This rule has, however, brought its own difficulties. Not only is the decision a departure from the intention of the Constitution, but it is also a departure from legal principles.

The question whether or not a given subject admits of but one uniform system of regulation, is a legislative question, except in cases, like Gibbons v. Ogden, for instance, so clear that the legislature cannot legitimately supersede the judicial determination. The rule in Cooley v. Port Wardens is not, however, so restricted, but holds that in all matters which demand a single uniform rule, -or as the doctrine is broadened by later cases, in all matters which admit of a single uniform rule, -the silence of Congress is equivalent to a declaration that commerce shall be free. Upon this subject Professor Thayer remarks that —

"If it be said that the courts have merely been construing the silence and non-action of Congress, as being a declaration that no rule is required, and enforcing that, we do not really escape from the difficulty just mentioned. As regards State regulations of commerce in matters which do not require uniformity of rule, it is admitted that the silence of Congress is not conclusive against them; some positive intervention of Congress is required. If, then, the courts would know in any given case of a regulation of commerce what the silence of Congress means, how are they to tell unless they first determine under which head the given regulation belongs, that of regulations requiring a uniform rule, or of those which do not? . . . It may then be conjectured that the decisions of the Federal courts are likely to incline as time goes on,

Wall. 232, 279; Ward v. Maryland, 12 Wall. 418; Hardy v. R. R. Co., 32 Kan. 698; Master, etc., of Port of New Orleans v. Ship "M. J. Ward," 14 La. Ann. 287; Commonwealth v. Huntley, 156 Mass. 236; Lumberville, etc., Co. v. State Board, 55 N. J. L. 529.

to the side of leaving it to Congress to check such legislation of the States as may be challenged on the ground now in question, and of limiting its own action, in respect to such cases, to that class of State enactments which is so clearly unconstitutional that no consent of Congress could help the matter out." 1

In other words, the effort which the Court made in Cooley v. Port Wardens to find a field in which Mr. Chief Justice Marshall's decision could literally be applied, involves in Professor Thayer's opinion logical difficulties from which in time the Court will incline to retreat.

The important consideration which the decision in Cooley v. Port Wardens presents, is not, however, in the question whether its rule will prove to be "the final judgment of the Court" but in the opportunity which it offered for development of the Federal power.

1 Cases on Const. Law, 2190-2191.

CHAPTER V

EXTENSION OF FEDERAL POWER OVER CARRIERS

THE most conspicuous instance of this development is found in the newly acquired jurisdiction over interstate transportation.

As originally formed, the Constitution gave Congress power to regulate foreign commerce and the coasting trade. These two branches of commerce are often mentioned as though separate. In fact, however, the control of foreign commerce to be effective involves control of the coasting trade, for American vessels, whatever their destination, while upon the high seas are engaged in navigation with the ships of other nations thus of necessity within national jurisdiction,' while foreign vessels passing from one American port to another in order to complete delivery of their cargoes engage to this extent in coasting trade. It was entirely appropriate, therefore, that in drafting the clause which gave to Congress power to regulate this subject, terms should be employed which referred distinctively to foreign intercourse.2 To

1 Lord v. Steamship Co., 102 U. S. 541.

2 That the word "" commerce was characteristic of trade with foreign nations appears in the law dictionaries used when the Constitution was formed. Thus Giles Jacobs says: "There is a distinction between commerce and trade; the former relates to our dealings with foreign nations, or our colonies abroad, the other to our mutual traffic and dealings among ourselves at home. . . ." Burrill also says: "A distinction is frequently made between commerce and trade properly so called, the latter, intercourse between

go further than this, and to hold, as some have argued, that Congress was given no independent power to regulate interstate commerce, but that the clause should be read as conferring power of regulation only over commerce which being conducted with foreign nations extends among the several States,' is probably incorrect. Congress was given one single power of regulation which to varying extent might be exercised over three subjects - foreign, interstate, and Indian commerce. The power was, however, of external, not of internal regulation, and did not touch communication conducted among the States by highways or ferries — or by any means other than coastwise navigation.

citizens and subjects of the same nation, and the former seems almost ex vi termini to import intercourse by means of shipping to be used as the synonym of maritime."

Beawes, "Lex Mercatoria," p. 1, thus defines the word: "Commerce is that intercourse with foreign nations, which is carried on from one country to another by means of navigation, either for the exchange of commodities, or for the sale or purchase of them, through the medium of money. Commerce then has its basis in navigation, and is supported by exports and imports, whereas simple trade may be transacted independent of these elements and commerce. And herein chiefly consists the difference." See speech of J. W. Singleton, infra.

1 "If the Constitution had simply given to Congress the power to 'regulate commerce with foreign nations' and then stopped, omitting the words 'and among the States,' the question would naturally arise, what commerce? It could not regulate the commerce between two foreign nations. Then what commerce is to be regulated? The answer is found by adding to the words of the supposed grant, the words of the grant itself. The commerce subject to its regulations must have its inception in a foreign nation. The voyage that brings the material to be converted, sold, or exchanged on our shores must begin in a foreign country and end among the States, or vice versa. Speech of J. W. Singleton of Illinois, Feb. 4, 1881, 46th Cong., 3d Sess., Cong. Rec., Vol. 11, Part III, Appendix pp. 74-81. Pinckney's motion in the Convention, Aug. 29, 1787, "that no act of the legislature for the purpose of regulating the commerce of the United States, with foreign powers, among the United States, shall be passed without the assent of twothirds," etc., is so worded as to suggest that the limitation referred only to commerce of this character. Both Pinckney and Paterson, however, had advocated a grant to Congress of power to regulate commerce of the States "as well with foreign nations as with each other," and this was probably the meaning of the phrase reported by the Committee of Detail on August 6.

On the other hand, so far as concerned that commerce which fell within Federal control, the power of Congress was not restricted to the control of navigation which crossed State lines, but included all coastwise and foreign navigation. Federal statutes requiring the enrolling and licensing of vessels engaged in the coasting trade have, from the earliest days, applied to all vessels so engaged, though employed in navigation between ports in the same State. The Federal power over this subject, said Haines, in arguing the case of Steamboat Co. v. Livingston,1 is "an entirety," extending wherever coastwise and foreign navigation extends. That the Federal power was limited to control of navigation beginning in one State and ending in another, was, he said, a novel construction owing its origin to the steamboat controversy, not intended in 1787 and not to be followed when that great controversy should be ended.

Over this commerce Federal power extended, as has been shown, so far as to enable Congress to control foreign relations, to tax foreign commerce, to exclude foreign vessels from the coasting trade, and to protect commerce among the States from restrictions forbidden by the Constitution.2

To this extent, then, Federal power over navigation imported a limited jurisdiction over carriers. The duties which the carrier owed to the public were, however, even in the case of transportation extending across

1 I Hopk. Ch. 149, 159.

2 Message to Congress, May 4, 1822; speech of William H. Crawford in Senate, Feb. 11, 1811; Annals 11th Cong., 3d Sess., pl. 139; see also speech of William Drayton of South Carolina in House of Representatives, Feb. 26, 1828, Cong. Deb., Vol. IV, Part II, pl. 1635-1636.