because forbidden by one or two clauses of the Constitution, but because at variance with the spirit of the whole instrument.

The government of the United States has the right to call for the service of its citizens wherever within its territory it may need them. If the exercise of this right were dependent upon the pleasure of a State, it would be within the power of that State to prevent administration of the Federal government within its limits and seriously to embarrass its operation in other places. If, for example, Tennessee had been able, during the Civil War, to levy a tax on every person entering or leaving the State, the treasury of the United States would not have been sufficient to pay the tax necessary to enable its armies to pass through the State.

As the Federal government has the right to maintain its operation throughout the whole territory which it covers, so every citizen of that government has the right of appeal to it wherever it exists. He has a right of access to its capital, its seaports, sub-treasuries, land offices and courts, and this right is independent of the will of any State over whose soil he must pass in its exercise.

It was a long step toward a new establishment of commercial powers when this opinion was rendered, a step toward the creation of powers which should be free from the restrictions with which the South had, until the war, endeavored to check the national expansion of the Constitution, and yet Crandall v. Nevada in terms applied only to interstate travel. It remained for the case of the State Freight Tax, in 1872, to extend the same rule to the transportation of merchandise from State to State. The Crandall case held, it is said, "that a State cannot tax persons for passing through or out of it. Interstate transportation of passengers is beyond the reach of a State legislature. And if State taxation of persons passing from one State to another, or a State tax upon interstate transportation of passengers is unconstitutional, a fortiori, if possible, is a State

115 Wall. 232, 281.

tax upon the carriage of merchandise from State to State in conflict with the Federal Constitution."

It is probably true, as has often been said, that the Crandall case stood alone, at the time of its decision, in the method of construction which it applied to the Constitution; but since that time its influence may be seen in many decisions of the Supreme Court upon the Federal commercial powers.

Two years after this case came the Fourteenth Amendment, adopted in 1868, providing that:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

The fundamental rights of the citizen, including the right of travel and transportation and the right to engage in commerce,' are by this amendment put within the protection of the Federal Constitution.

This provision includes, within the wide field of its operation, much of the ground covered by the clause of the Constitution which gives to citizens of each State the privileges and immunities of citizens of the several States. It was considered at an early day that among the rights thus secured are "the right of a citizen of one state to pass through, or reside in any other state, for the purposes of trade, agriculture, professional pursuits, or otherwise;" "to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by other citizens of the States."3

The radical differences in the social systems of the different States before the Civil War, and the extent to which the

1 Joseph v. Randolph, 71 Ala. 499; Ward v. Maryland, 12 Wall. 418, 430; Allgeyer v. Louisiana, 165 U.S. 578. Conf. Shepperd v. Commissioners of Sumter County, 59 Ga. 535.

2 Art. IV, sec. 2.

3 Corfield v. Coryell, 4 Wash. C. C. 371, 381.

doctrine of State sovereignty was established, led to a practical repudiation of this provision of the Constitution. Some free citizens of Northern States were denied the right to enter Southern States, and the Southern planters coming North with their slaves found that in the North their property right was denied. This collision was inevitable. A provision giving to citizens of each State the rights of citizens of all the other States can only be effectual when the rights of citizens of the several States are substantially similar. Such a clause cannot give in Illinois to a citizen of Alabama rights which Illinois lawfully denies to her own citizens.1

The great social and political change which resulted from the war made necessary, among other constitutional changes, some reinstatement in the Constitution of the clause which secured equal rights to all citizens; and this was done by the Fourteenth Amendment.2

From the foregoing review, it appears that the Federal power over commerce arises in three ways:

First, from the express provisions of the Constitution relating to commerce, including the commerce clause and other grants of power upon related subjects.

Second, from the whole Constitution as construed in the case of Crandall v. Nevada, and the case of the State Freight Tax.

Third, from the clause of the Constitution which gives citizens of each State the rights of citizens in the several States, and from the Fourteenth Amendment.

Difference Between the Three Grants of Power.— The ground covered by each of the three grants of power thus made is somewhat different.

The Federal power over travel and transportation, resulting from the construction of the Constitution in Crandall v.

1 See Lemmon v. People, 26 Barb. June 5, 1866, Congressional Globe, 270; 20 N. Y. 562. 1st Sess. 39th Cong., pt. 4, p. 2961.

2 See Speech of Senator Poland,

36 Wall. 35.

415 Wall. 232, 281.

Nevada, is based upon rights and duties of citizens and of the government; and while it appears to have been extended over transportation conducted by corporations,' and would doubtless protect all persons, whether citizens or aliens, nevertheless the argument concerns only the rights and duties of citizens and of the Federal government.

The Fourteenth Amendment, and the article in the Constitution which preceded it, protect also the rights of citizens, although the amendment goes beyond the provision of the article in securing to all persons within the jurisdiction of a State, whether citizens, corporations or aliens, the equal protection of the laws. Neither of these grants of power is necessarily commercial in its nature, nor, so far as it concerns travel and transportation, is it limited in its operation to the transportation which crosses State lines.

It is the intention in this work to consider only the Federal power which arises from the commerce clause, taking into view other constitutional powers only so far as they fall within and operate upon the ground covered by that clause.

Difference Between Foreign, Indian and Interstate Commerce. In considering the Federal power derived from the commerce clause, it should be noticed that the Federal jurisdiction over the three branches of commerce differs widely in nature and extent.

Interstate commerce is national, while foreign commerce is international in character. Over interstate commerce the powers of the Federal government are not limited by any other governmental authority, while over foreign commerce Federal power is necessarily limited by the equal power of the foreign government.3

1 Case of the State Freight Tax, 15 Wall. 232, 281.

2 Smyth v. Ames, 169 U. S. 466, 171 U. S. 361; Covington, etc. Turnpike Co. v. Sandford, 164 U. S. 578, 592; Railroad Co. v. Beckwith, 129 U. S. 26; Railway Co. v. Mackey,

127 U. S. 205; Pembina Mining Co. v. Pennsylvania, 125 U. S. 181; Santa Clara v. Railroad Co., 118 U. S. 394; Stockton v. Railroad Co., 32 Fed. Rep. 9.

3 United States v. Knight, 3 Int. Com. Rep. 801.

In interstate commerce the power of the Federal government is always limited by the constitutional rights of citizens, while in foreign commerce conducted by aliens these limitations do not always appear.

The Federal control over commerce with the Indian tribes is of a different character, and has been exercised to an extent which would be impossible in either foreign or interstate commerce.

The power over these three branches of commerce being granted in the same clause and in the same terms might, if taken literally, be understood as being of the same character and extent. It does not appear, however, that this was the intention of the framers of the Constitution,' and certainly the history of the exercise of these powers emphasizes the necessary difference between them.

1 Speech of Senator Morgan, Con- to Cabell, Feb. 13, 1829; The James gressional Record, May 28, 1890. Madison Letters, vol. 4, p. 14. Conf., however, Letter of Madison