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Page:Harvard Law Review Volume 1.djvu/182

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national, or admitting only of one uniform system or place of regulation; and “concurrent” as to all other subjects.

This decision appears to be a compromise decision. It appears to settle the old controversy as to “exclusiveness” or “concurrency,” partly in favor of “exclusiveness” and partly in favor of "concurrency.” That the commercial powers of Congress are to a large extent “exclusive” was definitively established by the case, and has never since been questioned. The chief difficulty is to fix with exactness the limits of that “exclusive” power under the decision. It is said that the “exclusive” power of Congress extends to all subjects of the power to regulate foreign or interstate commerce which are national in their nature, or admit of a uniform system of regulation. Now, it is extremely difficult to fix what the Court meant by subjects “national in their nature.” Perhaps we can best ascertain the limits which the Court intended to fix for the “exclusive” powers of Congress by looking at the question from the other side, and examining the class of laws which have been deemed to fall within the “concurrent” power of the States. In Cooley v. Board of Wardens the Court held that pilotage laws fell within the concurrent power. In subsequent cases laws authorizing the bridging of navigable streams (Gilman v. Philadelphia, 3 Wall. 713), harbor improvement laws (County of Mobile v. Kimball, 102 U. S. 691 ), and quarantine laws (Morgan’s S. S. Co. v. Louisiana Board of Health, 118 U. S. 455 ) have been held to be emanations from the “concurrent” power of the States to regulate foreign and interstate commerce. In regard to quarantine laws, bridge laws, and harbor improvement laws, they would seem clearly to belong to that class of laws which affect or operate upon foreign or interstate commerce, but which, according to the principle laid down in Gibbons v. Ogden, are not regulations of such commerce, because not passed with the intention of regulating it. The same thing seems to be true of pilotage laws, although Chief-Justice Marshall, in Gibbons v. Ogden, classed them as regulations of foreign or interstate commerce. Such laws are regulations of commerce, unquestionably, but not of foreign or interstate commerce, if an intention or aim to regulate foreign or interstate commerce is to be regarded as the test. They are intended to impose restrictions upon the navigation of ports or harbors of the State, their object being to render such navigation more safe. As far as the navigation within the State is a part of foreign or