Page:Harvard Law Review Volume 1.djvu/171

 How, then, are we to tell, in doubtful cases, to which of two or more possible sovereign powers a given law is to be ascribed? The answer is not far to seek, — from the object or aim of the Legislature in passing the law. This is clearly implied from the language of Chief-Justice Marshall, above quoted. He treats sovereign powers not as rights to use prescribed means, but as rights to aim at prescribed ends. In his view, the power to regulate foreign or interstate commerce did not confer upon Congress the power to enact laws containing provisions of some prescribed character, but to aim at the accomplishing of a general result by any legislative means whatsoever. It follows, then, that to test whether a given law is to be regarded as a regulation of foreign or interstate commerce, we must examine the object of the Legislature in passing the law. If the law was passed for the sake of the effect which it was to have upon foreign or interstate commerce, it must be regarded a regulation of such commerce; but if not, then the law is not to be regarded as a regulation of foreign or interstate commerce, although it may operate upon and affect such commerce in an important degree, the operative effect of the law being immaterial in deciding the question, except in so far as it throws light upon the intention of the Legislature.

All this, which is implied in, and is easily deducible from, the above-quoted language of Chief-Justice Marshall, is even more plainly brought out in the following extract from the separate opinion of Johnson, J., who held that the commercial powers of Congress were exclusive, and the New York law unconstitutional, as infringing upon them. He says:—

“Wherever the powers of the respective governments are frankly exercised, with a distinct view to the ends of such powers, they may act upon the same object, or use the same means, and yet the powers be kept perfectly distinct.” The words “frankly exercised” plainly indicate that, in the learned judge’s opinion, the intention of the Legislature in framing a given law determined the sovereign power to which it must be ascribed.

Having developed thus fully the views of Chief-Justice Marshall in Gibbons v. Ogden, we can now pass to the case of Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, a case which has given subsequent judges very great difficulty, and which many have deemed irreconcilable with the decision in Gibbons v. Ogden. In that case, the State of Delaware had authorized a company to