quences of such origin upon the several powers of the government. Recent writers upon the commercial powers of Congress have frequently overlooked this origin, and the weight of their conclusions has diminished accordingly. This essay is, therefore, a return to the older, and, as I think, the more correct opinion.

But though the cause which produced the Constitution was deeper than the desire to improve the regulation of commerce, that desire was powerful in initiating the movement toward the new government, produced the Annapolis Convention, and through it became the immediate occasion for assembling the Constitutional Convention; and therefore this inquiry properly begins with the movements for enlarging the commercial powers of Congress, from about the middle of the Revolutionary War to the meeting of the Constitutional Convention.

UNIV. OF CALIFORNIA

The Commercial Power of Congress

CHAPTER I

EFFORTS TO IMPROVE THE REGULATION OF COMMERCE-THE FIRST STEPS THE NEW JERSEY PROPOSALS OF 1778

AT

T the outbreak of the Revolution the hardships of the period of discovery and settlement in the seaboard communities were over. The Colonies were attaining much prosperity, and were already beginning the western advance, which has had important consequences, not only in territorial expansion, but also in enlargement of conceptions of national power. They had a thriving foreign commerce, and an internal and interstate trade, which though small was active, and even then an object of encouragement. The main highways of this interstate trade were the bays, sounds, and rivers, making water communication between the principal towns on or near the sea fairly convenient and regular. But this water

transportation was not, even then, the only interstate trade. There are abundant evidences also of land traffic from State to State, and the development of interstate coach lines and postal routes; and, indeed, much of the principal interstate trade and travel of this period, as between New York and Philadelphia, and between Boston and New York, was partly by water, partly by land. That interstate traffic by land had grown to considerable importance, before the meeting of the Constitutional Convention, is proved by the provisions in the tariff acts of various States for regulating such traffic by duties upon goods thus brought into the several States, and by other measures. The volume of these various forms of interstate traffic and intercourse was trifling in comparison with the vast interstate commerce of to-day; but the traffic and intercourse were even then considerable in proportion to the small population, and increased in importance as the date of the Constitutional Convention approached, both in themselves, and in their relation to foreign commerce. For during all the formative period of our history, and certainly until after the beginning of the nineteenth century, the connection between the internal and the foreign commerce was much closer than can now be readily understood. The extent of the settled regions of the United States is now so great, and the interstate trade between localities distant from the

coast is so enormous and so specialized, that certain regulations might be applied either to the foreign commerce or to such special interstate trade without materially affecting the other branch of commerce; but, until well after the date mentioned, the connection between the interstate and the foreign commerce was so intimate, that adequate regulation of neither could be effected without complete power of regulating the other. This situation gradually brought the public men of the period to that perception of the necessity of vesting the power of regulating both the foreign and the interstate trade of the country in the central authority, which produced the commerce clause of the Constitution. For before the meeting of the Convention they had generally come into agreement with Madison's remark, that the regulation of commerce was in its nature indivisible, and ought to be wholly under one authority.'

A superficial consideration of this situation, ignoring other facts in the history of the Colonies and States, between the outbreak of the Revolution and the Constitutional Convention of 1787, has led some to conclude, that, as a principle of

15 Elliot's Debates, 548, Lippincott's Edition of 1866, in which the supplementary volume is indicated as "vol. v." The reader who is curious about the several editions of Elliot's work will find interesting notes in P. O. Ford's Bibliography and Reference List to the history and literature relating to the adoption of the Constitution of the United States, Brooklyn,