756 



rNITKD STATES. 



The natural Import and construction of the terms of 

 Uw Constitution would uut seem to admit of much doubt, 

 Judging from tin- language merely. The meaning of the 

 word T ' commerce" at the time the OomUtattoa was 

 adopted must have heoo definitely settled and well 

 enough understood. The word, at Is well understood, 

 It derived from the Latin eommtrcium. which I" found 

 almoat In Its original form In most of the languages of 

 modem Europe. It mean*. In Its most literal sense. In- 

 tercourse and exchange both of persons and commodities. 

 It la more nearly synonymous with traftlc than with any 

 other word In the Umiua^v. probably. Its great natural 

 divisions forages have boon foreign and Inland. The 

 regulation of all the former and that portion of the latter 

 which extended beyond the limits of a single State was, 

 as we hare seen by the organic law of our national Gov- 

 ernment, secured to the nation, and the remainder was 

 naturally left to the particular State where It exclusively 

 existed. It la obvious that the purposes of the provisions 

 wa not to be conflncd to future commerce carried on In 

 the same mode as It was tin-it I. <., by chip and boat 

 navigation propelled exclusively by wind. If that hail 

 been so, the provision could not nave been applied to that 

 l.ir.-e portion of commerce now carried on by steam- 

 power, which has already become very considerable and 

 I* constantly in a rapidly-advancing ratio. * 



The fact that the entire subject of ramlatini: all com- 

 merce among the different Slates, Including all the means 

 and appliances by which It w.is carried on, was committed 

 to Congress, and that, thereafter, the States were to have 

 no concurrent action In the regulation of the same, would 

 seem to reduce the question or regulating inter-State rail- 

 way truffle to the single Inquiry, whether it forms any 

 portion of the commerce of the country which requires 

 to be regulated at all ? Those who assume to argue that 

 OoOfreM ha no power to regulate the truffle upon these 

 extended lines of railways reaching from one end of the 

 Union to the other must, if they would meet the question 

 fairly, either say the traffic on these extended lines of 

 railway, amounting to many millions annually probably 

 ten times as much an the entirecnrameree of th" country 

 at the time of the adoption of the Constitution Is not 

 commerce at all. or, if it be. Is not subject to any regula- 

 tion or control whatever ; for It is certain the States have 

 r the power nor capacity to regulate, to any pur- 

 pose or with any efficiency, this Inter-State railway trafllc. 

 It must then, come under the control of Congress or be 

 1 -ft to his own devices and Impulses an experiment 

 never yet tried in any other country. iRedfleld on Kail- 

 ways, pp. TSO.Ttl.) 



In the great case of Gibbons r. Ogdcn, 9 Wheat. 

 1, which arose ami was decided in 1824, whim stcuin 

 navigation was in its infancy, it van held th::' 

 moroe comprehended navigation aa well a* inter- 

 course and traffic, and no doubt was expressed aa to 

 the right of Congress to regulate it when carrie>l "ii 

 by an agency not known when the (''institution was 

 adopted to wit, the power of steam. On the con- 

 trary, the power to regulate inter-State and foreign 

 cimmoroe, when carried on bv means of uteam-vcs- 

 el, waa distinctly asserted; anil if extended to 

 steam-Teasels why not to steam-care, since t in-v were 

 alike unknown ' pled? 



The opinion i:i this c.iso (Gibbons ft. Ogdcn) was 



rod by Chief-Justice Marshall, and it .li- 

 so ahlv tin- vi-ry <{iiex'ior. wo are now 00 

 viz., the nature ami extent of the power gi\. 

 Congress to regulate commerce that wo feel con- 

 strained to quote from it as follows : 



The subject to be regulated Is commerce: and nnr f'on- 

 atltatlon being, aa was aptly said at the bar (In- M r. u . l>. 

 terl, one of remuneration and not nf dcflnlt i 

 loin the extent of the power It becomes necessary to set- 

 tle the meaning of the word. 



The counsel of the appellee wonld limit It to truffle, to 

 baying and s.-llm- or the |r,tc- .mmodltles. 



and do not admit that It comprehend- This 



would rentrlct a general term, applicable tn mm 

 Jeetv*. to one of Ks significations. Commerce, iimloiiot- 

 alrtMrafle: but It Is something more, it l intercourse. 



- - - : , SJM 



words comprehend every specie* of commercial Inter- 



.d foreign i :. 



t of trade can be carried on betw- 

 any another to w inch this power dors not extend. 

 been truly said that commerce, as the word U n 

 institution, ia a unit, even- part of which - 

 cated by the term. If thia be the admitted meaning of 

 the word in Its application to i.irei.-n nan 

 carry the same meaning throughout i 

 main a unit, unless there be some plain. intcllMhle clause 

 which alter* it. 



The object to which the power Is next applied is to 

 commerce, -among the word 



"among" means '"intermingled with." A thins: 

 is among others is Intermingled with them. Com- 

 merce among the States cannot stop at the external 

 boundary-line of each State, but may be introduced into 

 the interior. 



It Is not Intended to say that these words comprehend 

 that commerce which Is completely Internal, which is 

 carried on between man and man In a State or between 

 lit), lent parts of the same State, and which does not ex- 

 tend to or affect other States. Such a power would be 

 Inconvenient, and certainly is not necessary. Compre- 

 hensive aa the word "among" is, it may very properly 

 be restricted to that commerce which concerns more 

 States than one. The phrase is not one which wonld 

 probably have been selected to Indicate the completely 

 Interior traffic of a Slate, because it Is not an apt phrase 

 for that purpose, and the enumeration of the particular 

 - of commerce to which the power was to be ex- 

 tended would not have been made had the Intention been 

 to extend the power to ever}- description. The enumera- 

 tion presupposes something not enumerated, and that 

 something, if wo regard the language or the subject of 

 the sentence, must be the exclusively Internal commerce 

 of a State. 



And liere follows from the pen of this gl 

 and as the announcement of the Supreme 

 haps the hcst definition of the line which divides the 

 State from the Federal jurisdiction which can any- 

 where be found. It is in the following words : 



The genius and character of the whole Government 

 seem to be thnt its action l to be applied to all the ex- 

 ternal concerns of the nation, and to those internal con- 

 cerns which affect the States i;enprallv, but not to those 

 which arc completely within a particular state, which do 

 not afl te-. :UK| with which it i- 



sary to Interfere for the pn of the 



general powers of the Government. The completely in- 

 ternal commerce of a State then, may be considered as 

 reserved for the State itself. 



After showing that in regulating commerce with 

 foreign nations the power of Congr 

 at the jnrUdlotlonml lines of the several States, but 

 may be exercised wherever the culgcci 

 c .urt i say; 



This principle Is, if possible, still more clear, when sp- 

 pllod to commerce ninon^ the several states. Thev.loln 

 each other. In which case they are xe'.aratc,] nv " malhe- 

 matlcal line; or, they .T >m each other, in 



which case other State lln i: them. What Is 



"commerce-" among them, and how- i* it to be con- 

 ducted? Can a tradlne expedition between two adjoin- 

 In'/ Stntcs commence and terminate outside of 

 And If the trader's intercourse be h<'iweeu tu 

 mote from each other, must It not a n one, 



terminate In the other, and probably pn ttiroiu-h s third ? 

 Commerce among the. States must of necessity be com- 

 merce with the States. 



nerctal Intercourse between nntlous 

 and part* of nations. In all Its branrlie*. and I* regulated 

 by prescribing roles for carrying on that intercourse. 



And again : 



To wlnt commerce does thl power extend ! The Oon- 

 Mtnttnu Inform* n : In commence with forelim nations 

 and among th* .everal State* anil with the Indian 

 It ha*, we believe, been universally admitted that these 



Cooley, in his work on "Constitutional 

 I.itni" r referring to this ami other cases 



on the subject, soya : 



It Is not doubted Hint Congress ha* the power to go be- 

 yond the irenernl re?nlntior. -ce. which it Is ac- 

 '<1 to establish, and to d< mute 

 direction*. If it shrill ! ,1 ..cmc : , v !v 

 whatever ejti-nt ground shall be covered by these ilirec- 

 .lon*. the exercise of Stite power is excluded. CongreM 

 mav establish pollen regulations as well as the sntc. con- 

 fining their operations to - - which it is triven 

 control hy the Constitution. (Cooley on "Constitutional 

 Limitations," 860.) 



The Terr question nnw under consideration is dis- 

 cussed Mill (leci.leil l,v Mr. .Ilisfice Miller, of >' 



prcme Court of the United States, in th" cnseof Clay 

 r. the Clinton Bridge Company, reported by the 



