Political Science and Comparative Constitutional Law

subjects of foreign states, the definitions and regulations of Congress must conform to the general principles of international law. The phrase "high seas" signifies, at this point, tide waters below low-water mark.1

The legislative power of the Congress in reference to all these things is exclusive. Neither the other departments of the general government, on the one side, nor the commonwealths, upon the other, possess any concurrent powers with the legislature of the general government in reference to any of these matters, except, perhaps, in meeting defensively the attack of a foreign state. The executive and judicial departments of the general government and the commonwealths are, therefore, confined to the function of carrying into execution the will of the Congress upon these matters. They may not resist the same in any manner, except through a judicial controversy involving the assertion of a private right secured by the constitution against the powers of the Congress over these matters.

2. Legislation in respect to Foreign Commerce.

The constitution vests in the legislature of the general government the power "to regulate commerce with foreign nations," i.e. foreign states.3

The Court has defined commerce to be both intercourse and traffic, and the regulation of commerce to be the prescribing of the rules by which intercourse and traffic shall be governed.1

This power is exclusive to the legislature of the United States as against the commonwealths. In two respects, however, and only two, the Congress may, if it will, confer the power to regulate foreign commerce upon the commonwealths. It may authorize them to lay duties or imposts

1 United States v. The Pirates, U. S. Reports, 5 Wheaton, 184.

2 United States Constitution, Art. I, sec. 10, §§ 1, 2; Ibid. Art. II, sec. 2, § I.

8 Ibid. Art. I, sec. 8, § 3.

4 Gloucester Ferry Co. v. Pennsylvania, 114 U. S. Reports, 196.

upon imports or exports and upon tonnage. This authorization must, however, be express, and can in no case be inferred from the failure of Congress to regulate the particular point. The failure of Congress to regulate foreign commerce upon any point only signifies that, as to that point, the regula tion is left to free agreement between the private parties concerned. Any article of foreign commerce is thus protected against the power of the commonwealths from the moment, in the case of an export, that this quality attaches to it, and to the moment, in the case of an import, when it is divested of the same; i.e. from the moment, in the first case, when it is delivered to the first common carrier for exportation, and to the moment, in the second case, when it has passed into the hands of the purchaser of the unbroken package from the original importer, or has been broken up for retail by the original importer. There are two limitations, however, upon the exclusive power of the legislature of the general government to regulate commerce with foreign nations, viz; the power of the commonwealths to tax imports and exports for the absolutely necessary expenses incurred in the execution of their inspection laws and the power of the commonwealths to impose police regulations upon traffic and intercourse generally. These two limitations, however, are themselves subject to restrictions. In the first case, Congress may revise and control the inspection laws of the commonwealths, and the net produce of all taxes laid by the commonwealths upon imports and exports must be paid into the treasury of the

1 United States Constitution, Art. I, sec. 10, § 2.

2 Henderson v. The Mayor of New York, 92 U. S. Reports, 259; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. Reports, 196.

3 Coe v. Errol, 116 U. S. Reports, 517; Turpin v. Burgess, 117 U. S. Re

ports, 504.

Brown v. Maryland, U. S. Reports, 12 Wheaton, 419.

5 United States Constitution, Art. I, sec. 10, § 2.

6 New York v. Miln, U. S. Reports, 11 Peters, 102; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. Reports, 196; Morgan's Steamship Company v. Louisiana Board of Health, 118 U. S. Reports, 455.

general government;1 and in the second, the legislation of Congress will displace the police regulations of the commonwealths as far as they touch the same subject.2 Exactly what this realm of police regulations is, within which, in the absence of legislation by Congress, the commonwealths may act upon foreign commerce, has not been distinctly marked out by the Court. As I have already pointed out in other connections, the police power of the commonwealths is the "dark continent" of our jurisprudence. It is the convenient repository of everything for which our juristic classifications can find no other place. The Court has indicated negatively and rather confusedly that, in regard to commerce, it is what does not "admit of one uniform system or plan of regulation" for the whole United States.3 Whatever, therefore, does admit of an uniform regulation is purely a regulation of commerce, in regard to which the commonwealths may in no event act at all.

Theoretically, the power to regulate commerce with foreign states is not vested in the legislature of the general government to the exclusion of the treaty-making department of that government, viz; the President and the Senate. The President and the Senate may, by way of treaty, regulate commerce between the United States and a particular foreign state. The treaty may cover ground not preoccupied by legislation, and it will displace all anterior legislation covering the same ground. In like manner legislation subsequent to the treaty will abrogate the treaty provisions upon the same subject. This legislation will then be the law within the United States instead of the provisions of the treaty. The

1 United States Constitution, Art. I, sec. 10, § 2.

2 Henderson v. The Mayor of New York, 92 U. S. Reports, 259; Morgan's Steamship Company v. Louisiana Board of Health, 118 U. S. Reports, 455.

3 Cooley v. Wardens of the Port of Philadelphia, U. S. Reports, 12 Howard, 299; Henderson v. The Mayor of New York, 92 U. S. Reports, 259.

4 Foster v. Neilson, U. S. Reports, 2 Peters, 253.

5 The Cherokee Tobacco, U. S. Reports, 11 Wallace, 616.

foreign state may indeed regard this legislation as a violation of the entire treaty of those parts not displaced by legislation as well as of those which have been so displaced — and may regard the ex parte act as a just cause of war; but that is another matter; we have then a question of diplomacy between states. The subsequent legislation is the law in the United States, and must be executed by every official and obeyed by every subject.

As a matter of fact, such a supersession of legislation by treaty and of treaty by legislation is, in large degree, prevented by the participation of the President and the Senate in both legislation and treaty-making.

3. Legislation in respect to Internal Commerce.

The constitution confers upon the legislature of the general government the power to "regulate commerce among the several States" (commonwealths) "and with the Indian tribes."

Commerce among the commonwealths is traffic, transportation and intercourse between two points situated in different commonwealths.2

The regulation of such commerce is exclusive to the legislature of the general government, both as against the commonwealths and as against the other departments of the general government; and when the Congress does not regulate by law the different parts of this subject, it is to be concluded that the regulation of such parts is left to the private parties immediately concerned, to be accomplished. by contract.3

The Court has also interpreted the carrying of telegraphic messages from a point within one commonwealth to a point within another as “commerce among the States" (commonwealths), and has declared the regulation of the same to be

1 United States Constitution, Art. I, sec. 8, § 3.

2 Wabash, St. Louis & Pacific R.R. Co. v. Illinois, 118 U. S. Reports, 557. 3 Ibid.; Robbins v. Shelby County Taxing District, 120 U. S. Reports, 489.

an exclusive power of the legislature of the general government.1

There is but a single limitation upon the exclusive power of the Congress to regulate commerce among the commonwealths, viz; the power of the commonwealths to impose police regulations upon all traffic and intercourse.2 The definition of the domain of the police power of the commonwealths in this respect must be held to be the same as in the case of commerce with foreign states, viz; matters which do not in their nature, or on account of circumstances, admit of uniform regulation for the whole United States. These police regulations of the commonwealths will, however, be superseded by the legislation of Congress upon the same subjects. They hold, therefore, only where the Congress has not occupied the ground, and only until Congress sees fit to do so.

The regulation of commerce with the Indian tribes is likewise the regulation of all traffic and intercourse with them, and is also exclusively vested in the legislature of the general government. It does not matter, in the interpretation of this clause of the constitution, that the tribe is located temporarily or permanently within the territorial limits of a commonwealth. The existence of the tribal organization furnishes the sole test. In fact, with the act of March 3, 1871, Congress virtually asserted complete and exclusive jurisdiction over all Indians organized as tribes, and located either within the territories of the United States or upon reservations within the commonwealths. The effect and purpose of this act and of the comprehensive act of 18855 are to vindicate the sovereignty of the United States over all persons resident within the territory of the United 1 The Telegraph Co. v. Texas, 105 U. S. Reports, 460.

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Political Science and Comparative Constitutional Law, Volumen2