¹ Proceedings of the American Political Science Association, 1908: Leacock, “The Limitation of Federal Government;” Ford, “The Influence of State Politics in Expanding Federal Power;” Moore, “The Increased Control of State Activities by Federal Courts;” Anderson, “Increase of Federal Power under the Commerce Clause of the Federal Constitution.” Papers before the American Bar Association, 1908: Hanford, “National Progression and the Increasing Responsibilities of our National Judiciary;” Farrar, “The Extension of the Admiralty Jurisdiction by Judicial Interpretation.” Books: Pierce, , Federal Usurpation (New York, 1908)Google Scholar; Moseley, , Federal Supremacy: A Study of the Power of Congress Over Railroads (Privately printed, 1907).Google Scholar

² Quoted in Pierce, op. cit., p. 270.

³ Moore, op. cit., p. 69.

⁴ 1908, 209 U. S. 123–204.

⁵ 1908, 209 U. S. 205, 211.

⁶ A child labor act was advocated at that time by Senator Beveridge and one was passed for the District of Columbia (May 28, 1908, 25 Stat. at L. 420). For a contemporary discussion of the federal Child Labor Bill then pending, and the litigation over the Employers' Liability Act for Carriers (Act of June 11, 1906, 34 Stat. at L. 232), see Pierce, op. cit., 284–291. The Employers' Liability Act was held unconstitutional for failing properly to exclude intrastate commerce from its scope, on January 6, 1908, in Howard v. Illinois Central R. R. Co. (207 U. S. 463, 52 L. ed. 297). It was superseded by a more carefully drawn act, that of April 22, 1908 (35 Stat. at L. 65), amended April 5, 1910 (36 Stat. at L. 291), and upheld in Mondou v. N. Y., etc. R. R. Co. (1908, 223 U. S. 1, 56 L. ed. 327). Cf. also Pederson v. R. R. Co. (1913, 229 U. S. 146, 57 L. ed. 1125). A Child Labor Act was passed September 1, 1916 (39 Stat. at L. 675), the constitutionality of which was denied in Hammer v. Dagenbart (1918, 247 U. S. 251, 62 L. ed. 1101). Cf. Gordon, , “The Child Labor Law Case,” 32 Harvard Law Review, 45.CrossRefGoogle Scholar See also note 59.

⁷ The Migratory Bird Act (March 4, 1913, 37 Stat. at L. 847) was held unconstitutional in the following cases in the state and federal courts: United States v. Schauver (1914, 214 Fed. 154); United States v. McCullagh (1915, 221 Fed. 288); State v. McCullagh (1915, 96 Kans. 786, 153 Pac. 557); State v. Sawyer (1915, 113 Me. 458, 94 Atl. 886). In this instance, the resources of the national government were not exhausted by resort to the theory of interstate commerce or the protection of property of the United States or implied powers of the national government. The treaty-making power was invoked in order to bring about directly what could not be done by legislation. On August 16, 1916, a treaty between the United States and Great Britain on behalf of Canada was made with reference to the subject, and on July 3, 1918 (40 Stat. at L. 755), it was put into effect by a reënactment of the provisions previously held unconstitutional. Under the second act prosecutions were commenced in several states to raise the question whether the President and Senate could thus make possible by treaty what Congress could not otherwise do by legislation. All of the district courts seemed to have agreed that they could. In State of Missouri v. Holland (1920, 252 U. S. 415, 64 L. ed. 64), the second act was held constitutional. See the learned note, antedating this decision, in 33 Harvard Law Review, 281.

⁸ The Federalist, No. 17, quoted by Leacock, op. cit. The devious ways in which the state may encroach on federal authority are nowhere better illustrated than in ProfessorPowell's, studies on “Indirect Encroachment on Federal Authority by the Taxing Powers of the States,” 31 Harvard Law Review, 321, 572, 721, 932CrossRefGoogle Scholar, and 32 ibid., 234, 374, 634, 902. This study, however, shows also that in the last ten years there has been not only a tendency to check such encroachment by judicial decisions but also a move in the opposite direction.

⁹ Act of June 15, 1866 (14 Stat. at L. 66). The act was “to facilitate commercial, postal and military communication among the several states.” This act, which represents the first attempt of the government to grant charters for railroads in states without their consent was upheld even as to roads within a state, in California v. Pacific E. R. Co. (1888, 127 U. S. 1, 32 L. ed. 150).

¹⁰ Act of February 4, 1887 (24 Stat. at L. 379).

¹¹ Act of March 2, 1889 (25 Stat. at L. 855); act of February 10, 1891 (26 Stat. at L. 743); act of February 19, 1903 (32 Stat. at L. 847); June 29, 1906 (34 Stat. at L. 584); June 18, 1910 (36 Stat. at L. 539); May 29, 1917 (40 Stat. at L. 101); August 10, 1917 (40 Stat. at L. 272); February 28, 1920 (41 Stat. at L. 456, 474).

¹² Act of July 2, 1890 (26 Stat. at L. 209).

¹³ Act of March 2, 1895 (28 Stat. at L. 963). See also notes 45 and 46 below.

¹⁴ Acts of March 2, 1893 (27 Stat. at L. 531); March 2, 1903 (32 Stat. at L. 943); April 14, 1910 (36 Stat. at L. 298).

¹⁵ Act of April 28, 1904 (33 Stat. at L. 283).

¹⁶ Act of June 11, 1906 (34 Stat. at L. 232); April 22, 1908 (35 Stat. at L. 65); April 5, 1910 (36 Stat. at L. 291). Cf. note 6, above.

¹⁷ Act of February 21, 1905 (33 Stat. at L. 732); June 13, 1906 (34 Stat. at L. 260).

¹⁸ Act of June 29, 1906 (34 Stat. at L. 584).

¹⁹ Act of June 30, 1906 (34 Stat. at L. 768).

²⁰ Act of May 23, 1908 (35 Stat. at L. 256).

²¹ Act of March 4, 1907 (34 Stat. at L. 1256). Earlier acts touching on the subject had been passed in 1890, 1891, 1903, 1905, and 1906.

²² Acts of March 26, 1910 (36 Stat. at L. 263); June 25, 1910 (36 Stat. at L. 825).

²³ Act of July 15, 1913 (38 Stat. at L. 103).

²⁴ See note 7, above.

²⁵ Acts of August 3, 1912 (37 Stat. at L. 251), as to branding of apple barrels; March 4, 1904 (35 Stat. at L. 1137), as to intoxicating liquor; August 23, 1916 (39 Stat. at L. 530), as to barrels of lime; August 20, 1912 (37 Stat. at L. 316); as to conspicuous branding of horse meat, Act of July 24, 1919 (41 Stat. at L. 234, 241).

²⁶ Act of December 23, 1913 (38 Stat. at L. 251).

²⁷ Act of March 1, 1913 (37 Stat. at L. 699).

²⁸ Act of September 26, 1914 (38 Stat. at L. 717).

²⁹ Act of October 15, 1914 (38 Stat. at L. 730).

³⁰ Act of July 17, 1916 (39 Stat. at L. 360).

³¹ Act of September 1, 1916 (39 Stat. at L. 675). Cf. note 6, above.

³² Act of September 3, 5, 1916 (39 Stat. at L. 721).

³³ Paul v. Virginia (1869, 8 Wall. 168, 19 L. ed. 357).

³⁴ N. Y. Life Insurance Co. v. Cravens (1900, 178 U. S. 389, 44 L. ed. 1116); N. Y. Life Insurance Co. v. Deer Lodge Co. (1913, 231 U. S. 495, 58 L. ed. 232). Cf. Cooke, , The Commerce Clause of the Federal Constitution, secs. 7–9.Google Scholar

³⁵ 1824, 9 Wheat 1, 229, 6 L. ed. 23.

³⁶ Consistently since the legislation of 1866, mentioned in note 9, above.

³⁷ The Ohio supreme court once held that the sending of telegraph messages was not commerce, Western Union Tel. Co. v. Mayer (1876, 28 Ohio St. 521). This decision has been completely overwhelmed, however, by the almost uniform holding of almost every other jurisdiction. Cf. W. U. Tel. Co. v. State Board of Assessment (1889, 132 U. S. 472, 33 L. ed. 409).

³⁸ Act of June 29, 1906 (34 Stat. at L. 584), added to the jurisdiction of the Interstate Commerce Commission telegraph, telephone and cable companies (whether wire or wireless) engaged in sending messages from one state, territory, or district to another.

³⁹ Cargill Co. v. Minnesota (1901, 180 U. S. 452, 45 L. ed. 619). The production of plays has been held not to be commerce under the New York penal code, People v. Klaw (1907, 106 N. Y. Sup. Ct. Rep. 341, 350, 55 Misc. Rep. 72). The baseball industry is not interstate commerce. Cf. 34 Harvard Law Review, 559; 16 Michigan Law Review, 867; The National League et al. v. The Federal Baseball Club of Baltimore, Inc. (48 Wash. L. Rep. 819); American Baseball Club of Chicago v. Chase (86 Misc. Rep. 441, 149 N. Y. Sup. Ct. Rep. 6). Nor is the presentation of grand opera by a company on tour interstate commerce, Metropolitan Opera Co. v. Hammerstein (1914, 162 App. Div. 691, 147 N. Y. Sup. Ct. Rep. 542). Nor is a personal service contract between citizens of different states interstate commerce, Williams v. Fears (1900, 179 U. S. 270, 45 L. ed. 186). Service rendered by a mercantile agency is not commerce, State v. Morgan (1891, 2 S. D. 32, 48 N. W. 314, [writ of error dismissed, 1894], 159 U. S. 261, 40 L. ed. 145).

⁴⁰ 1888, 128 U. S. 1.

⁴¹ 1895, 156 U. S. 1.

⁴² Brennan v. City of Titusville (1893, 153 U. S. 289, 38 L. ed. 119).

⁴³ International Textbook Co. v. Pigg (1902, 217 U. S. 91, 54 L. ed. 678).

⁴⁴ Haskell v. Gas Co. (1911, 224 U. S. 217, 56 L. ed. 738).

⁴⁵ Champion v. Ames (1903, 188 U. S. 321, 47 L. ed. 492).

⁴⁶ In the lottery case, cited above, Mr. Justice Harlan says: “May not Congress, for the protection of the people of all the states, and under the power to regulate interstate commerce, devise such means, within the scope of the Constitution, and not prohibited by it as to drive that traffic out of commerce among the states?”

⁴⁷ 1910, 175 Fed. 299.

⁴⁸ 1908, 213 U. S. 366, 53 L. ed. 836.

⁴⁹ Section 3 makes it unlawful for any person engaged in commerce, in the course of such commerce to lease or make and sell, or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities whether patented or unpatented‥‥ on the condition, agreement or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, etc. of a competitor.

⁵⁰ In section 4 the word “commerce” as used in the act is defined as follows: “Commerce means commerce among the several states or with foreign nations or in any territory of the United States.” In section 5, “unfair methods of competition in commerce are hereby declared unlawful. The commission is hereby empowered and directed to prevent persons, partnerships or corporations, except banks and common carriers subject to the acts to regulate commerce, from using unfair methods of competition in commerce.” In other words, commerce is distinctly understood as embracing something more than the transportation that had hitherto been emphasized as the chief, if not the only, element of interstate commerce.

⁵¹ Based on Revised Statutes 3929 as amended, Act of September 19,1890, ch. 908, sec. 2, and Revised Statutes 4041 as amended, Act of September 19, 1890, ch. 908, sec. 3.

⁵² The earlier bankruptcy acts were all ostensibly passed for emergencies, and accordingly repealed within a few years after their passage. This was undoubtedly the feeling of most people with reference to the Bankruptcy Act of July 1, 1898. Instead of being repealed, however, it is still on the books (amended February 5, 1903, June 15, 1906, June 25, 1910, March 2, 1917), and from present indications is likely to remain a permanent part of the jurisdiction of federal courts.

⁵³ Thus in his charter to the Portgerefa and the citizens of London, William the Conqueror wills “that ye be worthy of all the laws that ye were worthy of in King Edward's day.” (Liber Custumarum, pt. 1, pp. 25, 26. Text and translation in Stubbs' Select Charters.) The charter of liberties of Henry I, of the year 1100, recites: “The law of King Edward I give to you again with those changes with which my father changed it by the counsel of his barons.” (Text in Stubbs' Select Charters.) Stephen's charter of 1135 recites: “All the good laws and good customs which they had in the time of King Edward I concede to them.” (Translated in 1 Translations and Reprints 6, p. 5, from 1 Statutes of the Realm 4.)

⁵⁴ “So very narrowly,” the Anglo-Saxon Chronicle tells us, “did he cause the survey to be made that there was not a single hide nor a rood of land nor—it is shameful to relate that which he thought no shame to do—was there an ox, or a cow, or a pig passed by, that was not set down on the accounts, and then all these writings were brought to him.”

⁵⁵ The case of Lanfranc v. Odo is translated in Essays in Anglo-Saxon Law, p. 369.

⁵⁶ The great forgery which professes to be the laws of Edward the Confessor begins as follows: “Here begins the law of the glorious king of the English, Edward. Four years after the conquest of this country, England, by King William, with the counsel of his barons, he caused to be summoned throughout all the counties of the land the English nobles, the wise and those learned in their own law, to hear their customs from their own lips. Thereupon from each and every county in the land twelve chosen men promised under oath that to the best of their ability they would set forth their laws and customs, omitting nothing, adding nothing, changing nothing.”

⁵⁷ Cf. Inderwick, The King's Peace, Pollock, Oxford Lectures, “The King's Peace;” Howard, On the Development of the King's Peace and the English Local Peace Magistracy.

⁵⁸ Cf. 1 Pollock and Maitland, p. 163, on the decline of local customs in England. Gradually there develops a presumption that there is no local custom contrary to the general custom of England unless it is specially approved. The discussion ends with this significant statement: “No English county ever rebels for the maintenance of its customary law.”

⁵⁹ Since this paper was read at the meeting of the American Political Science Association in December, 1921, several important decisions have been handed down by the Supreme Court of the United States: two illustrate the firmness of the hold of the national power on railroads as the result of a long tradition [Railroad Commission of Wisconsin v. C. B. and Q. Ry. (1922) 42 Sup. Ct. 232 and State of New York v. U. S. (1922) 42 Sup. Ct. 239]; and the other the comparative weakness of the national power in connection with new fields of social legislation [Bailey v. Drexel Furniture Co. (1922) U. S. Sup. Ct. Oct. Term, 1921, No. 657 on the unconstitutionality of regulating child labor through federal taxation.]