not limit, but are "to some extent, limited by the commerce clause of the Constitution."1 As to foreign commerce, Hamilton says: "Every person, by the common law of each state may export his property to foreign countries, at pleasure. But Congress in pursuance of the power of regulating trade may prohibit the exportation of commodities.""" And it was held in 1808, and hardly questioned since, that Congress might establish an absolute embargo for an indefinite duration.3 The raising of revenue by means of customs tariffs, was, at the time the Constitution was framed, considered as much a method of regulating commerce, as of obtaining a revenue, and a protective tariff can be based upon no other constitutional provision than “in order to promote the general welfare," not by the revenue obtained, but by the effect on commerce. And this is the basis upon which it has been placed. Under the tariff laws, the importation of many "proper articles of commerce, have been excluded or practically prohibited by high duties. Finally the constitutional convention seemed to think the power to regulate foreign commerce would include the power to prohibit the slave trade prior to 1808, unless it was expressly excepted. It has been held that Congress may prohibit the sale of intoxicating liquors, or deleterious articles to the Indian tribes.5 8 6 In the regulation of interstate commerce it has also been held that Congress may prohibit combinations, or contracts in direct restraint thereof, or the transportation or introduction of diseased live stock into one state from another. Although distilled liquors are "lawful articles of commerce,' 99 yet Congress can make them subject to the prohibitory laws of the state into which they have been shipped for sale from another10 state. And finally Congress can prohibit the carriage of lottery tickets into one state from 1 Addyston Pipe Co. v. U. S. 175 U. S. 211; State v. Firemen's Fund Ins. Co. 152 Mo. 1; State v. Buckeye Pipe L. Co. 61 O. S. 520; State v. Smiley, 65 Kan. 240, 69 Pac. 199 (1902). 2 Argument on a National Bank, Ford's Federalist, p. 662. 3 U. S. v. Brigantine William, 2 Hall L. J. 255 (1808), 2 Kent, Com. 432. 4 Story on the Constitution, 2 963. 5 U. S. Holliday, 3 Wall, 407; U. S. v. Mayrand, 154 U. S. 552. 6 U. S. v. Trans-Missouri Frt. Assn. 166 U. S. 290 (1897); U. S. Joint-Traffic Assn., 171 U. S. 505 (1898). • Bowman v. Chicago, etc. Ry. Co., 125 U. S. 465; Leisy v. Hardin, 135 U.'S. 100. 10 In re Rahrer, 140 U. S. 545; Vance v, Vandercook, 170 U. S. 438. another,1 or sending letters or circulars relating to lotteries through the mails.2 State laws forbidding the introduction of convict made goods, or regulating interstate passengers, or forbidding the introduction of articles proper for commerce,5 are void because they infringe upon the exclusive power of Congress to regulate commerce. In addition to the foregoing, Congress has forbidden the transportation of negroes into a state, or the carrying or sending of any literature, picture, or article designed for indecent or immoral use,7 or convict made goods, or to transport the dead bodies of wild animals or birds killed in violation of the laws of the state where the attempt is made." 8 6 All the foregoing are so closely allied to a police power in the United States, based on the commerce clause as to be practically indistinguishable from it, and if, as said above, the commerce clause gives to the National Government the same power that a state government would have with the same constitutional provisions, it would follow that any regulation made by Congress, not merely for the purpose of evading other constitutional provisions, would be beyond the authority of the courts to declare void. The necessity and wisdom of such a regulation are for Congress to determine.10 While it may be questionable whether Congress could prohibit interstate commerce altogether," (although this was done during the Civil War as to the seceding states), 12 yet there can scarcely be a doubt that regulate includes making and enforcing the rule and conditions under which commerce may be carried on, as the public welfare demands, and forbidding it being done otherwise. 13 There is nothing in this view inconsistent with the proper exercise of the state police powers, 14 or with the liberty of citizens. 1 Lottery Case, 188 U. S. 321 (1903). 2 In re Rapier, 143 U. S. 110. * People v. Hawkins, 157 N. Y 1. + Hall v. De Cuir, 95 U. S. 485. 5 Brimmer v. Rebman, 138 U. S. 78. 62 U. S. Stat. at L. 205 (1803). 7 Act Feby 8, 1897, c. 172, 29 Stat. at L. 512 9 Act May 25, 1900, 31 Stat. at L. 187, 8 3. 8 Act of July 24, 1897, 30 Stat. at L. 211 ? 31. 11 Dissenting opinion of Chief Justice Fuller, in Lottery Case, 188 U. S. 321, The dissent however, is based as much upon the view that a lottery ticket was not a subject of commerce, as held by the majority of the court. 12 Act of July 13, 1861, 12 Stat. at L. 247, R. S. 5301. 13 Gibbons v. Ogden, 9 Wheat 1, 196. 14 Hennington v. Georgia, 163 U. S. 299; New York etc. RR, v. New York, 165 U. S. 628. Lake Shore & M. S. Ry. v. Ohio, 173 U. S. 285. As to corporations. The next point for consideration is what power has Congress to establish corporations to engage in interstate com merce. 3 Although by the Articles of Confederation, Congress had no power except such as was expressly delegated to it, yet within three months after these Articles went into effect, the Congress of the Confederation approved a proposition to incorporate a national bank, and December 31,1781, proceeded to institute and incorporate the Bank of North America. The power to do this was hardly questioned. Later, in defense of the bank, James Wilson, in 1782, laid down the doctrine of implied constitutional powers in the following words: "Whenever an object occurs, to the direction of which no particular state is competent, the management of it must, of necessity, belong to the United States in Congress assembled."2 In the Constitutional Convention of 1787, Mr. Madison twice moved that Congress have power "To grant charters of corporations in cases where the public good may require them and the authority of a single state may be incompetent." It was rejected partly because it was unnecessary, and might lead to creation of monopolies.5 Mr. Wilson thought it necessary to prevent a state from obstructing the general welfare, and observed that mercantile monopolies "are already included in the power to regulate trade. 116 Mr. Gerry refused to sign the final report because, (among other things), "under the power over commerce, monopolies may be established.'' In 1791, upon the recommendation of Mr. Hamilton, Congress chartered the Bank of the United States. The constitutionality of the bill to establish it was attacked in the House of Representatives, and President Washington, after taking the written opinions of the Attorney-General, Randolph, the Secretary of State, Jefferson, (both of whom opposed it), and of the Secretary of the Treasury, Hamilton, signed the bill.8 These opinions are classic on the subject of the implied powers of the government. Among other things Hamilton argued : 1 2 Kent, Comm. 254; 1 Wilson's Works, p. 549. 2 1 Wilson's Works, p. 558, 3 Journal of Conv. (Aug. 18), p. 549; (Sept. 14), p. 725; the wording in the last case was; "To grant charters of incorporation where the interest of the United States might require and the legislative provisions of individual states may be incompetent. 4 Mr. King, Journal Conv. p, 726. 5 Mr. King and Mr, Mason, Ib. 6 Ib. 7 Ib. p. 740. 81 Stat. at L. 191; 2 Kent, Comm. 248. Congress may create a corporation in relation "to the trade with foreign countries, or to the trade between the states, or with the Indian tribes; because it is the province of the federal government to regulate those objects, and because it is incident to a general sovereign or legislative power to regulate a thing, to employ all the means which relate to its regulation to the best and greatest advantage." And further, "Suppose a new and unexplored branch of trade should present itself with some foreign country, suppose it was manifest that to undertake it with advantage required a union of capitals of a number of individuals, . . what reason can there be to doubt that the National Government would have a constitutional right to institute and incorporate such a company? None. They possess a general authority to regulate trade with foreign countries. This is a means which has been practiced to that end, by all the principal commercial nations, who have trading companies to this day which have subsisted for centuries. . . . A power to regulate trade, is a power to make all needful rules and regulations concerning trade. Why may it not, then, include that of erecting a trading company? It is remarkable that the state conventions, who had proposed amendments in relation to this point, have most, if not all of them, expressed themselves nearly thus: Congress shall not grant monopolies, nor erect any company with exclusive advantages of commerce. Thus at the same time expressing their sense that the power to erect trading companies or corporations was inherent in Congress, and objecting to it no further than as to the grant of exclusive privileges.'' Distinctions that are yet important were drawn as clearly in these great arguments as they ever have been since. Mr. Hamilton had argued that the establishment of a bank had a natural relation to the regulation of trade by creating a convenient and adequate medium of exchange to carry on commerce. Mr. Jefferson on this point said: "To erect a bank, and to regulate commerce are very different acts. He who erects a bank, creates a subject of commerce in its bills; so does he who makes a bushel of wheat, or digs a dollar out of the mines; yet neither of these persons regulates commerce thereby. To make a thing which may be bought and sold, is not to prescribe regulations for buying and selling. Besides, if this was an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every state, (that is to say the commerce between citizen and citizen), as to its external (that is to say its commerce with another state, or with foreign nations, or with the Indian tribes)."' This is the exact distinction made in the sugar trust case in 1895.* The charter of the bank expired in 1811, when the opposition was in power and its charter was not renewed. A new bank was, how 1 Argument of Hamilton, Ford's Ed. of Federalist, p. 657. 2 Hamilton's Argument, Ford's Federalist. p. 676. 3 Jefferson's Argument, Ford's Federatist, p. 652. 4 U. S. v. E. C. Knight Co., 156 U. S. 1. ever, chartered1 with similar powers in 1816. The act establishing it was signed by Madison, and its constitutionality was brought before the Supreme Court in 1819, and sustained by the decision2 of Chief Justice Marshall, along the lines of the arguments made by Mr. Wilson in regard to the Bank of North America, and Mr. Hamilton as to the first United States Bank. Since this decision it has not been doubted that, "Congress may create corporations as appropriate means of executing the powers of government, as, for instance, a bank for the purpose of carrying on the fiscal operations of the United States, or a railroad corporation for the purpose of promoting commerce among the states."'3 8 10 Early in the century Congress authorized the construction of the National road from the Potomac to the Ohio rivers; and Congress has authorized the incorporation of the present National banks, the Union Pacific, Northern Pacific,' Atlantic and Pacific, and the Texas and Pacific railways; the Maritime Canal Co. of Nicaragua,1 various bridge companies," and National Trades Unions;12 state incorporated telegraph companies have been authorized to construct their lines on all post-roads, even where a state had granted to another company the exclusive right to construct such line,13 and all railroads are made post-roads for such purposes. 14 In California v. Pacific Railroad Co.15 it was specifically held that Congress has authority in the exercise of its powers to regulate commerce among the several states to construct or to authorize individuals or corporations to construct national highways and railroads across the states as well as the territories of the United States, and bridges from state to state. As Mr. Justice Bradley said: 1 3 Stat. at L, 266. 2 McCulloch v. Maryland, 4 Wheat. 316; Osborne v. Bank of U. S., 9 Wheat. 738, 8 Luxton v. North River Bridge Co., 153 U. S. 525 (1894). 4 Indiana v. U. S. 148 U. S. 148. 5 12 Stat. at L. 665 (1862). 612 Stat. at L, 489 (1862). 713 Stat, at L. 365 (1864). 8 14 Stat. at L. 292 (1866). 917 Stat. at L. 59 (1872). 10 25 Stat. at L. 673 (1889). 11 As North River Bridge Co., July 11, 1890, 153 U. S. 525. 13 24 Stat. at L. 86 (1886). 18 Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1 (1877). 14 Rev. Stat. 2 3964; 17 Stat. at L. 308, 201. 15 127 U. S. 1 (1887). |