Newspaper Page Text
MONDAY EVENING, MARCH IS, 1824.
Whole No. 4383.
| sJOlt TAB lUTJOWAt 1HMTXI0E8CKB.
moy be used, is not extended the pow
era which are conferred ; nor is there
IMPORTANT OPINION I one sentence in the Constitution which
the Supreme Courtofthe V.&tates has been pointed outby the gentlemen
on tub | of the bar, or which wo have been a.
ble to discern, that prescribes this rule.
We do not, therefore, think ourselves
justified in adopting it. What do
gentlemen mean by a strict construe
tionr If they contend only again-t
tb*t enlarged construction which
STEAM-BOAT CASE,
IsUVUSJ M CBIEf 3UBT,0> MAlwiMK,
March 2, 1824.
Gibbon vs. Ogden.
I This is a writ jf error to * decree
the highest court of law or equity I wou id extend words beyond their
^ ao . d oW ?m importf we might
Lcrcc pronounced by the Chancellor I question the application °of the Term
that State. ; I but should not controvert the princi-
The Legislature of New«York hw I pie* If they contend lor that narrow
acted several laws for the purpose construction which, in support of some
securing to Robert R. Livingston J theory not to be found in the Cohstitu
i Robert Kulton the exclusive nav- tion, would deny to the government
.lion of all the waters within the ju- those powers which the words of the
diction of that State, with boats grant, as usually understood, import,
i?ed by fire or steam, for a term of and which are consistent with the
|srt, which has not yet expired; and general views and objects of the in
i authorized the Chancellor to a I strument, tor that narrow construction
,rd an injunction, restraining any which would cripple the government,
irson Whatever from navigating those and render it unequal to the objects
tjrs with boats of that descrip- tor which it is declared to be institu
I ted, and to which, the powers given,
,«is bill was filed by Aaron Ogden r aB understood, render it comp*-
lining as assignee of Livingston & I ‘ent, then we cannot perceive the pro-
Itoo. suggesting that Thomas Gib- pnetyof this strict construction, nor
the plaintiff in error, was in pos-1 *“"P* “ a® the rule by which the Con
,oo of two bteam-boats, the Stoud- •titution is to be expounded. As«ien
r and Bellona, which were actu- whose intentjons require no conceal
ksum
R employed in running between N. I generally employ the words
prk and Elizabethtown tn New-Jvr-j which most directly and aptly express
, in violation of the exclusive priv-l the ideas they intend to convey, the
;e conferred on the plaintiff, and] enlightened patriots who framed our
jog an injunction to restrain the Constitution, and the people who a-
. Gibbon from using the ssid boats, I doptod it, must be understood to have
any othen propelled by fire or I ® m Pl°y*d words io their natural sense,
hid, id navigating t'.e waters with-| and to have intended what they have
the territory of New-Yofk. said. If, from the imperfection of
The injunction having been awards] humau language, there should be seri-
, the answer of Gibbon was filed. I ous doubts respecting the extent of
which he stated that the boats em- any given power, it is a well settled of ‘rade, and was, therefore, not compre. 11""™®", 1 *. ?*‘ vln ff m “ 8
ik by him were duly enrolled and r “le» that the objects for which it was bended the power to regulate com. 1®
'ted; according to the act of Con-1 i'ven, especially when those objects
i
i, to carry on the coasting trad** I are expressed in the instrument it.-elf
ie Unijed States; and insisted on | B h°uld have great influence in the
rig*,.., fit in virtue of that licen-e,t-1 construction, We know of jio tea-
igniO the wat i ry between Eliza-1 8 " n for excluding this rule from the
town and New-Y- rk. the -'.cts of I proent case. The grant does not
Legislature ofNew-York not with-1 convey power which might be bene-
llihg* * I ncial to the grantor if retained b\
lie Chancellor perpetuated the in-1 himself, or, which can enure solely to
Iclioti,. being of opinion that the I‘he benefit of the grantee : but is an
s conferring the privilege were not I investment of power for the general
mgnant to the Constitution and] advantage, in the hands of agents se-
> of the United State**, .ir d were i r **cted for that purpose, which power
This decree was affirm d, in I c *n never be exercised by the people
Court fo* the trial of impeachments I f hem«elves but must be placed io the
d correction of errors, which is thf* I hands of agents or lie dormant. W-,*
jbest tribunal before which thecau« I know of no rule for construing the
uld be carried in the State. extent of such powers, other than is
I'fhe plaintiff in error extends (hot 18i v D by the language of the instru-
i decree is erroneous, because thel meet which confers hem, taken in
* which purport to give the exclu- connection with the purposes for which
e privilege it suatAins, are repug- the > were conferred.
The words are—''Congress shall have
o**wer to regulate commerce with foreign
nation*, and among the several states, and
with the Indian trib* “
to the Constitution and laws <*(
> United grates.
They ire;-aid to be repugnant—
|*t. To that clause in 'he Cons'itu-
h which authorizes Congress to
feuliite commerce.
The subject to be regulated is com-
erce ; and our constitution being, as was
aptly said at the bar, one of enumeration,
AmH nnV nP <4 .a
fq that which autho*iz *s Con-1 and not of definition, to ascertain the ex-
** f® promote the prog; .*88 of sci -1‘ Ant ‘ be 00 wer » it becomes necessary
:e and Useful arts. t0 8 , ettle ,he neaning of the word. The
State of Ne^-Vnrb ntninr.in - c,iU " ,el for the appellee would limit it to
iXhutlnLm- ot these tel*- l^ 1c,t0 b - uy,n & and * e,,in & . or “»e In
The
t constitutionality
1 their L, ‘
r. . ,r Lreislaturif. their Council • f mit that it comprehends navigation. Thia
pvisioq, and (heir Judgeg. have re-1 would rest Jet a general term, applicable
[atedly (incurred in this Opinion.— J oneofits significations.
HIM
supported bv ireat riamea—l>v P ommer ?f undoubiedly is traffic, but it
t which h. fn - v «s something more i It is intercourse. It
sidprsiinn It? 6 ■ 9 l - he ! ,e * ,0 descr-bis the commercial intercourse be-
l l anon that virtue, Intelligence, I t#een nations, and parts of nations, in all
'luce, cm bestow. No tribuv -I I-'"branches, and is regulated by prescribe
a PF«ach the decision of this queft*1 in 8 r ‘dfor carrying on that intercourse.
1 wrthodt feeline t* lust and *?i r, i 1 he ra ''. d ca " scarcely conceive a system
*ffor lhat regulating commerce between naiions
Bed by such nuth •♦' Wh k h . • ^i 8 ’ W ‘® h h#l1 eXc,ude 8,1 ,aws concerning
virir/ftf .u- a ^ thor, ty •• but it is tin I nav gati >u, which shall be silent on the
ot tqia Court, while it res- j admissaion of.ih vessels of theoiye nation
7 l °bow to ir implicitly; and intr the P ort » the other, and be con.
jseges must exercise in the exam- finedto P 1 escribing rules fn. the conduci
"'■ of Ibe subject thai uXmand P.'jo^viduals in the actual employment
icfj Prnvulo„«i I. uouersmna ot buying and.selhng, or of h,.rter
■ w.h f u e ^ a8 . be ^^ 0Wed U P“I If commerce does not, include naviga
[ ’ 0 that independetu'e tion, the government of the Union has no
‘. People of the United Sta e*i I direct power over that subject, and can
1 from this department of tbe I rt,alre !i °l a w prescribing what shall con.
^Ument. I stitute American vessels, or requiring that
-iDreliWin... . .. . they shall be navigated by American sea*.
Riuninary to the, very able dis- 1 — °
mercial regulations *. and B the ,ie most obvi-1 port w*ithin ® omrnenc ® or terminate at a [ purposes they
ous preference which can be »iv,>n t. I il ort w,t , n a state, then the power of 1 n ^ B8,, • ine v
port over another in regulating common-* C °^ e W be exercised within a state- I ^ (,n 8 re8s is emp
what
are not do "g
another in regulating commeMe" I ^ exercised Within a'stete*' l ^’ n f. e88 ' 9 empowered to d »• Con-
relates to navigation. But the subgeauent I nnoiple is, if possible, still more I R r ® 88 18 n°t empowered t< tax for
part of the sentence is still more explicit I the r aov*r!I| 8p , ,Cd « c ^? merce “ among tho8e purposes which are w thin the
ihj n “ r 9ha « ve8 els bound toSom ?« h “tbe" inwhVnH either Province of tbe sta :e. When
one state, be obliged to enter, clear, or pay I rated by amathomf^rS?? 6 they “JJ® >epa * then each government exer :iaes the
-nu—, I other states he between them. What is I * the power of the oth< if * But,
"them,and how isitl^hen a state proceeds to jeguiate
9 8 ? • trading expedi* J commerce with foreigo ns tlons 4 or
exerci
granted
.he verv
power,and that an embario”l»"anTn» k trir I one.Tcrmina'tr’inThe I J 11 '"? which Congress is 6 a tthorized
ment of war,'not a regulation of trade I prob,b y P ass through a third i I to do. There is no analo »y* then,
. it may be, andrften iausedas an StTbrZL" V® ?t 8 tesmuat, of ne- between the power of tax* tion and
instrument of war, cannot be denied- An fi ^ ,th ^ *he states.- the power of regulating con merce.
sanitating th %W^nt or^mann.ng| when the constitution wm nSf® wis I er thia P«wer is still fn thefitates, in
airect reference to navigation- I „th7r i- l cn
SeSSSSsmtESSS?!
of a fleet, or Tor the puraoie of eonMalln* I ki J» the constitution was made, was" 11,18 P°»er u still in the «stes, m
the progress of an expedition pretmS chiefly within a state The power of Con- <he case under cousideratioi. we may
to sail ftom a particular port. P i n the*® I lt m -" y *?®» ™ u8t be I dl8mi8B ^om it the inquiry t hether it
“ ll, "? lIar esses it is a military instru-1 ti”^f J urisdic ; « surrendered by the mere Rrani to
ind partakes of the nature of war. I the nation m .ifi» 8 ui t ®!‘- ^ bc a ® nse of I Congress, or ia retained until Congress
ttXe sometime “H ImSM W thT^we^ V. ^ay
t a view to »awrrgi irsairsfiSiv tend j d '*®' 88 inquiry, becau^ has
I'll" a llar es«e8it"isa miiitary'inatm-1 tiStf 1 18 surrendered by the mere ] Rrani to
BUI All ^tnhnervnoo . oftbenature of war.' | SSfLSSfth TS-SSL*? I Congresa.or is retained untilLCongress
tion.
-ti°»at 1 rar i ss?*#? 5, »«; i b j en exercised,* and' the rckulations
hargo is no more a war measure than^ a I Iween PhiLSl?h“ n ^ !d « d i*- p, ' iaand be ’ which Cuugres deemec it | roper to
merchantman ia a ship of war, becaus -1 Wea» SI m " ke are n °W «u full operat on. The
both are vessels »t»i*h a I weare nowgrrivedattheinauirv—^What I ..u i...
with sails
man u a ship of war, becaus* I tW We^r* h nnil e J?!iL ,l .lr. d .t,®* Ilim ! ,re ' I ra "^ «re now in full operai on. The
euels which navigate the ocean I t hi 8 power) th ® in 9 u,ry ”“ w hat I sole question is, can a state! regulate
When Gongress'imposed that embareo I 11 i8 ‘. he power to regulate, that ia, to ® omme ^ e with foreign no>Jons and
which, for a time engaged the atteTtKf I pre u® r,b ®’ tbe r “ ,e hy.which commerce ia am 0“g the states, while Cogress -
every man in the United 8tates, the avow 1 g v l er . n ? d l, Th, s power, like all regulating u f
ed abject Of he law was the protection of I ° t b ?rf “« com P lete in I Th e counsel for the appt'Hee an
commerce and the avoiding if war. B; I , ent 1 and y .rknn^lnrwl 0 n U i Utn ? f 0> - ex " I “wer this question in the affirmative,
The persevering earnestness and zeal with 1 1 '°? j Th ? Sl L ar ® expressed in plain terms, I ,n . ,be tOtli section as suppori- 10 g their
which it was opposed, in a part of our I !‘ ' d . do uotaffect the questions which arise I oplnlot-i. They sav, very tridy* 'hat
country which supposed its in t ere8tst 0 °be I ph^IS®^* k ° r ‘ “ hirh h ‘““ • «-*«*-♦*--
vitally affected by the act, cannot be for- XStflld
gotten. A want of astuteness in discov. I tho d ® u
wiilnot belmpuudtotlioiewho were .?'|f^ mmerce 1 with ' or **8 , > *» t t<«».«nd.roo.g| P° import, or etpnrtl* prove,
rayed in opposition to this. Yet they nev-1 t uth® V i er . a i stat “* " tested in Congrreasl 'hat this power might have |,*eeo ex-
r suspected that navigation was no brancit v-rnmTn^ h^in^?n f, b ® a ,-f' nBle K u * f rC ' 8ed " ad U no ‘ be en ^P^ssly
, not compre. I -^ n .L .. U8 const, ‘ utloa I forbidden-and consequently, that
ciple which '~ u - -* . P.®* I diacretion of Cnnorn. thii. Man.it.> ...:.u I risfinal nowar nf thn u.t. m.s comne-
which the at _
nied that the particular law in question I J S hu K . U ®' 1U posseM . at . elections, are, in I That this restr etion shl°ws the
was made in pursuance of the conititminn I i _ 8 ' “ ,n . n,8ny . oth er instahces, as that, | oninion of the Convention,th^t 8 8 t»'>e
impose duties oo experts and
rgowasthe annihilation and no I “*«;•** *r«ui i» wnw*. iney are me ■ ' 8 * not expressly fi'rbidden,
the regulation of commerce. In "erms I f® 8lra, ? t8 *i n , w . hic !*, the P e °P ,e must of-1 be conceded—but that it follow
ility of he I It" re y * olc,y ,n aU represenutive guv-1 as a consequence, from this
they admitted the applicability ui - ■ , , ,
words used in the constitution to vessels, cr, iheMwer'of nnnnu.A.1 * . 8 «on, that a state may regulate com
r™.ws rstcasscsc I m -w
| ry state Jn'the Union, so far as that navi-1 ‘be etatdi, cannot de admittq d *.
conces-
fe-At-ciIvusbi ^1 ^
No example could more strongly illustrate th ®° mmerce , with foreign nations, or I the act of laying "duties or imposts
ihe universal understanding of the Ameri- I ata,e8 » ° T w,th the In - j on imports or exports,” is sonaider-
had been added to the word " commerce?’ 1 ne8tnes8 that, although the power of Con-1 treated in the first clause qf the 8th
s»;° "as ,‘!r,r’; c ;T?, 8hal ‘ ®f!r
be co-extensive with the subject itself, I t0 ay and Co| l ec t taxes, djities. im-
and have no other limits than are prescrib- I P 08t8 an( * excises «” and belfre corn
ed in the constitution, yet the states may I merce is mentioned, therule|by which
To wkat commerce does this power ex
tend t The ennstitution informs us to
commerce '‘with foreign nations, and
among the several statea, and with the In
dion tribes.”
It has, we believe, been (universally ad
mitted, that these words comprehend eve.
ry species of commercial intercourse be
tween the United States and foreign na
tions. No sort of trade can be carried on
between this country and any other, to
which this power does not extend, It
has been
the word
they possessed it as an inseparable attri- •
bute of sovereignty before the formation of um ' orm -
. 1° o aeperate clay 8e °f the
the constitution, and still retairTit',"except I enumeration, the power to ' mgulate
uuco „„i cienu. II I? ' e *™^hey have surrendered it by that I commerce is given, as being! entirely
truly said, that commerce, as I J*!! 8tru ,? ebt L tbat r a * 1,s princi P le results distinct from the right to iev y foxes
, „_u 0 _ oy -— ■■■ ,ino worn is used in the constitution, is a | ,r °ni the nature of the government, and is I an( i imnosts and as being a rl°w now*
• . W rf ommMitie., .nd do rf. jjtfcjjjU p»t of which b l.dtclrt L p not Mo,e conferred l'hc Con
If this be the admitted meaning of the Mv*®’ “ n,ess in ite own nnture he such 8tltut,on then, considers th® 8 ® P»w
word, in its application to foreign nations, ri bat *he continued exercise of it by the I ers as substantive, and distiRCt from
it must early the same meanihg through- I * ormer possessor is inconsistent with the I each other ; and so places the :m i n 'he
otk the senience, and remain as a unit, un. I grant » and thw this is not of that descrip-1 enumeration it contains. Tho pow-
pwodt cwrfln, «,«. po.t„-1T°*!P*P«?»*'*a .» to*"?. »
tifll
"th the i
h«! i. 0 ^ j be Cnnstitqtion, which
nrLnf* fd l r< ’ m ,hp -b ar * 8 « d a8
J r "’^eefee op its construc-
itical'«i» nC f t>a * ^ een '" ade t0 ,he
br J ] u ^ tlon °f these States an-
\ th«t .u ^ or,na t'ou. It has bee.'
sovereign wee
aectpri^», , ® t * e P en< ie 8 ?t. and wer*
ae Ti'- b ® acb wt * ,ep on *y by a
' i . 8 18 tfue. But
| me.,. Ye this power has been.exercised
from the commencement of. the govern
ment, has been exercised with the consent
I of all, and has been underatood by all to
be a commercial regulation. All Ameri
ca understands, and has.uniformly under
stood, the word " commence,” to compre
hend navigation. It was so understood
[ and. must have been so uhderstaood,
a hen ,lhe Constitution was framed, The
power over commerce, including navigi
tion was one of the primary objects fc
igallab ,7" ,g . 1,1 uc ' DUl ' w heP I which t'e people of America adopted
'Begiiii 80Vere, d n8 converted t' eu I tti.eir government,' and must ha-e been
?, a f 0VR f "inei> t-viwhen they contemplated in forming it. The conven-
'hen Cungres- oi Amb .s-1 til,n must have used the word in that <
i»«ted
"ngres>
tn deliberate ontieir
sense,
because dll have understood it. in that
»»<*„., a, d to^r'ec.mme',,01 a-e"” 1 ““ mp "
If the opinion that “ commerce,” as the
_,. .... p
at the external boundary line of each
state, but may be introduced into the inte
rior-
It is not intended to say that these words
comprehend that commerce, which i*
completely internal, which ia carried on
between man and man in a state, or be
tween dlffefeut parts of the same state, and
which does,not extend to or affect other
states. Su^h a .power would be incoove
nient, and is certainly unnecessary.
J he subject to which the power is next [ ,ates * except ‘he last, coirtends, that lull ®I a .“ ed with ‘he power to le#Y
applied, is to commerce " among the aev-1 P°' v ® r t0 regulate a particular subject, I and ‘hi't seems to be its natu ra, plsce
*iral states*” The word ‘ * "*"'*“* u “'
intermingled with. A th.. D
mong others, is intermingled
«opf-SSSaSKSSlwi ,h.I?»)-?i«M.c.o.., r tf,. « e«er
stitution, to legislative acts, and judicial c,8ed ,tb J levying duties 0 fi imports
decisions, and have drawn arguments I ° r exports, had the Constifuftieo con-
from all these sources to support and illus. I tained no prohibitation on this sub-
trate the propositions they respectively Meet, This pfohibitation, th >n,' is an
maintain. [exception from tbe ackn iwledged
The grqnt of the power to lay and j power of the states to levy t not
collect taxes is, like the power to re* I from the questionable powei to regu-
gulate commerce, made in general I late commerce.
terms and baa never been understood I •• A duty of tonnage,” is a -much
Comprehensive as the word " among” | to interfere with the exercise of the I tax, as a duty on imports or exports
is, it may. very properly be restricted to [ same poVvei* by the states—aDd hence | and the reason which induce ‘he pro-
ihfln < nno m ^Thf»'nhn«o*s« C nni* nnl»^mrk\!?K [b 88 been drawn an argument which hibitiou of those taxes, eJ'ends to
would probably ffve been selected tcTln- J} 88 been applied to the question un- this also. This tax may bl imposed
dicate the completely interior traffice of a [ der consideration. Bat the two grants by a state, with the consentl of Con
state, because it is not an apt phrase for [ are no ‘, it i8 conceived, similar in j gre9B - and it may be admitted, that
that purpose 5 and,tbe enumeration of [their terms or their nature.—Although Congress cannot give a rilcht to
'SUrea nf • ’ lu reiiuiimieiiu
:«t Ur ? p ‘£ nerttl J ur ' ,i ‘!v, into a Le* „....
Host int P ° W ^ red *° ehact laws on I wor.),.ia used in the Constitution, compre.
inctfti ;® re ? l i“g aubiects the whole hend, navigation also, require any addi
I,. ! ar **0 whicii l tie States annear tl0nal confirmation, that additional confirm*
w *Dt , change tiinSViTS ttt on is * we ttlink - femished by thr*. words
^St bedetefSihed by ? ■ foment its* if.
Isidei
. .ofthe i istrumentitatlf.
ration nt '.i-""5“ U J 8 ,a,r I It is a rule of construction acknowledg-
ch th., -l 01 ‘he instrumei t by I qtl oy alhthav the exceptions from a pow-
Phig i no , an 8® Wa8 effected, I «r mark its ex'ent t for it would be ab-
itinn r ,U0,en ‘eoofi'ios an enu I surd, as well as useless, to except trom.a
oa powers exnre.slv wanted Branted' power that which waa not granted
e t0 their n£n, “‘hit which the words of the grant could
_ ism nmen ‘* ' | not comprehend. If, then, there are, in
[•he
a °S.en aaici ft,.* .J not comprenenu. ir, tnen, there are, in
to be conn, J* ,h88e P° w,,rs ‘he consutution, plain exceptions from the
they 8tr 'ctly- But ] power over navigation, plain inhibitions to
to be ao construed f I t,ie e *ercise of‘hat power in a particular
12® °he sentence in the Constiiu-1 * ay * $.'• P poof ‘hat tBftta-.who made these
Jhich'
, h 8'ves countenano* fn ,k-. u exceptions, ; and prescribed these Inhibi.
la ‘he last of [he enumera ! f *° Which ^
r‘ r «. that whT.J; °‘ the enumerated I applied. ai being granted.
^for ^ Cb ? raDt8 » expressly. The <Hhsection of the1st artiole de
tati on I*. ® arr J riD g all others into ''lores, that “ no preference shall be giv
ke an ’ l '" on g r e»8 is authorized “ to ‘ :n by any re B ula ' lon of commerce or re
, '»W8 which shall hn n, r„acj. I v,,nue « ‘he ports of one state over those
llffW* fte he °f.nether.” This clause cannot be un-
‘h'botion on <ha PUrp08e * ■ Ut • derstood as applicable .to those laws only
o the means wbm$ which are passed for purpose# of revenue*
kul
‘he particulsr classes of commerce to j many of the powers formerly exerci-1 state, in virtue of its own ilowers.—
ASHSmSZiSaSEES It sStSflrSl nl?*„ ? h “‘ * d “ ,y ?! t0 “”?* e beiog T" of
tion been to extend the power to every de- the g° v emment of the Union, yet the the power of imposing taxes its pro
scripcion. The enumeration prusuppoaea j 8 ‘ a t e governments remain, and cou-1 hibition may certainty be made to
something not enumerated r and that I stitute a most important part of our j depend on Congress i withou affu d
something, if we regard the language or | system. The power of taxation is ] ing any implication respectii g a poW'
;ulate commerce. I: is true,
—« „ ,, , , , ITjr . es may often be, an d in fact
government seem to be, that its action i 8 j > 8 capable of residing in, aad being ex-1 often are, imposed on tonnage, with
to be applied to all the external concerns ] ercised by, different Authorities at the a view to the regulation ofcstnnierce
of the nation,’ and to those internal con-1 same time. We are accustomed to I —but they may be also impo 8e d with
eerni wmch jtffdqt the states generally, | see it p!aced J for different purposes I a view to revenue—and, it wd s j there-
witbin a parttaular state, wWchdTS S !? m di .® Sfent h “ nds V, Taxation is the fore, a prudent precaution tC prohibit
,feet other states, and with which it is not 8,m P le operation of taking a small por- the states from exercising thi 8 power,
necessary to interfere for the purpose of |‘i 008 f r0(n a perpetually accumulating | The idea that the same measure
executing some of the general powers of mass, susceptible of almost infinite might, according to circumsf oces, be
the government* The oumpletely internal I division, and a powerin one to take arranged with different classes of
C0D8ld ' what is necessary for certain purpo- power, was.no novelty to thi*' framers
"ut, inreguUting commerce wittx for- 8e . 8 u is not * in ‘‘ 8 na ‘o re . incompatible of our Constitution. Those JUustri
eign nations, tbe power of Congress does | , w Jth a power to another to take what qus Statesmen and patriots h ad been
hot stop at the jurisdictional lines of | is necessary for other purposes.— many of them,'deeply engagedinthe
thf several atstes. It would be.a very use* Congress is authorized to lav and col- discussions which preceded the war
to pay the debts and of our Revolution and all . of them
foreign nations Jtfat ofth^ whole uSprovideiofthe common defence and were well read in those discussions
States. Every district ~ ' *‘ u “ * ““
ticipste in it. The dee' . . .. .
oetrate our country in every direction, pass] er of the states to tax for the support | not controverted—but the riikht.to im-
ISSKSMRMfe Z SSJSr
ercising this right?. If Congress has the e *® rc,8 « « ‘hat powe^ ^y thei states
power to regulate it, that power must be an exercise of any portion of the pow-
exerciaed wherever tbe fiubiect exists*—|er that is grant. *i to the. United
If it exits within tbe states, if. v foreign 8tstes. Li i.npbaingi taxes for eto?
These restrictions, then, are on thi
power, hot on i.'.at to regulate comil
and presuppose the existence of thar
they restrain, not of that which they
purport to restrain
But, thi inspection laws are said
regulations of commerce, and are ces
recognized in the constitution, asL
passed in the exercise of a power reri
ing with the states.
That inspection laws may have a .
and considerable influence on comr.,
will not be denied; but that a power to
ulate commerce ia the source from'
the right to pass them is derived.can.
admitted. The object.of inspection ia
to improve the quality of articles prod
by the labor of a country; to fit th“«
exportation, or', it may be, for domes*]
They act upon tho subject before it b
an article of foreign commerce, or o I
merce among the states, and prepare L
that purpose They form a portion ol
immense mass of legislation which e«
cea every thing within the territort
state, not surrendered to the general
ernmenti all wliicli can be most advi
geously exercised by the states theml
Inspection laws, quarantine laws,/
laws, of every description, as well 1
for regulating the.ipternal commer
state, and tho!>e which respect tu
roads, terries, &c. are component p
this mass.
No direct general power over thcsl
jecta is granted to Congress; and, cl
qu«*uily, they remain subject to state ll
lation. If the legislative power of the Uj
can reach them, it must be for national i
poses; it must be where the power i[
pressly given for a special purpose *
clearly incidental to some power whis
expressly given. Ii is obvious, ih:|
government of the Union, in the cx<[
>f its express powers—that, for exr
of regulating commerce with forci*
nons and among the states—may use t
hat may also be emplpyed by a state,
exercise ol its acknowledged powura—l
for example,of regulating commerce w]
the state If Congress license vessels tc
from one port to another, in the same s|
the act is supposed to be necessarily :
dental to the power expressly grant*
Congress, and implies no claim of a
power to regulate the purely interns
merce of a state, or to act directly \
system of police. So, if a state, in j&l
laws on subjects acknowledged to be
us control, and,*with a view to those
jects, shall adopt a measure of the
: character with one which Congress
adopt, it does not derive its authority
the particular power which lias been
ed,but from some other which remair
the state, and may be executed by the
means. All experience shows, thi
same measures, or measures scared
tinguished from each other, may flow
distinct powers; .but this does not
that the powers themselves are idc
Although the means used in their exe
may sometimes approach each ot'
nearly as to be confounded, there arc
situations in wnicb they are sufficient!,
tinct to establish their individuality.
In our complex system, presentin'
rare and difficult scheme of one g
government, whose action extends ov
whole, _ but which possesses .only c
enumerated powers; and of numcrou
governments, which retain and exerc
powers not delegated to the Union, co
respecting power must arise Were u
otherwise, the measures taken by th
pective governments to execute the
acknowledged pfowers, would often bee
same description, and mighty sonut
interfere. This, however, docs not j
that the one is exercising, or has a ri
zeroise, the powers ol the other.
The acts of Congress, passed in 1?
1799,* empowering and directing th
cera of the general government to co
to, and assist in the execution of, the
antine and health laws of a state, pr
it is said, upon the idea that these la.
constitutional. It is undoubtedly true
hey do proceed upon that idea; un
constitutionality of such laws has nev i
far as we are informed, been denied,
hey do not Imply an acknowledgment
i state may rightfully regulate comn
with foreign nations, ar among the at
for they do not imply that such laws a
exercise of that power, or enacted
view to it. On the contrary, they lire
ted as quarantine and health laws, a
denominated in the acts ot Congrest
are considered as flowing from the ac
(edged power of a state, to provide ft
health of its citizens. But, as it was
rent that some of the provisions mad
this purpose, ahd iu virtue of this t
might interfere with, end be affected b
laws of the United States, made for tii
gtitetidn of commerce, Congress, in
spirit of harmony and conciliation v
ought always to characterise the condt
governments standing in the relation v
thaitof the Union and those of the S
bear to each other, has directed its ofl
to aid in the execution of these laws;
has, in some measure, adapted its ow
gislation to this object, by making provi
tn aid of those of the states. But, in
ing these prov isions, the opinion is un
vocally manifested, that Congress may
trol the state laws, so far as it may be
cesSary to control them for the regu.
of commerce. -
The act passed in 1803f proMbittnc
importation of slaves into any state w
shall itself prohibit their irttportation,
plies, it is said, an admission that the t
ue, produced a war as it nportant, possessed the power to exclude or ad
perhaps;in its consequence 5 they'-'—- o
human race, as 8Dy tbe worl 4 has ey- ^ ^w* |. p. 545, and vol 3, p. 126.
* Hr witnessed.
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