The San Francisco call., 1907-06-25
SENATOR KNOX SPEAKS
ON COMMERCIAL LAW
Addresses Graduates of the
Legal Department
of Yale
NATION VS.. THE STATE
Defines Powers of Federal
Government Relating
to Commerce


guard against commercial hostflities and re-
prisals between the states. III remained prac4
ucaliF doTma0t until comparatively recent years
IL is now clearly recognized as a great affrma-
tive and constructive power nor limited to
composing differences between state laws and
systems but constitutionsIiy capakle of efYeetise
and fruitful development in a region all its
In some respects it NAV se said to be
the greatest power LOGGED in the general gov
are coextensive with the possibilities of the
expansion of the vast subject to which 1t applies
Notwithstanding the complex system OF polity
which prevails in this country. the American
people have complete and entire system Of
government with all the powers necessary to
deal with every subject and situation All
governmental authority is included in one or
the other. in both. of the two sovereignties
which constitute The American system.
prenne in state affairs and the national govern
inent supreme IN national affairs does not result
in the deduction that there are any affairs
which may escape government control
The necessity TO exercise the national power
over commerce arises largely cut OF the failure
Of the states TO regulate wisely great cerpera-
states and engaged in interstate commerce
That failure has led 10 well known abuses
created the necessity for the exercise of federal
regulation TO prevent the abuse.
NECESSITY FOR ACTION
The, pressure of the accumulated evils sud
abuses Of many years of inadequately regulated
to test the adequacy of existing laws 70
meet the situation and the enactment of such
10 restore and preserve freedom and equality
IN interstate and foreign commerce.
the eomonasions 70 control me rIodncIior
TO be subjects of interstate commerce: the com
hinations between and the mergers OF interstate
railroads. designed to bring under one control
the transportation business OF large areas of
the country: the unjust discrimination TO
favored shippers and localities. both in the carry
secrecy surrounding the operations Of corpora
tions rendering service 10 the public bad
utterly destroyed in many localities the ability
Of other persons and concerns 10 engage n
commercial competition With the favored ones
who enjoyed such unfair and Illegal advantages
Congress has prohibited combinst stions in re-
strairt Of interstate and foreign trade and has
prohibited the carriage of deceased cattle, eK-
plosives and lottery tickets. and congress has
prescribed that certain safety appliances shall
be used upon railroads doing an interstate busi-
The class of laws is destined to keep
the channels OF commerce free and unpolluted; :;
the other is designed to secure the safety of the
employees and patrons of the carriers.
/ cite these acts because their constitutional
ity hss been sustained. because they obviously
bear directly upon commerce and for that rea-
son viii serve 70 make clear the distinction be-
tween the well established rule to be deducted
from th decided cases and the extension Of the
rule involved in certain pending legislative prop
esitions-ef federal control to which / shall now
direct your attention.
First. | shall restate the existing rule as it
has been judeially determined in these words:
Congress has the power TO regulate interstate
commerce. which includes the power to regulate
the mesns Of fnstrumentaiities by which COM
mcrce is conducted.
The new proposition is this Congress has the
power 10 regulate commerce including IFS instru-
nuentaities. and likewise power TO regulate the
persons By whom articles Of commerce pro-
duced in respect to matters disconnected with
This addition to the rule finds expression in
the suggestion TO prohibit the interstate trans
portstion of innocuous articles lawfully made or
affecting n
teFstate commerce.
Let us now consider whether the regulation
of the business of producing articles which may
In whole or in part 90 into interstate commerce
by denying to the owner the privileges of inter
state commerce for reasons not affecting such
commerce. is regulation Of commerce. In other
words. is the mere production Of goods commerce
II it is not, then congress regulate such pro-
duction within state under the constitute ional
power to regulate interstate coinmerceg
1t would be difficult to overstate the impor-
lance and seriousness of the question thus pre-
sented. upon its ultimate authoritative de-
termination depends, il may be, the autonomy of
the states il substantially all matters of inter
nal policy.
1t is scarcely worth while to discuss the
proposition that production is not commerce.
CANNOT PROHIBIT COMMERCE
In my judgment, the power to regulate COM
merce between the states does not carry with
IL the power TO prohibit commerce. unless the
prohibition has for its purpose the fsclitaton.
safety or protection Of commercial intercourse,
or the accomplishment OF some other national
purpose.
/ ccncede that the national power to regulate
interstate commerce carries with II the right
to prohibit commerce in order TO secure equality
Of commercial right. to prevent restraint nf
or interference with commerce. but not to pro
hibit the shipment of the inocuous products of
producers within state who are pursuing q
course sanctioned by the Laws of the state and
in wise in itself interfering with interstate
commerce.
The right TO regulate their domestic affairs
Is secured and protected to the states by the
tenth amendment reserving to the states re
av1f or m tho he r1or mt
delegated to the United States
The OF the matter is this: For the pur-
pose of protecting commerce. congress may close
Its channels TO those who are injuriousiy affect
ing it. but for the purpose of enforcing a more
enlightened policy in respect to matters not
within the jurisdiction of congress, it has no
Congress may employ snch means as it chooses
to accomplish that which is within its power
But the end 10 be accomplished must be within
the scope OF It's constitutional powers. The leg
islative discretion extends to the means and not
TO the ends TO be accomplished by use Of the
means.
That the congress OF the United States has
no general legislative powers but only such As
an old fashioned and exploded notion.
1t has been feaffrmed with emphasis by the
supreme court within the last so days in a
great opinion by Justice Brewer in the case OF
Colorado vs. Kansas.
We cannot make progress In developing a
body of substantive remedial law without an
accurate appreciation of the restrictions upon
both the state and federal powers.
The preservation of our constitution is not
committed TO the federal judiciary alone 1t is
the oath bound obligation of every legislative
judicial and executive officer of the states AMI
nation. and is the highest duty of private citi.
zenship. The constitution is not to perish al
the hands Of the impassioned phrase maker
and its defenders should not be deferred by
mistaken or preiudieed. ciamor from performing
The power Of the federal government cannot
be increased except by new grants of powei
s~>~~~~~~>---~~>~~-----~----~
In port May 1s-Fr bark Guethary, for Port
land, Ore -
OCEAN STEAMERS
NAPLES-ArrIved June 24-Stmr Citta di Ma.
poll from New York
PLYMoUTH--Arrived June 24-Stmr Kron
prinz Wilhelm from New York for Bremen
BREMEN-ArrIved June 24-Stmr Barbarossa
from New York.
Memorauda
Per shnr Roanoke, from Portland. June 24-
On June 3, In the evening. 10 miles south OF
Point Arena. passed tug DauntIess " ifh log raft
in tow. from Astoria for San Francisco.
Schr Sausaiito, Captain Bressen which sailed
from San Francisco yesterday. June 23 for Coos
bay and which anchored close in shore near