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eign nations and among the various states is vested in Congress as absolutely as it would be in a single government having in its Constitution the same restrictions on the exercise of the power as is found in the Constitution of the United States. The power comprehended navigation within the limits of every State so far as navigation may in any manner connected with commerce with foreign nations or among the several states, or with the Indian Tribes, and therefore it passed beyond the jurisdictional line of New York and included the public waters of the State which were connected with foreign or interstate commerce.

In this opinion we find that the most important and far reaching declaration was that of the supremacy of the Federal power, so that in any case of conflict the act of Congress was supreme, and state laws must yield thereto, though enacted in the exercise of powers which are not controverted. In the Passenger Cases 13 the rule declared in this case was applied in holding invalid certain State statutes imposing taxes upon alien passengers. It was said that included navigation and intercourse and the transportation of passengers.

The Court said in the Pensacola Telegraph Company case that since the case of Gibbons v. Ogden it had never been doubted that commercial intercourse was an element which comes within the power of regulation by Congress, and that the power thus granted was not confined to the instrumentalities of commerce known or in use when the Constitution was adopted, but kept pace with the progress of the country, adapting themselves to the new developments of time and circumstances. In the language of the Court: “ They extend from the horse with its rider to the stage coach, from the sailing vessel to the steamboat, from the coach and 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.” In a late case it was said 75 that the commerce which Congress could regulate

73 7 Howard 283 (1849), 12 L.Ed. 702.

74 96 U. S. 1 (1877), 24 L.Ed. 708, 711. Construing act of July 24, 1866, as a prohibition of all State monopolies in interstate telegraph business.

75 W. U. Tel. Co. v. Pendleton, 122 U. S. 347 (1887), 30 L.Ed. 1187.

included not only the interchange and transportation of commodities or visible and tangible things, but the carriage of persons and the transmission by telegraph of ideas, orders and intelligence. Importation into one state from another is the indispensable element and the test of interstate commerce; and every negotiation, contract, trade and dealing between citizens of different States which contemplates and uses such importation, whether it be of goods, persons or information, is a transaction of interstate commerce 76 which commerce therefore includes not only communication by telephone between points in different States,?? but also communication through a correspondence school, where the intercourse and communication relates to matters of regular and continuous business and the conduct of such business, therefore, through local agencies is exempt from state control or interference. 78


Definition: — The opinion in the case of Gibbon v. Ogden 79 was delivered by Chief Justice Marshall and is regarded as one of his greatest judicial utterances, the path before him being untrodden by any Federal decision save his own in the Brig Wilson case. The opinion which Marshall delivered, and in which no authority was cited was so able, so profound and masterful that it announced the principle which all future decisions have followed. In this great decision, the chief justice among other things said:

“ As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who

76 From opinion of Sanborn, J., in Butler Brothers Shoe Co. v. United States Rubber Co., 156 Federal, i, C. C. A. 8th Cir., quoted by the Supreme Court, in International Text-book Co. v. Pigg, 217 U. S. 91 (1910).

77 Richmond v. Southern Bell Tel. Co., 174 U. S. 761. U. S. v. Westman, 182 Fed. 1017 (Ore. 1910). The White Slave Traffic Act was sustained as within the commerce power of Congress. It was also sustained by the District Court, E. D. of Texas, 187 Fed. 992 (1911), holding that the transportation of persons was commerce and that Congress, under its power of regulation as per Lottery Cases, could prohibit a class of commerce in the interest of Public Morals.

78 International Text-book Co. v. Pigg. 217 U. S. 91, where it was held that a corporation working under a system of credits through a list of attorneys of different states was held liable to a state license tax,

799 Wheaton, 1.

framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor, if retained by himself, or which can enure solely to the benefit of the grantee; but is an investment of power for the general advantage, in the hands of agents selected for that purpose; which power can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant. We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.

“ Commerce, undoubtedly, is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that inter


“ If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation.

nerica understands, and has uniformly understood, the word 'commerce,' to comprehend navigation. It was so understood, and must have been so understood when the Constitution was framed.. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The convention must have used the word in that sense, because all have understood it in that sense; and the attempt to restrict it comes too


“The word used in the Constitution, then, comprehends, and has always been understood to comprehend, navigation; and a power to regulate navigation is as expressly granted as if that term had been added to the word 'commerce.'

After defining the term “commerce," as used in the Constitution, and having decided that it embraced navigation, Marshall then proceeded to consider the question: “To what commerce does this power extend?” He said: “ The Constitution informs us, to commerce with foreign nations and among the several States, and with the Indian tribes.”

Later in the decision he continued: “It has, we believe, been universally admitted, that these words comprehend every species of commercial intercourse between the United States and foreign nations. No sort of trade can be carried on between this country and any other, to which this power does not extend. . . . Commerce, as the word is used in the Constitution, is a unit, every part of which is indicated by the term.”

He next came to the subject of commerce between the States. He said: “ The subject to which the power is next applied is to commerce among the several States. The word

among' means intermingled with. A thing which is among others is intermingled with them. Commerce among the States, can not stop at the external boundary line of each State, but may be introduced into the interior." In order to distinguish what may be called State commerce from the broader expression of commerce among the States, and to establish the rule for the discrimination in such cases, Marshall said: " 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 different parts of the same State, and which does not extend to, or affect other States. Such a power would be inconvenient, and is certainly unnecessary.

Comprehensive as 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 would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended, would not

have been made, had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language, or the subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns, which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.

“ But in regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. It would be a very useless power, if it could not pass those lines. The commerce of the United States with foreign nations, is that of the whole United States. Every district has a right to participate in it. The deep streams which penetrate our country in every direction, pass through the interior of almost every State in the Union, and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the States, if a foreign voyage may commence or terminate at a port within a State.

“ This principle is, if possible, still more clear, when applied to commerce among the several States.' They either join each other in which case they are separated by a mathematical line, or they are remote from each other, in which case other States lie between them. What is commerce among' them; and how is it to be conducted ? Can a trading expedition between two adjoining States commence and terminate outside of each? And if the trading intercourse be between two States remote from each other, must it not commence in one, terminate in the other, and probably pass through a third ? Commerce among the States, must, of necessity, be commerce within the States. In the regulation of trade with the Indian Tribes, the action of the law, especially when the Constitution was made, was chiefly within a State. The power of Congress, then, whatever

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