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Page:Harvard Law Review Volume 1.djvu/168

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certain of the earlier cases, in which the controversy over the question whether the commercial power of Congress was “concurrent” or “exclusive” was carried on. This controversy was really political in its nature. It involved directly the great question of “State” or “national” sovereignty, the burning question of the time. The political bearing of the controversy accounts for the bitterness with which it was carried on, and the extreme confusion in which it left the law upon all questions involved in it. Fortunately, this controversy did not begin in the earliest cases decided by the Federal Supreme Court, involving the distinction between laws affecting foreign or interstate commerce and laws which are regulations of foreign or interstate commerce, and it is these earliest cases which, in the opinion of the writer, contain the true principles upon the subject.

In this article, then, the writer proposes to take up these earliest cases, and analyze them, with the view of coming at the precise principle which they lay down for distinguishing laws affecting foreign or interstate commerce, but which are not regulations of such commerce, from true regulations of foreign or interstate commerce; then to pass to the cases in which the great controversy over “exclusiveness” or “concurrency” of the commercial powers of Congress was carried on, and endeavor to point out certain elements of confusion introduced by these cases into the law; and lastly, to take up some of the more important cases and clauses of cases since decided by the Federal Supreme Court, and study them with the view of ascertaining how far, if at all, they modify or alter the principles of law laid down in the earliest cases, and what the law is at present in the light of recent decisions.

The first case in which the Supreme Court of the United States construed the clause in the Federal Constitution conferring power upon Congress to regulate commerce with foreign nations and among the several States, and with the Indian tribes, was the great case of Gibbons v. Ogden, 9 Wheat. 1, in which Chief-Justice Marshall delivered the opinion of the Court, after listening to the arguments of some of the ablest constitutional lawyers of the day, including Daniel Webster. That case involved the validity of a law of the State of New York, granting to certain persons the exclusive right to navigate all navigable waters of the State in vessels propelled by steam. The owners of this exclusive right had obtained an injunction from a New York Court restraining