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COMMERCE, INTER-STATE AND NATIONAL.1

$38. TRADE AND COMMERCE Scarcely came within the range of congress, under the articles of confederation." The many and great evils resulting from this gave the most direct and vigorous impetus to the struggles for reform which led to the Philadelphia convention and to the adoption of its plan for a constitution. The convention therefore naturally considered it to be one of its greatest tasks to nationalize the Union in this respect. It has been rightly said that the consolidation of the industrial interests of the country has proved to be the strongest bond of the federal state.

Congress (says art. I., sec. 8, § 3 of the constitution) is authorized "to regulate commerce with foreign nations and among the several states and with the Indian tribes." 3

1F. Chamberlin, American Commercial Law, Hartford, 1872; R. Desty, Commerce, Navigation and Shipping of the United States, San Francisco, 1880; L. Houck, Law of Navigable Rivers, Boston, 1868; J. G. Thompson, Law of Highways, 3d ed., Albany, 1881.

2 So far as trade was concerned, only that with the Indians was subject to its control. As to its other powers in regard to commerce, see the fourth paragraph of article IX.

The Indian appears in the constitution only here and in the provision concerning the apportionment of the number of members of the house of representatives and in the clause about direct taxes. The multifarious powers to regulate Indian affairs which the federal government has claimed and exercised must therefore be constitutionally based on all sorts of other constitutional provisions. Neither statesmen nor publicists have as yet, however, taken the pains to enter into the complicated questions involved therein and to analyze and explain them. In congress much has been frequently said concerning this or that question of law and the federal supreme court has rendered some important decisions. In general, however, the legal side of the problem has been pushed into the background by the practical. In respect to both of them, as Americans themselves admit without reserve, much has been overlooked and much seriously

From the extremely large number of judicial decisions rendered in interpretation of this provision, two most comprehensive principles are to be deduced: First, the word neglected. The first cause of the failures and mistakes has been in no small degree the lack of knowledge of and care for the fundamental question of law. Formal treaties have been concluded with the Indian tribes, as if they were independent nations with equal rights with whom and towards which the United States had an international relation. Yet, as a matter of fact, no such position has been granted them. It could not be granted. Urged on by the development of circumstances and by the fact that the domains of the tribes formed a constituent part of the territory of the Union, the government fell more and more into contradictions in its own actions towards the Indian and piled injustice upon injustice. By degrees men became aware of the blunders of the fathers of the republic. The law of March 3, 1871, put an end to further danger from this source. This law provided that in future no treaties should be concluded with the Indians, because they, as it expressly stated, are not independent nations. This put what are left of the unfortunate aborigines in a legal relation to the federal government corresponding with their actual one: They are wards who must be cared for so far as equity and humanity demand on the one hand, but on the other with due regard to the demands of civilization as it sweeps over the continent. They are still treated upon the theory that they are to be isolated as far as possible. Their domains are reservations. The largest is Indian Territory, which has a very peculiar status. It embraces over seventy thousand square miles, is bounded on the south by Texas and the Red river, on the east by Arkansas, on the north by Kansas, and on the west by Texas and New Mexico. A large number of tribes inhabit it and have legal relations with one another. The United States has only “executive jurisdiction," but certain law questions fall within its sphere to decide. A fuller discussion of the very peculiar structure of this semi-barbaric pseudo-state of the Union would be out of place here. Only the most important matters as to the regulation of Indian affairs can be brought forward. All tribes which have come to an agreement with the United States have their own districts, called reservations, which are sprinkled over the states and territories. The government is represented among the tribes by "agents" (and sub-agents), over whom are "superintendents" and "inspectors." At the head of the entire office of Indian affairs, forming a part of the department of the interior, is a commissioner. The

"commerce" has not the same signification as traffic, purchase and sale, i. e., as "trade" in its more limited sense, but includes also the idea of "transportation." The authoragents must give a bond, the amount of which is fixed by the president and the secretary of the interior. They must reside at a place fixed by the president within the limits of their reservation, or in its immediate vicinity, and must not leave their reservation without permission. Neither they nor the other officials of the Indian service are permitted to be interested in any business whatever with the Indians under a penalty of $5,000. Trade can be carried on with the Indians only by citizens of the United States, and these must give bond in the sum of $5,000 to $10,000 and procure a license, which can at any time be revoked by the superintendent, whenever he is convinced that the particular person is objectionable. The purchase of implements of the chase, and under some circumstances also the sale of weapons and ammunition, are subject to all sorts of restrictions. The sale, manufacture and introduction of intoxicating liquors on the reservations are most strictly forbidden. In order to prevent the violation of these rules, a comprehensive right of search is granted to the agents. Whoever carries on business without a license forfeits, in addition to all his merchandise, the sum of $500. Contracts can be made only with all sorts of formalities. As a general rule, the purchase of land is not permitted. A man who trys to buy land or surveys land in the reservation is liable to fine. Outsiders can enter a reservation, only if provided with a pass, and no one is permitted to settle there. Trespassers are expelled if necessary by the military. Any one who returns after being expelled must pay a fine of $1,000. The right of hunting and grazing in the reservations belongs solely to the Indians. Crimes are punished according to the laws of the places wherein the United States have exclusive jurisdiction. The Indian appropriation was $5,903, 151 in 1884. The greater part of this is used in paying the tribes the moneys granted them and in supplying them with clothing, cattle, etc. In part it is a payment for lands ceded by the Indians according to treaties or other agreements and in part a gift without any legal obligation whatever. Without such assistance most of the tribes would soon succumb to hunger and misery. The federal government seeks by gifts to raise them gradually to such a degree of civilization that they will become able to support themselves. A business spirit has been stimulated by presenting individuals among them with cattle and rewarding them for the increase. In a similar manner, attempts are made to encourage agri

ity of congress extends to all international and interstate commerce,' embracing all the means as well as the subjects thereof, including persons in either capacity." Second, with commerce within the limits of one single individual state, congress has nothing to do. Thus if the authority of congress is far-reaching, it is nevertheless restricted, and the precise demarcation of its limits is for various reasons not an easy matter.

Among the infinite possibilities presented by the occurrences of real life, it is often very difficult to draw the line of distinction just indicated. The exclusive authority of the separate and individual state is not under all circumstances co-extensive with its geographical limits,

culture. In general the efforts of the government are directed towards dissolving the tribal relation and substituting the institution of individual property. New sources of industry were opened to these people and their self-respect heightened by placing in their own hands the distribution of the government goods and by organizing from their midst an Indian police force. And finally a number of schools have been successfully opened, in which the instruction given is espe cially adapted to their peculiar mental and bodily dispositions and desires. The good results of all these measures are already very noticeable. They have brought about a new era in the Indian policy. A great part of the credit belongs to Carl Schurz, who, as secretary of the interior under President Hayes, took especially to heart the care of the Indians. Still, only the beginning has been made of a more humane and just policy, corresponding better with the true interests of both parties; and the government has no little trouble in enforcing even the laws which now exist. It is not easy to impress the rough and reckless pioneer population with the idea that the Indians have any rights which must be respected. At the moment I write, it has become necessary to repel by force illegal invasion of the Indian Territory and of the other reservations.

1 Gibbons vs. Ogden, Wheaton, IX., 189.

The Passenger Cases, Howard, VII., 283. Five judges declare themselves against the view expressed by Judge Barbour in the earlier case of New York vs. Miln (Peters, XI., 102), that persons could not be "the subject of commerce."

even when these limits are in no wise overstepped in the case in question. Thus, for instance, in 1851, the supreme court decided that Virginia had no right to permit a company to put a suspension bridge over the Ohio river at Wheeling (when the stream was entirely within the territorial limits of the state) so as to interfere with navigation, because the Ohio was a navigable water way between different states, and congress must regulate interstate commerce, and that commerce included navigation.1 In other cases, however, it has been decided that the states, if congress has not exerted its legislative authority, can permit the building of a bridge over a navigable stream flowing wholly within their jurisdictions, even if it interferes with navigation. These decisions were based upon the fact that bridges as well as navigable streams are means of commerce, and that the states must be able to determine whether and how far commerce across the water should be preferred to commerce on the water.2 Finally, the right of the states to build bridges or let them be built over navigable streams within their limits, when there was no interference with navigation, has been repeatedly acknowledged. Whether there is or is not such interference is a question of fact that must, in every instance, be decided with regard to the circumstances of the particular case.3

1 Howard, XIII., 518. But when congress legalized the bridge, as built, a suit brought by the state of Pennsylvania was dismissed by the supreme court because the assertion of an interference with navigation, accepted as valid by the court, had not been made good before congress.

2 Gilman vs. Philadelphia, Wallace, III., 713; The Passaic Bridges, Ibid., 782.

3 See Wilson vs. Blackbird Creek Company, Peters, II., 245, as well as the remarks of Justice McLean (Howard, VII., 397, 398), and Justice Clifford (Wallace, III., 743), upon this decision.