SPECIAL ADDRESS. quoted, showed that, construed as such a regulation, the police power must in the end triumph over the commercial power. It is doubtful if any case is to be found in the books in which an entire concurrence in the decision is coupled with such complete chaos of opinion. This discord of sentiment was destined to breed chaos of conclusion in The Passenger cases (7 How., 283), which next presented a question arising under the commerce clause. The point here in issue was the validity of laws requiring the masters of vessels to pay to the health officers of the State ports a certain sum for each passenger landed in the port. Mr. Justice McLean, in these cases, became a convert to the doctrine of the exclusiveness of the Federal power over commerce. In his opinion, declaring the judgment of the court, holding both the laws of New York and of Massachusetts unconstitutional, he proved himself an able expounder of the principle. Gibbons v. Ogden and Brown v. Maryland were relied upon as establishing the doctrine. Willson v. Black Bird Creek Marsh Company was distinguished on the ground that the act of the State in that case was an exercise of police power. The conclusion was reached: "Whenever I consider the nature and object of the commercial power, the class of powers with which it is placed, the position of this court in the case of Gibbons v. Ogden, reiterated in Brown v. Maryland, and often reasserted by Mr. Justice Story, who participated in those decisions, I am brought to the conclusion that regulation of commerce among the several States is exclusively vested in Congress." Dissenting opinions were filed by Mr. Chief Justice Taney, and Justices Daniels and Woodbury, Mr. Justice Nelson also dissenting in silence. The court had now wandered its appointed time in the wilderness of judicial uncertainty on this question. There was need of a Moses to lead them into the promised land of agreement, and he was found in Mr. Justice Curtis, who pronounced the opinion in Cooley v. Board of Wardens (12 How., 299). The law, the validity of which was in issue in this case, was an act of the State of Pennsylvania to establish a Board of Wardens for the port of Philadelphia and for the regulation of pilots and pilotages. It was concluded, first, that a regulation of pilots is a regulation of commerce, within the grant to Congress of the commercial power. Then the rule was established that "whatever subjects of this power (to regulate commerce) are in their nature national and admit of only one uniform system or plan of regulation, may justly be said to be of such a nature as to demand exclusive regulation by Congress." The application of this rule to a regulation of pilotage forced the conclusion "that the ROBERT MATHER. nature of the subject is such that, until Congress should find it necessary to exercise its power, it should be left to the legislation of the States; that it is local and not national; that it is likely to be best provided for, not by one system or plan of regulations, but by as many as the legislative discretion of the several States should deem applicable to the local peculiarities of the ports within their limits" Cooley v. Board of Wardens has never been departed from, unless In Re Rahrer, infra, is such a departure, and remains the established rule of decision in questions involving the application of the commerce clause to this day. It marks an epoch in the judicial development of this clause of the Constitution. It set at rest forever the long controversy as to the nature of the Federal power, and is the last case which, strictly speaking, deals with judicial interpretation or construction of the commerce clause. It applied to judicial decision the prevailing political fashion of the day for compromises, and seized upon the novel method of settling a constitutional controversy by adopting both of the opposing theories. It fastened firmly in our jurisprudence the proposition that the Federal power over commerce is in some cases exclusive and in others concurrent. Thus it turned the course of legal and judicial investigation on this subject into a different channel. The test of the question is no longer to be sought in the nature of the power, but in the nature of the subject on which the power is to be exercised. The question is no longer, Is the Federal power over commerce exclusive or concurrent? but, Is the subject to be regulated national or local in its nature? If the former, it can be regulated only by the exclusive power of Congress; if the latter, it admits of the exercise of the concurrent power of the States until Congress regulates the subject. Cooley v. Board of Wardens is itself a type of that class of cases in which the subject regulated, being local in its nature, admits of the exercise of the concurrent power. It was followed in Gilman v. Philadelphia (3 Wall., 713), Escanaba Company v. Chicago (107 U. S., 678) and Willamette Iron Bridge Company v. Hatch (125 U. S., 1), all cases upholding the validity of State laws authorizing obstructions to navigation in the shape of the bridges over navigable streams within the boundaries of a State. With these cases Willson v. Black Bird Creek Marsh Company, though decided long before the rule of decision laid down in the Cooley case was announced, is in perfect harmony. The apparent inconsistency between that case and the other cases on this subject decided by Mr. Chief Justice Marshall is entirely reconciled by the application of the principle SPECIAL ADDRESS. established in the Cooley case. Indeed, one cannot compare the decisions in Gibbons v. Ogden, Willson v. Black Bird Creek Marsh Company and Brown v. Maryland, in the light of the great argument of Mr. Webster in the first of these cases, where the distinction afterwards drawn in Cooley v. Board of Wardens was clearly pointed out, without feeling that the Chief Justice, though he had not formulated the principle of that case, was controlled by it in his decisions. But the view of this subject to which I wish particularly to direct attention is in its effect on the business of the transportation of articles of commerce, the interests of which, it will be remem bered, prompted the adoption of the commerce clause, if not the Constitution itself. Passing by Smith v. Alabama (124 U. S., 464), and kindred cases, where State laws, though affecting the business of interstate transportation, are held to be valid exercises of the concurrent power, in the absence of Congressional regulation, let us turn to some of the cases in which the features of interstate transportion sought to be regulated by State action are held to be national in their nature, and, therefore, to require exclusive legislation by Congress. In the Case of the State Freight Tax (15 Wall., 232) it was held that the transportation of passengers or merchandise from one State to another is of this national nature, and a tax upon freight taken up within a State and carried out of it, or taken up outside the State and delivered within it, was declared to be beyond the power of a State to impose. Wabash, &c., Railway Company v. Illinois (118 U. S., 557), applied the same rule to an even more vital feature of the transportation business, the rate-making power. The question there involved was the validity, as applied to a transaction of interstate commerce, of a statute of the State of Illinois prohibiting discrimination in rates. The Supreme Court of Illinois had sustained a conviction under the State law. In the Supreme Court of the United States it was argued on behalf of the State that the statute of Illinois belonged to that class of commercial regulations which may be established by the laws of a State until Congress shall have exercised its power on the subject. The majority of the Court reached the opposite conclusion and held that "it is not and never has been the deliberate opinion of a majority of the Court that a statute of a State which attempts to regulate the fares and charges of railroad companies within its limits for a transportation which constitutes a part of commerce among the States, is a valid law." ROBERT MATHER. The doctrine of Wabash Railway v. Illinois was given a still wider application in Bowman v. Chicago Northwestern Railway Company (125 U. S., 465). This case involved the question of the validity, as applied to interstate transportation, of a statute of the State of Iowa which forbade any railway to bring within the State any intoxicating liquors without first having been furnished a certificate from the Auditor of the county to which the liquor was to be transported, certifying that the consignee was authorized to sell such liquors in the county. The claim of the plaintiff was that the law was unconstitutional, as being a regulation of commerce among the States. This contention was upheld in the majority opinion of the Court, delivered by Mr. Justice Matthews. It was said: "It cannot be doubted that the law of Iowa, now under examination, regarded as a rule for the transportation of merchandise, operates as a regulation of commerce among the States." And it was held to be immaterial that the State law had been enacted in the exercise of its police power. "It is essentially a regulation of commerce among the States," the opinion proceeds, "within any definition given to that term, or which may be given; and although its motive and purpose are to perfect the policy of the State of Iowa in protecting its citizens against the evils of intemperance, it is none the less on that account a regulation of commerce." From Bowman v. The Railway to Leisy v. Hardin (135 U. S., 100), was a short and easy step. This action was replevin to recover certain barrels and cases of beer which were sold by Leisy in Keokuk, Iowa, in the original packages in which it had been transported from Peoria, Illinois. The beer had been seized under the provisions of a statute of Iowa which forbade any person other than those holding permits to keep for sale intoxicating liquor. The question for decision is thus stated by Mr. Chief Justice Fuller, who delivered the opinion of the Court: "That ardent spirits, liquors, ale and beer are subjects of exchange, barter and traffic like any other commodity in which a right of traffic exists, and are so recognized in the usages of the commercial world, the laws of Congress and the decisions of courts is not denied. Being thus articles of commerce, can a State, in the absence of legislation on the part of Congress, prohibit their importation from abroad or from a sister State? or when imported prohibit their sale by the importer." It was held that the question was virtually involved and answered in Bowman v. Railway Company. The effect of that decision SPECIAL ADDRESS. as weakening the former decision of the Court in The License Cases is noted and Pierce v. New Hampshire is here expressly overruled. The conclusion reached was: "Under our decision in Bowman v. C. & N. W. Ry. Co., they (plaintiffs in error) had the right to import this beer into that State, and in the view we have expressed they had the right to sell it, by which act alone it would become mingled in the common mass of property within the State." Bowman v. Railway Company and Leisy v. Hardin carry, in their practical effect, the Federal power over commerce to the extreme limit of nationalism which was reached by Mr. Chief Justice Marshall in Brown v. Maryland. They even go a step farther, for while the great Chief Justice took occasion to say, in the course of his opinion in Brown v. Maryland, that "we suppose the principles laid down in this case to apply equally to importations from a sister State," the actual decision did not reach that far, and this language was expressly condemned as dictum in Pierce v. New Hampshire. It was not until Bowman v. Railway Co., and Leisy v. Hardin had both been decided that it could be said to be the adjudicated law of the Nation that the right of transportation into a State, and the right to sell in the original package at the end of such transportation, was safe from restricting regulations of the States, whether enacted under the alleged claim of a concurrent power to regulate commerce, or placed on the high ground of the exercise of the police power of the commonwealth. These two cases, therefore, represent the extreme influence, in its effect upon the freedom of commerce among the the States, of the commerce clause of the Constitution. They justify, in their practical effects, the wisdom of the decision in Cooley v. Board of Wardens, as putting at an end the long strife between the contending factions for an exclusive power on the one hand and a concurrent power on the other. They justify that decision, also, as sufficiently preserving, for all practical purposes, as a force in the national jurisprudence, the high Federal conception of the exclusiveness of the Federal power. For they assert, in their practical consequences, in all cases in which Federal regulation is necessary or desirable, the absolute exclusiveness in Congress of the power to regulate commerce. It is worthy of note, however, that the doctrine upon which the later cases are founded is quite distinct from the doctrine of exclusive power which forms the foundation of the opinion in Brown v. Maryland. As we have seen, the doctrine there asserted was that the power to regulate commerce with foreign nations was exclusive in Congress, and that the attempted exercise by the States of a simi |