itself, and whose protection is one of the chief purposes for which government is instituted. Political theories have changed since this decision, but the Constitution remains, and the rights which it was formed to protect still have its assurance.

Under the influence of slavery the meaning of the word "liberty" was much restricted. It proved to be true, for the white as for the black, that the Union could not remain half slave and half free. This narrowing influence is no longer felt, and again liberty is "the greatest of all rights," including all rights necessary for the maintenance and security of every person, and among others the right to engage in commerce. The Fourteenth Amendment then marks a return to the earlier constitutional views. It "conferred no new and additional rights, but only extended the protection of the Federal Constitution over rights of life, liberty and property that previously existed under all state constitutions." 2

Under this amendment liberty " means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned," and in so doing to move freely from state to state.1 "The right to follow any of the common occupations of life is an inalienable right." "

The right to engage in commerce is, then, part of the liberty derived from the states which neither the United States nor the states may deny. There is no process of law by which the right may be taken. As the right is derived from state law, it belongs

1 Jacobson v. Massachusetts, 25 Sup. Ct. Rep. 358, 361.

2 Mobile & Ohio R. R. v. Tennessee, 153 U. S. 486, 506.

Allgeyer v. Louisiana, 165 U. S. 578, 589; Pavesich v. New England Life Ins. Co. 50 S. E. Rep. 68; City of Chicago v. Netcher, 55 N. E. Rep. 707; Kellyville Coal Co.

ย.

Harrier, 69 N. E. Rep. 927; Erdman v. Mitchell, 56 Atl. Rep. 327; State v. Dodge,

56 Atl. Rep. 983; State v. Ashbrook, 55 S. W. Rep. 627.

♦ Williams v. Fears, 179 U. S. 270.

Opinion of Mr. Justice Bradley in Butchers' Union Co. v. Crescent City Co., III U. S. 746, approved in 165 U. S. 578, 589.

6 Fifth Amendment.

1 Fourteenth Amendment.

Gibbons v. Ogden, 9 Wheat. (U. S.) 1; Bowman v. Railroad Co., 115 U. S. 611; "Origin of the Right to Engage in Interstate Commerce," 17 HARV. L. REV. 20.

to those to whom the state gives it, whether citizen, alien, or corporation. The protection of the Fifth and Fourteenth Amendments belongs to all persons, and cannot be disregarded in respect to those artificial entities called corporations any more than in respect to the individuals who compose them. The right to engage in commerce is a franchise which, being granted by another sovereign, is beyond federal jurisdiction either to prohibit or to tax.2 In this matter the authority of the state is complete, and beyond federal control, — a distribution of power which results from the nature of a federal republic, " an assemblage of distinct States, each completely organized for the protection of its own citizens." 3

The exercise of this constitutional right, derived from state law, to engage in commerce, is necessarily subject to two limitations. The first of these is, of course, the wide federal jurisdiction in foreign affairs already mentioned. The second limitation is in the power of police regulation, which belongs to Congress, and which has been exercised, for example, in the statutes forbidding transportation of articles which, by the commercial usage of nations, are not legitimate subjects of commerce. Congress, that is, has a discretionary power, within constitutional limits, so to regulate commerce as to accomplish the purposes for which the federal jurisdiction was created. Carriers may be required to give rest, water, and food to live stock; transportation of infected articles may be forbidden, and impediments to intercourse among the states may be removed. In all this legislation, however, there is no question of the person for or by whom commerce is conducted. The subject regulated is that portion of commerce given to Congress, and in the exercise of this power, as in the exercise of its other powers, Congress is subject to all the limitations imposed by the Constitution. Congress cannot deprive any person of liberty, exclude proper articles from interstate transportation,5 nor

1 Gulf, Colorado, etc., Co. v. Ellis, 165 U. S. 150, 154; United States v. Northwestern Express Co, 164 U. S. 686, 689; Covington, etc., Co. v. Sandford, 164 U. S. 578, 592; Coffeyville Vitrified Brick Co. v. Perry, 76 Pac. Rep. 848; State v. Missouri Tie Co., 80 S. W. Rep. 933.

2 Louisville, etc., Co. v. Kentucky, 188 U. S. 385; Pacific Railroad Cases, 127 U. S. I, 40.

› A. C. Hanson, “Remarks" published in Ford, Pamphlets on the Constitution 221, 241-243.

Monongahela Navigation Co. v. United States, 148 U. S. 312, 336.

5 Ex parte Jackson, 96 U. S. 727, 735; In re Rapier, 143 U. S. 110, 133; Speech of Wm. M. Evarts in Senate, Jan. 13, 1887, Cong. Rec., 49th Cong., 2d Sess., Vol. XVIIL Part I. p. 603.

distinguish between proper occupations by reason of the personality of shipper or consignee. Some rights in every free government are beyond control of the state. "A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism." 1

The two powers, state and federal, must, in the language of Senator Wells, "keep company," and "every application of . . . power, by the United States, which has a tendency to embarrass or impair the free exercise of the power reserved to the States is unwarranted, and, if done . . . with a view to such a purpose, is the affair of arrogance and usurpation."

(2) Taxation of Imports and Exports.

It has been stated that under the Constitution as originally formed, and for many years administered, Congress had no jurisdiction over transportation from state to state, save as conducted by coastwise navigation.3 Interstate transportation was left to the states, Congress being forbidden to tax articles exported from any state, and the states forbidden to tax imports or exports. The restriction upon the states, Randolph said, Congress might keep "undiminished" in operation by legislation under the commerce clause, but beyond this, federal power did not extend. Congress being then without jurisdiction over carriage among the states, there was no need to provide that it should not tax or prohibit such transportation, for Congress had no power to which such a restriction could apply.

Federal power, then, never extended so far as to enable Congress. to close interstate roads; but this defect of power is not all. Beside this, Congress is subject to the express provision forbidding taxation of exports, and this provision should not only prevent taxation of the goods carried, but should forbid taxation of interstate trans

1 Loan Association v. Topeka, 20 Wall. (U. S.) 655, 662; Opinion of Justice Beck in Hanson v. Vernon, 27 Iowa 28, 73, approved in State v. Mayor, etc., of Des Moines, 103 Iowa 75.

2 Senator Wm. H. Wells, of Delaware, April 1, 1816, Annals, 14th Cong., 1st Sess., Vol. I. p. 259.

3 Chief Justice Marshall on Federal Regulation of Interstate Carriers, 5 Col. L. Rev. 77; Speech of J. W. Singleton, of Illinois, in House of Representatives, Feb. 4, 1881, Cong. Rec., 46th Cong., 3d Sess., Vol. XI. Part III. Appendix, 74-81.

portation,1 and as applied to interstate commerce may well be held to prevent federal prohibition.

The rule of the Constitution was free ships and free goods. Congress was, indeed, permitted to tax imports from abroad. It was intended to raise a federal revenue under the Constitution from a tariff upon foreign commerce, but upon commerce among the states no tax could be laid. The Southern States were not interested in the carrying trade, but were vitally interested in preserving access to the markets of the world for their staple products. Their most important market was Europe, and foreign commerce was chiefly considered in the debates, but even then the South contemplated the time when Northern States would be an important market, and the reason for prohibiting federal taxation of exports was, said a member of the Convention, in order that the planter should "receive the true value of his product wherever it may be shipped." 2

All this would probably be accepted without question, were it not for the opinion rendered by the Supreme Court in 1868 in the case of Woodruff v. Parham.3 This case holds that a state may tax articles brought from other states while still in first hands and original packages. The rule is necessary. Under any other, as the Court said, a "merchant of Chicago who buys his goods in New York and sells at wholesale in the original packages, may have his millions employed for half a lifetime, and escape all State, county, and city taxes; for all that he is worth is invested in goods which he claims to be protected as imports from New York."

It would have been sufficient answer to such a claim had the Court applied to this clause the interpretation which is now placed upon the commerce clause in cases involving state taxation, and held that goods can claim no preference from equal burdens by reason of foreign origin or because brought from another state. Adapting the language used in another connection, it may be said that a provision forbidding taxation of articles brought from other states or countries "does not require that any bounty be given therefor." The Court, however, went further than this and held that the words "imports" and "exports" applied only to foreign

1 State Freight Tax Case, 15 Wall. (U. S.) 232.

2 Williamson in State Gazette of North Carolina. Ford, Essays on the Constitution 393.

8 8 Wall. (U. S.) 123.

4 Cornell v. Coyne, 192 U. S. 426.

trade, a rule which has been followed in later cases. "It is not too much to say," Mr. Justice Miller remarked in delivering the opinion of the Court, and referring to the debates of the constitutional period, "that so far as our research has extended, neither the word export, import, nor impost is to be found in the discussions on this subject, as they have come down to us from that time, in reference to any other than foreign commerce, without some special form of words to show that foreign commerce is not meant." 2

This decision, from which Mr. Justice Nelson dissented, completely reversed the rule which up to that time had generally been accepted. Mr. Chief Justice Marshall and Mr. Justice Story * had both understood the words to include foreign and interstate commerce alike, and the Supreme Court itself, in a decision rendered by Mr. Chief Justice Taney, had so applied them.5 In some respects time and experience of the workings of the Constitution give later generations better opportunities for practical understanding of that instrument than were open to its framers, but it is not likely that in 1868 the language of the Constitution could better be understood than in earlier times. The definitions given by Mr. Justice Miller, therefore, have not generally been accepted as convincing.

"Before the adoption of the Constitution, and therefore at the time it was framed, and its phraseology discussed, an article brought from Pennsylvania to North Carolina would have been said to be imported into North Carolina, and a tax on it would have been called an 'import tax.' It is difficult to say by what other name such a tax, if it could be laid, would now be styled." Members of the Supreme Court have expressed the same view. Mr. Chief Justice Fuller, in a dissenting opinion in which Justices Brewer, Shiras, and Peckham agreed, said that although this provision of the constitution had been restricted in application to exports to a foreign country "it was plainly intended to apply

1 Hinson v. Lott, 8 Wall. (U. S.) 148; Brown v. Houston, 114 U. S. 622; Pittsburg Coal Co. v. State, 156 U. S. 590; Fairbank v. United States, 181 U. S. 283; Preston v. Finley, 72 Fed. Rep. 850; State v. Pittsburg, etc., Coal Co., 41 La. Ann. 465; Ex parte Martin, 7 Nev. 140.

2 Woodruff v. Parham, 8 Wall. (U. S.) 123, 136.

8 Brown v. Maryland, 12 Wheat. (U. S.) 445.

4 Commentaries on the Constitution § 1016.

5 Almy v. California, 24 How. (U. S.) 169.

6 American Fertilizing Co. v. Board of Agriculture, 43 Fed. Rep. 609, 612.