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Any one who returns after being expelled must pay a fine of $1,000.
The right of hunting and grazing in the reservations belongs solely
to the Indians. Crimes are punished according to the laws of the
places whei'ein the United States have exclusive jurisdiction. The
Indian appropriation was $5,903,151 in 1884. The greater part of this
is used in paying the tribes the moneys granted them and in supply-
ing them witli clothing, cattle, etc. In part it is a payment for lands
ceded by the Indians according to treaties or other agreements and
in part a gift without any legal obligation whatever. Without such
assistance most of the tribes would soon succumb to hunger and mis-
ery. The federal government seeks by gifts to raise them gradually
to such a degree of civilization that they will become able to support
themselves. A business spirit has been stimulated by presenting in-
dividuals among them with cattle and rewarding them for the
increase. In a similar manner, attempts are made to encourage agri-


ity of congress extends to all international and inter-
state commerce, 1 embracing all the means as well as the
subjects thereof, including persons in either capacity. 2
Second, with commerce within the limits of one single
individual state, congress has nothing to do. Thus if the
authority of congress is far-reaching, it is nevertheless
restricted, and the precise demarcation of its limits is for
various reasons not an easy matter.

Among the infinite possibilities presented by the occur-
rences of real life, it is often very difficult to draw the
line of distinction just indicated. The exclusive author-
ity of the separate and individual state is not under all
circumstances co-extensive with its geographical limits,

culture. In general the efforts of the government are directed towards
dissolving the tribal relation and substituting the institution of indi-
vidual property. New sources of industry were opened to these
people and their self-respect heightened by placing in their own hands
the distribution of the government goods and by organizing from
their midst an Indian police force. And finally a number of schools
have been successfully opened, in which the instruction given :s espe-
cially adapted to their peculiar mental and bodily dispositions and
desires. The good results of all these measures are already very no-
ticeable. They have brought about a new era in the Indian policy.
A great part of the credit belongs to Carl Schurz, who, as secretary
of the Ulterior under President Hayes, took especially to heart the
care of the Indians. Still, only the beginning has been made of a
more humane and just policy, corresponding better with the true in-
terests of both parties ; and the government has no little trouble in
enforcing even the laws which now exist. It is not easy to impress
the rough and reckless pioneer population with the idea that the
Indians have any rights which must be respected. At the moment I
write, it has become necessary to repel by force illegal invasion of
the Indian Territory and of the other reservations.

1 Gibbons vs. Ogden, Wheaton, IX., 189.

2 The Passenger Cases, Howard, VII., 283. Five judges declare
themselves against the view expressed by Judge Barbour in the
earlier case of New York vs. Miln (Peters, XI., 102), that persons could
not be "the subject of commerce."


even when these limits are in no wise overstepped in the
case in question. Thus, for instance, in 1851, the supreme
court decided that Virginia had no right to permit a
company to put a suspension bridge over the Ohio river
at Wheeling (when the stream was entirely within the
territorial limits of the state) so as to interfere with nav-
igation, because the Ohio was a navigable water way
between different states, and congress must regulate inter-
state commerce, and that commerce included navigation. 1
In other cases, however, it has been decided that the
states, if congress has not exerted its legislative author-
ity, can permit the building of a bridge over a navigable
stream flowing wholly within their jurisdictions, even if
it interferes with navigation. These decisions were based
upon the fact that bridges as well as navigable streams
are means of commerce, and that the states must be able
to determine whether and how far commerce across the
water should be preferred to commerce on the water. 2
Finally, the right of the states to build bridges or let
them be built over navigable streams within their limits,
when there was no interference with navigation, has been
repeatedly acknowledged. Whether there is or is not such
interference is a question of fact that must, in every in-
stance, be decided with regard to the circumstances of
the particular case. 3

1 Howard, XIII., 518. But when congress legalized the bridge, as
built, a suit brought by the state of Pennsylvania was dismissed by
the supreme court because the assertion of an interference with navi-
gation, accepted as valid by the court, had not been made good before

2 Oilman vs. Philadelphia, Wallace, III., 713; The Passaic Bridges,
Ibid., 782.

3 See Wilson vs. Blackbird -Creek Company, Peters. II., 245, as well
as the remarks of Justice McLean (Howard, VII., 397, 398), and Jus-
tice Clifford (Wallace, III., 743), upon this decision.


Further difficulties arise out of the question whether
and how far the constitutional authority of congress is
an exclusive one, i. e., whether and how far the states
possess concurrent power. When congress enacts a law,
then, according to the judicial decisions, all state legisla-
tion is overruled, even if it does not immediately concern
the same subject-matter. 1 Strictly taken, the authority
of congress is an " exclusive " one, and a " concurrent "
power of the states cannot be recognized.- But, in spite
of this, legislative action on the part of the states, within
the range of the constitutional authority of congress, is
admissible. If congress has not made use of its powers,
the inference may be drawn either that it does not wish
any legislation on the matters in question, or else that it
wishes to let the particular local circumstances control,
and that it therefore commits the matter to the states or
state concerned. Thus, for instance, if congress were en-
titled to enact a general pilot law on the ground that the
pilot system belongs to navigation, and the regulation of
navigation is included in the right to regulate commerce,
and if it should nevertheless refuse to enact such a law,
it would thereby say that it does not regard the pilot
system as adapted to a general and entirely homogenous
regulation. In such a case the state laws concerning
pilotage could not be declared to be unconstitutional en-
croachments upon the domain of congress. 3 The states
are by no means always entitled to legislate, if, and so

1 The Passenger Cases, Howard, VII., 283. The reasons for the de-
cision of the court as such were not given in this case ; only the indi-
vidual judges gave reasons ; but five of them maintained the opinion
stated in the text.

2 See Judge McLean's remarks in the Passenger Cases, cited supra,
upon Marshall's decision in Gibbons vs. Ogden, and Story's reference
thereto in New York vs. Miln.

3 Cooley vs. The Port Wardens, Howard, XII., 299.


long as, congress does not exercise its authority, but ac-
cording to the above decision the exclusiveness of the
authority of congress is not always absolute. In what
case it is or is not to be regarded as such is manifestly
not always quite certain from a legal standpoint. The
courts must base their decision more or less upon consid-
erations of a practical political nature, and therefore it
may often be highly doubtful to which category the case
in hand should be referred.

Difficulties grow apace because, as the federal supreme
court has decided, " it is not everything that affects com-
merce that amounts to a regulation of it, within the
meaning of the constitution; " l and the states, moreover,
have certain powers by the exercise of which they may
very easily come into conflict with the congressional leg-
islation which regulates commerce. First and foremost
of these are the police powers of the states. Drawing
the line up to which a direct or indirect invasion of the
province of congressional legislation on trade and com-
merce will be acknowledged as authorized, must neces-
sarily be a somewhat arbitrary process. Thus, for in-
stance, health and quarantine laws fall within the domain
of the state. 2 It is very evident, however, that such laws
could readily be made to interfere with many of the provis-
ions of congressional legislation about trade and commerce.
Moreover the supreme court in the License Cases (How-
ard, V., 504) decided that the states might, under certain
restrictions, require the trade in liquors imported or
brought from another state to be licensed, while in an
older case (Brown vs. Maryland, Wheaton, XII., 419) it
was decided that in general the importer's right of sale
must not be interfered with by the state's requiring him

1 State Tax on Railway Gross Receipts, Wallace, XV., 293.

2 Gibbons vs. Ogden, Howard, IX., 203.


to buy a license. The judges, however, assigned the
most diverse reasons for their decision in the License
Cases. And it can by no means be discovered from these
reasons how far the states may go in the exercise of their
police power in restricting commerce in articles which
they regard, for any reason whatever, as injurious or dan-
gerous to the community. Similar conflicts may arise
from the right of taxation possessed by the states. In
inter-state or international commerce, neither the goods
nor the transportation of property or persons can be
taxed by the states. 1 But the business as such and the
capital used in it are subject to the state's right of taxa-
tion. The correctness of this principle certainly cannot
be attacked, but just as little can it be disputed that it
gives the states the power of encroaching very seriously
upon the congressional domain, if they are only careful
about the way in which they do so.- The courts indeed
are in no wise bound to permit the simple question of the
sufficiency of the form in which a state carries out its
right of taxation to determine their decisions, and they
do not do so. As soon as they enter upon the question,
whether the tax-laws of a state materially encroach upon
the right of regulating international and inter-state com-
merce, subjective views are again given more or less
sway. v

These observations will be sufficient to show why an
accurate judgment of the extent of this constitutional
provision in all its ramifications is possible only in con-
nection with all the judicial decisions to which it has

1 State Freight Tax, Wallace, XV., 232; The Passenger Cases, How-
ard, VII., 283.

2 How easily and in what various ways this may occur will be suf-
ficiently indicated by pointing to the decision in Liverpool Insurance
Company vs. Massachusetts, Wallace, X., 566, according to which a
state can tax a foreign corporation higher than similar corporations
created by its own laws.


given rise. And they also show why no general and
fixed commercial law, in the European sense of the word,
has been developed in the United States. The narrow
frame of this work makes it necessary to let this suffice
and only to mention briefly the matters subject to the
authority of congress, under this general provision, either
by force of custom or of judicial decisions.

This authority extends to the places, the means and the
subjects of trade and commerce.

As to the places, congress must not only provide where,
under what conditions, and how certain events in interna-
tional and inter-state commerce such as the departure
and arrival of vessels, the discharge of their freight, the
payment of duties, etc. shall take place, but it must
also take care that the places meet the demands of com-
merce and trade. That is, it must put and keep the har-
bors in good condition, must improve the navigability of
the rivers, must build light-houses, piers, etc.

As to the means, the principle prevails that the author-
ity of congress is not restricted to those means which
were known and in use at the time of the adoption of the
constitution. Steamboat and railroad traffic and the tel-
egraph system are as much subject to congressional regu-
lation as were the media of commercial intercourse of
earlier times. Its powers '" keep pace with the progress
of the country and adapt themselves to the new develop-
ments of time and circumstances. ... As they were
entrusted to the general government for the good of the
nation, it is not only the right but the duty of congress
to see to it that intercourse among the states and the
transmission of intelligence are not obstructed or unnec-
essarily encumbered by state legislation." 1 Whether and
how far congress is entitled to itself provide media of

l Pensaco!a Tel. Co. vs. Western Union Tel. Co., Otto, VI., 124; Coo-
ley, Principles, 65, 66.


commerce, i. e., to establish highways, to build or mate-
rially aid in building railroads, etc., is one of the oldest
and most important questions, and one which has not yet
received a final and comprehensive legal decision. But
the tendency of actual development has always been to-
wards the subordination of legal arguments to consider-
ations of expediency. On the other hand the power of
congress to use its authority to regulate trade in such a
way as to indirectly accomplish other objects is generally
recognized. 1 Congress has done this in the numerous
laws usually referred to under the name of registration
and navigation laws. These are in great part designed
to give American ship-builders and ship-owners an advan-
tage over their foreign competitors. To the power to
regulate the means of commerce we must also refer the
laws as to building and outfitting of vessels, the number
and safety of the crews, as well as of the passengers, the
discipline, the legal rights and duties of the sailors, etc. 2

1 How far congress may do this has, however, been a hotly con-
tested question in the battles between protection and free trade.

2 The influence of the federal government upon the means of com-
mercial intercourse apart from those used in navigation has been
up to the present time comparatively very limited. As to the rail-
roads, it has reserved a somewhat more comprehensive power only as
to the roads in the construction of which, to be discussed further on,
it assisted in part. In the discharge of its constitutional duties, in
which it could not do without the railroads, as in the carrying of the
mails, congress promptly used its legislative powers as far as the pub-
lic interests seemed to demand. But as to the rest, the federal laws
contain little more in reference to the railroads than the provisions
that relate to all "common carriers." But that this is not due to any
doubts as to its own authority is plain from the act of March 3, 1873,
which was dictated solely by a humanitarian regard for the rest,
feeding and watering of cattle transported by rail or water. (Stat.
at Large, XVII. , 584, 585.) For years, however, congress has debated
a considerable number of proposed laws of every kind which cut
deeply into the autonomy of railroad companies and in part also



Under the authority of congress as to the subjects of
commercial intercourse, the laws which regulate the im-
port and export of certain commodities and the move-
ments of certain persons have been passed. Many of the
powers of congress under this division of its authority
enure also to the states from their police power. Kestric-
tions on the importation of poisons and explosives, pro-
hibitions of the introduction of indecent publications and
pictures, etc., could be imposed also by the states. The
application of the principles of constitutional law in this
respect may easily lead in disputed questions to no slight
difficulties. As far as persons are concerned, the author-
sharply invade the realm of legislation which the states have thus
far been permitted to monopolize. The opposition of material inter-
ests, however, and especially the general political considerations
against such action, have thus far defeated every effort for a more
uniform regulation of the railroad system by federal legislation. As
late as the spring of 1884, congress considered, but again without re-
sult, a number of proposals as to railroad freights, a matter which
Leyen justly designates as the "true germinal point of the so-called
railroad question " in the United States. It will probably depend to
a large extent upon the conduct of the railroad companies themselves
as to whether, or how soon, the tendency manifested by such at-
tempts at legislation will finally, however, begin to triumph over
difficulties to be overcome. What decisive action congress might
think itself authorized to take, under certain circumstances, appears
from the act of January 31, 1862, which authorized the president to
take possession of all railroads and telegraph lines, as far as he
thought public safety required, and invested the secretary of war
with sole control of the transportation of troops and of all military
stores. (Stat. at Large, XII., 334.) See J. F. Lacey, Digest of
American Railway Decisions, Chicago, 1875; E. L. Pierce, Law of
Railroads, Boston, 1881 ; D. Rorer, A Treatise on the Law of Rail-
icays, 2 vols., Chicago, 1884; A. v. d. Leyen, Die Nordamerikanischen
Eisenbahnen in iliren wirthschaftlichen und politischen Beziehungen ,
Leipzig, 1885.

As to the telegraph companies, the federal government has some-
what more extensive rights. An act of July 24, 1866, grants the tele-


ity of the states goes to the full extent required by the
"law of preservation." As they may protect themselves
by their health and quarantine laws against the introduc-
tion of contagious disease, so they may guard themselves
likewise against the " moral pest " of vagabonds, paupers
and criminals. But apart from this the regulation of
immigration is the exclusive domain of congress. Thus,
for example, a state cannot prohibit the immigration of per-
sons (Chinese, for instance) because it fears that they will
not obey the laws, or because it regards them, for economic
or other political reasons, as a pernicious element of the

graph companies organized under state laws the right of way along
post-roads or military lines, along navigable streams and over public
lands, and permits them to take from the public domain wood, stone
and other material for the building of their lines and station-houses,
provided they bind themselves to send government telegrams ahead
of all other dispatches at rates fixed by the postmaster-general, and
to sell their lines upon demand by the government to the United
States, at a price to be determined by five impartial men, two of
them named by the postmaster-general, two by the company, and
the fifth by the four. I am not, however, aware that any telegraph
line has actually been bought under this law. Telegraphs and rail-
roads are both still private enterprises and private property, but the
continuous consolidation of these important instruments of com-
merce in the hands of mammoth corporations disturbs public opinion
more and more. Discontent is widespread and has at times attained
such proportions that the "monopolies" would probably have been
already broken, if it were clear what should take the place of the ex-
isting circumstances, and if an agreement could be reached on this
point. As long as the appointment of nearly fifty thousand post-
masters is not wholly withdrawn from party politics, the thoughtful
part of the people will scarcely be persuaded to add to the post-
office department the telegraph employees, who are counted by
tens of thousands (the Western Union Telegraph Company alone
had, in 1883, twelve thousand nine hundred and seventeen). Pres-
ident Grant recommended this in his annual message of December,


population. 1 Whenever congress exercises its legislative
authority in this respect, it must always be in a general
way, treating all the states alike. 2 This is, indeed, no-
where expressly declared ; but it would be opposed to the
general spirit of the constitution to give certain parts of the
Union a separate and distinct position, because this would
too readily excite at least the suspicion that the conclu-
sions of congress were influenced by partiality for one
section or dislike of another.

So far as the regulation of trade is concerned, this
fundamental doctrine of complete equally is expressly
ordained in regard to certain matters. Art. L, sec. 9, 5,
provides that '' no preference shall be given by any regu-
lation of commerce or revenue to the ports of one state
over those of another." And it declares further: "jSTor
shall vessels bound to or from one state be obliged to
enter, clear or pay duties in another." The freedom from
taxes of the entire coast trade and of the commerce on
inland waters is thus firmly established by the consti-
tution, and it has been rightly said that this provision
alone is sufficient to show the immense worth of the
Union. 3

39. XATUKALIZATION. Immediately after the provision
as to the regulation of trade and commerce, the right is
granted to congress "to establish a uniform rule of
naturalization." To this is added the power already men-

1 The states are not only not authorized directly to prohibit immi-
gration, but they cannot even indirectly hinder it by laws about the
landing of passengers from foreign ports. Chy Lung vs. Freeman,
92 U. S. (Otto, II.), 272.

- A law of May 2, 1882, "suspended" the immigration of Chinese
for ten years.

3 In this connection it should also be said that in the clause already
discussed as to exports, the states are also forbidden to tax imports.


tioned, to enact a uniform bankruptcy law, and further
provisions relating to trade and commerce follow. It
seems from this juxtaposition that the authors of the
constitution regarded naturalization especially from the
standpoint of the industrial interests, and that therefore,
in the adoption of this provision, they had in mind mainly
the encouragement of immigration. In this sense, too,
congress has made use of this power. The debt of the
United States to this for their unexampled development
is well known. If the efforts of the different nativist
parties and especially of the " Know Nothings " in the
fifties to substantially increase the time of probation,
fixed at five years (they wished to make it twenty-one),
had been successful, the stream of immigration would
unquestionably have been very considerably reduced. 1
From a legal point of view, it need be observed only
that the power of congress is exclusive, 2 but is of course
restricted to the grant of the right of citizenship of the
United States. 3

Among the other powers of congress over commercial

1 A person must have resided five years in the United States and
at least one year in the state or territory where he wishes to be
naturalized. Two years prior to naturalization, the immigrant must
declare under oath in court his wish to become a citizen. This is not
necessary if he came to the United States at least three years before
attaining his majority. The widow and the minor children of an
immigrant who had declared his intention to be naturalized in the
manner required, need only take the prescribed oath to obtain the
right of citizenship. Children of immigrants obtain citizenship
without naturalization, if they reside in the United States and at
the time of their parents' naturalization are still in their minority.
Titles of nobility must be expressly renounced at the time of natural-

2 Chirac vs. Chirac, Wheaton, II., 259, 269.

3 The peculiar consequences of the right of the states to grant state
citizenship have already been discussed.


intercourse are those in regard to money, already stated
in another connection.

-ii). MEASURES AND WEIGHTS. So far as the right "to
fix the standard of weights and measures " is concerned,

Online LibraryH. (Hermann) Von HolstThe constitutional law of the United States of America → online text (page 13 of 31)