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THE GREEN BAG

ply them directly and in the simplest way is in accord with our political principles: to give to the township, the county, the city, the state, the Xation that power which each can best use for the best interests of those directly affected, and by the direct operation of the powers given, on the things to be regulated, has been the dominant political idea of our life from Plymouth Rock to Appomattox, if not from the Gcrmania of Tacitus to the American Political Ideas of John Fiske. The government under the Confederation was not constructed on this plan,—and failed; the National government is so constructed. Federal incorporation is the National stage; Federal license is the Confederation stage; the Con federation plan did not work. The National plan will."

seek. The natural meaning of the words is not now what it was when the opinion was written. Within a few years after this decision the whole economic situation was changed by the introduction of railroads. Marshall could in 1824 safely frame his definition of commerce in the broadest terms, because commerce itself was a narrow operation. When easier means of intercourse brought the States closer to gether, even judges who sat on the bench with Marshall differed under the new conditions, as to the meaning of the language in this case." "The decision in Gibbons v. Ogden then related solely to transportation by water; it held that navigation was within Federal control." "When the court in 1824 held that the Federal power over commerce is indivisible it referred to operations of commerce which had always been considered within this rule. To CONSTITUTIONAL LAW (Interstate Commerce. this doctrine, and to no other, had there been Regulation of Rates. Federal License) contemporaneous and long continued assent. INTERESTING in connection with Mr. Parsons' At the very time, however, that the rule was argument in opposition to federal control of announced a distinction was made, as has been corporations in this number as supporting his shown, between transportation and naviga contention of the unconstitutionality of Mr. tion,—Marshall's broad definition of commerce Garfield's proposal is a thoughtful argument did not include transportation in its relation appearing in the Columbia Law Review for to the carrier. This is not, and at that time February (V. 5, p. 77) entitled, "Chief Justice had never been considered as, a part of Marshall on Federal Regulation of Interstate commerce." Carriers," by E. Parmalee Prentice. It is "The policy which Attorney-General Knox founded upon an explanation of the exact in 1902, and Commissioner Garfield still more decision of the early case of Gibbons v. Ogden recently, advocated in regard to interstate to which recent decisions of the Supreme commerce as a means of trust regulation was Court and Mr. Garfield's now famous report in fact intended by the framers of the Con have seemed to turn for authority. The stitution as a means of regulating international author states that "there was nothing new relations,—but for international purposes only. in the establishment of the rule which to most In other relations the right of navigation does modern readers seems the great achievement not come from the Federal Government, and of the case, that Federal power over commerce no Federal franchise is needed for its exercise." is exclusive. To the extent then under con "Interstate transportation by land was, to a sideration, it had always been so regarded. considerable extent, originally instituted and The case holds that navigation is within the for many years after the adoption of the Con commercial powers of Congress, and that a stitution, supported by the establishment of Federal coasting license is a sufficient authority monopolies." "Plainly, the public, and ap parently the courts, were then far from con to navigate the public waters of a state. It has been common, however, to assume sidering individual control of interstate trans that the decision went far beyond a determina portation to be a ground for governmental or tion of this narrow issue. It is said that the judicial interference." language of the opinion is unambiguous,— "The Federal Government not only was why then should not its words be literally ac without power to establish monopolies of in cepted and applied in their natural meaning? terstate transportation, but it could not even "The answer to this question is not far to interfere with the monopolies of such trans