Confederation were imposed by the different States to such an extent as to endanger the Confederacy. But this cannot be done under the Constitution by Congress, in whom the power to regulate commerce among the States is vested." 1

(3) The Purpose of Constitutional Construction.

George Clinton said that in the course of a long life he had found government not to be strengthened by an assumption of doubtful powers. The proposed method of trust regulation is this and more, an assumption of powers for which there is no precedent, in order to supersede state laws on the subject of state corporations, - a field in which Congress has no jurisdiction whatever.

The question is therefore presented of the purpose of constitutional interpretation. The Supreme Court has often held, in passing upon the validity of state laws, that the courts will look into the operation and effect of a statute to discern its purpose,2 and that if laws purporting to be enacted in the exercise of powers belonging to the state have no real or substantial relation to the objects of those powers, it is the duty of the court so to adjudge and thereby give effect to the Constitution. The same rule which tests the validity of state legislation determines also the validity of legislation by Congress.

"The propriety of a law in a constitutional light," Hamilton said, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose, again, that upon the pretence of an interference with its revenues, it should undertake to abrogate a land tax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to

1 McLean, J., in License Cases, 5 How. (U. S.) 504, 594; Taney, C. J., in Passenger Cases, 7 How. (U. S.) 479, 480; Woodbury, J., ibid. 549.

2 Henderson v. Mayor, etc., of New York, 92 U. S. 259, 268; Railroad Co. v. Husen, 95 U. S. 472; Collins v. New Hampshire, 171 U. S. 30; Reid v. Colorado, 23 Sup. Ct. Rep. 92, 97; Compagnie Française v. State Board of Health, 22 Sup. Ct. Rep. 811.

* Mugler v. Kansas, 123 U. S. 623, 661; Minnesota v. Barber, 136 U. S. 313; Hennington v. Georgia, 163 U. S. 299, 303; Scott v. Donald, 165 U. S. 58.

this species of tax, which the Constitution plainly supposes to exist in the State governments? "1

To these illustrations many others may be added. Unless federal powers are limited to the effectuation of constitutional purposes, the authority to raise and support armies may be made a means of controlling municipal elections, and jurisdiction over navigable waters may control appointment or election to state offices, in short, if Congress "may use a power granted for one purpose, for the accomplishment of another and very different purpose, it is easy to show that a constitution on parchment is worth nothing."2 Yet this perversion of powers is the sole method presented to justify the proposed federal control of corporations.

There is no constitutional authority for this method of construction. "Should Congress," said Mr. Chief Justice Marshall, "under the pretext of exercising its powers, pass laws for the accomplishment of objects not intrusted to the government, it would become the painful duty of this Court to say that such an act was not the law of the land." The federal government was given the powers necessary or proper to enable it to accomplish the purposes for which it was created. The fact that a power could be used both for constitutional and unconstitutional purposes was not a reason for withholding it from the federal government. "No power, of any kind or degree, can be given, but what may be abused; we have, therefore, only to consider whether any particular power is absolutely necessary. If it be, the power must be given, and we must run the risk of the abuse, considering our risk of this evil as one of the conditions of the imperfect state of human nature, where there is no good without the mixture of some evil.” 4

The framers of the Constitution, then, in every instance, granted powers "commensurate to the object to be attained.5

That every power given should, as Algernon Sidney said, be employed "wholly for the accomplishment of the ends for which it was given "6 is therefore the one essential principle which applies to every federal jurisdiction. Unless this principle be accepted

1 Federalist No. 33.

2 Senator Hayne, April 30, 1824. Annals, 18th Cong., 1st Sess., Vol. I. pl. 648.

3 McCulloch v. Maryland, 4 Wheat. (U. S.) 316; Hoke v. Henderson, 4 Dev. (N. C.) 12.

4 Remarks of James Iredell in Convention of North Carolina, 4 Elliot Deb. 95.

5 Edmund Randolph in Convention of Virginia, 3 Elliot Deb. 70.

6 Discourses on Government, Ch. I. § 1.

"no power could be delegated nor could government of any sort subsist." To those opponents of the Constitution who were not satisfied with this appeal to necessity and to the honesty of government and who insisted that Congress, being the judge of the necessity and propriety of its acts, might pass" any act which it may deem expedient for any . . . purpose," Hanson replied "that every judge in the union, whether of federal or state appointment . . . will have a right to reject any act handed to him as a law, which he may conceive repugnant to the constitution."2

Further security against the perversion of powers to unintended purposes could not be given. Should these principles of constitutional construction now be abandoned, should the Constitution be made as broad as the results which federal powers may accomplish, and then in turn these powers be extended to serve the needs of the new government thus created, it is obvious that the Constitution has ceased to exist.3

No such methods of construction have yet been sanctioned. It is still true, as Hamilton said, that "the propriety of a law in a constitutional sense, must always be determined by the nature of the power upon which it is founded."

It is clear, then, that the Constitutional Convention did not intend to give Congress power to tax or to prohibit commerce among the states, and that the nature of the power upon which it is sought to found such a jurisdiction fails to support it. As Mr. Chief Justice Fuller very forcibly remarked, "under the Articles of Confederation the States might have interdicted interstate trade, yet when they surrendered the power to deal with commerce as between themselves, to the general government, it was undoubtedly in order to form a more perfect union by freeing such commerce from State discrimination, and not to transfer the power of restriction." 4

35 WALL STREET, NEW YORK.

E. Parmalee Prentice.

1 James Bowdoin, Convention of Massachusetts, 2 Elliot Deb. 84-85.

2 A. C. Hanson, "Remarks in Ford, Pamphlets on the Constitution 217, 234.

8 6 Every implication of a grant (of power to Congress) is confined to such as are direct and both necessary and proper, in the usual and natural acceptance of the terms, else it leads to unlimited power. Every means becomes in its turn an end, and thus justifies the use of means still more remote, until absolute power is attained." Resolutions of Legislature of South Carolina; adopted Dec. 18, 1840; copied in Cong Globe, 26th Cong., 2d Sess., p. 123, Jan. 25, 1841.

4 Champion v. Ames, supra.

HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

8

JOHN H. WATSON, JR.

RIGHTS OF THE PARTIES TO A CONTRACT of AffreighTMENT AFTER THE VESSEL HAS BEEN JUSTIFIABLY ABANDONED. It has long been settled that the sailor who abandons his ship can recover no wages,' and that the master who fails to bring his cargo to the port designated can collect no freight 2. not even a pro rata amount on quasi-contract for bringing the goods part way. It is equally well settled that, when the vessel's safety is sufficiently menaced by the perils of the sea, the master may abandon her without incurring liability for breach of contract. In recent years, however, frequent contentions have arisen regarding the rights of the parties to the contract of affreightment after the vessel has been abandoned and rescued by salvors. In England it was at first held that the contract was entirely ended by the act of abandonment; 5 but later decisions hold that leaving the vessel under these circumstances is simply a justifiable repudiation of the contract, of which the other party may take advantage, and the courts decline to state what would be ruled if the ship-owner should follow and regain possession from the salvors before the cargo-owner has acted. Within a few weeks the United States Supreme Court, although not going to the extent of holding the contract at an end, has decided that "the abandonment, at least, gives an irrevocable power to the cargo-owner to decline to be further bound." The Eliza Lines, U. S. Sup. Ct., Oct. 30, 1905.

No fault can be found with the result reached in any of the cases examined, for in all of them the owner of the cargo had suffered considerable injury from the act of abandonment; but it is impossible to subscribe to all

1 Lewis v. The Elizabeth and Jane, 1 Ware (U. S.) 41.

2 Post and Russell v. Robertson, 1 Johns. (N. Y.) 24.

3 See The Kathleen, L. R. 4 A. & E. 269.

4 The Arno, 8 Aspin. 5.

5 The Kathleen, supra.

the reasoning they contain and the inferences to be drawn therefrom. It does not seem sound to say that the act of abandonment necessarily ends the contract, or that the first one of the parties who obtains possession of the derelict has the right to elect whether or not the contract shall continue to be binding, or that the cargo-owner may always rescind when the ship has been deserted. The cases are clearly analogous to those of impossibility, danger, or sickness,' where the party affected is always excused from liability for not going on under the contract, but where the future rights of the parties are dependent, principally, upon the materiality of the breach, though, to a certain extent also, upon the subsequent conduct of the delinquent party. So, here, if the result of an excusable abandonment should be to make the carrying out of the contract a different undertaking from that originally contemplated, neither party would be further bound; but, if the breach be but a slight one, so that the cargo is not harmed nor its owner injured materially by the delay, and if the master should give prompt notice of his intention to proceed before the cargo-owner has changed his position, he should be allowed to go on, for it is not uncommon for the law to disregard a technical breach or permit a slight one to be cured. Of course, as a practical matter, the breach will nearly always be material in these instances, but a case can easily be conceived in which the storm unexpectedly subsides and the crew returns to the ship in a few hours. It is sometimes argued that the ship-owner should be allowed to continue, in analogy to the rule in cases of shipwreck, where the goods may even be transferred to another vessel and the freight earned; 10 but that is a different case, for there the crew are involuntarily separated from the vessel without any act of the will, and consequently there is no real abandonment.

LIABILITY OF FOREIGN REAL ESTATE TO COLLATERAL INHERITANCE TAX. The very general adoption of inheritance and succession taxes has led to a careful examination by the courts of the theory on which they are based. An inheritance tax seems clearly to be not a tax on the property itself, nor on the legatee, but a tax on the privilege of succeeding to property on the death of the owner.1 The fact that the burden of the tax may ultimately fall on the property, and that the property is sometimes subjected to a lien until the tax is paid, has led some courts to construe the tax as one on the property as well as on the privilege; 2 but this seems to confuse the nature of the tax with the method of its enforcement. The right to take property by descent or devise is a privilege granted by the law, not a natural. right; and the sovereignty which grants it may impose conditions on it.1 Theoretically, it would seem that the state might revoke this privilege at any time, and make itself the universal legatee of all decedents. Since succession to property is by permission of the sovereign, the permission can relate only to property over which the sovereign has control. A state has absolute dominion over all property within its territorial bounds, and may

6 Lakeman v. Pollard, 43 Me. 463.

7 Poussard v. Spiers, 1 Q. B. D. 410.

8 Jackson v. The Union Marine Insurance Co., L. R. 10 C. P. 125.

Bettini v. Gye, 1 Q. B. D. 183.

10 Shipton v. Thornton, 9 Ad. & E. 314.

1 Magoun v. Illinois, etc., Bank, 170 U. S. 283.

2 Bittinger's Estate, 129 Pa. St. 338.