for good consideration an undertaking on the part of the agent that the thing which he represented to be genuine was genuine. That contains every element of warranty." 53 In other words, the doctrine that the representation express or implied of an agent that he has authority to act amounts to a warranty is accepted by the House of Lords, but the much older and more firmly established doctrine that a representation by a seller inducing the sale of goods amounts to a warranty is now denied.54 That good old doctrine for the encouragement of trade, known as caveat emptor, has received no such support for many years. HARVARD LAW SCHOOL. 53 [1903] App. Cas. 118, per Lord Halsbury. Samuel Williston. It is interesting to note that this doctrine of agency is barely half a century old, having been first established by Collen v. Wright, 7 E. & B. 301, 8 E. & B. 647 [1857]. W THE MINNESOTA RATE CASES ALTER BAGEHOT has said that "a constitution is a col- lection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless." While it cannot be said that any part of our federal Constitution "does no business," it can be affirmed that there are three of its organs that are now doing so much more than any other that each stands forth as a distinct force incased in a distinct and growing literature of its own. Around the Contract clause of the Constitution a distinct literature has grown up whose beginnings are to be found in the Dartmouth College case. Around the first section of the Fourteenth Amendment a distinct literature has grown up whose beginnings are to be found in the Slaughter House cases. Around the Commerce clause, which vests in Congress the power "to regulate commerce with foreign nations and among the several states, and with the Indian tribes," a distinct literature has grown up whose beginnings are to be found in the famous case of Gibbons v. Ogden, in which the power of Congress to regulate commerce was first defined. It is no exaggeration to say that the three great streams of judge-made law which have been for a long time flowing from the Supreme Court into our national life through the three channels just defined have been and are the unifying and systematizing forces that have made a real national life possible. Through their reciprocal action has been realized Marshall's dream: "That the United States form, for many and for most important purposes, a single nation has not yet been denied. In war we are one people. In making peace we are one people. In all commercial relations we are one and the same people. In many other respects the American people are one. And the government which is alone capable of controlling and managing their interests in all these respects is the 1 Bagehot, The English Const. 4. government of the Union. It is their government, and in that character they have no other. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes her government is complete; to all these objects it is competent. The people have declared that in the exercise of all powers given for these objects it is supreme. It can, then, in affecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a state, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. These states are constituent parts of the United States. They are members of one great empire, for some purposes sovereign, for some purposes Within the domain of reserved state powers is included, said the great Chief Justice, "that immense mass of legislation which embraces everything within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State."3 That reserved power of a state to regulate its internal commerce has recently received a notable and far-reaching recognition in the unanimous judgment rendered by the Supreme Court of the United States, speaking through Mr. Justice Hughes, in the Minnesota Rate Cases; wherein it was held that, subject to certain limitations, "there necessarily remains to the states until Congress acts, a wide range for the permissible exercise of power appropriate to their territorial jurisdiction although interstate commerce may be affected. It extends to those matters of a local nature as to which it is impossible to derive from the constitutional grant an intention that they should go uncontrolled pending federal intervention. . . . Further, it is competent for a state to govern its internal commerce, to provide local improvements, to create and regulate local facilities, to adopt protective measures of a reasonable character in the interest of the health, safety, morals, and welfare of its people, although interstate commerce may incidentally or indirectly be involved. Our system of government is a practical adjustment by which the national authority as conferred 2 Cohens v. Virginia, 6 Wheat. [U. S.] 264 [1821]. by the Constitution is maintained in its full scope without unnecessary loss of local efficiency. Where the subject is peculiarly one of local concern, and from its nature belongs to the class with which the state appropriately deals in making reasonable provision for local needs, it cannot be regarded as left to the unrestrained will of individuals because Congress has not acted, although it may have such a relation to interstate commerce as to be within the reach of federal power. . . . And whenever, as to such matters, under these established principles, Congress may be entitled to act, by virtue of its power to secure the complete government of interstate commerce, the state power nevertheless continues until Congress does act and by its valid interposition limits the exercise of the local authority. (2) These principles apply to the authority of the state to prescribe reasonable maximum rates for interstate transportation. . . . If this authority of the state be restricted, it must be by virtue of the paramount power of Congress over interstate commerce and its instruments; and, in view of the nature of the subject, a limitation may not be implied because of a dominant federal power; that is, one which has not been exerted, but can only be found in the actual exercise of federal control in such measure as to exclude this action by the state which otherwise would clearly be within its province. . . . The question we have now before us, essentially, is whether after the passage of the interstate commerce act, and its amendment, the state continued to possess the state-wide authority which it formerly enjoyed to prescribe reasonable rates for its exclusively internal traffic. That, as it plainly appears, was the nature of the action taken by Minnesota, and the attack, however phrased, upon the rates here involved as an interference with interstate commerce, is in substance a denial of that authority." In solving the weighty problem thus submitted to it, the court recognized the fact that "The controversy thus arises from opposing conceptions of the fundamental law, and of the scope and effect of federal legislation, rather than from differences with respect to salient facts." Those who represented the state contended that "there is practically no movement of traffic between two towns within a state that does not come into competition with some interstate haul," and that "if the disturbance of the existing relation between competitive state and interstate rates is the correct criterion, no reduction can be made in state rates without interfering with interstate commerce." They assailed the decision of the court below, not upon the ground that it incorrectly set forth the conditions in Minnesota and adjoining states, but because of "its plain disregard of the provisions of the federal Constitution, which establish the relations between the nation and the state." The operation of such provisions, they maintained, "was not made to depend upon geography or convenience or competition. They cannot apply in one state and not in another, according to circumstances as they may be found by the courts, because they are vital principles which constitute the very structure of our dual form of government." In that way the court was forced to begin its opinion with a review of the history of the commerce clause of the Constitution, the product of a hopeless condition which "sprang from the disastrous experiences under the confederation, when the states vied in discriminatory measures against each other." Who can doubt that against such mighty forces, all making for disunion, the new national spirit embodied in the existing constitution would have been powerless, despite its nationalizing machinery operating directly on individuals, had it not been for the unifying force of rapid intercommunication? Without the steamboat, the locomotive engine, and the telegraph, existing conditions would have been impossible. A revolution was wrought in the travel and commerce of this country through a transition from the primitive and ineffectual means of transportation by pack-horse, stage, and wagon to the new methods resulting from the application of steam to locomotion on land as well as water. When in 1824 the time came for the Supreme Court to construe the commerce clause in the famous case of Gibbons v. Ogden, it appeared that Chancellor Kent had granted an injunction restraining Gibbons from navigating the Hudson River by steamboats only licensed for the coasting trade under an act of Congress, on the ground that he was thereby infringing the exclusive right granted by the state of New York to Robert Fulton and Livingstone, and by them assigned to Ogden, to navigate all the waters of the state with vessels moved by steam. But that claim in favor of monopoly backed by state power went down before a judgment holding that Congress had exclusive authority to regulate commerce in all its forms, on all the navigable waters of the United States, including bays, rivers, and harbors; free from monopoly, restraint, or interference by state legislation; that the term "commerce" meant, not only traffic, but intercourse; that it included navigation; therefore the power to regulate com |