to regulate its own internal affairs. These views are much in harmony with those expressed by Mr. Justice McLean in the License cases. Referring to the case of Brown v. Maryland, he said (5 Howard, 595):

But neither the facts nor the reasons of that case apply to a person who transports an article from one State to another. In some cases the transportation is only made a few feet or rods, and generally it is attended with little risk, and no duty is paid to the Federal or State Government. And why should property when conveyed over a State line be exempt from taxation which is common to all other property in the State?

He also said:

If the mere conveyance of property from one State to another shall exempt it from taxation, and from general State regulation, it will not be difficult to avoid the police laws of any State, especially by those who live at or near the boundary.

It is true that the court in the License cases did not rest its decision upon this ground, but upon the general ground that in the absence of legislation by Congress the States had the power to regulate interstate commerce, a rule that was departed from long before Leisy v. Hardin. As has already been stated, the court laid down the true rule in Cooley v. Board of Port Wardens, which was, and is, that the absence of legislation by Congress is equivalent to the declaration that commerce "which consists in the transportation, purchase, sale, and exchange of commodities" shall be free. This rule has been uniformly adhered to since. The court, however, in the License cases did not carry their rule of the power of the States to regulate commerce, in the absence of legislation by Congress, to the extent of empowering the States to prohibit the importation, transportation, and delivery of commerce, but only to the extent of empowering the States to regulate the sale thereof.

Mr. Justice Woodbury, in these cases, said (5 Howard, 619): And what power or measure of the General Government would a prohibition of sale within a State conflict with if it consisted merely in regulations of the police or internal commerce of the State itself? There is no contract, expressed or implied, in any act of Congress that the owners of property, whether importers or purchasers from them, shall sell their articles in such quantities or at such times as they please within the respective States. Nor can they expect to sell on any other or better terms than are allowed by each State to all its citizens, or in a manner different from what has com ported with the policy of most of the old States, as well before as since the Constitution was adopted. Any other view would not accord with the usages of the country, or the fitness of things, or the unquestioned powers of all sovereign States, and, as is admitted, even of those in this Union, to regulate both their internal commerce and general police. 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.

The idea now being suggested was clearly in the mind of this great jurist, and yet he did not rest his conclusion upon it, but upon the ground that Congress had not legislated. He clearly, however, in his opinion, did not give to the States, under the power to regulate the sale, the power to prevent importations. Mr. Justice Matthews. in the Bowman case (125 U. S., 479), in reviewing the License cases, said:

The right to bring it (intoxicating liquors) within the State was not questioned.

Unquestionably, in the opinion of the writer, a State has the power to regulate its internal commerce, and when liquor or any other commodity is received by one of the citizens from another State, it has the power or ought to have, as a part of its sovereignty, to regulate or

prohibit the sale of such liquor or commodity, provided always that it applies the same rule to the imported article that it applies to the domestic article of the same class.

Such power by the State does not interfere in the slightest with the power of any other State. It is simply the power of a State to regulate its internal commerce. While one State has the power to permit its citizens to sell and contract for the transportation and delivery of the article sold to a citizen in another State, it has no power to confer upon the citizen of such other State the power to sell the article after he receives it. The selling State has no relations of any kind with the citizen of the receiving State, and no power to confer upon him the right of sale or to confer any rights or privileges whatever. Such citizen of the receiving State is subject alone to the police power of his own State.

In conclusion, whether these views be well founded in reason or not, they have become the law, so far as applied to intoxicating liquors, not by virtue of any decision of the Supreme Court, but by virtue of the enactment by Congress of the Wilson law. The effect of Leisy v. Hardin has been completely overcome and each State now regulates within its territory the sale of all liquors. It ought to be privileged to regulate in the same way the sale of all other commodities except foreign importations sold one time in the original package. The importation into one State of liquors and other commercial commodities from another State must continue to be permitted under the Constitution; for importation, transportation, and delivery constitute "interstate" commerce which the States can not interfere with. The selling of the liquors, after they are imported, is an "incident" of commerce, but not a part of it, and the States under the Wilson law can and ought to control that under their police power. H. R. 16479 is in the direction of giving to the States more complete power in the matter of "sales" and is, therefore, in consonance with the Constitution. Congress can not by any form of permission or consent confer upon the States the power to do more than control sales, and hence the conclusion is reached that H. R. 16479, being limited to sales, goes as far as Congress is permitted to go in conferring power upon the States to regulate the liquor traffic. As urgent and as insistent as may be the demand for departing from the long-established rule of the freedom of commerce, and potent as may be the reasons therefor, it is believed that it is more urgent and more necessary that the Constitution shall be preserved.

VIEWS OF MR. PARKER.

I am in favor of a bill on these lines with proper amendment. I think legislation on these matters hardly necessary. But if any law is to be passed I prefer legislation as to C. O. D. deliveries as proposed by this bill, amending the same as suggested in my discussion of the Littlefield bill (H. R. 13655).

O

RICHARD Wayne ParkeR.

24

CHANGING TIME OF HOLDING CIRCUIT AND DISTRICT COURTS IN MIDDLE DISTRICT OF TENNESSEE.

FEBRUARY 1, 1907.-Ordered to be printed.

Mr. REID, from the Committee on the Judiciary, submitted the following

REPORT.

[To accompany H. R. 25034.]

The Committee on the Judiciary, to whom was referred H. R. 25034, which reads as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the term of the circuit and district courts of the United States for the middle district of Tennessee, held at Nashville, shall commence on the first Monday in April each year instead of the third Monday in April, as now provided by law.

having had the same under consideration, recommend that the bill do pass.

The bill has been agreed to by all the judges interested. The proposed change will enable the circuit judge to so designate the district judges for interchange under existing law as to relieve the situation that exists and prevent the necessity for passing a bill providing for an additional judge.

Attached hereto and made a part hereof are certain letters and telegrams from the judges and others, from which the necessity for the passage of the bill more fully appears.

COMMITTEE ON RIVERS AND HARBORS,

HOUSE OF REPRESENTATIVES, Washington, D. C., January 28, 1907. DEAR JUDGE: Mr. Brownlow a few days ago introduced a bill to change time of holding Federal courts in Tennessee. Judge Clark, one of our district judges, writes to me that this change has been agreed upon by himself and our other judge (McCall) and Circuit Judge Lurton, and requests me to urge your committee to report the bill and have it passed at once. The proposed change will enable the circuit judge to so designate the district judges for interchange under existing law as to relieve the situation, and to prevent the necessity of

passing the first bill introduced by Mr. Brownlow, or for an additional judge. This arrangement is so important for clearing the dockets of the Federal courts in our State that I hope you may get the bill passed at once.

Very truly, yours,

Hon. JOHN J. JENKINS,

JOHN A. MOON.

Chairman Judiciary Committee, House of Representatives.

UNITED STATES DISTRICT COURT,

JUDGE'S CHAMBERS.

St. Augustine, January 26, 1907.

MY DEAR SIR: Confirming my telegram to you to-day, would say I have a letter from Judge McCall saying definitely he will take criminal docket at Nashville regularly under designation. I have an impression he and Judge Lurton have reached this result and I accept the situation, as I want to be agreeable. The bill would have been better, but this will do that is, McCall and Lurton can make it do, and this they will. Now I am worried for fear you have not time to pass the bill to change dates of courts. Can you just make your bill one to do this much by change in caption and body and get it on its passage at once? Can substitution help? Please think of these points to gain time and see if you can make it take a steady rush clear through. Would it gain time for you to have it going through House and Senate at same time? You already have the only changes needed, which are at Nashville from first Monday in May to first Monday in April, and then meet this at Chattanooga, changing from first Monday in April to first Monday in May. I want to put Judge McCall on at Nashville just as quick as may be. On receipt of this wire me Monday or Tuesday, after you look it over, and say if you can certainly pass the bill to change court dates before you adjourn. all good wishes.

Sincerely,

Hon. W. P. BROWNLOW.

With

C. D. CLARK.

UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT,

JUDGES' CHAMBERS, Cincinnati, January 17, 1907.

MY DEAR MR. BROWNLOW: I have received a copy of the bill with reference to the circuit and district courts of middle Tennessee. I see no objection constitutionally or otherwise to the bill as you have drawn it, and so far as I am concerned I am more than willing that it shall become a law. Clark has an unequal proportion of work, and yet I would never agree to see the middle district transferred from Clark to McCall or anybody else. Clark is a great favorite with the lawyers, and they will not agree to lose him. If Judge McCall will take the criminal business and the bankruptcy business of the middle district it will be a great relief to Clark. I have never said anything to Judge McCall about the matter, and I do not know what his views and wishes are. Of course, as you know, I might designate Judge McCall to sit and hold the circuit and district courts at Nashville, and could do that term after term. This would accomplish precisely what your bill accomplishes, providing Judge McCall should be willing to serve under a designation at such regular times as would relieve Clark of the criminal and bankrupt business in the middle district. Under my designation it would be Judge McCall's duty to go, but if he did not go I do not know any way that he could be obliged to go, and I certainly would never designate him to do work which he did not wish to do. Judge Clark thinks that he would prefer to have a permanent relation to the court at Nashville through such a bill as you have prepared, and if that is the case I trust you will put the bill through. McCall is liked very much by the lawyers of the middle district, and I think they will be very glad to have him as another one of the district judges of that court. I am,

Yours, very truly,

Hon. W. P. BROWNLOW, M. C.

HORACE H. LURTON.

Washington, D. 0.