Fred'k H. Cooke


There are two circumstances that seem to me to tend to obscure a discussion of the right to engage in interstate or foreign commerce. One is the existence of the constitutional provision conferring on Congress power to regulate such commerce; the other, the circumstance that such commerce is commonly carried on rather by corporations than by individuals. For the present, let us ignore these two circumstances, and assume the commerce clause to be non-existent; also, that all interstate and foreign commerce is carried on by individuals exclusively, and not at all by corporations. In short, let us transport ourselves pro tanto into medieval conditions. We shall find the right to engage therein to be well established. In Hoxie v. N. Y., N. H. & H. R. Co., it was said by Baldwin, C.J., in a well considered opinion: "The right to engage in commerce between the States is not a right created by or under the Constitution of the United States. It existed long before that Constitution was adopted. It was expressly guaranteed to the free inhabitants of each State, by the Articles of Confederation, and impliedly guaranteed by Article 4, §2, Const. U. S., as a privilege inherent in American citizenship."