise of its power, upon any subject. Congress 
 cannot assume, to itself, any authority belonging to the 
 States, but only that the States may not transcend its 
 own power of self-preservation, and under the pretense 
 of a police regulation, counteract, or trench upon, the 
 commercial power of Congress.* 
 
 In view of the distinctive nature of both these powers, 
 therefore, the full scope of the operation of the police 
 power of the States, is not susceptible of exact, or well- 
 defined limitations; but, the generally accepted opinion 
 has always been, that the whole question of the relation 
 of the police power of the States and of the commercial 
 power of Congress to each other must be determined, by 
 a consideration of the fact, as to whether the legislation 
 of the States, enacted in pursuance of their police power, 
 operates upon subjects over which they have no authority 
 to legislate whatever, or whether there be, as a result of 
 such legislation, an actual conflict between the law of the 
 States and a statute of Congress, enacted upon the same 
 subject. In either case, the state law must give way, 
 
 *See License Cases, s How., 504 (592). 
 
TAXING POWER OF THE STATES. 205 
 
 because, within the scope of its constitutional authority, 
 whatever may be the power under which it is asserted, 
 the action of Congress is supreme and paramount to that 
 of any of the several States of the Union * 
 
 The power of taxation, like the police power.f is an 
 inherent power of sovereignty, which, from its very na- 
 ture is incident to all forms of government, whether 
 monarchical or republican, or national or municipal, and, 
 in the United States, it is said to be as vital to the exist- 
 ence of the States as it is to the existence of the federal 
 government. 
 
 This power, on the part of the several States, is, there- 
 fore, wholly independent of the commercial power of 
 Congress, and a state tax, imposed upon property, within 
 its jurisdiction, can never be open to constitutional ob- 
 jection, even though it may affect commerce, because in 
 imposing the tax the States are not doing what Congress 
 is empowered to do.J 
 
 But, since taxation may be a means of commercial reg- 
 ulation,§ the power to accomplish which, in so far as 
 
 *See Gibbons v. Ogden, 9 Wheat, I (ips) ; Brown v. Mary- 
 land, 12 id., 419; Worcester v. Georgia, 6 Pet., 515; License 
 Cases, 5 How., 504 (579) ; Mayor, etc., of New York v. Miln, 
 II Pet., 102 (145). 
 
 tin the case of Kidd vs. Pearson, (128 U. S., i), it was said, 
 that the taxing power of the States is as broad as their police 
 power, and, that all property, within their respective jurisdic- 
 tions, is subject to the operation of the one, so long as it falls 
 within the restrictive regulations of the other. 
 
 ^Philadelphia & Reading Railroad Co. v. Pennsylvania, 15 
 Wall., 232. 
 
 §Lehigh Valley Railroad Co. v. Pennsylvania, 145 U. S., 192; 
 New York, Lake Erie & Western Railroad Co. v. Pennsylvania, 
 158 U. S., 431. 
 
206 COMMERCIAL POWER OF CONGRESS. 
 
 foreign, inter-state and Indian commerce is concerned, 
 is expressly vested in the legislative department of the 
 federal government, it necessarily follows, that when the 
 purpose or efifect of a tax, levied by a State, amounts to 
 a regulation of that commerce, and comes in direct con- 
 flict with the federal power, it is unconstitutional, and, 
 therefore, cannot be sustained. For this reason, it has 
 often been declared, that "no State has the right to lay 
 a tax on inter-state commerce, in any form, whether by 
 way of duties laid on the transportation of that commerce, 
 or on the receipts derived from that transportation, or on 
 the occupation or business of carrying it on," since it is 
 a burden on that commerce, and amounts to a regulation 
 of it, which belongs solely to Congress and not to the 
 States.* 
 
 Therefore, it has been held, that any property which 
 constitutes the subject of inter-state commerce, while in 
 transit ;t or any person passing through a State, or com- 
 
 *Leloup V. Port of Mobile, 127 U. S., 640 (648) ; Asher v. 
 Texas, 128 U. S., 129 ; Lyng v. Michigan, 135 U. S., 161 ; see 
 also, Philadelphia & Reading Railroad Co., v. Pennsylvania, 15 
 Wall., 232; Pensacola Telegraph Co. v. Western Union Tele- 
 graph Co., 96 U. S., I ; County of Mobile v. Kimball, 102 U. S., 
 691; Western Union Telegraph Co., v. Texas, los U. S., 460; 
 Moran v. New Orleans, 112 U. S., 69; Western Union Telegraph 
 Co. V. Pennsylvania, 128 U. S., 39; Robbins v. Shelby County Tax- 
 ing District, 120 U. S., 489 ; Gloucester Ferry Co. v. Pennsylvania, 
 114 U. S., 196; Brown v. Houston, id., 622; Walling v. Michigan, 
 116 U. S., 446; Pickard v. Pullman Southern Car Co., 117 U. S., 
 34 ; Wabash, St. Louis & Pacific Railroad Co. v. Illinois, 1 18 U. S., 
 557; Philadelphia & Southern Steamship Co., v. Pennsylvania, 
 122 U. S., 326; Ratterman v. Western Union Telegraph Co., 127 
 U. S., 411- 
 
 tKelley v. Rhoads, 188 U. S., i; see also, Blackstone v. Mil- 
 ler, id., 189. 
 
EXTENT OF THE TAXING POWER. 207 
 
 ing into it, for temporary purposes;* or the business of 
 soliciting freights, for inter-state transportation;! or for 
 the sale of property, for non-resident owners, for ship- 
 ment to persons, within the State, where the sale is 
 made ;:j: or an auctioneer's license, for the sale of import- 
 ed goods, in original packages,§ is exempt from state 
 taxation ; and that the same rule applies, whether the per- 
 sons engaged in such business, be a resident or a non- 
 resident of the State, levying the tax, or not.1| 
 
 Notwithstanding this restriction upon the exercise of 
 the taxing power, on the part of the several States, how- 
 ever, the fact has always been recognized, that there is 
 nothing in the federal Constitution, which forbids a 
 State from taxing the business of its citizens, and all prop- 
 erty, which may come within its jurisdiction, irrespective 
 of its nature or the purposes for which it may be em- 
 ployed, |1 provided, nevertheless, that in its operation, the 
 power be not allowed to interfere with any of the rights 
 
 *Bowman v. Chicago & Northwestern Railroad Co., 125 U. S., 
 46s (497). 
 
 tMcCall V. California, 136 U. S., 105. 
 
 JStoutenburgh v. Hennik, 129 U. S., 141; Stockard v. Mor- 
 gan, 185 U. S., 27. In the case of Stoutenburgh vs. Hennick, 
 above cited, the question was directly raised as to whether the 
 commercial power of Congress extended to the District of Co- 
 lumbia, and while the question was answered in the affirmative 
 by a majority of the court, Mr. Justice Milber, dissented from 
 its conclusion, upon the ground, that, inasmuch as the District 
 of Columbia was neither a State nor a foreign nation, its com- 
 merce could not fall within the operation of this power. 
 
 §Cook V. Pennsylvania, 97 U. S., 566; Leisy v. Hardin, 135 U. 
 S., 100 (120). 
 
 1[Stockard v. Morgan, 185 U. S., 27. 
 
 ||Pullman's Palace Car Co. v. Pennsylvania, 141 U. S., l8l 
 
208 COMMERCIAL POWER OF CONGRESS. 
 
 and powers of the national government, or with individ- 
 uals or corporations enjoing privileges and exercising 
 franchises guaranteed to them, by the Constitution of the 
 United States, or conferred upon them by a valid Act of 
 Congress.* 
 
 This principle is well illustrated, in the case of Ficklen 
 against the Shelby County Taxing District,^ where Mr. 
 Chief Justice Fuller, delivering the opinion of the Su- 
 preme Court of the United States, said : — "No doubt can 
 be entertained of the right of a state Legislature to tax 
 trades, professions and occupations, . . . and where a 
 resident citizen engages in general business, subject to a 
 particular tax, the fact, that the business done chances to 
 consist, for the time being, wholly or partially, in regula- 
 ting sales, between resident and non-resident merchants, 
 of goods, situate in another State, does not necessarily 
 involve taxation of inter-state commerce, forbidden by 
 the Constitution" ; and, therefore, "it is a well settled prin- 
 ciple, that a State has power to tax all property, having a 
 situs within its limits, whether employed in inter-state 
 commerce, or not." Hence it has been held, that although 
 no State has the power to interfere with the operations 
 
 ♦Western Union Telegraph Co. v. Taggart, 163 U. S., I (14), 
 citing Delaware Railroad Tax Cases, 18 Wall., 206 (232) ; West- 
 ern Union Telegraph Co. v. Texas, 105 U. S., 460 (464) ; West- 
 ern Union Telegraph Co. v. Massachusetts, 125 U. S., 530; Marye 
 V. Baltimore & Ohio Railroad Co., 127 U. S., 117 (123-4) ; Le- 
 loup V. Port of Mobile, 127 U. S., 640 (649) ; Pulman's Palace 
 Car Co. V. Pennsylvania, 141 U. S., 18; Pittsburg, Cincinnati, 
 Chicago & St. Louis Railroad Co. v. Backus, 154 U. S., 421 (445). 
 
 ti4S U. S., I (22-23), citing Pullman's Palace Car Co. v. Penn- 
 :sylvania, 141 U. S., 18; Gloucester Ferry Co. v. Pennsylvania, 
 J 14 U. S., 196. 
 
TAXATION AND COMMERCIAL REGULATIONS. 209 
 
 of inter-state or foreign commerce, by the imposition of 
 a tax, which, in eflf ect, is a license exacted, for the privi- 
 lege of transacting the business of such commerce, within 
 the State, yet, this restriction does not abridge the right 
 of the State, to tax, at their fair value, the subject-matter 
 of commerce, or the means and instrumentalities, through 
 which it is carried on.* 
 
 This doctrine is as applicable to the business and prop- 
 erty of corporations employed in foreign and inter-state 
 commerce, as it is to the business and property of indi- 
 viduals engaged in like pursuits ; and, when a corporation 
 of one of the States brings into another State a portion 
 of its movable property, for use and employment there, 
 it is well settled, that it is subject to the power of that 
 State to impose, upon such property, its fair share of the 
 burdens of taxation, in the same manner as the State 
 taxes similar property, employed for like purposes, by its 
 own corporations, although such property may be the 
 subject of, or employed in the business of foreign or inter- 
 state commerce.f 
 
 The exercise of the taxing power of the States, in such 
 cases, however, is not justified, and can never be sus- 
 tained, upon the ground, that the business, or the prop- 
 erty, taxed, is commercial in its nature, or that it is em- 
 ployed in trade ; but, because it is within their territorial 
 
 *Adams Express Co. v. Ohio, i66 U. S., 185. 
 
 tUnion Refrigerator Co. v. Lynch, 177 U. S., 149. See also 
 American Refrigerator Transit Co. v. Hall, 174 U. S., 70; 
 Pullman's Palace Car Co. v. Pennsylvania, 141 U. S., 18; Ad- 
 ams Express Co. v. Ohio, 165 U. S., 194; Adams Express Co. 
 V. Ohio, 166 U. S., 185. 
 
2IO COMMERCIAL POWER OF CONGRESS. 
 
 jurisdiction, and, because there is no necessary repug- 
 nance between the federal power of commercial regu- 
 lations and the taxing power of the States.* 
 
 Therefore, while foreign or inter-state commerce 
 cannot, in the exercise of the taxing power, be regulated 
 by a State, it is nevertheless true, that whenever the sub- 
 jects, upon which the tax is intended to operate, may 
 be separated, so that that part of the proceeds, which 
 arises from foreign and inter-state commerce can be 
 distinguished from that which arises from the internal 
 or domestic commerce of the State, levying the tax, the 
 distinction, between the two will be acted upon, and the 
 tax will always be upheld, so far as it relates to such 
 domestic commerce ;t and, in according with this dis- 
 tinction, it has been held, that the taxation of a bridge, 
 under a municipal ordinance, passed in pursuance of the 
 legislative authority of the State, in which it is located, 
 is not a regulation of commerce, although it may be used 
 in that commerce, the power to regulate which is vested 
 in the federal government,^ and, if the structure crosses 
 a navigable river, between two States,§ it is not, by reason 
 of being an instrument of inter-state commerce, exempt 
 
 *See Ficklen v. Shelby County Taxing District, 145 U. S., I 
 
 (23). 
 
 tLehigh Valley Railroad Co. v. Pennsylvania, 145 U. S., 192; 
 see also Ratterman v. Western Union Telegraph Co., 127 U. S., 
 411 (424). 
 
 ^Henderson Bridge Co. v. Henderson City, 141 U. S., 679 
 (689). 
 
 §Pittsburg, Cincinnati, Chicago & St. Louis Railroad Co. v. 
 Board of Public Works, 172 U. S., 32. 
 
TAXATION OF IMPORTS: ORIGINAL PACKAGES. 211 
 
 from taxation, by either State, upon that part, which is 
 within their respective limits and jurisdiction. So, a 
 tax imposed "on each sleeping and parlor car company, 
 carrying passengers from one point to another, within 
 the State," is not in contravention of the commercial 
 clause of the Constitution of the United States, although 
 the company, upon which the tax is levied, be a foreign 
 corporation, and all its cars be carried into the State 
 from another, or vice versa;* and, upon the same prin- 
 ciple, it has been held, that distilled spirits, stored in a 
 bonded-warehouse, may be taxed, by the State in which 
 they are stored, and the warehouseman may be required 
 to pay a tax, upon such property, notwithstanding a fed- 
 eral statute, under which they are permitted to be stored, 
 allows them to remain in bond, and be subject to nego- 
 tiable receipts, while in storage.f 
 
 Although the shipment of merchandise from foreign 
 countries, and from one State to another, as well as the 
 act of selling it, either before or after shipment, has been 
 held to be commerce, within the meaning of that term, 
 as used in the Constitution of the United States, and, is, 
 therefore, subject to the regulating power of Congress, 
 and although it was early held, that such merchandise, 
 imported, into a State, from abroad, was exempt from 
 State taxation, before it became intermingled with the 
 common mass of property within that State, on the 
 ground, that import duties, paid to' the federal govern- 
 ment, implies the right to sell, while such merchandise 
 
 *Cummings v. Chicago, i88 U. S., 410 (421). 
 tCarstairs v. Cochran, 193 U. S., 10. 
 
212 COMMERCIAL POWER OF CONGRESS. 
 
 remains in the original package,* the question has often 
 been raised, as to what constitutes an original package; 
 when it becomes intermingled with the property of the 
 State, so as to be subject to its taxation, and, whether 
 the doctrine has any application to the "importation" of 
 merchandise, into one State, from another. 
 
 Thus, in the case of Austin against the State of Ten- 
 nessee,f an original package was defined to be such as 
 is used in bona fide transactions, carried on between man- 
 ufacturers and wholesale dealers, residing in different 
 States, and consequently, in that case, it was held, that, 
 if the size of the package was such as to indicate, that it 
 was prepared for the purpose of evading the laws of a 
 State, into which it is sent, it will not be protected, as an 
 original package, against the police power of the State ; 
 and again, in the case of May against the City of New 
 Orleans,^ it was held, that an original package is a box, 
 or case, in which goods are shipped from one place to 
 another, and, that when it is opened for sale, or delivery 
 of the several parcels of which the box or case is made 
 up, each parcel loses its distinctive character, as an origi- 
 nal package, and, although it may be an article of impor- 
 tation, it then becomes subject to taxation, by the States, 
 as other like property within its limits. 
 
 In considering the application of the doctrine, laid 
 down in the case of Brown against the State of Mary- 
 land, to goods shipped from one State to another, it was 
 
 *Brown v. Maryland, 12 Wheat., 419. 
 
 ti79 U. S., 343. 
 
 $178 U.S., 496 (S08-9). 
 
EXTENT OF THE TAXING POWER. 213 
 
 held by the Supreme Court of the United States, in the 
 very recent case of the Norfolk & Western Railroad 
 Company against Sims* that a State has no power to 
 tax directly, by license, upon the importer, goods im- 
 ported from foreign countries, or from other States, 
 while in the original packages, or before they have be- 
 come intermingled with the general property, within the 
 State, and have lost their distinctive character, as im- 
 ports; upon the other hand, however, in the case of the 
 American Steel & Wire Company against Speed,'\ it was 
 said, that, in a constitutional sense, "imports" embrace 
 only goods brought from a foreign country, and, that 
 they do not include merchandise shipped from one State 
 to another, and, for this reason, the several States are not 
 controlled, as to such merchandise, by the constitutional 
 prohibitions against taxation of imports, and, therefore, 
 it was held, that goods, brought in original packages, 
 from one State, and delivered in another, are, while there, 
 subject to the laws of the State, in which they are to be 
 sold, and, they may be taxed, by the State, without vio- 
 lating the commercial clause of the Constitution, al- 
 though, at the time, they were stored, at a distributing 
 point, from which they are to be afterward delivered, in 
 the same packages, through the storage company, to pur- 
 chasers in other States. 
 
 Whatever may be the effect of these decisions, as to 
 the time when merchandise imported into a State, either 
 from foreign countries, or from one State to another, 
 
 *i9i U. S., 441. 
 ti92 U. S., 500. 
 
214 COMMERCIAL POWER OF CONGRESS. 
 
 and when it becomes intermingled with the common mass 
 of property within a State, they have not been uniform, 
 upon the question, as to when it becomes subject to the 
 taxing power of the States. 
 
 Thus, while in the case of Rhodes against the State of 
 Iowa,* it was held, that an article of commerce does not 
 become intermingled with the mass of property, within 
 a State, to which it is consigned, until actually sold, in 
 other cases, a different result seems to have been reached, 
 by the Supreme Court of the United States, in holding, 
 that, although the payment of duties, imposed by the 
 United States, on imports, undoubtedly gives the im- 
 porter the right to bring his goods into this country, for 
 sale, he does not, by simply paying the duty, escape state 
 taxation, upon such goods, after they have reached their 
 destination, for use or trade, and the box, case or bail, 
 containing them, has been open and exposed for sale;t 
 and, that, whenever such goods have reached their des- 
 tination, and have been exposed for sale, by the consignee, 
 they cease to be subject to the regulating power of Coht 
 gress, under the commercial clause of the Constitution, 
 and, therefore, become subject to taxation, like other 
 property within the jurisdictional limits of the State.J 
 
 The principles, upon which the taxing power is based, 
 and under which its exercise is justified, not only apply 
 to merchandise, which constitutes the subject-matter of 
 foreign and inter-state commerce, but also to the means 
 
 *i7o U. S., 412 (419). 
 
 tMay V. New Orleans, 178 U. S., 496 (507). 
 
 jPittsubrg & Southern Coal Co. v. Bates, 156 U. S., 577. 
 
LIMITATIONS ON THE TAXING POWER. 21$ 
 
 and instrumentalities, through which it is bought, sold 
 and transported from place to place. Therefore, all prop- 
 erty, within a State, whether it be the subject-matter of 
 foreign and inter-state commerce, or whether it be the 
 means or instrument through which that commerce is 
 carried on, falls within the operation of the taxing power 
 of the several States, so long as they remain, within their 
 respective jurisdictions, and are subject to its laws;* and, 
 in so far as the instrumentalities of commerce are con- 
 cerned, this power of the States extends to individuals 
 as well as to corporations, whether resident or non-resi- 
 dent, in the one case, or domestic or foreign, in the 
 other.f And, for the same reason, the exercise of the 
 taxing power of the State does not depend upon the solu- 
 tion of the question, as to whether a corporation, subject 
 to its operation, derives its franchise from an Act of Con- 
 gress, or whether its property be acquired for the pur- 
 pose of accomplishing some or any one of the functions 
 of the federal government.^ 
 
 And, notwithstanding the doctrine, already referred to, 
 that no State may impose conditions upon corporations, 
 created for federal purposes, or, upon those whose oper- 
 ations are conducted under franchises derived from the 
 Constitution of the United States, it is nevertheless true, 
 that such corporations are not entitled to exemption from 
 the ordinary burdens of taxation, imposed by a State, 
 
 ♦Postal Telegraph Co. v. Adams, ISS U. S., 688 (6g6). 
 
 tNew York, Lake Erie & Western Railroad Co. v. Pennsyl- 
 vania, IS8 U. S., 431 (438). ^^ , 
 
 ^Henderson Bridge Co. v. Henderson City, 173 U. S., 592; 
 American Refrigerator Transit Go. v. Hall, 174 U. S., 70. 
 
2l6 COMMERCIAL POWER OF CONGRESS. 
 
 within whose borders, their property is located or in 
 which they exercise their corporate franchises and con- 
 duct their business operations* 
 
 This statement, however, is subject to the limitations, 
 that in order to be constitutional, any tax imposed by a 
 State, upon the business and property of individuals and 
 corporations, engaged in inter-state and foreign com- 
 merce, must be levied upon such business and property, 
 as may be transacted and located within its immediate 
 jurisdiction ;f that, whenever inter-state and foreign com- 
 merce is affected by the tax, it must be upon the prop- 
 erty and business alone, and not upon the privilege of 
 engaging in such business ;$ for such a tax can, in no 
 
 ♦Western Union Telegraph Co. v. _ Massachusetts, 125 U. S., 
 530; Ficklen v. Shelby County Taxing District, 145 U. S., i 
 
 (22) ; Smith v. Ames, 169 U. S., 466 ; Western Union Telegraph 
 Co. V. Missouri, 190 U. S., 412; see also Thompson v. Union 
 Pacific Railroad Co., 9 Wall., 5795 Union Pacific Railroad Co. 
 V. Peniston, 18 Wall., s; Reagan v. Mercantile Trust Co., 154 
 U. S., 413 (4-6). 
 
 tCrutchor v. Kentucky, 141 U. S., 47 (59) ; American Ex- 
 press Co. V. Indiana, 165 U. S., 255. In dissenting from the con- 
 clusions of the Court, in the case of Adams Express Co. vs. 
 Ohio (166 U. S., 185), sustaining the method of taxation, 
 adopted by that otate, against the plaintiff in error, by an ap- 
 portionment of the value of is property, situated in the' State 
 and elsewhere, Mr. J jstice White sr ''It is elementary that the 
 taxing power of one government cannot be lawfully exerted 
 over property not within its jurisdiction or territory, and within 
 the territory and jurisdiction of another. ±he attempted exer- 
 cise of such power would be a clear usurpation of authority, and 
 involve a denial of the most obvious conception of government." 
 
 JPuUman's Palace Car Co. v. Pennsylvania, 141 U. S., 18 
 
 (23) ; Central Picific Railroad Co. v. Calaghan, 161 U. S., 91 ; 
 Southern Pacific Railroad Co. v. California, id., 167 ; New Mexico 
 V. United States Trust Co., 174 U. S., 545 ; Keokuk & Hamilton 
 Bridge Co. v. lUnois, 175 U. S., 626; Atlantic & Pacific Telegraph 
 Co. V. Philadelphia, 190 U. S., 160. 
 
LIMITATIONS ON THE TAXING POWER. 217 
 
 case, impose a burden upon inter-state and foreign com- 
 merce,* and in no event can the tax operate upon prop- 
 erty and business, outside the jurisdictional limits of the 
 State levying the tax, and belonging to persons domiciled 
 elsewhercf Therefore, under these well defined limita- 
 tions, in order to render a State tax upon the property 
 and business of individuals and corporations, engaged 
 in inter-state and foreign commerce, constitutional, it 
 must be shown, that the tax is laid upon such property 
 and business, and not upon commerce itself, nor upon 
 the privilege of carrying it on.J 
 
 But, it has sometimes been held, that no State may tax 
 a franchise conferred, upon a corporation or an indi- 
 vidual, by the federal government, or when their property 
 is acquired and their business is conducted, in virtue of 
 some federal right, guaranteed by the Constitution of the 
 United States, upon the theory, that they emanate from, 
 and are a portion of the sovereign power of the govern- 
 ment which confers it upon the grantees, and, therefore, 
 to tax them, is not only in derogation of the dignity, 
 but also subversive of the powers of the government itself, 
 and, in either case, would be repugnant to its paramount 
 authority.§ 
 
 *Allen v. Pullman's Palace Car Co., 191 U. S., 171. 
 
 tFargo V. Hart, 193 U. S., 490. . ^ „ c^ 
 
 JHenderson Bridge Co. v. He derson Bridge Co., 173 U. S., 
 592 ; see also Covington & Cincinnati Bridge Co. v. Kentucky, IS4 
 U. S., 204 (212) ; Henderson Bridge Co. v. Henderson City, 141 U. 
 S., 679 (689) ; Pittsburg, Cincinnati, Chicago & St. Louis Railway 
 Co. V. Board of Public Works, 172 U. S., 32; Thompson v. 
 Union Pacific Railroad Co., 9 Wall., 579- , _^ „ 
 
 §Califomia v. Central Pacific Railroad Co., et al., 127 U. b., 
 I (41). 
 
2l8 COMMERCIAL POWER OF CONGRESS. 
 
 Hence, it is said, that a telegraph company, upon com- 
 plying with the provisions of the Act of Congress of July, 
 24th, 1866, is not liable to a State tax, except in respect 
 of messages, transmitted wholly within the State, im- 
 posing the tax;* and, that such a company is not liable 
 to a state tax, upon messages and receipts from their 
 transmission, from points within the State to points with- 
 out, or from points without to points within the State.f 
 So, the franchises of a corporation created, by Congress, 
 for federal purposes may not be taxed, by a State, with- 
 out the consent of that body,J although, where the fran- 
 chise may be separated from the property of the corpora- 
 tion, it may be taxed like other property, within the State, 
 and such tax will be upheld.§ 
 
 *Western Union Telegraph Co. v. Texas, 105 U. S., 460; Rat- 
 terman v. Western Union Telegraph Co., 127 U. S., 411 ; West- 
 ern Union Telegraph Co. v. Pennsylvania, 128 U. S., 39. 
 
 tWestern Union Telegraph Co. v. Alabama, 132 U. S., 472, 
 citing Fensacola Telegraph Co. v. Western Union Telegraph Co., 
 96 U. S., i; Western Union Telegraph Co. v. Texas, 105 U. S., 
 460; Fargo V. Michigan, 121 U. S., 230; Philadelphia & Southern 
 Steamship Co. v. Pennsylvania, 122 U. S., 326; Western Union 
 Telegraph Co. v. Massachusetts, 125 U. S., 530; Ratterman v. 
 Western Union Telegraph Co., 127 U. S., 411 ; Leloup v. Port of 
 Mobile, id., 640. The principl; stated in, the text, however, ap- 
 plies only to the inter-state business of such corporations, and, 
 therefore, a city ordinance improving a tax upon a telegraph 
 company, which has accepted the benefits of the provisions of 
 the Act of Congress of 1866, on business done "exclusively" 
 within the city limits, has been held to be constitutional. Postal 
 Telegraph Co. v. Char' ton, .33 U. S., 692. 
 
 JTalbott v. Silver Bow County, 139 U. S., 438; Owensboro Na- 
 tional Bank v. Owensboro, 173 U. S., 664. 
 
 §United States v. P>.rkins, 163 U. S., 625; Third National 
 Bank of Louisville v. Stone, 174 U. S., 432; Louisville v. Third 
 National Bank, id., 435 ; Louisville v. National Bank, etc., id., 
 436 ; First National Bank of Louisville v. Louisville, etc., id., 438. 
 
TAXATION AS A MEANS OF INSPECTION. 219 
 
 Therefore, whenever the power of the, State to tax the 
 property and business of individuals and corporations, 
 engaged in inter-state commerce, is ascertained, or con- 
 ceded to exist, any mode of levying and collecting the 
 tax, which the state Legislature may adopt, will be up- 
 held* The amount of the tax may, therefore, be appor- 
 tioned to the amount of sales of merchandise, made with- 
 in the State ;f it may take the form of a tax upon the 
 privilege of doing business there, provided always, that 
 the assessment be based upon the value of the property 
 and business, affected by the tax, and that it do not 
 amount to a condition precedent to the right to carry 
 on the business of foreign or inter-state commerce.^ 
 
 So, the gross receipts of a common carrier corporation, 
 engaged in the business of inter-state commerce, may 
 be taken into consideration, in determining the amount 
 of a tax to be laid, upon its business within the State 
 levying the tax ;§ and, what the amount of the tax shall be 
 may be properly ascertained, by an apportionment of the 
 number of miles operated in the State to the entire 
 length of its road, within and without the State,1[ and 
 
 ♦Lehigh Valley Railroad Co. v. Pennsylvania, 145 U. S., 192 
 (300). 
 
 tlUinois Central Railroad Co. v. Illinois, 146 U. S., 387; Illi- 
 nois V. Illinois Central Railroad Co., 184 U. S., ^^\ Clark v. 
 Titusville, id., 329. 
 
 tPostal Telegraph Co. v. Adams, 155 U. S., 688 (696). 
 
 §Maine v. Grand Trunk Railroad Co., 142 U. S., 217 (228) ; 
 Home Insurance Co. v. New York, 134 U. S., 594. 
 
 1[Charlotte, Columbia & Augusta Railroad Co. v. Gibbes, 142 
 U. S., 386 (394) ; Barbier v. Connolly, 113 U. S., 27; Soon Hing 
 V Crowley, id., 703; Missouri Pacific Railway Co. v. Humes, 115 
 U. S., S12. 
 
220 COMMERCIAL POWER OF CONGRESS. 
 
 this mode is open to no constitutional objection, simply 
 because, the value of the road as a whole was established 
 as an instrument of inter-state commerce.* 
 
 But, whatever may be the extent or the operation of 
 the general power of taxation, upon the part of the sev- 
 eral States, or the limitations placed upon the exercise 
 of this power, by the Constitution of the United States, 
 it is nevertheless true, that when the taxing power, de- 
 pends upon, and is necessary to the proper enforcement 
 of the police power, it is as full and complete as that of 
 Congress to regulate commerce. 
 
 Therefore, whenever the States' power of taxation is 
 exercised in the enforcement of the police power, and 
 when its purpose is to determine the quality and value 
 of merchandise produced, manufactured and sold, within 
 their respective jurisdictions, or, when its object is to 
 preserve the character and reputation of the State, in 
 foreign markets, or to prevent fraud on the public, in 
 commercial transactions.f or to establish quarantine and 
 health regulations to protect its inhabitants from disease, 
 pauperism and crime, it may be exerted to any extent, 
 without constitutional objection, even though the tax 
 levied for this purpose, affect inter-state and foreign 
 commerce 4 and, it is as applicable to articles of trade, 
 
 ♦Pittsburg, Cincinnati, Chicago & St. Louis Railroad Co. v. 
 Backus, 154 U. S., 421. 
 
 tSee Patapsco Guano Co. v. Board of Agriculture, 171 U. S., 
 345 (355-7) ; St. Louis Consolidated Coal Co. v. Illinois, 185 
 U. S., 203; Atlantic & Pacific Telegraph Co. v. Philadelphia, 190 
 U. S., 160. 
 
 r^Gilman v. Philadelphia, 3 Wall., 713 ; Ex parte McNiel, 13 id., 
 336. 
 
DUTIES ON IMPORTS. 221 
 
 which are intended for immediate traffic and consump- 
 tion of its own people, as it is to those which are designed 
 for import or export* 
 
 The power of the several States to establish police 
 regulations of this character, therefore, extends to the 
 imposition of an inspection or license tax upon all articles 
 of commerce, and upon all dealers in such articles, which 
 may be legitimately brought within the scope of its op- 
 eration.f It embraces such quarantine laws, as may be 
 deemed necessary to enforce the exclusion of persons 
 and property, actually infected by contamination and dis- 
 ease, as well as such as may have been indirectly exposed 
 to infection ;f and, the purpose of these laws, being to 
 insure the State and its inhabitants from contamination 
 and disease, each State possesses the inherent power to 
 enact any regulations on the subject, which has this end 
 in view.§ 
 
 However, where a state inspection law applies to "im- 
 ports and exports," the Constitution itself prescribes the 
 limitation, and the tax laid, cannot exceed the cost of its 
 enforcement; for it is expressly provided in that instru- 
 
 *Gibbons v. Ogden, 9 Wheat, i (203) ; Brown v. Maryland, 
 12 id., 419; Foster v. Portwardens, 94 U. S., 246. 
 
 tSchollenberger v. Pennsylvania, 171 U. S., i; Patapsco Gua- 
 no Co. V. Board of Agriculture, id., 345 ; Lindsley & Phelps 
 Co. V. Mullen, 176 U. S., 126; St. Louis Consolidated Coal Co.' 
 V. Illinois, 185 U. S., 203; Atlantic & Pacific Telegraph Co. v. 
 Philadelphia, 190 U. S., 160; see also Plumley v. Massachu- 
 setts, ISS U. S., 461 ; Wooruflf v. Parham, 8 Wall., 123 ; Hinson 
 v. Lott, id., 148. 
 
 JSmith V. St. Louis & Southeastern Railroad Co., 180 U. S., 
 248. 
 
 §Rasmussen v. Idaho, 181 U. S., 198. 
 
222 COMMERCIAL POWER OF CONGRESS. 
 
 ment, that any sum collected, in excess of this 
 amount, shall be "for the use of the Treasury of the 
 United States," and, that the law itself "shall be subject 
 to the revision and control of Congress;"* and, it has 
 been held, as a general proposition, applicable alike to 
 persons and to merchandise, that the State, into which 
 they come or are transported, may not under the guise 
 of an inspection law, make any discrimination against 
 persons, nor against the products and industries of any 
 other State, in favor of its own citizens, or its own prod- 
 ucts or industries,! nor may it impose a license fee, for 
 the purpose of inspection, upon a corporation, doing an 
 inter-state business, which is so far in excess of the ex- 
 pense of inspection, that it is plain, that it was adopted, 
 not to repay such expense, but as a means of raising a 
 revenue.^ 
 
 The power of regulation, respecting any subject, is a 
 power of government, which is continuing in its nature ;§ 
 and, as such, it may be exercised, whenever, and in what- 
 ever manner it may suit the will or convenience of the 
 State, in> which it is vested, and this statement necessarily 
 applies to the legislative action of the several States, as 
 well as to that of the federal government, whenever the 
 subject-matter of the power falls within the constitutional 
 
 ♦Constitution "J. S., Art. I., sec. X., cl. 2; Gibbons v. Ogden, 
 9 Wheat., I (203); Brown v. Maryland, 12 id., 419; Foster v. 
 Portwardens, 94 U. S., 246. 
 
 fBrimmer vs. Rebman, 138 U. S., 78; see also Guy v. Baltimore, 
 100 U. S., 434. 
 
 tPostal Telegraph Co. v. Taylor, 192 U. S., 64; see also Postal 
 Telegraph Co. v. New Hope, id., 55. 
 
 §Stone V. Farmers' Loan & Trust Co., 116 U. S., 307. 
 
STATES POWER OF REGULATION. 223 
 
 authority of either, and, in its application to the commer- 
 cial power, it, of course, implies the power to prescribe 
 rules by which the various operations of commerce shall 
 be governed.* 
 
 And, in so far as the power of the sevei-al States to 
 regulate commerce is concerned, it has been said, that 
 "the government, created by the Constitution, was not 
 designed for the regulation of matters purely local in 
 their character,"t and for this reason, it has always been 
 held, that this power may be exercised, by the States, 
 whenever it is intended for the local convenience of com- 
 mercial transactions, or of those who may be engaged in 
 commercial pursuits;:]: or, where the power is exercised, 
 for the inspection of articles of trade, or for the 
 enforcement of their inherent police power. The States 
 may, therefore, enact laws interdicting vessels, coming 
 from foreign ports, or from ports of the United States, 
 from landing passengers and goods, when the interdiction 
 is based upon a legitimate exercise of the police power; 
 and in the exercise of this power the States may prescribe 
 the time for vessels to quarantine, and impose penalties 
 for a violation of such regulations as they may adopt, 
 for this purpose, and this power necessarily includes the 
 right to exact such fees, from owners or consignees of 
 vessels, affected by its operation, as may be required to 
 reimburse the State for the cost of detention, and the 
 
 *Addyston Pipe & Steel Co. v. United States, I7S U. S., 211 
 (242). 
 tPowell V. Pennsylvania, 127 U. S., 687, per Field J. 
 jpittsburg & Southern Coal Co. v. Bates, 156 U. S., 577. 
 
224 COMMERCIAL POWER OF CONGRESS. 
 
 fumigation of the vessels, cargo and persons on board.* 
 This power also extends to the regulation of vessels, 
 while in port, and, in its exercise, the State may pre- 
 scribe rules for their anchorage and mooring, designed 
 to prevent confusion and collision ; and, for this purpose, 
 the law of the State may designate the wharfs, at which 
 vessels may discharge and receive passengers and goods, 
 and require their removals, when not thus engaged, so 
 as to make room for other vessels ; and, in the execution 
 of such rules, the State may appoint officers to super- 
 intend and enforce its regulations, and may impose a tax, 
 for that purpose, since this is only a means of reim- 
 bursing the State for the use of commercial facilities, 
 provided by it, or by its authority .f 
 
 There has never been any question of the existence of 
 this power, on the part of the several States, and, it has 
 been uniformally recognized, by the legislative and ju- 
 dicial departments of the United States, since the adop- 
 tion of the Constitution. Thus, concerning state quaran- 
 tine regulations, the Acts of Congress of 1796 and 1799$ 
 expressly empowered and directed the officers, named in 
 these Acts, to conform their action to, and assist in the 
 execution of the quarantine and health laws of the sev- 
 eral States; while the Act of i878,§ expressly provided 
 that "there shall be no interference," in its execution, "in 
 
 ♦Passenger Cases, 7 How., 283 (400). 
 
 tSee Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 196. 
 
 taU. S. Stat, 37; 3 id., 477. 
 
 §20 U. S. Stat, 37; see also, Morgan Steamship Co. v. Board 
 of Health, 118 U. S., 455; Louisiana v. Texas, 176 U. S., i ; Cam- 
 pagnie Frangaise de Navigation a Vapeur, 186 U. S., 380. 
 
STATES POWER OF REGULATION. 225 
 
 any manner with the quarantine regulations, as they may 
 now exist, or may hereafter be adopted, under state laws." 
 
 It is also, under the exercise of the police power, that 
 the several States are enabled to legislate, in all those 
 matters, the purpose and object of which is to prevent the 
 spread of crime, and to exclude, from their respective 
 limits, convicts, persons likely to become a public charge, 
 and persons afflicted with loathsome and contagious dis- 
 eases.* 
 
 For this reason, it was early contended, that, in the 
 exercise of their inherent police power, the States pos- 
 sessed the right to regulate the subject of foreign immi- 
 gration, even though such regulation might affect the 
 commercial and political relations between the United 
 States and foreign nations, and notwithstanding the gen- 
 eral rule laid down, by the Supreme Court of the United 
 States, in the Passenger Cases,'^ the force of this conten- 
 tion, seems to have been fully recognized, and acted upon, 
 by all the departments of the federal government,^ for 
 many years, under the maxim, that every nation 
 has the power, inherent in its sovereignty, and essential 
 
 ♦Plunley V. Massachusetts, 155 U. S., 461 (478). 
 
 t7 How., 283. 
 
 ^e Act of Congress of June IS, 1878 (20 U. S. Stat., 177), 
 shows how this matter was regarded, before that date, since it 
 expressly provided, that "The acts of every State and municipal 
 officer or corporation of the several States, in the collection of 
 head-money, prior to January i, 1878, from the master, con- 
 signee or owner of any vessels bringing passengers to the United 
 States, from a foreign port, pursuant to the then existing laws 
 of the several States, shall be valid, and no action shall be main- 
 tained against any such State or municipal officer, or corporation, 
 for the recovery of any money so paid, or collected prior to that 
 date." 
 
226 COMMERCIAL POWER OF CONGRESS. 
 
 to its self-preservation, to deny an entrance, into its 
 dominion, of all immigrants, whom it might determine 
 to be detrimental to its political welfare, or disadvan- 
 tageous to its social interests; but since the effect of the 
 determination of the court, in those cases, was, that the 
 States may not prohibit the introduction of foreigners, 
 into the United States, contrary to treaty stipulations be- 
 tween the United States and the country whence they 
 came, or are brought into this country under the authority 
 of Congress, the rule has since been established, that this 
 power is vested exclusively "in the national government, 
 to which the Constitution has committed the entire con- 
 trol of international relations, in peace as well as in war," 
 and, that, therefore, all authority to regulate immigration 
 into the United States, belongs to the political department 
 of that government, and may be exercised, by it, either 
 through treaties, made by the President, by and with the 
 advice and consent of the Senate, or through statutes 
 enacted by Congress,* except, in so far as the judicial 
 department may be authorized, by treaty or statute, or by 
 the Constitution, to intervene.f 
 
 And, since the passage of the Act of Congress of 1878, 
 the whole matter of the regulation of foreign immigra- 
 tion has been subject to federal control, and its power, in 
 this respect, has been continually exerted, by the enact- 
 
 *Chae Chan Ping v. United States, 130 U. S., 581 ; Nishimura 
 Eiku V. United States, 142 U. S., 651 (659) ; Fong Yue Ting v. 
 United States, 149 U. S., 698 (705) ; United States, ex rel, 
 Turner v. Williams, 194 U. S., 279. 
 
 tFok Yung Yo v. United States, 185 U. S., 296; Lee Gon 
 Yong V. United States, id., 306. 
 
STATES POWER OF REGULATION. 227 
 
 ment of such laws, as those relating to the Chinese Cooley 
 Trade ; to the prohibition against the immigration of orien- 
 tal subjects for purposes of prostitution; to the preven- 
 tion of pauper immigration from Europe, and in other 
 legislation of a similar character; and. Congress having 
 thus assumed entire control over the subject, the States 
 are bereft of all authority, in the matter, except, perhaps, 
 when its exercise is necessary to the establishment and 
 enforcement of their legitimate inspection, quarantine 
 and health laws. 
 
 While the States may not enact any law, which, in 
 effect, amounts to a regulation of foreign and inter-state 
 commerce, it is nevertheless true, that when the regula- 
 tion, in question, operates only upon that part of such 
 commerce, which is carried on wholly within the State, 
 it is open to no constitutional objection;* hence, it has 
 been held, that the exaction of a tax license fee, by a 
 State, upon a foreign corporation, as a condition to its 
 right to have an office, for the transaction of business 
 in the State, is within its legislative authority,! and will 
 be upheld, and the right of the several States to fix and 
 regulate the amount of tolls, for the use of wharfs, piers, 
 elevators and improved channels of navigation, has so 
 frequently been recognized, that its existence can no 
 longer be doubted.:}: 
 
 The grounds upon which the power of the States to 
 
 *State of New York, ex rel., Pennsylvania Railroad Co., v. 
 Knight, 192 U. S., 21 TT c o 
 
 tPembina Mining Co. v. Pennsylvania, 125 U. S., 184. 
 
 iCovington & Cincinnati Bridge Co. v. Kentucky, 154 U. S., 
 204. 
 
228 COMMERCIAL POWER OF CONGRESS. 
 
 regulate the tolls to be charged, by the owners of such in- 
 struments of commerce, as has been already stated, is 
 the public use in which they are employed,* as well as 
 the right of the State to exact the payment of compensa- 
 tion for the use of such instruments, and for their con- 
 struction, maintenance and operation, and since they may 
 furnish these facilities, or permit them to be furnished by 
 individuals or corporations,! the States may determine the 
 amount of the charge, which shall be made for their use,$ 
 without violating the Constitution of the United States,§ 
 or trenching upon the commercial power of Congress, and, 
 therefore, it has been held, that the exaction of such com- 
 pensation, or the determination of the amount which shall 
 be paid, is in no sense a regulation of commerce, within 
 the meaning of that instrument.^ 
 
 And, while it has been held, that the States may exact 
 a license fee for the use of improvements on navigable 
 rivers, the authorities are also uniform, upon the prop- 
 osition, that such tax can never be laid, for the use of the 
 navigable waters of such rivers, employed for the pur- 
 poses of inter-state and foreign commerce ;|| nor, where 
 the improvement is a bridge, connecting two States;** 
 
 *Munn V. Illinois, 94 U. S., 113. 
 
 tWisconsin, Minnesota & Pacific Railroad Co. v. Jacobson, 
 .179 U. S., 287. 
 
 iLindsley & Phelps Co. v. Mullen, 176 U. S., 126. 
 
 §Sands v. Manistee River Improvement Co., 123 U. S., 288; 
 Monongahela Navigation Co. v. United States, 148 U. S., 312 
 (339. 330). 
 
 IJHarman v. Chicago, 147 U. S., 396 (411). 
 
 **Covington & Cincinnati Bridge Co. v. Kentucky, 154 U. S., 
 204 (221) ; see also, Covington & Cincinnati Elevated Railroad 
 Transfer & Bridge Co., v. Kentucky, id., 224. 
 
STATES POWER OF REGULATION. 229 
 
 and, as has already been seen, a State cannot, under the 
 guise of a license tax, exclude, from its territorial limits, 
 a foreign corporation, engaged in such commerce,* for 
 the reason, as has been held, that the right to engage in 
 that commerce, is not derived from the States, in which 
 it is carried on, but is a privilege guaranteed to it, by the 
 Constitution of the United States, and this privilege can- 
 not be abridged by any action on the part of any one of 
 the several States. And, while it has been held, that 
 although a State may so far regulate the movement of 
 trains, owned by a corporation, engaged in the business 
 of inter-state commerce, as to require them to 
 stop at certain stations on its line of road, if the direct 
 effect of such regulation be to hinder and obstruct inter- 
 state commerce, or otherwise interfere with its move- 
 ment, or with the usefulness of the facilities, furnished 
 by the corporation, it will be condemned ;t and a munici- 
 pal corporation cannot impose a license fee, on a tele- 
 graph company, engaged in the business of transmitting 
 inter-state messages, even for the purpose of inspection, 
 which is so far in excess of the expense of inspection, 
 as to show, that it was adopted, not to repay such ex- 
 pense, but as a means of raising a revenue for general 
 municipal purposes.:!: Upon the other hand, in consider- 
 ing the subject of the liquor traffic between the States, 
 it has been held, that the power of the States to regulate 
 
 *Crutcher v. Kentucky, 141 U. S., 47 (51), citing Norfolk & 
 Western Railroad Co. v. Pennsylvania, 136 U. S., 114. 
 
 tlllinois Central Railroad Co. v. Illinois, 163 U. S., 142 (153). 
 
 jPostal Telegraph Co. v. New Hope, 192 U. S., 55; Same v. 
 Taylor, id., 64. 
 
230 COMMERCIAL POWER OF CONGRESS. 
 
 the sale and use of intoxicating liquors is such, that the 
 traffic may be absolutely prohibited, or it may be regu- 
 lated, under a local option law, enacted by the Legislature 
 of a State.* 
 
 In those cases, where the State's power of regulation 
 is based upon its general legislative authority concerning 
 its own political and civil institutions, or where the value 
 of the subjett of the regfulation depends upon a franchise 
 derived from the State, it has been contended, that since 
 the grant of such franchise implies a contract between 
 the State and the individual or individuals to whom it 
 is granted, the power of the State to regulate its use is 
 to be determined by the terms of the grant, and, that if 
 the grant may be so construed as to exclude this power, 
 it will be protected from the assertion of any authority, 
 which may be claimed, on the part of the State, by that 
 clause of the Constitution of the United States, which 
 provides,, that no State may pass any law impairing the 
 obligation of contracts ;t but, in regard to this conten- 
 tion, it has been held, that, while the Legislature of a 
 State may, perhaps, for a consideration, limit its power 
 of regulation, as is sometimes the case in respect of tax- 
 ation, still, if the power may be bargained away at all, 
 it can be done only by words of positive grant, or some- 
 thing, which, in contemplation of law, amounts to the 
 same thing; J and, if, therefore, there be a reasonable 
 doubt, concerning the grant, it will always be resolved 
 
 *Ohio, e» rel,. Lloyd v. Dollison, 194 U. S., 445. 
 
 tU. S. Const., Act. I., Sec. X., cl. I. 
 
 iStone V. Fanners' Loan & Trust Co., 116 U. S., 307. 
 
FEDERAL POWER OF REGULATION. 23I 
 
 in favor of the continued existence of the power, and its 
 abandonment will never be presumed, in a case, where 
 the deliberate purpose of the State to abondon, does not 
 clearly appear.* 
 
 Whatever may be the extent of the operation of the 
 power of the several States, concerning the regulation 
 of commerce, growing out of a proper and legitimate 
 exercise of their police and taxing power, or arising from 
 their inherent power to legislate concerning their politi- 
 cal and civil institutions, it is, however, well settled, that 
 whenever the power of Congress attaches to any com- 
 mercial subject, its authority over that subject is com- 
 plete, and is affected by no limitation, other than such as 
 may have been prescribed by the federal Constitution; 
 and, therefore, in the accomplishment of the purposes, 
 for which this power was vested in the federal 
 government. Congress may adopt such means as 
 it may deem requisite and appropriate to that end.f 
 Hence, its power to regulate commerce may be exerted 
 by means of tariff legislation, the purpose and effect of 
 which is to exclude certain articles of trade, from the 
 limits of the United States altogether ;$ or the power ' 
 
 ♦Providence Bank v. Billings, 4 Pet, 514 ; Charles River Bridge 
 v. Warren Bridge, 11 id., 420; Minot v. Philadelphia, Wilming- 
 ton & Baltimore Railroad Co., 18 Wall., 206; Bailey v. Magwire, 
 22 id., 215; Northwestern Fertilizing Co. v. Hyde Park, 97 U. S., 
 660 ; Newton v. Commissions, etc., 100 U. S., S48. 
 
 flnter-state Commerce Commission v. Brimson, 154 U. S., 447 
 (478) ; Northern Securities Co. v. United States, 193 U. S., 197 
 (33s) ; see also. In re Rahrer, 140 U. S., 345 ; Lottery Cases, i88 
 
 U. S., 321 (3SS). . . „ . „ c , / 
 
 te U. S. Stat, 237; 29 id., 604; Butterfield v. Stranahan, 192/ 
 U. S., 470; Same v. Bidwell, id., 498; Same v. United States, 
 id., 499. 
 
232 COMMERCIAL POWER OF CONGRESS. 
 
 may be exercised by the granting of licenses to individ- 
 uals or corporations engaged in commerce with foreign 
 nations, among the States or with the Indian tribes. 
 And, when a license for this purpose is granted by the 
 government of the United States, it necessarily confers, 
 upon the licensee, full authority to do whatever is au- 
 thorized to be done, by its terms.* In the exercise of its 
 regulating power. Congress may also prohibit unjust 
 charges, discrimination and preference, by common car- 
 riers, upon inter-state transportation, and it may create a 
 Commission to carry its legislation to this end, into ef- 
 fect ;t and, owing to the plenary power of Congress over 
 the subject of foreign commerce, it follows, that no in- 
 dividual has a vested right to trade with foreign na- 
 tions, which is so broad in its character, as to limit its 
 power to determine what articles of merchandise may be 
 imported into the country, or the terms upon which a 
 right to import them may be exercised.^ 
 
 However, since the power to regulate commerce, 
 vested in Congress, by the Constitution, is a power wholly 
 independent of the taxing power, and the one having no 
 relation to the other, except in so far as both may be 
 considered integral parts of that general plan of govern- 
 ment, outlined and established by that instrument, it fol- 
 lows, that the taxing of imports by the federal govern- 
 ment is not to be sustained under the grant of the com- 
 
 *License Tax Cases, S Wall., 462. 
 
 tinter-state Commerce Commission v. Brimson, 154 U. S., 477 
 (472). 
 JButterfield v. Stranahan, 192 U. S., 470 (493). 
 
FEDERAL POWER OF REGULATION. 233 
 
 mercial power to Congress, but under the taxing power 
 alone. The imposition of duties, it is true, may operate 
 as a regulation of commerce, but, this is merely inci- 
 dental, its main object being to raise a revenue, and, for 
 this reason, it has been said, that the power to levy a tax, 
 upon imports, was granted to the federal government, 
 and prohibited to the States, by the very terms of the 
 Constitution itself.* 
 
 In considering the effect of coasting licenses, granted, 
 by the United States, to the owners of vessels, engaged 
 in the business of commerce among the States, and the 
 right it confers, upon the holder, Mr. Justice Clifford, 
 delivering a dissenting opinion, in the case of Gilman 
 against the City of Philadelphia,^ referred to the discus- 
 sion of the question, in the case of Gibbons 
 against Ogden, and said: — License as the word 
 is used, in the Act of Congress, means, say the 
 court, permission or authority and the court held, 
 that a license to do a particular thing is a permis- 
 sion or authority to do that thing, and, if granted by a 
 person having power to grant it, it transfers to the 
 grantees the right to do whatever it purports to author- 
 ize. Adopting the language of the court, in that case, it 
 certainly transfers to him, all the right, which the grantor 
 can transfer, to do what is within the terms of the license. 
 Ships and vessels enrolled, and licensed, under the Act 
 of Congress, and no others are deemed ships and vessels 
 
 *Brown v. Maryland, 12 Wheat, 419. See Gibbons v. Ogden, 
 9 Wheat., I (201 et seq.) ; Passenger Cases, 7 How., 283 (449). 
 t3 Wall., 713- 
 
234 COMMERCIAL POWER OF CONGRESS. 
 
 of the United States entitled to the privileges of ships 
 or vessels employed in the coasting trade. Majority 
 of the court, as stated, in the opinion just read, admits 
 that a ship or vessel of the United States, which is duly 
 enrolled and armed with a coasting license, such as is 
 required by the Enrollment Acts, may navigate the coast 
 of the United States, and may pass from the open sea 
 into the public navigable rivers of the United States, 
 and up the same, as far as the navigable waters extend. 
 Coming more directly to the case, under consideration, 
 the opinion admits, that such a ship or vessel has a right, 
 under such an enrollment, or with such a coasting li- 
 cense, to navigate from the sea, up the river described 
 in the record, to the wharfs of the complainant." 
 
 Whatever may have been the conclusion drawn, 
 by the learned justice from this statement, in its appli- 
 cation to the facts of the case, then under consideration, 
 the statement itself clearly expounds the legal scope and 
 effect of a coasting license granted by the federal gov- 
 ernment, which has always been held to be a warrant 
 to the holder to traverse the waters washing or bounding 
 the United States, to enter these waters and to enjoy all 
 the privileges which are incident to their navigation. 
 However, it is a principle equally well established, that 
 the authority of such a license can never be extended, 
 so as to control privileges or rights, beyond its legiti- 
 mate import, nor invade the constitutional rights of the 
 several States, whether these rights be attributable to the 
 police power, or to any other the rights of the States, 
 which have not been surrendered or delegated to the 
 
FEDERAL POWER OF REGULATION. 235 
 
 federal government by the terms of the Constitution; 
 nor can such license, under any circumstances, convey 
 to the licensee, and privilege to use free of toll, canals 
 constructed by the States, or water-courses partaking of 
 the character of. canals, situated exclusively within the 
 interior of any State, and made practicable, for naviga- 
 tion, by the funds of the State, by which they are con- 
 structed or improved, or under privileges, which the 
 States may have conferred, for the accomplishment of 
 the same end ; and any attempt to use a coasting license, 
 for a purpose of this kind, has been declared to be not 
 only a departure from the obvious meaning of the Con- 
 stitution, but also beyond the object and the scope of 
 the power granting it ;* and, the enrollment and licensing 
 of vessels, under an Act of Congress, gives the licensee 
 no right to violate a legitimate statute of a Statcf 
 
 When, therefore, the master of a ship attaches his 
 vessel to a pier, without authority from the owner of the 
 pier, either express or implied, and he has no business 
 to transact with such owner, he is a trespasser, and all 
 pretense of a license fails4 
 
 In the exercise of its constitutional power to levy 
 taxes, for the support of the government. Congress has 
 also, by legislation, provided for the granting of licenses, 
 to dealers in liquors, to pursue their calling, within cer- 
 tain revenue districts of the United States; and, the ex- 
 tent of the operation of such licenses have likewise been 
 
 *Veazie v. Moor, 14 How., 568. 
 
 tManchester v. Massachusetts, 139 U. S., 240 (261). 
 
 iSutton v. Strong, i Black, i. 
 
236 COMMERCIAL POWER OF CONGRESS. 
 
 the subject of litigation in the courts, the licensee con- 
 tending, that any infringement upon the privilege, thus 
 granted, by the laws of a State, was in violation of 
 the constitutional power of Congress to regulate com- 
 merce, and was therefore void, as against a license au- 
 thorized by, and issued under an Act of Congress, But, 
 the sufficiency of this contention has always been denied, 
 and, on several occasions, the Supreme Court of the 
 United States has determined, that the sale of such mer- 
 chandise, within a State, is subject exclusively to state 
 control,* for the reason, that a license, issued under an 
 Act of Congress, gives to the licensee no right to keep 
 or sell intoxicating liquors, in violation of a state law, 
 and, therefore, it is no defense to an indictment, under 
 the laws of the State.f Hence, a state law requiring a 
 license, before an individual shall be permitted to sell 
 intoxicating liquors, at retail, is not unconstitutional, at 
 least, where it does not interfere with the sale of im- 
 ported liquors, in original packages.^ But, in the case 
 of Pervear against the Commonwealth of Massachusetts, 
 which was a license tax case,§ the question as to the 
 effect of a license granted to dealers in liquors, under 
 the revenue laws of the United States was distinctly 
 raised, and in disposing of this question, Mr. Chief 
 Justice Chase, who delivered the opinion of the court, 
 held, that, "The circumstance, that the state prohibition 
 
 ♦License Cases, 5 How., 504; License Tax Cases, s Wall., 462. 
 tMcGuire v. Commonwealth of Massachusetts, 3 Wall., 387. 
 JSee also, License Cases, S How., 504. 
 §5 Wall., 462. 
 
FEDERAL POWER OF REGULATIOK. 237 
 
 applies to merchandise in the original package is wholly 
 immaterial. Even in the case of importation," says he, 
 "that circumstance is only available to the importer. 
 Merchandise in the original package, once sold by the 
 importer, is taxable as other property. But, in the case 
 before us, there is no importation. So far as it appears, 
 the liquors [in question] were home-made, or, if not, 
 were in second hands;" and, therefore, the court deter- 
 mined, that the law, the constitutionality of which was 
 attacked, in that case, fell within the legitimate scope of 
 the operation of the taxing power of the State, and for 
 that reason it was upheld. 
 
 This ruling was in strict conformity with principles 
 laid down, by the Supreme Court of the United States, in 
 the License Cases, as early as 1847, which were stead- 
 ily adhered to and followed, until, 1889, when they were 
 reversed, by the decision of that court, in the case of 
 Leisy against Hardin,* which held, that, inasmuch as 
 such liquors constituted a lawful subject of trade, their 
 sale, in any State, could not be regulated by its legisla- 
 tion, when they were the subject-matter of inter-state 
 commerce. 
 
 But, the effect of this decision made such an innova- 
 tion, in the doctrines, theretofore entertained, respecting 
 the application of the police power of the States, in its 
 operation upon the liquor traffic, that Congress imme- 
 diatel enacted a statute,t which provided, among other 
 things, that fermented, distilled or intoxicating liquors, 
 
 *i35 U. S., 100. 
 
 fAct of Congress of August 8, 1890. 
 
238 COMMERCIAL POWER OF CONGRESS. 
 
 transported into any State or Territory, should, upon ar- 
 rival, be subject to the operation of the laws of such 
 State or Territory, to the same extent and in the same 
 manner as though such liquors had been produced, in that 
 State or Territory, and should not be exempt therefrom 
 by reason of having been introduced therein, in original 
 packages. 
 
 This statute was afterwards presented to the court for 
 construction and interpretation in the case of Scott against 
 Donald* and, while Mr. Justice Brown, expressed the 
 opinion, in a dissenting opinion delivered, by him, in that 
 case, that "the effect of this enactment" was "to with- 
 draw intoxicating liquors from the operation of the com- 
 mercial clause of the Constitution, and permit the traffic 
 in them to be regulated in such manner as the several 
 States, in the exercise of their police power, shall deem 
 best for the general interest of the public," a majority 
 of the court held, that it did not preclude the federal 
 courts from inquiring into the question as to whether a 
 given state law is a lawful exercise of the police power 
 of the State, and, that, even under the Act, the State 
 cannot discriminate between inter-state and domestic 
 commerce, in commodities, the manufacture and use of 
 which are admitted to be lawful. 
 
 Whatever may be the effect of this decision, upon tfiis 
 legislation of Congress, the dissenting opinion of Mr. 
 Justice Brown, above referred to, presents the question 
 as to whether, that legislation, be a recognition of the 
 right of the several States to regulate the sale of liquors, 
 
 *i6s U. S., 58 (102.) 
 
FEDERAL POWER OF REGULATION. 239 
 
 within their respective limits, under the exercise of their 
 inherent poUce power, or whether it be an act of permis- 
 sion only. The first of these questions has never been 
 determined; but, In re Rahrer* the second question 
 was considered, and partially answered, in the opinion of 
 Mr. Chief Justice Fuller, when he said, that, in the pas- 
 sage of the Act of Congress of August 8th, 1890, pro- 
 viding that imported liquors should be subject to the 
 operation of the state laws, to the same extent as though 
 they had been produced in the State, Congress did not 
 use terms of permission to the States, but simply re- 
 moved an impediment to the enforcement of the state 
 laws, in respect of imported packages, in their original 
 condition, created by the absence of a specific utterance 
 on its part; and, that jurisdiction attaches, not in virtue 
 of the law of Congress, but, because, the effect of that 
 law was to place the property where jurisdiction could 
 attach. And, this opinion of the learned Chief Justice 
 is clearly in line with former decisions of the court, and 
 its ultimate adoption, as a constitutional rule, is the only 
 safeguard against an invasion of the well recognized 
 police power of the several States. Any other result 
 would involve a denial, to the States, of a power, which 
 they have never surrendered to the federal government, 
 and would give rise to the implication, that the States may 
 receive, from Congress powers, which it does not possess, 
 a doctrine, as repugnant to the whole federal theory, as it 
 is to the independent existence of the States itself. 
 The States having, therefore, the constitutional power 
 
 *i40 U. S., S4S (564-5). 
 
240 COMMERCIAL POWER OF CONGRESS. 
 
 to impose a license fee, upon sellers of intoxicating li- 
 quors and other noxious articles of commerce, within 
 their respective jurisdictions, they may do so either 
 directly or through the instrumentality of one of its 
 municipal corporations; and a special license tax, im- 
 posed by such a corporation, so authorized by the State, 
 for the privilege of selling beer, is not obnoxious to the 
 commercial clause of the Constitution of the United 
 States.* 
 
 In like manner, a State may impose a license tax, 
 either directly, or through a municipal corporation, upon 
 the keepers at a ferry, for boats owned by them, and 
 used in the transportation of passengers and goods, from 
 a landing in the State/ imposing the tax, across a navi- 
 gable stream, to a landing in another State.f 
 
 A state law, however, requiring a license tax to be 
 paid by the owners of commercial articles; or upon the 
 instrumentalities of foreign and inter-state commerce, 
 must be uniform in its operation, and, if the law dis- 
 criminate against goods, or passengers, from outside the 
 State, it will be declared unconstitutional,^ and, even 
 without such declaration, it can have no valid operation. 
 
 But, it has been said, that a license to sell liquors, 
 under the revenue laws of the United States, providing 
 for the establishment of collection districts, embracing 
 the Territories, where the Indians reside, does not have 
 the effect of conferring an absolute right, upon the H- 
 
 *Downham v. City of Alexandria, 10 Wall., 173. 
 tWiggins Ferry Co. v. East St. Louis, 107 U. S., 365. 
 jWelton V. Missouri, 91 U. S., 275. 
 
FEDERAL POWER OF REGULATION. 24I 
 
 censee, to sell liquors, for the reason, that such a license 
 does not authorize the introduction of liquors into the 
 Indian country, contrary to the laws established by Con- 
 gress, for the government of these Territories.* 
 
 A license granted by the United States, being, like any 
 other license, a personal privilege, is revocable, at the 
 pleasure of the government; it ceases with the death of 
 the licensee, and cannot be transferred, or alienated.f 
 Therefore, when a law of Congress authorizes the grant 
 of a license to erect and maintain a bridge across a navi- 
 gable stream, the owner of the bridge, in accepting its 
 provisions, takes it, subject tO' the reservation, implied in 
 the grant, that Congress may, withdraw the license, or 
 direct necessary alterations to be made, in the structure ; 
 and, such a license may be withdrawn, at any time, within 
 the discretion of Congress ; and, therefore, it is not neces- 
 sary to first judicially ascertain whether the bridge, either 
 does, in fact, or would, if constructed, under the license, 
 materially obstructs the navigation of the stream, over 
 which it is built; and, if in the judgment of Congress, 
 the public interest require the bridge to be removed, 
 or alterations to be made in the manner of its construction, 
 the United States is not liable to make compensation to 
 the owners, for loss occasioned, by what was directed to 
 be done, although the bridge, so far as it may have pro- 
 gressed, was constructed in substantial compliance with 
 the provisions of the law, relating to its construction.^ 
 
 ♦United States v. 43 Gallons of Whiskey, 108 U. S., 491. 
 tDe Haro v. United States, S Wall., 599. 
 JNewport & Cincinnati Bridge Co. v. United States, 105 U. S., 
 470. 
 
242 COMMERCIAL POWER OF CONGRESS. 
 
 Whenever it may be determined, that the federal 
 power of regulation attaches to any of the subject/of 
 commerce, it necessarily follows, that the power, by 
 virtue of its own operation, carries with it full authority 
 to enforce such regulation as Congress may deem proper 
 to adopt; and, in the exercise of this authority, it may 
 provide for the enforcement of its mandates and for the 
 prevention of any act which rnay interfere with, or ob- 
 struct the due execution of that authority;* and, this 
 may Se accomplished through the means of a civil or 
 criminal proceeding against the offender. However, in 
 reference to the Act of Congress establishing the Inter- 
 state Commerce Commission, in the case of the Inter- 
 state Commerce Commission against Brimson, it was 
 contended, that Congress had no power to pro- 
 vide any method, by which that commission could 
 enforce the provisions of the statute, or compel 
 obedience to its lawful orders, except through 
 criminal proceedings or by civil actions to recover 
 the penalties imposed, for non-compliance with its 
 orders; but, in disposing of this contention, the court 
 held, that, "any such rule of constitutional interpretation, 
 if applied to all the grants of power made to Congress, 
 would defeat the principal object for which the Con- 
 stitution was ordained."t and, so ruled, in reference to 
 the facts, presented in that case, and under which its de- 
 termination was had. 
 
 Hence, the power to prescribe rules for the regulation 
 
 *In re Debs, 158 U. S., 564 (581). 
 tiS4 U. S., 447- 
 
FEDERAL POWER OF REGULATION. 243 
 
 of commerce, includes the right, not only to determine 
 what such rules shall be, but also, to declare the liability 
 which shall follow their infraction, and to the extent 
 of the power, vested by the Constitution, in the federal 
 government, whatever Congress may determine, either 
 as a regulation of the subject, upon which it was de- 
 signed to operate, or as a liability for its infraction, 
 is exclusive of state authority ;* and, an Act of Congress, 
 constitutionally enacted, under its power to regulate com- 
 merce among the States and with foreign nations, is 
 binding upon all, and its provisions are as obligatory, as 
 if they were, in terms, embodied in the Constitution 
 itself.t 
 
 As has already been suggested, the federal power 
 of regulation "consists as much in negative as in posi- 
 tive action."! Whence, it follows, that the power 
 to regulate that commerce, which is vested in the 
 federal government, may be exercised, without legisla- 
 tion, as well as with it; and, by refraining from taking 
 any action on the subject, Congress adopts, as its own 
 regulations, those rules, which the common, or the civil 
 law, (where the principles of the civil law prevail), has 
 provided for the government of commercial business, 
 and those which the several States, may have adopted, 
 in the regulation of their domestic concerns, — but not 
 regulating it within the meaning of the Constitution. 
 In fact, it has been held, that congressional action is 
 
 ♦Sherlock v. Ailing, 93 U. S., 99. 
 
 tNorthern Securities Co. v. United States, 193 U. S., 197 (333). 
 
 jpassenger Cases, 7 How., 283 (399)- 
 
244 COMMERCIAL POWER OF CONGRESS. 
 
 only necessary, to cure defects, or to supply omissions 
 in existing laws, as they may be discovered, and to adopt 
 such laws to new developments of trade.f Therefore, 
 in the absence of any action, on the part of the federal 
 government, it is said, Congress exerts its power to reg- 
 ulate commerce and intercourse, with foreign nations 
 and among the States, by willing that it shall be free. 
 
 The mere fact, however, that Congress has not seen 
 fit to prescribe a specific rule, in the exercise of its com- 
 mercial power, it is said, does not affect, in any wise, the 
 power itself ; and, whenever the power is exclusive in the 
 federal government, on account of the natonal character 
 of the subject-matter of its regulation, and, for this 
 reason, admits of but one uniform system or plan of 
 regulation, it has been declared to be so far exclusive 
 in Congress, that no State has the power to make any 
 regulation, which will, in any way, effect the free and 
 unrestricted intercourse with foreign nations, and 
 among the States, as Congress has left it, or which will 
 impose any discriminating burden upon the products 
 of other States, whether they be of the federal Union 
 or of foreign nations, coming to, or brought within their 
 several jurisdictions.* 
 
 So, when the subject-matter of the power falls within 
 the exclusive authority of Congress, that body may 
 alone act in the premises, and, its non-use of the power 
 
 ^ tHall V. De Cuir, 95 U. S., 485. 
 
 *See Welton v. Missouri, 91 U. S., 275; Brown v. Houston, 114 
 U. S., 622; County of Mobile v. Kimball, 102 U. S., 691; Weber, 
 v. Virginia, 103 U. S., 344. 
 
FEDERAL POWER OF REGULATION. 245 
 
 is said to amount a declaration that, it shall be free 
 from all burdens, which might be imposed, by state leg- 
 islation;* therefore, it can never be successfully urged, 
 that the federal govemement has lost its power, by reason 
 of its non-user, because, a power of government, which 
 actually exists is never lost; for, as was said, in the case 
 of the Chicago, Burlington & Quincy Railroad Company 
 against the State of Iowa,f "A good government never 
 puts forth its extraordinary power, except under circum- 
 stances, which require it," for says the court, "that gov- 
 ernment is the best, which, while performing all its du- 
 ties, interferes the least, with the lawful pursuits of its 
 people." 
 
 *Gloucester Ferry Co. v. Pennsylv- nia, 114 U. S., 196. 
 t94 U. S., ISS (162). 
 
 THE END. 
 

 KF 4606 J78 
 
 Author 
 
 Jones, Paiil 
 
 Vol. 
 
 Title Copy 
 
 The commercial power of congress, 
 
 Date 
 
 Borrower's Name