(2.) A second theory insists that the states

statutes on the same particular subject. denies that the power is exclusive, and may at all times proceed to regulate commerce, even though Congress has already assumed to act. In other words, this theory maintains, as a general doctrine of constitutional construction, that United States laws and state laws touching the self-same subject-matter may exist side by side, and be executed together, except in the few cases where the several states are expressly forbidden to legislate. (3.) The third theory is, in a measure, a compromise between these two extremes. It concedes that when Congress has acted, and while its statute remains operative, the states are debarred from taking any steps on or about the subjects embraced within the national legislation; but insists that when Congress has not acted in reference to any particular subject-matter involved in the general grant of power, the field is open for state legislation. In other words, this system of construction denies that the mere constitutional grant ipso facto confers exclusive jurisdiction upon the national legislature; and declares that only the provisions of the organic law, and the statute of Congress passed in pursuance thereof taken together, can vest the entire control over the subject in the general government.

§ 324. I shall not stop to discuss the second of these theories. It is the direct outgrowth of that more general system of interpretation which would make the states sovereign, and the Union a partnership. If generally adopted, it would soon bring back the calamitous condition of the early Confederacy. It has never been assented to by a majority of the Supreme Court, or by many of the state tribunals. A few judges only have asserted and maintained this dogma.

The other theories have each been supported by eminent judges, jurists, and statesmen. I think that the Supreme Court of the United States has hardly been consistent upon this point. At an early day some of its members plainly and unequivocally advocated the construction that the grant of power to regulate commerce was, by its very terms, absolutely exclusive; that the states could, in no case, assume to exercise it. It has often been claimed that the court itself was

committed to this position, although the claim has been opposed. Certainly at a later period the court abandoned this high ground, and gave in its adherence to the third system of interpretation. In the very latest reported case involving the relations of the nation and the states to each other, (1865,) language is used which would seem to imply that the Supreme Court had receded still further from its ancient doctrine, and was willing to accord greater powers of legislation to the states than had previously been allowed. It may be, however, that the change is not in the formal statement of the rule, but in its application under new circumstances to new states of fact.

§ 325. What is the commerce which Congress has the power to regulate? C. J. Marshall devotes a considerable space in one of the cases to be quoted hereafter, to prove that commerce includes not only traffic, or the interchange of commodities, but navigation, or the transit of goods from one country to another. Hautefeuille, one of the latest French writers on international law, labors with some diligence to show that commerce consists not only in navigation or transit, but also in interchange or traffic. It would seem that both these propositions were self-evident. In fact, the word as commonly used, and as employed in the Constitution, expresses two ideas, embraces two elements, both necessary to its full meaning, navigation or transit, and interchange or traffic. Regulations of commerce, therefore, may be rules governing, or applying to, either or both these elements; they are no less regulations of commerce because they relate to but one. A statute making rules respecting the ownership and use of shipping is a regulation of commerce, although it affects one element only, that of navigation; a statute providing for the deposit of imported goods in public bonded warehouses, is also a regulation of commerce, although it applies only to the other element, interchange or traffic. These propositions are sustained by all the cases which involve the question, as will be seen in the sequel. § 326. But the Constitution does not confer upon Congress an absolute and unlimited power over commerce. Only that with foreign nations, among the several states, and with the

1 Droits et Devoirs des Nations Neutres, tom. 1, tit. 2.

Indian tribes is placed under the control of the national legislature. The transit and traffic, therefore, which are entirely within the boundaries of a particular state, are completely subject to the jurisdiction and legislative capacity of that state. Congress has no direct power over them, and no power at all except such as may result incidentally from the exercise of some other attribute. But when the transit or traffic passes from one state to another, or when it passes from any portion of the country to a foreign nation, the power of regulation by Congress comes in play, to be exercised at will. As a fact, the legislature has availed itself of its function in respect to foreign commerce to such an extent as to shut out all opportunity to act by the several states. Commerce between the states has not been thus completely subjected to national legislation.

§ 327. Before proceeding to consider in detail the relations. between the general government and the states, it will be proper to ascertain the reasons which led the framers of the Constitution and the people to confer the power over commerce upon Congress. These reasons will aid us in giving a correct construction to the instrument; they will throw light upon the intention of those who made and adopted the organic law, and upon the meaning of the language they used. The particular grounds which were decisive in favor of the provisions in question, are stated in a most accurate, condensed, and simple manner by Mr. Justice Marvin, and I shall not hesitate to quote his language.1 "There existed at the time of the adoption of the Constitution thirteen states, and it was understood that this number would be increased. Each of these states possessed powers common to all independent nations, of regulating their own commerce and the law of contracts; of making money or declaring what should constitute money; and, of course, what should pay debts. They could emit bills of credit; issue their own paper money, and make it receivable in payment of debts. They could discriminate, in regulating commerce, in favor of their own citizens, and against the citizens of other states or nations. Under such 1 Metropolitan Bank v. Van Dyck, 13 Smith's (27 N. Y.) R. 508.

circumstances it was obvious, indeed it was already proved, that there could be no such thing as harmony touching any of those matters. Most of the then states possessed harbors upon the ocean, and were engaged in foreign commerce, and commerce among themselves. There could be no uniformity of regulations touching such commerce. Some of the states tried to agree upon a system among themselves, and failed. The system of one state would nullify the system of another. Free importations by one state would render impracticable the systems of other states imposing duties for revenue or for the protection of home industry. Embarrassing and unreasonable regulations touching commerce between the citizens of one state and those of other states would be made. Each state might have a moneyed system unlike that of any other state. Commerce between the citizens of one state and those of other states might be prohibited and destroyed. The confederacy had no power to derive a revenue from importations, nor had the states practically this power, as they would never be able to agree upon a common system, and owing to their geographical positions, any system other than free trade would be practically nullified by the action of the other states.

§ 328. "This state of things could not last. The people were powerless to protect their interests. A change was necessary, if they were to indulge hopes of future prosperity. This practically powerless condition of the people was an important, if not the most important, reason for making an effort to devise a remedy; and the remedy devised was the Constitution. A leading object of the Constitution was to get rid of all conflicting commercial interests, and, as to commerce, to effect a union of all the people of all the states, great and small, and make them one people, one nation, without divided interests, and without the power, as states, to produce divided interests or conflicts. This was a leading idea in favor of the Constitution, and to me it has always seemed the most valuable one.

"Was this idea carried into effect by the Constitution? I think it was clearly and fully. It required several provisions to effect the object; some conferring powers on the new gov

ernment; others prohibiting the exercise of certain powers to the state governments. Hence were granted the powers: to regulate commerce with foreign nations, among the several states, and with the Indian tribes; to establish uniform laws on the subject of bankruptcies throughout the United States; to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. The prohibitions upon the states, in connection with commerce, are, that they shall not lay duties on imports and exports, emit bills of credit, make any thing but gold and silver coin a tender in payment of debts, or pass any law impairing the obligation of contracts. These provisions, I think, accomplish the object intended, namely, the committing to Congress, the common representative and agent of all the people, the exclusive power to establish a uniform system of commerce throughout the United States. All these powers have a very important connection with, and relation to, commerce, over which the common government was to exercise great, if not exclusive, control for the common benefit of all the people of all the states."

§ 329. We are now prepared to examine with care the most important question proposed to ourselves, what capacity to legislate on the subject of commerce resides in the nation and in the states respectively? Or, in other words, is the power to regulate held by the general government exclusively, or is it shared by the local commonwealths? So far as the decisions of the ultimate tribunal upon constitutional interpretation now stand, the following propositions seem to be established: (1.) The several states have power to pass laws regulating the internal police of their own territories, which territories include navigable rivers and harbors, as well as unnavigable streams, and the land itself. These police measures are not, in any true sense of the term, regulations of commerce, although they may sometimes have direct reference to shipping, to the condition of harbors and other instruments by which commerce is carried on, or to the commodities themselves which are the objects of interchange and traffic. They are simply a part of the general system by which each state endeavors to protect the good morals, lives, health, persons,