RULE IN PENNSYLVANIA.

425

to compensate the person whose interests are sacrificed for their benefit. The artificial rule laid down in Pennsylvania that to constitute a taking and give a claim to indemnity there must be an "assumption" of possession on the part of the State or her delegates, as well as a dispossession of the owner, or, in other words, that so long as his land is not entered upon or occupied for a public purpose, it may be submerged or rendered unfit for use or habitation, is contrary to the main current of decision, and has been repudiated in New York, and by the Supreme Court of the United States (ante, pp. 386, 388).

The main object of the convention which framed the amended Constitution of Pennsylvania in 1874 in providing that "corporations or individuals invested with the privilege of eminent domain shall make just compensation for private property taken, injured, or destroyed in the construction of their works, highways, and improvements," was to erase this blot and afford a remedy wherever an injury is inflicted for a public purpose, and would have afforded a ground for compensation had it not been authorized by the legislature. See Rigney v. Chicago, 102 Ill. 79; ante, p. 418. It may well be, as the court held, that the convention did not intend to make corporations or individuals answerable in damages for acts done on their own land, and that would not have been actionable had no authority been given by the State; but they obviously did intend to confer a right to damages wherever a legislative authority is relied on as a justification for acts that would operate as a nuisance or deprivation at common law (ante, pp. 396, 418).

The conclusion reached in Lippincott v. The Pennsylvania R. R. Co. would also seem questionable on another point. Limiting the right of action to cases where the loss is occasioned by the "enlargement or construction" of a railway or other public work, as distinguished from its "operation," renders the remedial clause above referred to almost a dead letter, because in a great majority of instances the loss results, not from the grading of the roadbed or laying of the rails, but from the uses to which they are put.

A traction or horse railway, as experience shows, may be laid through a populous town not only without detriment, but advantageously to traffic and the property owners on either side; but the case is widely different where locomotives are used, with the attendant noise, dust, cinders, and smoke. It is therefore illogical and unjust, in assessing damages for the construction of a railway under a legislative grant, to disregard the purpose for which the road was chartered, and not only may but must be employed; and the work and all that will necessarily follow from it should, on the contrary, be viewed as a whole. Such is the established rule where the track is laid on the plaintiff's land or in the street in front of his dwelling; and the convention cannot reasonably be supposed to have intended to confine the right of action for the damages occasioned by the construction of a railway on land acquired from third persons

within narrower bounds, which would exclude the "operation" of the road and make the remedy unavailing.

The measure of damages in such cases would seem equally clear. Where suit is brought for a deprivation not authorized by law, the recovery is limited to the amount of loss sustained at the time of action brought or verdict rendered, because the presumption is that the defendant will desist from a course which the judgment shows to be erroneous, and if he does not, the plaintiff may have redress through an injunction, or successive verdicts may be rendered for exemplary damages until the nuisance is abated. Such a rule is obviously inapplicable where the act complained of is sustained by the legislature for a public end, and the wrong consists not in what is done, but in the failure to make compensation. Under these circumstances the case falls within the principle of eminent domain, because the defendant not only may, but ought to persist, and justice requires that the controversy should be closed at once, by giving the plaintiff the full amount of the depreciation occasioned for the common benefit.

LECTURE XXI.

Regulation of Commerce. -Internal and Foreign Commerce of the Colonies before the Adoption of the Constitution. - Nature and Extent of the Power to regulate Commerce given to Congress by the Constitution. Relation of Treaties to Legislation. - Purely Internal Commerce. Trade-marks. — Judicial Regulation of Commerce. - Conflict of State and Federal Jurisdiction. - Federal Power over Commerce, how far exclusive. State Power over Commerce. Pilotage. Quaran

tine.

Improvement of Harbors and Rivers.

THE trite remark, that free institutions are favorable to the growth of trade, is abundantly verified by the colonial history of the United States; but other causes contributed to the development of the marvellous commercial enterprise which characterized that period and afforded an outlet for the energy which has since been manifested in so many ways. A country peopled by an adventurous race, with a long line of coast indented by innumerable bays, could hardly have been insensible to the benefits of commerce under any form of government. Before the introduction of manufactures, and while the far-stretching West was still unexplored, the sea was the only theatre where the New England man could gratify the love of adventure, the desire for gain, the thirst for success, which are such marked features of his nature. His ships soon visited every shore, and explored the unknown recesses of the most distant seas. Such maturity of enterprise in a people who were still in the gristle, and had not hardened into the bone and sinew of manhood, struck the vivid fancy of Burke and became the theme of one of his most eloquent speeches. Philadelphia was also noted as a commercial centre; and if the Southern States were chiefly devoted to agriculture, they were still, in another sense, dependent on commerce as the means of exchanging their

great staples, wheat and tobacco, and at a later period rice, for the luxuries and comforts afforded by the arts and sciences of Europe. That a people whose sails might be descried on every sea, and who had long been secure under the protection of Great Britain, should be unable, from their feeble and disunited condition, to make their flag respected abroad, or even beneath the shadows of their own headlands, was one of the mortifications which were experienced under the Confederation, and induced the wish for a stronger government. This evil might have been endured in the hope that it would disappear as increase in wealth and population rendered America an enemy which it would be dangerous to provoke ; but there was another that demanded an immediate remedy. The trade of a great and growing people, who in interest, language, boundaries, and religion, were really one, was under the existing system regulated by the legislatures of thirteen distinct and petty sovereignties which could not reasonably be expected to unite in any general or common principle. The States which held the bays and rivers which were the great avenues of commerce, endeavored to take an undue advantage of their position. The other States resorted to retaliation. A license to sail from New Haven or from Philadelphia was not a license to land in Rhode Island or New York. New York might, and as we shall see did, pass laws excluding steamers owned in New Jersey or Connecticut from her waters, and those States were not slow to imitate the example set by New York. It was conceivable that similar barriers might be raised between Philadelphia and Burlington or Wilmington. The States might discriminate in favor of their own vessels by imposing higher rates of tonnage on vessels coming from other States. Where uniformity was essential there was not only a want of order and method resulting from the absence of any fixed or general rule, but the disorder and confusion which different and inconsistent rules naturally tend to produce. One of the reforms urgently demanded by the public voice, and introduced by the Convention, accordingly was that Congress should be empowered "to regulate commerce with

GIBBONS v. OGDEN.

429

foreign nations, among the States, and with the Indian tribes."

This power was exercised from the outset of the government, but did not receive a judicial construction until 1824. It was then established by Chief-Justice Marshall on a basis that has not been shaken. His judgment gave at once the measure of the authority of Congress, and showed how far the grant to the United States operated as a prohibition to the several States. The history of the controversy would be enough, without other proof, to show the evils that attend on State legislation where the subject is one of national concern.

During the first years of this century the State of New York granted to Robert R. Livingstone and Robert Fulton the exclusive navigation of all the waters of that State by boats moved by fire or steam; and Ogden, claiming under the grantees, filed a bill alleging that Gibbons, the defendant below, was in possession of two steamboats which were actually employed in running between New York and Elizabethtown, in violation of the complainant's privilege, and praying that Gibbons might be enjoined from using the said boats, or any others propelled by the same means, within the territory of New York. The answer set forth that the boats employed by Gibbons were duly enrolled and licensed to be used in carrying on the coasting-trade under the act of Congress passed February 19, 1793, entitled, "An act for enrolling and licensing vessels to be employed in the coasting-trade, and for regulating the same," and insisted that the defendant was thereby entitled to navigate the waters between New Jersey and New York, notwithstanding the exclusive privilege granted by the legislature of the latter State to the complainant. A perpetual injunction having been awarded by the Chancellor, and the decree affirmed in the Courts of Errors, the case was brought before the Supreme Court of the United States by appeal.

The two questions arose on the facts as set forth of record which are involved in all the enabling clauses of the Constitution, one as to the nature and extent of the grant to the

1 Gibbons v. Ogden, 9 Wheaton, 1.