to the control of the national government, there were applicable the law of nations, the maritime law, the principles of equity, and the common law applicable to such matters being based on the common law of England as modified by the surroundings of the colonists and as developed by the growth of our institutions since the adoption

new one. We think, therefore, it should have such a construction as best to carry into effect the great principle it was intended to establish. When our ancestors first settled this country, they came here as English subjects; they settled on the land as English territory, constituting part of the realm of England and of course governed by its laws; they accepted privileges from the English government, conferring both political powers and civil privileges; and they never ceased to acknowledge themselves English subjects, and never ceased to claim the rights and privileges of English subjects, till the Revolution. It is not, therefore, perhaps, so accurate to say that they established the laws of England here, as to say that they were subject to the laws of England. When they left one portion of its territory they were alike subject on their transit and when they arrived at another portion of the English territory; and, therefore, always, till the Declaration of Independence, they were governed and protected by the laws of England, so far as those laws were applicable to their state and condition. Under this category must come all municipal laws regulating and securing the rights of real and personal property, of person and personal liberty, of habitation, of reputation and character, and of peace. The laws designed for the protection of reputation and character, and to prevent private quarrels, affrays, and breaches of peace, by punishing malicious libel, were as important and as applicable to the state and condition of the colonists as the law punishing violations of the rights of property, of person, or of habitation; that is as laws punishing larceny, assault and battery, or burglary. Being part of the common law of England, applicable to the state and condition of the colonists, they necessarily applied to all English subjects and territories, as well in America as in Great Britain, and so continued applicable till the Declaration of Independence." See same idea in Mortimer v. New York Elevated Railroad Co., 6 N. Y. Supplement, 898. See Am. Ins. Co. v. Canter, 1 Pet. 511; U. S. v. Powers, 11 How. 570; Strothers v. Lucas, 12 Pet. 410, 436. First Nat'l Bk. v. Kinnear, I Utah, 100.

of the Constitution; and the changes of business habits and methods of our people; and the binding force of the principles of the common law, as applied to such matters, is not derived from the action of the States, and is no more subject to abrogation or modification by State legislation than are the principles of the law of nations or the law maritime.

"The Constitution of the United States and Congress, acting in furtherance of its provisions, have conferred on the Supreme Court and the other courts inferior thereto the right and power to enforce the principles of the law of nations, of the law maritime, of the system of equity, and of the common law, in all cases coming within the jurisdiction of those courts, applying in each instance the system which the nature of the case demands, and as to all matters of national importance over which paramount legislative control is conferred upon Congress, the courts of the United States have the right to declare what are the rules of general jurisprudence that control the given case, and to define the duties and obligations of the parties thereto." 1

Murray v. Chicago & N. W. Ry. Co., 62 Fed. 24. See Chisholm v. Georgia, 2 Dallas, 453, Iredell, J., on common law, the States, and corporations. Wilson, J., asserted general jurisprudence as his guide. Jay, C. J., asserted that a common tribunal had been established for the whole country. The question arose in U. S. v. Worrall, 2 Dallas, 389, 394. The court was divided, Chase, J., holding that there is no common law of the United States; Peters, J., that there is a common law of the United States. See Wilson's Works, Vol. III, 371-377, where Judge Wilson in a charge in a criminal case, says that for definition of crimes against the United States, recurrence must be had to the common law. See also Kent's Commentaries, I, 337- The following cases say that there is either a common law of the United States or power in Congress to establish such law by conferring power on the courts: Hudson v. Goodwin, 7 Cr. 32; U. S. v. Coolidge, 1 Gall. 495, 1 Wheat. 416; Ex parte Crane, 5 Pet. 204, 210; The Battle, 6 Wall. 498; U. S. v. Reese, 2 Otto, 216; U. S. v. Hall, 8 Otto, 345; Hough v

§ 112. POWER OF CONGRESS TO CREATE COrporaTIONS TO ENGAGE IN INTERSTATE COMMERCE. This latest phase of the question of the powers of the States and the nation is the same as the one over which the first important constitutional discussion arose.1 In 1791 Congress had passed an act incorporating the first United States Bank. Jefferson was unable to find any warrant in the Constitution for an act of incorporation. Hamilton, on the other hand, found the power to incorporate in the very fact that the United States was a sovereign nation. This power to incorporate did not, he said, extend to all objects for which corporations might be formed, but was as wide as the sovereignty of the nation; it included all powers, express or implied, granted by the Constitution. The bank became a law. The charter expired by limitation in 1811, and was not renewed, rather because of indifference than doubts as to the constitutionality of an act of incorporation. It was incorporated in 1816, and some time later the Supreme Court, in an opinion written by Chief Justice Marshall, placed the seal of approval upon the doctrines pronounced by Hamilton in 1791.2 The right of the national government to create a corporation necessary or even convenient for the carrying out of any of the enumerated powers has not been

R. R. Co., 10 Otto, 215, 226; Baker v. Biddle, 1 Baldwin, 403, 406; U. S. v. Wilson, 3 Blatch. 438; The Free State, 1 Brown, 264; Harrison v. Hadley, Governor, 2 Dill, 234; U. S. v. Terrel, Hemp. 412; Matter of Meador, 1 Abbott (U. S.), 324; U. S. v. The New Bedford Bridge, Wood & M. 435, U. S. v. Durkee, All. 201, U. S. v. Plumer, 3 Cliff. 55. The cases are in accord upon the important principle that a federal right is itself ground of common law jurisdiction.

1 See article by J. B. Sanborn, 37 Am. Law Review, 703. 2 McCulloch v. Maryland, 4 Wheat. 316.

denied since. The question now is whether the regulation of commerce and private corporations is sufficient basis for the creation of corporations by national law.

Section 8 of Article I of the Constitution enumerates some seventeen things which Congress shall have power to do. Aside from those under which Congress has already acted in establishing national banks, probably the only power which allows of the establishment and regulation of corporations is the one which provides that Congress shall have power" to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." It is this "interstate commerce" clause upon which we must for the present rely for any national control of corporations. There can be little question that under that clause Congress possesses power to incorporate any organizations which desire to engage in interstate commerce. The right to engage in interstate commerce which is guaranteed by the Constitution is as real a franchise as the right to be supposed to originate with the consent of the State government. If States may demand the filing of certificates of incorporation and the performance of other acts by the corporation, then Congress may demand the same performance as a condition of the right to engage in interstate commerce, and the dependence of this right upon national law furnishes the requisite. ground for that control of corporations which is said to depend upon the gift of their franchises.

The great extent of the power to regulate interstate commerce makes it seem that purposes which may really be carried out under the commerce clause are

only authorized under other clauses or not authorized at all. While, in exercising the power to tax, commerce may be affected, it is manifest from the context that the substantive power in Congress to regulate foreign and interstate commerce cannot be derived from this taxing provision, and consequently, if derivable at all from the general-welfare clause, it must be from that employed in the preamble.

It

It is equally obvious from the nature of the preamble, that it does not confer such power or any power whatever. It was not intended to be and it is not the source of governmental authority of any character. is a mere declaration of the purposes sought to be accomplished, and in the manner therein provided, by the establishment of the Constitution. The declaration of the preamble is not in itself a grant of power, but imports only that, by the establishment of the Constitution which follows, it is the purpose to promote the general welfare and attain the other high conceptions of a free people which are named. The general welfare was not to be promoted by the exercise of authority drawn from this reference to it in the preamble, but by the establishment of the Constitution, with the grants and prohibitions and reservations which it contains. It follows logically that the vital and potential authority in Congress in respect to this subject is to be found exclusively and necessarily in that provision of the Constitution which expressly confers upon Congress power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."

The act incorporating the Union Pacific Company entitled "An act to aid in the construction of a railroad