legislature to what the Courts shall think reasonable. It seems to us that the whole theory on which the right of the State to regulate public charges is based is thus disregarded. It was thought to be based on the fact that when a man takes up an employment, whose proper conduct is of paramount interest to the community, he does so subject to the right of the public to regulate his actions. The will of the people in this as in other respects is expressed through the acts of their representatives in the Legislature. The opinion that the reasonableness of the act of the legislature is a judicial question, substitutes the will of the judges for the will of the people. Mr. Justice Bradley clearly foresaw this, and deeply regretted the inevitable conflict between the Courts and the legislature.

THE COMMERCE CLAUSE.-Outside the interpretation of the amendments, the most important work of the Court during the late Justice's term was the development of the law relating to interstate commerce. No other Justice, except Mr. Justice Miller, has played such an important part in the development of this, perhaps the most complicated branch of constitutional law, and the one on whose proper application rests the future industrial prosperity of the country. Mr. Justice Bradley and his associates found the law relative to interstate commerce involved in doubt. Today, as a result of their labors, many principles which can be applied to the majority of new cases as they arise have been firmly established. With the most important and far-reaching of these the name of Mr. Justice Bradley, together with that of Mr. Justice Field, will always be indissolubly connected. The question of the nature of the power of Congress over

commerce had often engrossed the attention of the Court. Some judges thought the power was concurrent in the States, others exclusive in Congress. The members of the Court during the time of Chief Justice Taney, seemed to labor between two difficulties. If the States had a concurrent power over commerce, there appeared to be no limit to the extent of the possible interference of State legislatures in the intercourse between citizens of different States. The main purpose of the "more perfect union," was to prevent this interference. On the other hand, if the power was not exclusively in Congress, were not the State pilot laws unconstitutional? Mr. Justice Curtis apparently solved this difficulty in Cooley v. Port Wardens, when he pointed out that the nature of a Federal power depended upon the subjects over which it was exercised; and, therefore, as commerce embraced a multitude of subjects, it was evident that over some, as pilots, the concurrent power of the State extended, while others, as imports in the hands of the importer, were exclusively under the control of the Federal government. During the time of Justices Miller, Field and Bradley, a complete change has taken place in the attitude of the Court, and an important rule, first emphasized by Chief Justice Marshall in Gibbons v. Ogden, has been firmly established. Chief Justice Marshall had said :

*

*

* "All experience shows that the same measure or measures, scarcely distinguishable from each other, may flow from distinct powers, but this does not prove that the powers themselves are identical."* This means that a State, in the exercise of her reserved powers, can pass many laws, such as pilot laws, which it

9 Wh., 204.

would be competent for Congress to pass in the exercise of the power over commerce. The fact that the power may be exclusively in Congress, does not prevent the State from making a law whose purpose, as disclosed by its terms, is fairly intended to improve the internal commerce of the State, or to protect the health and morals of the people, from being a constitutional law, though Congress might have passed a similar law in the exercise of one of her exclusive powers. As far as interstate commerce is concerned, the adoption of this principle ends the confusion which arose from discussing a concurrent power of the State over a subject which, as interstate and foreign commerce, is essentially national. One cannot but believe that its recognition is a distinct advance in our constitutional law. For from the standpoint of political science, one of the purposes of that law is to separate things national from things local. In the complete development of constitutional law, therefore, there can be no such thing as a subject which is at once partly national and partly local. Naturalization, for instance, ought to be a national matter or a local or State matter. To declare that it is both would be to invite confusion. The realization that interstate commerce, as such, is solely a national matter, but that nevertheless there is nothing to prevent the States, in the exercise of their reserved powers, from passing laws which Congress might pass in the exercise of its exclusive power over such a commerce, which is mainly due to Mr. Justice Field and the late Justices Miller and Bradley, has therefore, done much to clarify our ideas on constitutional subjects.

An important adjunct to the above-mentioned

theory, in regard to the consequences of an exclusive power in the Federal government, is the doctrine which was developed simultaneously with it, and known as that of the "silence of Congress." When the Court regarded the exclusive power of Congress over commerce as not preventing the States, in the absence of conflicting congressional legislation, from affecting commerce in the exercise of their police powers, it immediately followed that any law of the State, no matter how much it obstructed interstate commerce, such as a bridge over an important river, was entirely within the power of a State to enact, provided its main object was one which it was competent for a State to undertake. Such a result was to be profoundly deplored. Justices Field and Bradley, in a long line of cases, commencing with Welton v. State of Missouri,* took the old distinction between things over which Congress was supposed to have an exclusive control, and those over which the States were supposed to have a concurrent power, and formulated and applied the now famous constitutional doctrine, that the silence of Congress respecting regulations of subjects in their nature national must be taken by the courts as an indication of its will that commerce in this respect should be free from State regulations; but over certain other subjects, such as pilots, over which it used to be contended. that the concurrent power of the States extended, then the non-action or silence of Congress is no indication of its will that commerce in this respect should be free from State regulations, and, therefore, State laws which affect these subjects do not conflict with the will of Congress. Thus, though the way of regarding the

* 91 U. S., 275.

power of the States in respect to commerce was modified, hardly a case had to be overruled.

The practical effect of this interpretation of the commerce clause of the Constitution is a masterpiece of judicial legislation. It requires that the consent of the Federal authority should first be obtained before a particular locality essays to embark on legislation, which, however necessary to preserve the morals of the citizens, profoundly affects the commerce of the whole country. But when once the whole nation decides that such local legislation may, in some instances, be desirable, the particular regulations are enacted by the States, which alone are familiar with local conditions.

This examination of the opinions of the late Justice might be continued indefinitely. We cannot dignify a sketch which has simply touched the outskirts of his work with the name review. When we look over the long line of decisions with which his name is connected, a feeling akin to awe and reverence comes over us. Of awe, at the magnitude of the work; of reverence, at the greatness of the intellect which solved such a variety of problems. Surely the late Justice was one of those men of whom we, as Americans, can be justly proud. He combined in his own person and character the two strong points of the Anglo-Saxon: a great and wide practical knowledge of men and things, combined with the power of concentration and subjective analysis. At his death, the bench, bar and country lost one who, for the clearness of his thought and for the thoroughness of his acquaintance with all subjects connected with his profession, was perhaps without a superior in the history of our judiciary.