property that previously existed under all State constitutions." 1

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 be free to use them in all lawful ways; 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. "The right to follow any of the common occupations of life is an inalienable right."

5

6

3

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 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

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

2 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. v. 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.

3 Williams v. Fears, 179 U. S. 270.

4 Opinion of Mr. Justice Bradley in Butchers' Union Co. v. Crescent City Co., III U. S. 746, 762, approved in 165 U. S. 578, 589.

Fourteenth Amendment.

Fifth Amendment. 'Gibbons v. Ogden, 9 Wheat. 1; Bowman v. Railroad Co., 115 U. S. 611.

in respect to those artificial entities called corporations any more than in respect to the individuals who compose them.1 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. 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

2

4

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. 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 accom

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. "Every individual or entity which has rights or the capacity to owe duties is a person. In the strict legal sense the word person refers to the capacity, character or status of the being rather than to the man or entity." James Wilson's Works, Vol. II, p. 3, note 1. I Austin's Jurisprudence 362.

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.

"Every person by the common law of each State, may export his property to foreign countries, at pleasure; but Congress, in pursuance of the power of regulating trade, may prohibit the exportation of commodities," etc. Hamilton, Opinion on Bank Bill, Feb. 23, 1791.

plish 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.1 Congress cannot deprive any person of liberty, exclude proper articles from interstate transportation, nor 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." 3

2

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

1 Monongahela Navigation Co. v. United States, 148 U. S. 312, 336. 2 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. XVIII, Part 1, p. 603.

3 Loan Association v. Topeka, 20 Wall. 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 76.

if done

with a view to such a purpose, is the affair

of arrogance and usurpation." 1

Taxation of imports and exports. 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." 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. Besides 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 transportation, and as applied to interstate commerce may well be held to prevent Federal prohibition.

3

The rule of the Constitution was free ships and free goods. Congress was, indeed, permitted to tax imports

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

2 Post, Chapter III.

State Freight Tax Case, 15 Wall. 232.

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." 1

1

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.2 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

1 Williamson in State Gazette of North Carolina, Ford, "Essays on the Constitution," 393. 28 Wall. 123.