just to pledge the United States to the payment of the whole debt, that no one might be encouraged to raise questions respecting it afterwards. A like pledge was made in one of the amendments adopted after the close of the great civil war. It was then declared that "the validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for loss or emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void." The prohibitory portion of this provision was as unnecessary as the other for the purpose of settling any principle. No nation can be expected to, or does, make compensation for losses occasioned in war to its enemies. It might be said, however, that slave property of loyal and disloyal alike was destroyed by the government under circumstances rendering the destruction equivalent to an appropriation, and that the equitable claim to compensation was such as should be respected. But the prevailing view was that slavery was itself the cause of the civil war, with all its losses and calamities, and that its destruction was the destruction of a public enemy, and no just claim could arise from it. The example was therefore followed which was set at the Revolution, of making no compensation for the incidental losses of the war; and this was made impossible by expressly prohibiting it.

SECTION II.

REGULATION OF COMMERCE.

The Constitution. -It is further provided by the Constitution, that Congress shall have power "to regulate com

1 Amendment 14.

merce with foreign nations, and among the several States, and with the Indian tribes."1

Commerce. - The word commerce is not limited to traffic; to buying and selling and the exchange of commodities; but it comprehends navigation also, and all that is included in commercial intercourse between nations and parts of nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse.2 Navigation and intercourse, therefore, upon the natural highways by water is under the regulating control of Congress, wherever it is not exclusively limited to a single State.3 So are transportation and intercourse by railroad between different parts of the country; and it is therefore competent for Congress to provide that all railroad companies may carry passengers, mails, and property over their roads, boats, bridges, and ferries, on their way from one State to another, and receive compensation therefor, and may connect with other roads so as to form continuous lines for the transportation of the same to their places of destination; also to provide for the construction of bridges over navigable rivers between States, and to provide that the bridges when constructed shall be free for the crossing of all trains of railroads terminating on the sides of the rivers respectively. Congress may also regulate communication by telegraph between the States, and where a State has given exclusive privileges which would preclude free intercourse, it may under this power and the power to establish postoffices and post-roads, provide for the construction of competing lines. These powers "keep pace with the progress

1 Const., Art. I. § 8, cl. 3.

2 Gibbons v. Ogden, 9 Wheat. 1, 189; Passenger Cases, 7 How. 283; Henderson v. New York, 92 U. S. Rep. 259; Pensacola Tel. Co. v. West., &c. Tel. Co., 96 U. S. Rep. 1, 9.

8 Gibbons v. Ogden, 9 Wheat. 1.

4 Railroad Co. v. Richmond, 19 Wall. 584.

of the country, and adapt themselves to the new developments of times and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the general government for the good of the nation, it is not only the right but the duty of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by state legislation."1

Commerce between States. To constitute commerce between States it is essential that it be not confined to one State exclusively, but concern more than one. The ordinary trade of a State, the local buying, selling, and exchange, the making of contracts and conveyances, the rules for the regulation of local travel and communication, and all the infinite variety of matters which are of local interest exclusively, are left wholly to the regulation of state law. The commerce of a State which Congress may control must in some stage of its progress be extra-territorial. It can never include transactions wholly internal, between citizens wholly of the same community, or extend to a polity and laws whose ends and purposes and operations are restricted to the territory and soil and jurisdiction of such community. Nor can it be properly concluded, because the products of domestic enterprise in agriculture or manufactures or in the arts may ultimately become the subjects of commerce outside the State, that the control of

1 Pensacola Tel. Co. v. Western, &c. Tel. Co., 96 U. S. Rep. 1, 9. 2 Gibbons v. Ogden, 9 Wheat. 1, 189; The Passaic Bridges, 3 Wall.

2

the means or the encouragements by which enterprise is fostered and protected is implied in this important grant of power.1 Therefore Congress cannot legislate for the regulation of commerce on a stream whose navigable waters are exclusively within the limits of a State, and which does not, by connecting with other waters, form a continuous highway over which commerce is or may be carried on with other States or with foreign countries. It is otherwise, however, with a river which, though wholly within a State, forms, with the lake into which it runs, a highway for inter-state commerce; and the regulations may extend to the vehicles of commerce which are used upon the river exclusively, but deliver merchandise upon the vessels navigating the lake. So a law of Congress which undertakes to regulate the sale of an article within a State, and to impose penalties for preparing, offering for sale, or selling it, except after it has been subjected to a prescribed

1 Veazie v. Moor, 14 How. 568, 574. It is well said in this case that "a pretension as far-reaching as this would extend to contracts between citizen and citizen of the same State, would control the pursuits of the planter, the grazier, the manufacturer, the mechanic, the immense operations of the collieries, the mines and furnaces of the country; for there is not one of these avocations the results of which may not become the subjects of foreign commerce, and be borne, either by turnpikes, canals, or railroads, from point to point within the several States, towards an ultimate destination. Such a pretension would effectually prevent or paralyze every effort at internal improvement of the several States; for it cannot be supposed that the States would exhaust their capital and their credit in the construction of turnpikes, canals, and railroads, the remuneration derivable from which, and all control over which, might be immediately wrested from them, because such public works would be facilities for commerce which, whilst availing itself of these facilities, was unquestionably internal, although immediately or ultimately it might become foreign."

2 Veazie v. Moor, 14 How. 568.

8 The Daniel Ball, 10 Wall. 557; Withers v. Buckley, 20 How. 84; The Bright Star, 1 Woolw. 266; The Montello, 20 Wall. 430.

test as a protection against explosions, is inoperative within state limits.1

Commerce with Indian Tribes. It is immaterial to the power of Congress over commerce with an Indian tribe that the tribe resides within the limits of a State.2 The power of regulation may extend to the prohibition of all intercourse except that carried on under license, and at the discretion of Congress the prohibition may no doubt be made total.

8

Embargo. At one notable period in the history of the country it was deemed wise to lay an embargo upon all commerce with Great Britain and France, as a means of obtaining redress against unfriendly action on their part, under which the commerce of the country was being seriously crippled. The embargo act was contested as unconstitutional. It was said that it was not a regulation of commerce, but a total destruction of commerce, and therefore not warranted by the power now under consideration. The act was nevertheless sustained in the District Courts.* The purpose was to protect and save commerce, not to destroy it. As an embargo is commonly intended to be hurtful to another nation, and is likely to be followed by hostilities if redress is not obtained, it would seem to be justified under the war power also. But the power that controls commerce must from the very nature of things include the power to restrict and limit, certain things, and to suspend altogether when for the time it seems wise. It is a sovereign power, and therefore

knows no limit.

1 United States v. DeWitt, 9 Wall. 41.

-

- to prohibit as to

2 United States v. Holliday, 3 Wall. 407; Worcester v. Georgia, 6 Pet. 515; Johnson v. McIntosh, 8 Wheat. 543; Jackson v. Goodell, 20 Johns. (N. Y.) 188.

United States v. Cisna, 1 McLean, 254.

4 United States v. The William, 2 Am. Law Jour. 255; Wheeling Bridge Case, 18 How. 421, 439.