regulation of interstate commerce. We need scarcely repeat what this court has more than once said, that the power to regulate interstate commerce, great and paramount as that power is, cannot be exerted in violation of any fundamental right secured by other provisions of the Constitution. Gibbons v. Ogden, 9 Wheat. 1, 196, Lottery Case, 188 U. S. 321, 353.

It results, on the whole case, that the provision of the statute under which the defendant was convicted must be held to be repugnant to the Fifth Amendment, and as not embraced by nor within. the power of Congress to regulate interstate commerce, but under the guise of regulating interstate commerce and as applied to this case it arbitrarily sanctions an illegal invasion of the personal liberty as well as the right of property of the defendant Adair.

We add that since the part of the act of 1898 upon which the first count of the indictment is based, and upon which alone the defendant was convicted, is severable from its other parts, and as what has been said is sufficient to dispose of the present case, we are not called upon to consider other and independent provisions of the act, such, for instance, as the provisions relating to arbitration. This decision is therefore restricted to the question of the validity of the particular provision in the act of Congress making it a crime against the United States for an agent or officer of an interstate carrier to discharge an employee from its service because of his being a member of a labor organization.

The judgment must be reversed, with directions to set aside the verdict and judgment of conviction, sustain the demurrer to the indictment, and dismiss the case.

It is so ordered.

SECTION 2. TO REGULATE INCLUDES THE POWER TO PROHIBIT FOREIGN COMMERCE OF EVERY DESCRIPTION.

UNITED STATES v. BRIGANTINE "WILLIAM" (1808)

DISTRICT COURT OF THE UNITED STATES FOR
MASSACHUSETTS

2 Hall's American Law Journal, 255. Federal Cases, No. 16700. Power of Congress to prohibit foreign commerce is unlimited, both as to subjects and duration.

The facts are stated in the opinion.

DAVIS, Dist. Judge: This libel is founded on the act of Congress, passed 22d December, 1807, entitled, "An act laying an embargo on all ships and vessels in the ports and harbors of the United States," and on the first supplementary Act, passed January 9th, 1808.

The general, or primary provisions are contained in the first act, passed December 22, 1807; which lays "An embargo on all ships and vessels in the ports and places within the limits and jurisdiction of the United States, cleared or not cleared, bound to any foreign port or place;" and in the fourth section of the third additional Act, passed March 12th, 1808, which prohibits the exportation, from the United States, in any manner whatever, either by land or water, of any goods, wares, or merchandise, of foreign or domestic growth or manufacture. To the same head belongs the prohibition of the exportation of specie, by any foreign ship or vessel, by section 5th of the first supplementary act. The first act is without limitation, and the several supplementary acts are to exist during the continuance of the first.

A separate act, passed April 22d, 1808, authorizes the President of the United States to suspend the operation of the act laying an embargo, and the several supplementary acts, "in the event of such peace, or suspension of hostilities, between the belligerent powers of Europe, or of any changes in their measures, affecting neutral commerce, as may render that of the United States safe, in the judgment of the President"-with a proviso, that such sus

pension shall not extend beyond twenty days after the next meeting of Congress.

My views of the constitutional question, which has been raised in this case, will be confined to the acts relative to navigation, and to exportation by sea. On those only do the cases before the court depend; and it is obviously incumbent on a judge to confine himself to the actual case presented for trial, and its inseparable incidents, and to avoid pronouncing premature decisions on extraneous questions.

The prohibition of exportation by land can, properly, come into view, only as it may tend to explain those provisions, on which I am called to decide, and to indicate their character.

It is contended, that Congress is not invested with powers, by the Constitution, to enact laws, so general and so unlimited, relative to commercial intercourse with foreign nations, as those now under consideration.

It is well understood, that the depressed state of American commerce, and complete experience of the inefficacy of State regulations, to apply a remedy, were among the great procuring causes of the Federal Constitution. It was manifest, that other objects, of equal importance, were exclusively proper for national jurisdiction; and that under national management and control alone could they be advantageously and efficaciously conducted. The Constitution specifies those objects. A national sovereignty is created. Not an unlimited sovereignty, but a sovereignty as to the objects surrendered and specfied, limited only by the qualifications and restrictions expressed in the Constitution. Commerce is one of those objects. The care, protection, management, and control of this great national concern is, in my opinion, vested by the Constitution in the Congress of the United States; and their power is sovereign, relative to commercial intercourse, qualified by the limitations and restrictions, expressed in that instrument, and by the treaty making power of the President and Senate.

"Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." Such is the declaration in the Constitution. Stress has been laid in the argument on the word regulate, as implying, in itself, a limitation. Power to regulate, it is said, cannot be understood to give a power to annihilate. To this it may be replied, that the acts under consideration, though of very ample extent, do not operate as a prohibition of all foreign commerce. It will be admitted that

partial prohibitions are authorized by the expression; and how shall the degree, or extent, of the prohibition be adjusted, but by the discretion of the National Government, to whom the subject appears to be committed? Besides, if we insist on the exact and critical meaning of the word regulate, we must, to be consistent, be equally critical with the substantial term commerce. The term does not necesarily include shipping or navigation; much less does it include the fisheries. Yet it never has been contended that they are not the proper objects of national regulation; and several acts of Congress have been made respecting them. It may be replied, that these are incidents to commerce, and intimately connected with it; and that Congress, in legislating respecting them, act under the authority, given them by the Constitution, to make all laws necessary and proper, for carrying into execution the enumerated powers. Let this be admitted; and are they not at liberty, also, to consider the present prohibitory system as necessary and proper to an eventual beneficial regulation? I say nothing of the policy of the expedient. It is not within my province. But, on the abstract question of constitutional power, I see nothing to prohibit or restrain the measure.

Further; the power to regulate commerce is not to be confined to the adoption of measures exclusively beneficial to commerce itself, or tending to its advancement; but, in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest. The mode of its management is a consideration of great delicacy and importance; but, the national right, or power, under the Constitution to adapt regulations of commerce to other purposes than the mere advancement of commerce, appears to me unquestionable.

Great Britain is styled, eminently, a commercial nation; but commerce is, in fact, a subordinate branch of her national policy, compared with other objects. In ancient times indeed, shipping and navigation were made subordinate to commerce, as then contemplated. The mart, or staple, of their principal productions, wool, leather and lead, was confined to certain great towns in the island, where foreigners might resort to purchase; and Englishmen were restrained from exporting those commodities, under heavy penalties. It was conceived that trade thus conducted, would be more advantageous to the country, than if transacted by the English on the continent. On this idea was made the statute of the staple; 27 Edw. 3 (vid. Reves' Hist. of English Law, 2. 393.) This may appear a strange regulation. It was evidently founded on erroneous views, and Selden, the learned commentator on Fortescue, remarks, "that

all acts or attempts, which have been derogatory to trade, have ever been noted to be discouraged and short lived," in that nation. It is well known how the views of their statesmen and their commercial laws have changed since that statute was enacted. The navigation system has long stood prominent. The interests of commerce are often made subservient to those of shipping and navigation. Maritime and naval strength is the great object of national solicitude; the grand and ultimate objects are the defence and security of the country.

The situation of the United States, in ordinary times, might render legislative interferences relative to commerce, less necessary; but the capacity and power of managing and directing it, for the advancement of great national purposes, seems an important ingredient of sovereignty.

It was perceived that, under the power of regulating commerce, Congress would be authorized to abridge it in favor of the great principles of humanity and justice. Hence the introduction of a clause in the Constitution so framed, as to interdict a prohibition of the slave trade until 1808. Massachusetts and New York proposed a stipulation that should prevent the erection of commercial companies with exclusive advantages. Virginia and North Carolina suggested an amendment that "no navigation law, or law regulating commerce, should be passed without the consent of two-thirds of the members present, in both houses." These proposed amendments were not adopted, but they manifest the public conceptions, at the time, of the extent of the powers of Congress relative to com

merce.

It has been said, in the argument, that the large commercial States, such as New York and Massachusetts, would never have consented to the grant of power, relative to commerce, if supposed capable of the extent now claimed. On this point, it is believed, there was no misunderstanding. The necessity of a competent national government was manifest. Its essential characteristics were considered and well understood; and all intelligent men perceived that a power to advance and protect the national interests necessarily involved a power that might be abused. The "Federalist," which was particularly addressed to the people of the State of New York, frankly avows the genuine operation of the powers proposed to be vested in the general government.

"If the circumstances of our country are such as to demand a compound, instead of a simple, a confederate instead of a sole, government, the essential point, which will remain to be adjusted