regulation of pilots and fixing their compensation is local in character, and whether the power of Congress to regulate commerce is exclusive or concurrent with a like power in the States was to be determined, not from the nature of the power itself, but from the nature of the subjects over which the power was to be exercised. Whatever subjects of this power are in their nature national or admit only of one uniform system or plan of regulation may justly be said to be of such a nature as to require exclusive legislation by Congress. For many years this question had a stormy time, the Supreme Court varying the doctrine as each case came up. The line is not very straight, but the flexibility of the court is apparent.

Now the question was at rest, the sole inquiry being, Is the subject upon which the law must operate local or national in its nature? If local, the concurrent power exists and State legislation is valid until set aside by Congress. If national, the exclusive doctrine prevails. The doctrine of both exclusive and concurrent power is recognized, and a rule adopted to determine when the power of Congress is exclusive and when concurrent, overruling the license cases in four years, by the same court, with only one change of membership, Mr. Justice Curtis succeeding Mr. Justice Woodbury, deceased, and that great case being no longer authority. In the license cases it had been held that if Congress legislated the State were powerless to act, but in the absence of legislation by Congress, the States could legislate to the extent of regulating interstate commerce. As applied to the New Hampshire case, Congress not having legislated with reference to the transportation of interstate commerce from one State to another, the State of New Hampshire could prohibit the sale in original packages of articles of interstate commerce shipped from Massachusetts. In other words, the silence of Congress gave the States permission to legislate, and if Congress had given permission for the shipment from Massachusetts to New Hampshire the State of New Hampshire could not have prevented the sale in the original package. Now, when the subject of the power is national the silence of Congress is an indication of its satisfaction, and the States can not legislate. Hence the power of Congress is paramount and exclusivea complete and absolute reversal of the license cases.

If the doctrine of this Cooley case had been adopted in the license cases four years before, the judgment in the New Hampshire case would have been reversed. It is both necessary and proper to consider this feature of the subject, because it is generally understood that the doctrine of the license cases prevailed for forty-one years, and, in the interest of the liquor traffic, was overruled at the end of that time; when the fact is articles of commerce were not involved, but the nature of the power of Congress was in question. Liquor was not the subject of controversy in the Cooley case, but local pilotage; and articles of commerce had no influence on the question of power in any case. Now, when the subject of power is national the doctrine of Brown v. Maryland applies. The power of Congress is paramount and exclusive. The right of importation of interstate commerce exists, and as incident thereof sale of the product in original packages is permitted and protected.

Permit me to say the Cooley case weakened the doctrine of exclusive power. The reasoning of the court and conclusions reached

are not at all satisfactory to my line of thought, although conceding, as I have, that at the time of its adoption the rule was a settlement of a vexed question. While disagreeing with the court in its reasoning and conclusions reached, I concede that the court had the power to make the rule and that it is binding and should be respected.

In 1888 Bowman v. C. and N. W. Ry. Co., reported in 125 U. S., 465, was decided. It has often been said this case was an unwarranted interference with the right and power of the States, reversing the license cases. But not so, for the case made no change in the law or doctrine of the license cases as far as this question is concerned. The license cases held that in the absence of legislation by Congress the States could prevent the sale of interstate liquor in original packages, leaving open the question of the right of the importer to take the liquor into a State; but as far as anything was said upon the subject, especially recognizing the right of importation while denying that the right of importation gave the right to sell.

Mr. Justice Woodbury said, in the license cases, page 620:

The idea, too, that a prohibition to sell would be tantamount to a prohibition to import does not seem to me either logical or founded in fact. For even under a prohibition to sell a person could import, as he often does, for his own consumption and that of his family and plantations, and, also, if a merchant extensively engaged in commerce often does import articles with no view of selling them here, but of storing them for a higher and more suitable market in another State or abroad.

Mr. Justice Matthews, speaking for the court in the Bowman case, page 479, says:

From this analysis it is apparent that the question presented in this case was not decided in the license cases. The point in judgment in them was strictly confined to the right of the States to prohibit the sale of intoxicating liquor after it had been brought within their territorial limits. The right to bring it within the States was not questioned; and the reasoning which justified the right to prohibit sales admitted, by implication, the right to introduce intoxicating liquor, as merchandise, from foreign countries, or from other States of the Union, free from the control of the several States, and subject to the exclusive power of Congress over commerce.

So far the law is the same and the two cases stand together. The right of importation is recognized in this case. The defendant railway company refused to accept beer in Illinois for delivery in Iowa, because the Iowa statute forbade transportation. These were the facts, and the law of the case can be as briefly stated. The court held that interstate commerce required delivery to the consignee, but did not decide that the consignee had a right to sell, as the right to sell was not involved, and, as said, this case is in absolute harmony with the license cases on this point.

Two years later Leisy v. Harden (135 U. S., 100) appeared. Plaintiff's shipped beer into Iowa for sale in violation of the laws of the State of Iowa. The same was seized by the defendant, an officer of that State. The plaintiffs, contending that the legislation of Iowa was unconstitutional and void, brought replevin for their property in the State court. The trial court held with the plaintiffs. The supreme court of Iowa on appeal reversed the judgment, holding the legisla tion valid. The Supreme Court of the United States reversed the supreme court of Iowa, holding that the plaintiff's had a right to ship their beer into Iowa, and, as importers of interstate commerce, had

a right to sell their product in original packages. This case being in harmony with Brown v. Maryland and the Cooley case.

The opinion of the court is interesting for what is said by Fuller, C. J., who, writing the opinion of the court, took directly opposite grounds to what the same court had heretofore said on the same subject and to his democratic predecessor, Chief Justice Taney, as expressed in the license cases, forty-two years before, as to the exclusive power of Congress and as to the power of Congress to surrender its power over interstate commerce to the States. Taney, C. J., said in the license cases that the Federal power was exclusive whenever Congress legislated, but that the silence of Congress gave the States the right to legislate.

Fuller, C. J., writing the opinion of the court in Leisy v. Harden, follows the Cooley case and holds that when the subject of the power is national the power of Congress is exclusive, and in that case the silence of Congress is an indication of its satisfaction, and that interstate commerce is national in its character and must be governed by a uniform system so long as Congress does not pass any law to regulate it or allow the States so to do.

The dangerous doctrine is openly and pointedly advanced in this case to the extent that Congress can surrender its control over interstate commerce to the States. The suggestion of Fuller, C. J., is important as being so directly opposite on both propositions to that of Chief Justice Taney, and is important in view of the legislation that followed the suggestion. Chief Justice Taney said, page 579: The controlling and supreme power over commerce with foreign nations and the several States is undoutedly conferred upon Congress.

And, page 580, he further said:

But it is equally clear that, as to all future laws by the States, if the Constitution deprived them of the power of making any regulations on the subject, an act of Congress could not restore it. And if the grant of power

to the United States to make regulations of commerce is a prohibition to the States to make any regulation upon the subject, Congress could no more restore to the States the power of which it was thus deprived than it could authorize them to coin money or make paper money a tender in the payment of debts or to do any other act forbidden to them by the Constitution.

This declaration from a great jurist, unquestionably correctly expressing the law, remained in force until the Supreme Court announced this new and contrary doctrine. While so far this question has been confined principally to liquor, it will in the future cause an immense amount of trouble. No doubt it is a little late in the day to discuss the constitutionality of a question that the Supreme Court of the United States has unanimously decided to be constitutional, yet with all due respect to that great tribunal, whose decision is final, the attention of the country should be directed to the subject.

The Supreme Court is all the authority wanted to sustain my contention. That court has many times decided, and now unanimously agree, that intoxicating liquor is interstate commerce. Interstate commerce is national in character and must be governed by a uniform system. When the subject of the power is national in character, the power of Congress is exclusive. When the power of Congress is exclusive, the States can not legislate. Congress can not enlarge the power of the States. Yet the learned Chief Justice says

in In re Rahrer that "Congress has now spoken." This certainly must be held to mean that Congress has given permission to the States to act.

In the case of Vance v. Vandercook, Mr. Justice Shiras dissented; and his opinion was concurred in by Chief Justice Fuller and Mr. Justice McKenna, and in part said:

In the few observations I shall submit it will be assumed, as well as settled, that before the passage of the act of August 8, 1890, known as the Wilson Act, it was not within the power of any State to forbid the importation of wines and liquors from foreign countries or other States, nor their sale in the original packages, nor to subject such sale to discriminatory taxes or regulations. (Walling v. Michigan, 116 U. S., 446; Bowman v. Chicago Railway Co., 125 U. S., 465, 507; Leisy v. Hardin, 135 U. S., 100; Lyng v. Michigan, 135 U. S., 161.)

Here is a strong judicial statement that the power of the States has been increased by Congress and that by Congressional legislation the States are permitted to regulate interstate commerce. Does it not follow that the States can not legislate without consent of Congress! Does not the Supreme Court say that Congress can not enlarge the power of the States? According to the reasoning of Mr. Chief Justice Fuller, how can Congress convey authority? As will be seen, legislation by Congress is both unnecessary and void. Unnecessary because, if the States can legislate at all, they can legislate without consent of Congress. Void because Congress is incapable of conferring legislative power upon the States. It will be conceded by all that without the legislation of 1890 the States would have to be gov erned by the doctrine of Brown v. Maryland, and could not exercise any power until after sale by the importer or the original package broken or it became a part of the general mass of property in the State. I contend and think that it will also be conceded by all that the States derive their power to prevent sale in the original package by the act of 1890.

In other words, derive their power from Congress to regulate interstate commerce. It ought not to require argument to prove that the States can not derive any legislative power from Congress. Originally the States enjoyed all legislative power and expressly reserved all powers not delegated to the United States by the Constitution. What legislative power the States can exercise they did not derive from Congress; hence the unconstitutionality of the act of 1890 and proposed similar legislation. For, as said by Mr. Justice McLean, dissenting, in Cooley v. Board of Wardens, "Congress can not transfer to the State legislative power." The opinion of the court in the same case says: "If the States were divested of the power to legislate on this subject by the grant of the commercial power to Congress, it is plain this act (local pilotage fees) could not confer upon them power thus to legislate. If the Constitution excluded the States from making any law regulating commerce, certainly Congress can not regrant or in any manner reconvey to the States that power."

All of the cases that have spoken on the subject concede that if the Constitution of the United States excludes the States from legislating, Congress can not confer power of legislation upon them. So the question is as to the exclusive power of Congress. If the power of Congress is exclusive the States can not legislate, even with the consent of Congress. If concurrent with a like power in the States, the States can legislate without the consent of Congress, and the legis

lation becomes effective until changed by subsequent Congressional legislation. So in either or any event Congressional intervention is unnecessary. And when the power of Congress is exclusive, legislation by Congress permitting the States to legislate is void. Ever since the case of Cooley v. Board of Wardens it has been settled, as far as this question is concerned, that the power of Congress is exclusive. It is settled that when the power of Congress is exclusive the States can not legislate, and that Congress can not confer power upon the States to legislate. Holding in Cooley case is: "Whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress."

This rule has been approved by the Supreme Court every time it came before that body, and the same court has many times held that liquor is commerce and that interstate commerce is national in its character. Therefore I would respectfully ask any student of constitutional law to tell me how Congress can allow the States to regulate interstate commerce. Chief Justice Fuller, writing the opinion of the court in In re Rahrer, concedes this. While upholding the legislation that transfers power to the States, the case is not an authority against my contention. Is not the learned Chief Justice mistaken? For Congress has delegated power to regulate commerce. If not, where does the States obtain the power to say the importer shall not sell his product, under Brown v. Maryland and Leisy v. Hardin? Further the learned Chief Justice has said, "Congress can not grant a power to the States not possessed by the States. Does not the act grant to the States the right to prevent a sale, a power not before enjoyed by the States?"

Independently of the decision of the Supreme Court the surrender by Congress of this great grant of power can not be successfully defended. It is not my desire or purpose now to make the argument that could or can be made against the surrender of this power. Independently of what the Supreme Court has said one has only to consider the reasons for conferring that power upon Congress, and what has been said since that time, including the arguments of Hamilton, in the Thirty-second Federalist, and Chief Justice Taney, to be satisfied of the correctness of this conclusion.

It may be worth while in this connection to repeat more fully what Chief Justice Marshall said in Brown v. Maryland:

The oppressed and degraded state of commerce previous to the adoption of the Constitution can scarcely be forgotten. ** Those who were capable of estimating the influence of commerce on prosperity of nations perceived the necessity of giving the control over this important subject to a single government.

* *

It may be doubted whether any of the evils proceeding from the feebleness of the Federal Government contributed more to that great revolution which introduced the present system than the deep and general conviction that commerce ought to be regulated by Congress.

This power having been conferred upon Congress in order to prevent State interference with interstate commerce, it must be regarded as exclusive to the extent that Congress can not delegate or surrender any part of this power to the States. If it was necessary to deprive the States of this power and transfer the same to the Federal Government, it is much more important now when we have so many States, with such diversified and conflicting interests. As Chief Justice