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Page:Harvard Law Review Volume 2.djvu/316

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be construed. A case which greatly simplified this question, and at the same time offered a solution to the much-vexed problem how far the States had the power to regulate foreign and interstate commerce, was Cooley v. The Port Wardens.^ A pilotage law of Pennsylvania provided that every vessel neglecting or refusing to take a pilot when one could be had, should pay one-half the regular pilotage fee to the port wardens. The plaintiff in error was the consignee of a vessel which had thus neglected to take a pilot. To an action of debt by the Board of Wardens, he set up that the vessel was at the time engaged in interstate trade under a coasting license of the United States. The court, speaking through Mr. Justice Curtis, held that the law was such a regula. tion of foreign and interstate commerce as may be constitutionally enacted by the States in the absence of congressional legislation on the subject ; that the nature of the power to regulate commerce does not in all cases require that a similar power should not exist in the States. *' The power to regulate commerce embraces a vast field, containing not only many, but exceedingly various, sub- jects, quite unlike in their nature ; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port ; and some, like the subject now in question, as imperatively demanding that diversity which alone can meet the necessities of navigation. . . . Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress." The decision has been treated in the later cases as establishing the rule that, whatever subjects do not admit of a uniform national system, or plan of regulation, may be regulated by the States in the absence of congressional legislation upon the subjects.^ The principle of Cooley v. Port Wardens has been made by the Supreme Court the basis of a rule of construction applicable to

1 12 How. 299 (185 1 ).

  • The rule in Cooley 2/. Port Wardens wag hinted at as early as Gibbons v, Ogden,

9 Wheat. I, 195 (1824). Cases in accord are case of the State Freight Tax, 15 Wall. 232, 279, (1872); County of Mobile v, Kendall, 102 U. S. 691 (1880); Transportation Co. V, Parkersburg, 107 U. S. 691 (1882); Brown v, Houston, 114 U. S. 622, 6jo (1884), semble. Other cases are collected in Wabash Ry. Co. v, Illinois, 1 18 U. S. 557, 585, and Robbins v. Shelby Taxing District, X20 U. S. 489, 492 (1886). The principle was lately recognized in Bowman v, Chicago & N. W. Ry. Co., 125 U. S. 465, 8 Sup. Ct. Rep. 689, 676 (1888).