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greater Federal control has been exerted over the agents and instrumentalities of commerce.
The words of Professor Thayer, late of the law school of Harvard University, regarding the study of Constitutional Law are peculiarly true of Interstate Commerce Law: "Nothing else," he said, "can bring home to a student the existence and the nature of this process, the large scope of the questions presented, and the true limitations of the legal principles that govern them, with anything like the freshness, precision, and force, and I might add also the fascination, which accompany the orderly tracing of these things in the cases."
We must, therefore, begin our study of this subject with a clear knowledge of the conditions and reasons which determined the "People of the United States," to establish the Federal Government and invest it with the control of foreign and interstate commerce. The genetic method should be followed. The progressive development of the law to meet new economic conditions and new inventions, and to regulate new methods of organization in the development of great transportation facilities, should be carefully observed.
Beginning at the foundation of this law we find that the greatest and most insoluble problem confronting the Confederate States of America in the period from 1783 to 1787 was the condition of commerce with foreign nations and among the states. Prior to 1783 a flourishing commerce had been established with the subjects of foreign governments and among the colonies. Following the termination of the Revolution, Great Britain adopted rigorous commercial restrictions which prevented the American states from participating in trade with her Colonial possessions. Regulations also closed many of the ports of Europe to the states. There also grew up in the states protective regulations and taxation which burdened and embarrassed the commerce among them. Each state under the Confederation was an independent sovereign and, as to commerce, a foreign nation to the others. To establish commerce, therefore, demanded a strong central control over not only foreign but interstate commerce as well.
John Marshall in his Life of George Washington, Volume 5, Chapter II, p. 82, says:
"That thirteen independent sovereignties, jealous of each other, could be induced to concur, for a length of time in measures capable of producing the desired effect, few
were so sanguine as to hope. With many, therefore, the desire of counteracting a system which appeared to them so injurious, triumphed over their attachment to state authority, and the converts to the opinion that congress ought to be empowered to pass a navigation-act, or to regulate trade generally, were daily multiplied. * Meanwhile, the United States were unremitting in their endeavors to form commercial treaties in Europe. Three commissioners had been appointed for that purpose; and at length, as the trade with England was peculiarly important, and the growing misunderstandings between the two countries threatened serious consequences, should their adjustment be much longer delayed, it was determined to appoint a minister plenipotentiary to represent the United States at the court of Great Britain; and in February, 1785, Mr. John Adams was elected to this interesting embassy. His endeavors to give stability to the commercial relations between the two countries by a compact which might be mutually advantageous to them, were not successful. Some overtures were made on his part, but the cabinet of London declined the negotiation. The government of the United States, it was said, was unable to secure the observance of any general commercial regulations; and it was deemed unwise to enter into stipulations which could not be of
reciprocal obligations.” Many memorials were presented to the legislatures of the different states "lamenting it as a fundamental defect in the constitution that full and entire power over the commerce of the United States" had not been orginally vested in congress, "as no concern common to many could be conducted to a good end, but by a unity of councils, * * * hence it is that the intercourse of the states are liable to be perplexed and injured by various and discordant regulations, instead of that harmony of measures on which the particular as well as general interests depend; productive of mutual disgusts and alienation among the several members of the empire,” id. p. 91. (Italics mine.)
The states were very jealous of their sovereignty, reserved in the Articles of Confederation, and no common action by agreement between them was possible. Washington put the situation thus, in a letter quoted by Marshall referring to foreign nations, "who," he said, "must see and feel that the Union, or the States individually, are sovereign as best suits their purposes; * * * in a word that we are one nation today, and thirteen tomorrow. Who will treat
with us on such terms?" If this was an insuperable objection to regulation by thirteen states and the Union, with what accumulated force does it apply when there are forty-eight states and the Federal Government.
Out of these conflicts and for these reasons, the Constitution of the United States was formulated, containing the commerce clause, reading: “The Congress shall have power:
To regulate commerce with Foreign Nations and among the several states and with the Indian Tribes."
As to the power of Congress over foreign and interstate commerce, the Supreme Court of the United States has said:
The power conferred upon Congress to regulate commerce among the States is indeed contained in the same clause of the Constitution which confers upon it power to regulate commerce with foreign Nations. The grant is conceived in the same terms, and the two powers are undoubtedly of the same class and character and equally
extensive.1 And again the Court said, referring to many cases :
They also show that the power to regulate commerce among the several States is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercises of the power as are found in the Constitution of the United States; that such power is plenary, complete in itself, and may be exerted by Congress to its utmost extent, subject only to such limitations as the Constitution imposes upon the exercise of the powers granted by it; and that in determining the character of the regulations to be adopted Congress has a large discretion which is not to be controlled by the courts, simply because, in their opinion, such regulations may not be the best or most effective that could be
employed. Upon this foundation of fact and fundamental law, the Jurisprudence of this subject has been erected.
The purpose of these volumes is to give selected cases which show the development of this law by legislation and judicial inter
1 Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465, 482; Pittsburgh, etc., Coal Co. v. Bates, 156 U. S. 577, 587; Crutcher v. Kentucky, 141 U. S. 47, 57.
2 Lottery Case, 188 U. S. 321, 353.
pretation of the commerce clause. These cases have been selected and used by me in teaching law classes. The legislation by Congress has met new conditions and utilized for the public welfare new organizations and methods of carrying on the commerce with foreign nations, and among the States.
This work is intended for the use of students in Law Schools giving strictly law courses and of commerce lawyers. The general subject is treated in two parts: (1) The Powers of Congress, in a one volume edition for students and in two volumes with a full index for commerce lawyers, and (2) The Powers of, and Practices Before, the Interstate Commerce Commission in one volume to follow later.
Not all opinions of the Supreme Court upon this subject are included in this work; what are regarded as fundamental cases have been selected. Under the title "Cases Cited" will be found references to many additional cases, and by reference to the opinions in which they are cited, their general doctrines and application to concrete cases will be found.
The subjects of the chapters and sections will give a general chart of the work. The head notes to each case are to guide students who are pursuing the study of this law. In teaching this subject by the use of these cases, I have found that head notes are of special value in fixing fundamental propositions in the mind of the student. The head note is not a syllabus of the case, and therefore, a complete index has been prepared for the two volume edition of Part I, referring by page numbers to various points and phrases in the opinions, for the use of commerce lawyers in the preparation of briefs.
Several of my students and friends have assisted me with valued services and suggestions. Among these I wish to make special mention of Miss Suzanne G. Edson, who has aided in the compilation of cases; Mr. Otis L. Mohundro, who has compared the proofs with the official reports and prepared the tables of cases; Mr. William J. Tompkins, who has given me extra clerical assistance; and Mr. E. E. Applebaum, who prepared the index. The able and courteous clerk of the Supreme Court of the United States, Mr. William B. Stansbury, has supplied me with early copies of printed opinions requested, many of which have been used as manuscript for the publisher. This has greatly facilitated the work, for which I am much indebted to Mr. Stansbury.