HARVARD LA W RBVIBW.
and among the several States." ^ The committee of five to whom Mr. Pinckney's propositions were referred by the convention* reported back the clause unchanged, except that the word " for- eign " was substituted for "all" before "nations.'*^ The com- mittee, consisting of one member from each State, to whom this clause among others was again referred,* added the words " and with the Indian tribes," and struck out the definite article before "power" at the beginning of what is now art. i, sec. 8, of the Constitution.^ These alterations were "agreed to nem con.,** leaving the clause as it now stands. It is to be regretted that we have not the reasons of the committee for making this change, which had the effect of giving Congress power, instead of the power, to regulate commerce. But it is not unlikely, as pointed out by Mr. Emmet in his argument in Gibbons v. Ogden,* that the change was made in order to discountenance the idea that because certain powers had been granted to Congress they were to be construed as exclusive without more, depriving the States of any further rights to exercise the same powers. It was strongly intimated by Chief Justice Marshall in that case — and his reason- ing can be explained on no other ground — that "as the word to
- regulate * implies in its nature full power over the thing to be
regulated, it excludes necessarily the action of all others that would perform the same operation on the same thing." ^ An important doctrine, supplementary to this statement, is laid down by the court five years later, in the case of Willson v. The Black Bird Creek Marsh Co.® The court had early held, unanimously, that the power granted Congress to " establish uniform laws on the subject of bankruptcies throughout the United States "did not render the State bankrupt law unconstitutional in the absence of congressional legislation.® Chief Justice Marshall had said, in the opinion of the court : " It is not the mere existence of the power, but its exercise, which is incompatible with the existence of the same power by the States. It is not the right to establish these uniform laws, but their actual establishment, which is incon- sistent with the partial acts of the States." ^^
1 5 Elliot's Debates, 130. « lb, 363, 376.
« lb. 378. * lb. 503.
» lb. 506, 507. • 9 Whcat.,at p. 85 (1824).
' 9 Wheat., at p. 209 (1824). * 2 Pet. 245 (1829).
^ Sturges V. Crowninshield, 4 Wheat. 122(1819). ^o lb. 251.