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Mr. Chief
Justice MARSHALL delivered the opinion of the Court, and, after stating
the case, proceeded as follows:
The appellant contends that this decree is erroneous because the laws
which purport to give the exclusive privilege it sustains are repugnant
to the Constitution and laws of the United States.
They are said to be repugnant:
1st. To that clause in the Constitution which authorizes Congress to
regulate commerce.
2d. To that which authorizes Congress to promote the progress of science
and useful arts.
The State of New York maintains the Constitutionality of these laws, and
their Legislature, their Council of Revision, and their Judges, have
repeatedly concurred in this opinion. It is supported by great names --
by names which have all the titles to consideration that virtue,
intelligence, and office can bestow. No tribunal can approach the
decision of this question without feeling a just and real respect for
that opinion which is sustained by such authority, but it is the
province of this Court, while it respects, not to bow to it implicitly,
and the Judges must exercise, in the examination of the subject, that
understanding which Providence has bestowed upon them, with that
independence which the people of the United [p*187] States expect from
this department of the government.
As preliminary to the very able discussions of the Constitution which we
have heard from the bar, and as having some influence on its
construction, reference has been made to the political situation of
these States anterior to its formation. It has been said that they were
sovereign, were completely independent, and were connected with each
other only by a league. This is true. But, when these allied sovereigns
converted their league into a government, when they converted their
Congress of Ambassadors, deputed to deliberate on their common concerns
and to recommend measures of general utility, into a Legislature,
empowered to enact laws on the most interesting subjects, the whole
character in which the States appear underwent a change, the extent of
which must be determined by a fair consideration of the instrument by
which that change was effected.
This instrument contains an enumeration of powers expressly granted by
the people to their government. It has been said that these powers ought
to be construed strictly. But why ought they to be so construed? Is
there one sentence in the Constitution which gives countenance to this
rule? In the last of the enumerated powers, that which grants expressly
the means for carrying all others into execution, Congress is authorized
"to make all laws which shall be necessary and proper" for the
purpose. But this limitation on the means which may be used is not
extended to the powers which are conferred, nor is there one sentence in
[p*188] the Constitution which has been pointed out by the gentlemen of
the bar or which we have been able to discern that prescribes this rule.
We do not, therefore, think ourselves justified in adopting it. What do
gentlemen mean by a "strict construction?" If they contend
only against that enlarged construction, which would extend words beyond
their natural and obvious import, we might question the application of
the term, but should not controvert the principle. If they contend for
that narrow construction which, in support or some theory not to be
found in the Constitution, would deny to the government those powers
which the words of the grant, as usually understood, import, and which
are consistent with the general views and objects of the instrument; for
that narrow construction which would cripple the government and render
it unequal to the object for which it is declared to be instituted, and
to which the powers given, as fairly understood, render it competent;
then we cannot perceive the propriety of this strict construction, nor
adopt it as the rule by which the Constitution is to be expounded. As
men whose intentions require no concealment generally employ the words
which most directly and aptly express the ideas they intend to convey,
the enlightened patriots who framed our Constitution, and the people who
adopted it, must be understood to have employed words in their natural
sense, and to have intended what they have said. If, from the
imperfection of human language, there should be serious doubts
respecting the extent of any given power, it is a well settled rule that
the objects [p*189] for which it was given, especially when those
objects are expressed in the instrument itself, should have great
influence in the construction. We know of no reason for excluding this
rule from the present case. The grant does not convey power which might
be beneficial to the grantor if retained by himself, or which can enure
solely to the benefit of the grantee, but is an investment of power for
the general advantage, in the hands of agents selected for that purpose,
which power can never be exercised by the people themselves, but must be
placed in the hands of agents or lie dormant. We know of no rule for
construing the extent of such powers other than is given by the language
of the instrument which confers them, taken in connexion with the
purposes for which they were conferred.
The words are, "Congress shall have power to regulate commerce with
foreign nations, and among the several States, and with the Indian
tribes."
The subject to be regulated is commerce, and our Constitution being, as
was aptly said at the bar, one of enumeration, and not of definition, to
ascertain the extent of the power, it becomes necessary to settle the
meaning of the word. The counsel for the appellee would limit it to
traffic, to buying and selling, or the interchange of commodities, and
do not admit that it comprehends navigation. This would restrict a
general term, applicable to many objects, to one of its significations.
Commerce, undoubtedly, is traffic, but it is something more: it is
intercourse. It describes the commercial [p*190] intercourse between
nations, and parts of nations, in all its branches, and is regulated by
prescribing rules for carrying on that intercourse. The mind can
scarcely conceive a system for regulating commerce between nations which
shall exclude all laws concerning navigation, which shall be silent on
the admission of the vessels of the one nation into the ports of the
other, and be confined to prescribing rules for the conduct of
individuals in the actual employment of buying and selling or of barter.
If commerce does not include navigation, the government of the Union has
no direct power over that subject, and can make no law prescribing what
shall constitute American vessels or requiring that they shall be
navigated by American seamen. Yet this power has been exercised from the
commencement of the government, has been exercised with the consent of
all, and has been understood by all to be a commercial regulation. All
America understands, and has uniformly understood, the word "commerce"
to comprehend navigation. It was so understood, and must have been so
understood, when the Constitution was framed. The power over commerce,
including navigation, was one of the primary objects for which the
people of America adopted their government, and must have been
contemplated in forming it. The convention must have used the word in
that sense, because all have understood it in that sense, and the
attempt to restrict it comes too late.
If the opinion that "commerce," as the word is used in the
Constitution, comprehends navigation [p*191] also, requires any
additional confirmation, that additional confirmation is, we think,
furnished by the words of the instrument itself.
It is a rule of construction acknowledged by all that the exceptions
from a power mark its extent, for it would be absurd, as well as
useless, to except from a granted power that which was not granted --
that which the words of the grant could not comprehend. If, then, there
are in the Constitution plain exceptions from the power over navigation,
plain inhibitions to the exercise of that power in a particular way, it
is a proof that those who made these exceptions, and prescribed these
inhibitions, understood the power to which they applied as being
granted.
The 9th section of the 1st article declares that "no preference
shall be given, by any regulation of commerce or revenue, to the ports
of one State over those of another." This clause cannot be
understood as applicable to those laws only which are passed for the
purposes of revenue, because it is expressly applied to commercial
regulations, and the most obvious preference which can be given to one
port over another in regulating commerce relates to navigation. But the
subsequent part of the sentence is still more explicit. It is, "nor
shall vessels bound to or from one State be obliged to enter, clear, or
pay duties, in another." These words have a direct reference to
navigation.
The universally acknowledged power of the government to impose embargoes
must also be considered as showing that all America is united [p*192] in
that construction which comprehends navigation in the word commerce.
Gentlemen have said in argument that this is a branch of the war-making
power, and that an embargo is an instrument of war, not a regulation of
trade.
That it may be, and often is, used as an instrument of war cannot be
denied. An embargo may be imposed for the purpose of facilitating the
equipment or manning of a fleet, or for the purpose of concealing the
progress of an expedition preparing to sail from a particular port. In
these, and in similar cases, it is a military instrument, and partakes
of the nature of war. But all embargoes are not of this description.
They are sometimes resorted to without a view to war, and with a single
view to commerce. In such case, an embargo is no more a war measure than
a merchantman is a ship of war because both are vessels which navigate
the ocean with sails and seamen.
When Congress imposed that embargo which, for a time, engaged the
attention of every man in the United States, the avowed object of the
law was the protection of commerce, and the avoiding of war. By its
friends and its enemies, it was treated as a commercial, not as a war,
measure. The persevering earnestness and zeal with which it was opposed
in a part of our country which supposed its interests to be vitally
affected by the act, cannot be forgotten. A want of acuteness in
discovering objections to a measure to which they felt the most
deep-rooted hostility will not be imputed to those who were arrayed in
opposition [p*193] to this. Yet they never suspected that navigation was
no branch of trade, and was therefore not comprehended in the power to
regulate commerce. They did, indeed, contest the constitutionality of
the act, but, on a principle which admits the construction for which the
appellant contends. They denied that the particular law in question was
made in pursuance of the Constitution not because the power could not
act directly on vessels, but because a perpetual embargo was the
annihilation, and not the regulation, of commerce. In terms, they
admitted the applicability of the words used in the Constitution to
vessels, and that in a case which produced a degree and an extent of
excitement calculated to draw forth every principle on which legitimate
resistance could be sustained. No example could more strongly illustrate
the universal understanding of the American people on this subject.
The word used in the Constitution, then, comprehends, and has been
always understood to comprehend, navigation within its meaning, and a
power to regulate navigation is as expressly granted as if that term had
been added to the word "commerce."
To what commerce does this power extend? The Constitution informs us, to
commerce "with foreign nations, and among the several States, and
with the Indian tribes."
It has, we believe, been universally admitted that these words
comprehend every species of commercial intercourse between the United
States and foreign nations. No sort of trade can be [p*194] carried on
between this country and any other to which this power does not extend.
It has been truly said that "commerce," as the word is used in
the Constitution, is a unit every part of which is indicated by the
term.
If this be the admitted meaning of the word in its application to
foreign nations, it must carry the same meaning throughout the sentence,
and remain a unit, unless there be some plain intelligible cause which
alters it.
The subject to which the power is next applied is to commerce "among
the several States." The word "among" means intermingled
with. A thing which is among others is intermingled with them. Commerce
among the States cannot stop at the external boundary line of each
State, but may be introduced into the interior.
It is not intended to say that these words comprehend that commerce
which is completely internal, which is carried on between man and man in
a State, or between different parts of the same State, and which does
not extend to or affect other States. Such a power would be
inconvenient, and is certainly unnecessary.
Comprehensive as the word "among" is, it may very properly be
restricted to that commerce which concerns more States than one. The
phrase is not one which would probably have been selected to indicate
the completely interior traffic of a State, because it is not an apt
phrase for that purpose, and the enumeration of the particular classes
of commerce to which the power was to be extended would not have been
made had the intention [p*195] been to extend the power to every
description. The enumeration presupposes something not enumerated, and
that something, if we regard the language or the subject of the
sentence, must be the exclusively internal commerce of a State. The
genius and character of the whole government seem to be that its action
is to be applied to all the external concerns of the nation, and to
those internal concerns which affect the States generally, but not to
those which are completely within a particular State, which do not
affect other States, and with which it is not necessary to interfere for
the purpose of executing some of the general powers of the government.
The completely internal commerce of a State, then, may be considered as
reserved for the State itself.
But, in regulating commerce with foreign nations, the power of Congress
does not stop at the jurisdictional lines of the several States. It
would be a very useless power if it could not pass those lines. The
commerce of the United States with foreign nations is that of the whole
United States. Every district has a right to participate in it. The deep
streams which penetrate our country in every direction pass through the
interior of almost every State in the Union, and furnish the means of
exercising this right. If Congress has the power to regulate it, that
power must be exercised whenever the subject exists. If it exists within
the States, if a foreign voyage may commence or terminate at a port
within a State, then the power of Congress may be exercised within a
State.
This principle is, if possible, still more clear, when [p*196] applied
to commerce "among the several States." They either join each
other, in which case they are separated by a mathematical line, or they
are remote from each other, in which case other States lie between them.
What is commerce "among" them, and how is it to be conducted?
Can a trading expedition between two adjoining States, commence and
terminate outside of each? And if the trading intercourse be between two
States remote from each other, must it not commence in one, terminate in
the other, and probably pass through a third? Commerce among the States
must, of necessity, be commerce with the States. In the regulation of
trade with the Indian tribes, the action of the law, especially when the
Constitution was made, was chiefly within a State. The power of
Congress, then, whatever it may be, must be exercised within the
territorial jurisdiction of the several States. The sense of the nation
on this subject is unequivocally manifested by the provisions made in
the laws for transporting goods by land between Baltimore and
Providence, between New York and Philadelphia, and between Philadelphia
and Baltimore.
We are now arrived at the inquiry -- What is this power?
It is the power to regulate, that is, to prescribe the rule by which
commerce is to be governed. This power, like all others vested in
Congress, is complete in itself, may be exercised to its utmost extent,
and acknowledges no limitations other than are prescribed in the
Constitution. These are expressed in plain terms, and do not affect the
[p*197] questions which arise in this case, or which have been discussed
at the bar. If, as has always been understood, the sovereignty of
Congress, though limited to specified objects, is plenary as to those
objects, the power over commerce with foreign nations, and among the
several States, is vested in Congress as absolutely as it would be in a
single government, having in its Constitution the same restrictions on
the exercise of the power as are found in the Constitution of the United
States. The wisdom and the discretion of Congress, their identity with
the people, and the influence which their constituents possess at
elections are, in this, as in many other instances, as that, for
example, of declaring war, the sole restraints on which they have
relied, to secure them from its abuse. They are the restraints on which
the people must often they solely, in all representative governments.
The power of Congress, then, comprehends navigation, within the limits
of every State in the Union, so far as that navigation may be in any
manner connected with "commerce with foreign nations, or among the
several States, or with the Indian tribes." It may, of consequence,
pass the jurisdictional line of New York and act upon the very waters to
which the prohibition now under consideration applies.
But it has been urged with great earnestness that, although the power of
Congress to regulate commerce with foreign nations and among the several
States be coextensive with the subject itself, and have no other limits
than are prescribed in the Constitution, yet the States may severally
[p*198] exercise the same power, within their respective jurisdictions.
In support of this argument, it is said that they possessed it as an
inseparable attribute of sovereignty, before the formation of the
Constitution, and still retain it except so far as they have surrendered
it by that instrument; that this principle results from the nature of
the government, and is secured by the tenth amendment; that an
affirmative grant of power is not exclusive unless in its own nature it
be such that the continued exercise of it by the former possessor is
inconsistent with the grant, and that this is not of that description.
The appellant, conceding these postulates except the last, contends that
full power to regulate a particular subject implies the whole power, and
leaves no residuum; that a grant of the whole is incompatible with the
existence of a right in another to any part of it.
Both parties have appealed to the Constitution, to legislative acts, and
judicial decisions, and have drawn arguments from all these sources to
support and illustrate the propositions they respectively maintain.
The grant of the power to lay and collect taxes is, like the power to
regulate commerce, made in general terms, and has never been understood
to interfere with the exercise of the same power by the State, and hence
has been drawn an argument which has been applied to the question under
consideration. But the two grants are not, it is conceived, similar in
their terms or their nature. Although many of the powers formerly
[p*199] exercised by the States are transferred to the government of the
Union, yet the State governments remain, and constitute a most important
part of our system. The power of taxation is indispensable to their
existence, and is a power which, in its own nature, is capable of
residing in, and being exercised by, different authorities at the same
time. We are accustomed to see it placed, for different purposes, in
different hands. Taxation is the simple operation of taking small
portions from a perpetually accumulating mass, susceptible of almost
infinite division, and a power in one to take what is necessary for
certain purposes is not, in its nature, incompatible with a power in
another to take what is necessary for other purposes. Congress is
authorized to lay and collect taxes, &c. to pay the debts and
provide for the common defence and general welfare of the United States.
This does not interfere with the power of the States to tax for the
support of their own governments, nor is the exercise of that power by
the States an exercise of any portion of the power that is granted to
the United States. In imposing taxes for State purposes, they are not
doing what Congress is empowered to do. Congress is not empowered to tax
for those purposes which are within the exclusive province of the
States. When, then, each government exercises the power of taxation,
neither is exercising the power of the other. But, when a State proceeds
to regulate commerce with foreign nations, or among the several States,
it is exercising the very power that is granted to Congress, [p*200] and
is doing the very thing which Congress is authorized to do. There is no
analogy, then, between the power of taxation and the power of regulating
commerce.
In discussing the question whether this power is still in the States, in
the case under consideration, we may dismiss from it the inquiry whether
it is surrendered by the mere grant to Congress, or is retained until
Congress shall exercise the power. We may dismiss that inquiry because
it has been exercised, and the regulations which Congress deemed it
proper to make are now in full operation. The sole question is can a
State regulate commerce with foreign nations and among the States while
Congress is regulating it?
The counsel for the respondent answer this question in the affirmative,
and rely very much on the restrictions in the 10th section as supporting
their opinion. They say very truly that limitations of a power furnish a
strong argument in favour of the existence of that power, and that the
section which prohibits the States from laying duties on imports or
exports proves that this power might have been exercised had it not been
expressly forbidden, and consequently that any other commercial
regulation, not expressly forbidden, to which the original power of the
State was competent may still be made.
That this restriction shows the opinion of the Convention that a State
might impose duties on exports and imports, if not expressly forbidden,
will be conceded, but that it follows as a consequence [p*201] from this
concession that a State may regulate commerce with foreign nations and
among the States cannot be admitted.
We must first determine whether the act of laying "duties or
imposts on imports or exports" is considered in the Constitution as
a branch of the taxing power, or of the power to regulate commerce. We
think it very clear that it is considered as a branch of the taxing
power. It is so treated in the first clause of the 8th section: "Congress
shall have power to lay and collect taxes, duties, imposts, and excises;"
and, before commerce is mentioned, the rule by which the exercise of
this power must be governed is declared. It is that all duties, imposts,
and excises shall be uniform. In a separate clause of the enumeration,
the power to regulate commerce is given, as being entirely distinct from
the right to levy taxes and imposts and as being a new power, not before
conferred. The Constitution, then, considers these powers as
substantive, and distinct from each other, and so places them in the
enumeration it contains. The power of imposing duties on imports is
classed with the power to levy taxes, and that seems to be its natural
place. But the power to levy taxes could never be considered as
abridging the right of the States on that subject, and they might,
consequently, have exercised it by levying duties on imports or exports,
had the Constitution contained no prohibition on this subject. This
prohibition, then, is an exception from the acknowledged power of the
States [p*202] to levy taxes, not from the questionable power to
regulate commerce. "
A duty of tonnage" is as much a tax as a duty on imports or
exports, and the reason which induced the prohibition of those taxes
extends to this also. This tax may be imposed by a State, with the
consent of Congress, and it may be admitted that Congress cannot give a
right to a State in virtue of its own powers. But a duty of tonnage
being part of the power of imposing taxes, its prohibition may certainly
be made to depend on Congress, without affording any implication
respecting a power to regulate commerce. It is true that duties may
often be, and in fact often are, imposed on tonnage with a view to the
regulation of commerce, but they may be also imposed with a view to
revenue, and it was therefore a prudent precaution to prohibit the
States from exercising this power. The idea that the same measure might,
according to circumstances, be arranged with different classes of power
was no novelty to the framers of our Constitution. Those illustrious
statesmen and patriots had been, many of them, deeply engaged in the
discussions which preceded the war of our revolution, and all of them
were well read in those discussions. The right to regulate commerce,
even by the imposition of duties, was not controverted, but the right to
impose a duty for the purpose of revenue produced a war as important,
perhaps, in its consequences to the human race as any the world has ever
witnessed.
These restrictions, then, are on the taxing power, [p*203] not on that
to regulate commerce, and presuppose the existence of that which they
restrain, not of that which they do not purport to restrain.
But the inspection laws are said to be regulations of commerce, and are
certainly recognised in the Constitution as being passed in the exercise
of a power remaining with the States.
That inspection laws may have a remote and considerable influence on
commerce will not be denied, but that a power to regulate commerce is
the source from which the right to pass them is derived cannot be
admitted. The object of inspection laws is to improve the quality of
articles produced by the labour of a country, to fit them for
exportation, or, it may be, for domestic use. They act upon the subject
before it becomes an article of foreign commerce or of commerce among
the States, and prepare it for that purpose. They form a portion of that
immense mass of legislation which embraces everything within the
territory of a State not surrendered to the General Government; all
which can be most advantageously exercised by the States themselves.
Inspection laws, quarantine laws, health laws of every description, as
well as laws for regulating the internal commerce of a State, and those
which respect turnpike roads, ferries, &c., are component parts of
this mass.
No direct general power over these objects is granted to Congress, and,
consequently, they remain subject to State legislation. If the
legislative power of the Union can reach them, it must be for national
purposes, it must be where the [p*204] power is expressly given for a
special purpose or is clearly incidental to some power which is
expressly given. It is obvious that the government of the Union, in the
exercise of its express powers -- that, for example, of regulating
commerce with foreign nations and among the States -- may use means that
may also be employed by a State in the exercise of its acknowledged
powers -- that, for example, of regulating commerce within the State. If
Congress license vessels to sail from one port to another in the same
State, the act is supposed to be necessarily incidental to the power
expressly granted to Congress, and implies no claim of a direct power to
regulate the purely internal commerce of a State or to act directly on
its system of police. So, if a State, in passing laws on subjects
acknowledged to be within its control, and with a view to those
subjects, shall adopt a measure of the same character with one which
Congress may adopt, it does not derive its authority from the particular
power which has been granted, but from some other, which remains with
the State and may be executed by the same means. All experience shows
that the same measures, or measures scarcely distinguishable from each
other, may flow from distinct powers, but this does not prove that the
powers themselves are identical. Although the means used in their
execution may sometimes approach each other so nearly as to be
confounded, there are other situations in which they are sufficiently
distinct to establish their individuality.
In our complex system, presenting the rare and difficult scheme of one
General Government whose [p*205] action extends over the whole but which
possesses only certain enumerated powers, and of numerous State
governments which retain and exercise all powers not delegated to the
Union, contests respecting power must arise. Were it even otherwise, the
measures taken by the respective governments to execute their
acknowledged powers would often be of the same description, and might
sometimes interfere. This, however, does not prove that the one is
exercising, or has a right to exercise, the powers of the other.
The acts of Congress passed in 1796 and 1799, 2 U.S.L. 345, 3 U.S.L.
126, empowering and directing the officers of the General Government to
conform to and assist in the execution of the quarantine and health laws
of a State proceed, it is said, upon the idea that these laws are
constitutional. It is undoubtedly true that they do proceed upon that
idea, and the constitutionality of such laws has never, so far as we are
informed, been denied. But they do not imply an acknowledgment that a
State may rightfully regulate commerce with foreign nations or among the
States, for they do not imply that such laws are an exercise of that
power, or enacted with a view to it. On the contrary, they are treated
as quarantine and health laws, are so denominated in the acts of
Congress, and are considered as flowing from the acknowledged power of a
State to provide for the health of its citizens. But as it was apparent
that some of the provisions made for this purpose and in virtue of this
power might [p*206] interfere with and be affected by the laws of the
United States made for the regulation of commerce, Congress, in that
spirit of harmony and conciliation which ought always to characterize
the conduct of governments standing in the relation which that of the
Union and those of the States bear to each other, has directed its
officers to aid in the execution of these laws, and has, in some
measure, adapted its own legislation to this object by making provisions
in aid of those of the States. But, in making these provisions, the
opinion is unequivocally manifested that Congress may control the State
laws so far as it may be necessary to control them for the regulation of
commerce. The act passed in 1803, 3 U.S.L. 529, prohibiting the
importation of slaves into any State which shall itself prohibit their
importation, implies, it is said, an admission that the States possessed
the power to exclude or admit them, from which it is inferred that they
possess the same power with respect to other articles.
If this inference were correct, if this power was exercised not under
any particular clause in the Constitution, but in virtue of a general
right over the subject of commerce, to exist as long as the Constitution
itself, it might now be exercised. Any State might now import African
slaves into its own territory. But it is obvious that the power of the
States over this subject, previous to the year 1808, constitutes an
exception to the power of [p*207] Congress to regulate commerce, and the
exception is expressed in such words, as to manifest clearly the
intention to continue the preexisting right of the States to admit or
exclude, for a limited period. The words are
the migration or importation of such persons as any of the States, now
existing, shall think proper to admit shall not be prohibited by the
Congress prior to the year 1808.
The whole object of the exception is to preserve the power to those
States which might be disposed to exercise it, and its language seems to
the Court to convey this idea unequivocally. The possession of this
particular power, then, during the time limited in the Constitution,
cannot be admitted to prove the possession of any other similar power.
It has been said that the act of August 7, 1789, acknowledges a
concurrent power in the States to regulate the conduct of pilots, and
hence is inferred an admission of their concurrent right with Congress
to regulate commerce with foreign nations and amongst the States. But
this inference is not, we think, justified by the fact.
Although Congress cannot enable a State to legislate, Congress may adopt
the provisions of a State on any subject. When the government of the
Union was brought into existence, it found a system for the regulation
of its pilots in full force in every State. The act which has been
mentioned adopts this system, and gives it the same validity as if its
provisions had been specially made by Congress. But the act, it may be
said, is prospective also, and the adoption of laws to be made [p*208]
in future presupposes the right in the maker to legislate on the
subject.
The act unquestionably manifests an intention to leave this subject
entirely to the States until Congress should think proper to interpose,
but the very enactment of such a law indicates an opinion that it was
necessary, that the existing system would not be applicable to the new
state of things unless expressly applied to it by Congress. But this
section is confined to pilots within the "bays, inlets, rivers,
harbours, and ports of the United States," which are, of course, in
whole or in part, also within the limits of some particular state. The
acknowledged power of a State to regulate its police, its domestic
trade, and to govern its own citizens may enable it to legislate on this
subject to a considerable extent, and the adoption of its system by
Congress, and the application of it to the whole subject of commerce,
does not seem to the Court to imply a right in the States so to apply it
of their own authority. But the adoption of the State system being
temporary, being only "until further legislative provision shall be
made by Congress," shows conclusively an opinion that Congress
could control the whole subject, and might adopt the system of the
States or provide one of its own.
A State, it is said, or even a private citizen, may construct light
houses. But gentlemen must be aware that if this proves a power in a
State to regulate commerce, it proves that the same power is in the
citizen. States or individuals who own lands may, if not forbidden by
law, [p*209] erect on those lands what buildings they please, but this
power is entirely distinct from that of regulating commerce, and may, we
presume, be restrained if exercised so as to produce a public mischief.
These acts were cited at the bar for the purpose of showing an opinion
in Congress that the States possess, concurrently with the Legislature
of the Union, the power to regulate commerce with foreign nations and
among the States. Upon reviewing them, we think they do not establish
the proposition they were intended to prove. They show the opinion that
the States retain powers enabling them to pass the laws to which
allusion has been made, not that those laws proceed from the particular
power which has been delegated to Congress.
It has been contended by the counsel for the appellant that, as the word
"to regulate" implies in its nature full power over the thing
to be regulated, it excludes necessarily the action of all others that
would perform the same operation on the same thing. That regulation is
designed for the entire result, applying to those parts which remain as
they were, as well as to those which are altered. It produces a uniform
whole which is as much disturbed and deranged by changing what the
regulating power designs to leave untouched as that on which it has
operated.
There is great force in this argument, and the Court is not satisfied
that it has been refuted.
Since, however, in exercising the power of regulating their own purely
internal affairs, whether [p*210] of trading or police, the States may
sometimes enact laws the validity of which depends on their interfering
with, and being contrary to, an act of Congress passed in pursuance of
the Constitution, the Court will enter upon the inquiry whether the laws
of New York, as expounded by the highest tribunal of that State, have,
in their application to this case, come into collision with an act of
Congress and deprived a citizen of a right to which that act entitles
him. Should this collision exist, it will be immaterial whether those
laws were passed in virtue of a concurrent power "to regulate
commerce with foreign nations and among the several States" or in
virtue of a power to regulate their domestic trade and police. In one
case and the other, the acts of New York must yield to the law of
Congress, and the decision sustaining the privilege they confer against
a right given by a law of the Union must be erroneous.
This opinion has been frequently expressed in this Court, and is founded
as well on the nature of the government as on the words of the
Constitution. In argument, however, it has been contended that, if a law
passed by a State, in the exercise of its acknowledged sovereignty,
comes into conflict with a law passed by Congress in pursuance of the
Constitution, they affect the subject and each other like equal opposing
powers.
But the framers of our Constitution foresaw this state of things, and
provided for it by declaring the supremacy not only of itself, but of
the laws made in pursuance of it. The nullity of any act [p*211]
inconsistent with the Constitution is produced by the declaration that
the Constitution is the supreme law. The appropriate application of that
part of the clause which confers the same supremacy on laws and treaties
is to such acts of the State Legislatures as do not transcend their
powers, but, though enacted in the execution of acknowledged State
powers, interfere with, or are contrary to, the laws of Congress made in
pursuance of the Constitution or some treaty made under the authority of
the United States. In every such case, the act of Congress or the treaty
is supreme, and the law of the State, though enacted in the exercise of
powers not controverted, must yield to it.
In pursuing this inquiry at the bar, it has been said that the
Constitution does not confer the right of intercourse between State and
State. That right derives its source from those laws whose authority is
acknowledged by civilized man throughout the world. This is true. The
Constitution found it an existing right, and gave to Congress the power
to regulate it. In the exercise of this power, Congress has passed "an
act for enrolling or licensing ships or vessels to be employed in the
coasting trade and fisheries, and for regulating the same." The
counsel for the respondent contend that this act does not give the right
to sail from port to port, but confines itself to regulating a
preexisting right so far only as to confer certain privileges on
enrolled and licensed vessels in its exercise.
It will at once occur that, when a Legislature [p*212] attaches certain
privileges and exemptions to the exercise of a right over which its
control is absolute, the law must imply a power to exercise the right.
The privileges are gone if the right itself be annihilated. It would be
contrary to all reason, and to the course of human affairs, to say that
a State is unable to strip a vessel of the particular privileges
attendant on the exercise of a right, and yet may annul the right
itself; that the State of New York cannot prevent an enrolled and
licensed vessel, proceeding from Elizabethtown, in New Jersey, to New
York, from enjoying, in her course, and on her entrance into port, all
the privileges conferred by the act of Congress, but can shut her up in
her own port, and prohibit altogether her entering the waters and ports
of another State. To the Court, it seems very clear that the whole act
on the subject of the coasting trade, according to those principles
which govern the construction of statutes, implies unequivocally an
authority to licensed vessels to carry on the coasting trade.
But we will proceed briefly to notice those sections which bear more
directly on the subject.
The first section declares that vessels enrolled by virtue of a previous
law, and certain other vessels enrolled as described in that act, and
having a license in force, as is by the act required,
and no others, shall be deemed ships or vessels of the United States,
entitled to the privileges of ships or vessels employed in the coasting
trade.
This section seems to the Court to contain a positive enactment that the
the vessels it describes shall [p*213] be entitled to the privileges of
ships or vessels employed in the coasting trade. These privileges cannot
be separated from the trade and cannot be enjoyed unless the trade may
be prosecuted. The grant of the privilege is an idle, empty form,
conveying nothing, unless it convey the right to which the privilege is
attached and in the exercise of which its whole value consists. To
construe these words otherwise than as entitling the ships or vessels
described to carry on the coasting trade would be, we think, to
disregard the apparent intent of the act.
The fourth section directs the proper officer to grant to a vessel
qualified to receive it, "a license for carrying on the coasting
trade," and prescribes its form. After reciting the compliance of
the applicant with the previous requisites of the law, the operative
words of the instrument are,
license is hereby granted for the said steamboat Bellona to be employed
in carrying on the coasting trade for one year from the date hereof, and
no longer.
These are not the words of the officer, they are the words of the
legislature, and convey as explicitly the authority the act intended to
give, and operate as effectually, as if they had been inserted in any
other part of the act, than in the license itself.
The word "license" means permission or authority, and a
license to do any particular thing is a permission or authority to do
that thing, and if granted by a person having power to grant it,
transfers to the grantee the right to do whatever it purports to
authorize. It certainly transfers to [p*214] him all the right which the
grantor can transfer, to do what is within the terms of the license.
Would the validity or effect of such an instrument be questioned by the
respondent, if executed by persons claiming regularly under the laws of
New York?
The license must be understood to be what it purports to be, a
legislative authority to the steamboat Bellona "to be employed in
carrying on the coasting trade, for one year from this date."
It has been denied that these words authorize a voyage from New Jersey
to New York. It is true that no ports are specified, but it is equally
true that the words used are perfectly intelligible, and do confer such
authority as unquestionably as if the ports had been mentioned. The
coasting trade is a term well understood. The law has defined it, and
all know its meaning perfectly. The act describes with great minuteness
the various operations of a vessel engaged in it, and it cannot, we
think, be doubted that a voyage from New Jersey to New York is one of
those operations.
Notwithstanding the decided language of the license, it has also been
maintained that it gives no right to trade, and that its sole purpose is
to confer the American character.
The answer given to this argument that the American character is
conferred by the enrollment, and not by the license, is, we think,
founded too clearly in the words of the law to require the support of
any additional observations. The enrollment of vessels designed for the
coasting trade corresponds precisely with the registration of vessels
[p*215] designed for the foreign trade, and requires every circumstance
which can constitute the American character. The license can be granted
only to vessels already enrolled, if they be of the burthen of twenty
tons and upwards, and requires no circumstance essential to the American
character. The object of the license, then, cannot be to ascertain the
character of the vessel, but to do what it professes to do -- that is,
to give permission to a vessel already proved by her enrollment to be
American, to carry on the coasting trade.
But if the license be a permit to carry on the coasting trade, the
respondent denies that these boats were engaged in that trade, or that
the decree under consideration has restrained them from prosecuting it.
The boats of the appellant were, we are told, employed in the
transportation of passengers, and this is no part of that commerce which
Congress may regulate.
If, as our whole course of legislation on this subject shows, the power
of Congress has been universally understood in America to comprehend
navigation, it is a very persuasive, if not a conclusive, argument to
prove that the construction is correct, and if it be correct, no clear
distinction is perceived between the power to regulate vessels employed
in transporting men for hire and property for hire. The subject is
transferred to Congress, and no exception to the grant can be admitted
which is not proved by the words or the nature of the thing. A coasting
vessel employed in the transportation of passengers is as much a portion
of the American marine as one employed [p*216] in the transportation of
a cargo, and no reason is perceived why such vessel should be withdrawn
from the regulating power of that government which has been thought best
fitted for the purpose generally. The provisions of the law respecting
native seamen and respecting ownership are as applicable to vessels
carrying men as to vessels carrying manufactures, and no reason is
perceived why the power over the subject should not be placed in the
same hands. The argument urged at the bar rests on the foundation that
the power of Congress does not extend to navigation as a branch of
commerce, and can only be applied to that subject incidentally and
occasionally. But if that foundation be removed, we must show some
plain, intelligible distinction, supported by the Constitution or by
reason, for discriminating between the power of Congress over vessels
employed in navigating the same seas. We can perceive no such
distinction.
If we refer to the Constitution, the inference to be drawn from it is
rather against the distinction. The section which restrains Congress
from prohibiting the migration or importation of such persons as any of
the States may think proper to admit until the year 1808 has always been
considered as an exception from the power to regulate commerce, and
certainly seems to class migration with importation. Migration applies
as appropriately to voluntary as importation does to involuntary
arrivals, and, so far as an exception from a power proves its existence,
this section proves that the power to regulate commerce applies equally
[p*217] to the regulation of vessels employed in transporting men, who
pass from place to place voluntarily, and to those who pass
involuntarily.
If the power reside in Congress, as a portion of the general grant to
regulate commerce, then acts applying that power to vessels generally
must be construed as comprehending all vessels. If none appear to be
excluded by the language of the act, none can be excluded by
construction. Vessels have always been employed to a greater or less
extent in the transportation of passengers, and have never been supposed
to be, on that account, withdrawn from the control or protection of
Congress. Packets which ply along the coast, as well as those which make
voyages between Europe and America, consider the transportation of
passengers as an important part of their business. Yet it has never been
suspected that the general laws of navigation did not apply to them.
The duty act, sections 23 and 46, contains provisions respecting
passengers, and shows that vessels which transport them have the same
rights, and must perform the same duties, with other vessels. They are
governed by the general laws of navigation.
In the progress of things, this seems to have grown into a particular
employment, and to have attracted the particular attention of
government. Congress was no longer satisfied with comprehending vessels
engaged specially in this business, within those provisions which were
intended for vessels generally, and, on the 2d of March, 1819, passed "an
act regulating passenger ships and [p*218] vessels." This wise and
humane law provides for the safety and comfort of passengers, and for
the communication of everything concerning them which may interest the
government, to the Department of State, but makes no provision
concerning the entry of the vessel or her conduct in the waters of the
United States. This, we think, shows conclusively the sense of Congress
(if, indeed, any evidence to that point could be required) that the
preexisting regulations comprehended passenger ships among others, and,
in prescribing the same duties, the Legislature must have considered
them as possessing the same rights.
If, then, it were even true that the Bellona and the Stoudinger were
employed exclusively in the conveyance of passengers between New York
and New Jersey, it would not follow that this occupation did not
constitute a part of the coasting trade of the United States, and was
not protected by the license annexed to the answer. But we cannot
perceive how the occupation of these vessels can be drawn into question
in the case before the Court. The laws of New York, which grant the
exclusive privilege set up by the respondent, take no notice of the
employment of vessels, and relate only to the principle by which they
are propelled. Those laws do not inquire whether vessels are engaged in
transporting men or merchandise, but whether they are moved by steam or
wind. If by the former, the waters of New York are closed against them,
though their cargoes be dutiable goods, which the laws of the [p*219]
United States permit them to enter and deliver in New York. If by the
latter, those waters are free to them though they should carry
passengers only. In conformity with the law is the bill of the plaintiff
in the State Court. The bill does not complain that the Bellona and the
Stoudinger carry passengers, but that they are moved by steam. This is
the injury of which he complains, and is the sole injury against the
continuance of which he asks relief. The bill does not even allege
specially that those vessels were employed in the transportation of
passengers, but says generally that they were employed "in the
transportation of passengers, or otherwise." The answer avers only
that they were employed in the coasting trade, and insists on the right
to carry on any trade authorized by the license. No testimony is taken,
and the writ of injunction and decree restrain these licensed vessels
not from carrying passengers, but from being moved through the waters of
New York by steam for any purpose whatever.
The questions, then, whether the conveyance of passengers be a part of
the coasting trade and whether a vessel can be protected in that
occupation by a coasting license are not, and cannot be, raised in this
case. The real and sole question seems to be whether a steam machine in
actual use deprives a vessel of the privileges conferred by a license.
In considering this question, the first idea which presents itself is
that the laws of Congress for the regulation of commerce do not look to
the [p*220] principle by which vessels are moved. That subject is left
entirely to individual discretion, and, in that vast and complex system
of legislative enactment concerning it, which embraces everything that
the Legislature thought it necessary to notice, there is not, we
believe, one word respecting the peculiar principle by which vessels are
propelled through the water, except what may be found in a single act
granting a particular privilege to steamboats. With this exception,
every act, either prescribing duties or granting privileges, applies to
every vessel, whether navigated by the instrumentality of wind or fire,
of sails or machinery. The whole weight of proof, then, is thrown upon
him who would introduce a distinction to which the words of the law give
no countenance.
If a real difference could be admitted to exist between vessels carrying
passengers and others, it has already been observed that there is no
fact in this case which can bring up that question. And, if the
occupation of steamboats be a matter of such general notoriety that the
Court may be presumed to know it, although not specially informed by the
record, then we deny that the transportation of passengers is their
exclusive occupation. It is a matter of general history that, in our
western waters, their principal employment is the transportation of
merchandise, and all know that, in the waters of the Atlantic, they are
frequently so employed.
But all inquiry into this subject seems to the Court to be put
completely at rest by the act already [p*221] mentioned, entitled, "An
act for the enrolling and licensing of steamboats."
This act authorizes a steamboat employed, or intended to be employed,
only in a river or bay of the United States, owned wholly or in part by
an alien, resident within the United States, to be enrolled and licensed
as if the same belonged to a citizen of the United States.
This act demonstrates the opinion of Congress that steamboats may be
enrolled and licensed, in common with vessels using sails. They are, of
course, entitled to the same privileges, and can no more be restrained
from navigating waters and entering ports which are free to such vessels
than if they were wafted on their voyage by the winds, instead of being
propelled by the agency of fire. The one element may be as legitimately
used as the other for every commercial purpose authorized by the laws of
the Union, and the act of a State inhibiting the use of either to any
vessel having a license under the act of Congress comes, we think, in
direct collision with that act.
As this decides the cause, it is unnecessary to enter in an examination
of that part of the Constitution which empowers Congress to promote the
progress of science and the useful arts.
The Court is aware that, in stating the train of reasoning by which we
have been conducted to this result, much time has been consumed in the
attempt to demonstrate propositions which may have been thought axioms.
It is felt that the tediousness inseparable from the endeavour to prove
that which is already clear is imputable to [p*222] a considerable part
of this opinion. But it was unavoidable. The conclusion to which we have
come depends on a chain of principles which it was necessary to preserve
unbroken, and although some of them were thought nearly self-evident,
the magnitude of the question, the weight of character belonging to
those from whose judgment we dissent, and the argument at the bar
demanded that we should assume nothing.
Powerful and ingenious minds, taking as postulates that the powers
expressly granted to the government of the Union are to be contracted by
construction into the narrowest possible compass and that the original
powers of the States are retained if any possible construction will
retain them may, by a course of well digested but refined and
metaphysical reasoning founded on these premises, explain away the
Constitution of our country and leave it a magnificent structure indeed
to look at, but totally unfit for use. They may so entangle and perplex
the understanding as to obscure principles which were before thought
quite plain, and induce doubts where, if the mind were to pursue its own
course, none would be perceived. In such a case, it is peculiarly
necessary to recur to safe and fundamental principles to sustain those
principles, and when sustained, to make them the tests of the arguments
to be examined. | |
|
The judgment
entered by the Court in this cause, has my entire approbation, but,
having adopted my conclusions on views [p*223] of the subject materially
different from those of my brethren, I feel it incumbent on me to
exhibit those views. I have also another inducement: in questions of
great importance and great delicacy, I feel my duty to the public best
discharged by an effort to maintain my opinions in my own way.
In attempts to construe the Constitution, I have never found much
benefit resulting from the inquiry whether the whole or any part of it
is to be construed strictly or literally. The simple, classical,
precise, yet comprehensive language in which it is couched leaves, at
most, but very little latitude for construction, and when its intent and
meaning is discovered, nothing remains but to execute the will of those
who made it in the best manner to effect the purposes intended. The
great and paramount purpose was to unite this mass of wealth and power,
for the protection of the humblest individual, his rights, civil and
political, his interests and prosperity, are the sole end; the rest are
nothing but the means. But the principal of those means, one so
essential as to approach nearer the characteristics of an end, was the
independence and harmony of the States that they may the better subserve
the purposes of cherishing and protecting the respective families of
this great republic.
The strong sympathies, rather than the feeble government, which bound
the States together during a common war dissolved on the return of
peace, and the very principles which gave rise to the war of the
revolution began to threaten the [p*224] Confederacy with anarchy and
ruin. The States had resisted a tax imposed by the parent State, and now
reluctantly submitted to, or altogether rejected, the moderate demands
of the Confederation. Everyone recollects the painful and threatening
discussions which arose on the subject of the five percent. duty. Some
States rejected it altogether; others insisted on collecting it
themselves; scarcely any acquiesced without reservations, which deprived
it altogether of the character of a national measure; and at length,
some repealed the laws by which they had signified their acquiescence.
For a century, the States had submitted, with murmurs, to the commercial
restrictions imposed by the parent State; and now, finding themselves in
the unlimited possession of those powers over their own commerce which
they had so long been deprived of and so earnestly coveted, that selfish
principle which, well controlled, is so salutary, and which,
unrestricted, is so unjust and tyrannical, guided by inexperience and
jealousy, began to show itself in iniquitous laws and impolitic measures
from which grew up a conflict of commercial regulations destructive to
the harmony of the States and fatal to their commercial interests
abroad.
This was the immediate cause that led to the forming of a convention.
As early as 1778, the subject had been pressed upon the attention of
Congress by a memorial from the State of New Jersey, and in 1781, we
find a resolution presented to that body by one of [p*225] the most
enlightened men of his day, Dr. Witherspoon, affirming that
it is indispensably necessary that the United States, in Congress
assembled, should be vested with a right of superintending the
commercial regulations of every State that none may take place that
shall be partial or contrary to the common interests.
The resolution of Virginia, January 21, 1781, appointing her
commissioners to meet commissioners from other States, expresses their
purpose to be
to take into consideration the trade of the United States, to consider
how far an uniform system in their commercial regulations may be
necessary to their common interests and their permanent harmony.
And Mr. Madison's resolution, which led to that measure, is introduced
by a preamble entirely explicit to this point:
Whereas, the relative situation of the United States has been found, on
trial, to require uniformity in their commercial regulations as the only
effectual policy for obtaining, in the ports of foreign nations, a
stipulation of privileges reciprocal to those enjoyed by the subjects of
such nations in the ports of the United States, for preventing
animosities, which cannot fail to arise among the several States, from
the interference of partial and separate regulations,
&c. "therefore, resolved," &c.;
The history of the times will therefore sustain the opinion that the
grant of power over commerce, if intended to be commensurate with the
evils existing and the purpose of remedying those [p*226] evils, could
be only commensurate with the power of the States over the subject. And
this opinion is supported by a very remarkable evidence of the general
understanding of the whole American people when the grant was made.
There was not a State in the Union in which there did not at that time
exist a variety of commercial regulations; concerning which it is too
much to suppose that the whole ground covered by those regulations was
immediately assumed by actual legislation under the authority of the
Union. But where was the existing statute on this subject that a State
attempted to execute? or by what State was it ever thought necessary to
repeal those statutes? By common consent, those laws dropped lifeless
from their statute books for want of the sustaining power that had been
relinquished to Congress.
And the plain and direct import of the words of the grant is consistent
with this general understanding.
The words of the Constitution are, "Congress shall have power to
regulate commerce with foreign nations, and among the several States,
and with the Indian tribes."
It is not material, in my view of the subject, to inquire whether the
article a or the should be prefixed to the word "power."
Either or neither will produce the same result: if either, it is clear
that the article "the" would be the proper one, since the next
preceding grant of power is certainly exclusive, to-wit: "to borrow
money on the credit [p*227] of the United States." But mere verbal
criticism I reject.
My opinion is founded on the application of the words of the grant to
the subject of it.
The "power to regulate commerce" here meant to be granted was
that power to regulate commerce which previously existed in the States.
But what was that power? The States were unquestionably supreme, and
each possessed that power over commerce which is acknowledged to reside
in every sovereign State. The definition and limits of that power are to
be sought among the features of international law, and, as it was not
only admitted but insisted on by both parties in argument that, "unaffected
by a state of war, by treaties, or by municipal regulations, all
commerce among independent States was legitimate," there is no
necessity to appeal to the oracles of the jus commune for the
correctness of that doctrine. The law of nations, regarding man as a
social animal, pronounces all commerce legitimate in a state of peace
until prohibited by positive law. The power of a sovereign state over
commerce therefore amounts to nothing more than a power to limit and
restrain it at pleasure. And since the power to prescribe the limits to
its freedom necessarily implies the power to determine what shall remain
unrestrained, it follows that the power must be exclusive; it can reside
but in one potentate, and hence the grant of this power carries with it
the whole subject, leaving nothing for the State to act upon.
And such has been the practical construction of [p*228] the act. Were
every law on the subject of commerce repealed tomorrow, all commerce
would be lawful, and, in practice, merchants never inquire what is
permitted, but what is forbidden commerce. Of all the endless variety of
branches of foreign commerce now carried on to every quarter of the
world, I know of no one that is permitted by act of Congress any
otherwise than by not being forbidden. No statute of the United States
that I know of was ever passed to permit a commerce unless in
consequence of its having been prohibited by some previous statute.
I speak not here of the treaty-making power, for that is not exercised
under the grant now under consideration. I confine my observation to
laws properly so called. And even where freedom of commercial
intercourse is made a subject of stipulation in a treaty, it is
generally with a view to the removal of some previous restriction, or
the introduction of some new privilege, most frequently, is identified
with the return to a state of peace. But another view of the subject
leads directly to the same conclusion. Power to regulate foreign
commerce is given in the same words, and in the same breath, as it were,
with that over the commerce of the States and with the Indian tribes.
But the power to regulate foreign commerce is necessarily exclusive. The
States are unknown to foreign nations, their sovereignty exists only
with relation to each other and the General Government. Whatever
regulations foreign commerce should be subjected to in the ports of the
Union, the General Government would be [p*229] held responsible for
them, and all other regulations but those which Congress had imposed
would be regarded by foreign nations as trespasses and violations of
national faith and comity.
But the language which grants the power as to one description of
commerce grants it as to all, and, in fact, if ever the exercise of a
right or acquiescence in a construction could be inferred from
contemporaneous and continued assent, it is that of the exclusive effect
of this grant.
A right over the subject has never been pretended to in any instance
except as incidental to the exercise of some other unquestionable power.
The present is an instance of the assertion of that kind, as incidental
to a municipal power; that of superintending the internal concerns of a
State, and particularly of extending protection and patronage, in the
shape of a monopoly, to genius and enterprise.
The grant to Livingston and Fulton interferes with the freedom of
intercourse, and on this principle, its constitutionality is contested.
When speaking of the power of Congress over navigation, I do not regard
it as a power incidental to that of regulating commerce; I consider it
as the thing itself, inseparable from it as vital motion is from vital
existence.
Commerce, in its simplest signification, means an exchange of goods, but
in the advancement of society, labour, transportation, intelligence,
care, and various mediums of exchange become commodities, and enter into
commerce, the subject, [p*230] the vehicle, the agent, and their various
operations become the objects of commercial regulation. Shipbuilding,
the carrying trade, and propagation of seamen are such vital agents of
commercial prosperity that the nation which could not legislate over
these subjects would not possess power to regulate commerce.
That such was the understanding of the framers of the Constitution is
conspicuous from provisions contained in that instrument.
The first clause of the 9th section not only considers the right of
controlling personal ingress or migration, as implied in the powers
previously vested in Congress over commerce, but acknowledges it as a
legitimate subject of revenue. And, although the leading object of this
section undoubtedly was the importation of slaves, yet the words are
obviously calculated to comprise persons of all descriptions, and to
recognise in Congress a power to prohibit where the States permit,
although they cannot permit when the States prohibit. The treaty-making
power undoubtedly goes further. So the fifth clause of the same section
furnishes an exposition of the sense of the Convention as to the power
of Congress over navigation: "nor shall vessels bound to or from
one State be obliged to enter, clear, or pay duties in another."
But it is almost labouring to prove a self-evident proposition, since
the sense of mankind, the practice of the world, the contemporaneous
assumption and continued exercise of the power, and universal
acquiescence, have so clearly established [p*231] the right of Congress
over navigation, and the transportation of both men and their goods, as
not only incidental to, but actually of the essence of, the power to
regulate commerce. As to the transportation of passengers, and
passengers in a steamboat, I consider it as having been solemnly
recognised by the State of New York as a subject both of commercial
regulation and of revenue. She has imposed a transit duty upon steamboat
passengers arriving at Albany, and unless this be done in the exercise
of her control over personal intercourse, as incident to internal
commerce, I know not on what principle the individual has been subjected
to this tax. The subsequent imposition upon the steamboat itself appears
to be but a commutation, and operates as an indirect, instead of a
direct, tax upon the same subject. The passenger pays it at last.
It is impossible, with the views which I entertain of the principle on
which the commercial privileges of the people of the United States among
themselves rests, to concur in the view which this Court takes of the
effect of the coasting license in this cause. I do not regard it as the
foundation of the right set up in behalf of the appellant. If there was
any one object riding over every other in the adoption of the
Constitution, it was to keep the commercial intercourse among the States
free from all invidious and partial restraints. And I cannot overcome
the conviction that, if the licensing act was repealed tomorrow, the
rights of the appellant to a reversal of the decision complained of
would be as [p*232] strong as it is under this license. One half the
doubts in life arise from the defects of language, and if this
instrument had been called an exemption instead of a license, it would
have given a better idea of its character. Licensing acts, in fact, in
legislation, are universally restraining acts, as, for example, acts
licensing gaming houses, retailers of spiritous liquors, &c. The act
in this instance is distinctly of that character, and forms part of an
extensive system the object of which is to encourage American shipping
and place them on an equal footing with the shipping of other nations.
Almost every commercial nation reserves to its own subjects a monopoly
of its coasting trade, and a countervailing privilege in favour of
American shipping is contemplated in the whole legislation of the United
States on this subject. It is not to give the vessel an American
character that the license is granted; that effect has been correctly
attributed to the act of her enrollment. But it is to confer on her
American privileges, as contradistinguished from foreign, and to
preserve the government from fraud by foreigners in surreptitiously
intruding themselves into the American commercial marine, as well as
frauds upon the revenue in the trade coastwise, that this whole system
is projected. Many duties and formalities are necessarily imposed upon
the American foreign commerce which would be burdensome in the active
coasting trade of the States, and can be dispensed with. A higher rate
of tonnage also is imposed, and this license entitles the vessels that
take it to those exemptions, but to nothing more. [p*233] A common
register equally entitles vessels to carry on the coasting trade,
although it does not exempt them from the forms of foreign commerce or
from compliance with the 16th and 17th sections of the enrolling act.
And even a foreign vessel may be employed coastwise upon complying with
the requisitions of the 24th section. I consider the license therefore
as nothing more than what it purports to be, according to the first
section of this act, conferring on the licensed vessel certain
privileges in that trade not conferred on other vessels; but the
abstract right of commercial intercourse, stripped of those privileges,
is common to all.
Yet there is one view in which the license may be allowed considerable
influence in sustaining the decision of this Court.
It has been contended that the grants of power to the United States over
any subject do not necessarily paralyze the arm of the States or deprive
them of the capacity to act on the same subject. The this can be the
effect only of prohibitory provisions in their own Constitutions, or in
that of the General Government. The vis vitae of power is still existing
in the States, if not extinguished by the Constitution of the United
States. That, although as to all those grants of power which may be
called aboriginal, with relation to the Government, brought into
existence by the Constitution, they, of course, are out of the reach of
State power, yet, as to all concessions of powers which previously
existed in the States, it was otherwise. The practice of our Government
certainly [p*234] has been, on many subjects, to occupy so much only of
the field opened to them as they think the public interests require.
Witness the jurisdiction of the Circuit Courts, limited both as to cases
and as to amount, and various other instances that might to cited. But
the license furnishes a full answer to this objection, for, although one
grant of power over commerce, should not be deemed a total
relinquishment of power over the subject, but amounting only to a power
to assume, still the power of the States must be at an end, so far as
the United States have, by their legislative act, taken the subject
under their immediate superintendence. So far as relates to the commerce
coastwise, the act under which this license is granted contains a full
expression of Congress on this subject. Vessels, from five tons upwards,
carrying on the coasting trade are made the subject of regulation by
that act. And this license proves that this vessel has complied with
that act, and been regularly ingrafted into one class of the commercial
marine of the country.
It remains, to consider the objections to this opinion, as presented by
the counsel for the appellee. On those which had relation to the
particular character of this boat, whether as a steamboat or a ferry
boat, I have only to remark that, in both those characters, she is
expressly recognised as an object of the provisions which relate to
licenses.
The 12th section of the Act of 1793 has these words: "That when the
master of any ship or vessel, ferry boats excepted, shall be changed,"
&c. And the act which exempts licensed steamboats [p*235] from the
provisions against alien interests shows such boats to be both objects
of the licensing act and objects of that act when employed exclusively
within our bays and rivers. But the principal objections to these
opinions arise,
1st. From the unavoidable action of some of the municipal powers of the
States upon commercial subjects.
2d. From passages in the Constitution which are supposed to imply a
concurrent power in the States in regulating commerce.
It is no objection to the existence of distinct, substantive powers
that, in their application, they bear upon the same subject. The same
bale of goods, the same cask of provisions, or the same ship that may be
the subject of commercial regulation may also be the vehicle of disease.
And the health laws that require them to be stopped and ventilated are
no more intended as regulations on commerce than the laws which permit
their importation are intended to innoculate the community with disease.
Their different purposes mark the distinction between the powers brought
into action, and while frankly exercised, they can produce no serious
collision. As to laws affecting ferries, turnpike roads, and other
subjects of the same class, so far from meriting the epithet of
commercial regulations, they are, in fact, commercial facilities for
which, by the consent of mankind, a compensation is paid upon the same
principle that the whole commercial world submit to pay light money to
the Danes. Inspection laws are of a more equivocal nature, and it is
obvious that [p*236] the Constitution has viewed that subject with much
solicitude. But so far from sustaining an inference in favour of the
power of the States over commerce, I cannot but think that the guarded
provisions of the 10th section on this subject furnish a strong argument
against that inference. It was obvious that inspection laws must combine
municipal with commercial regulations, and, while the power over the
subject is yielded to the States, for obvious reasons, an absolute
control is given over State legislation on the subject, as far as that
legislation may be exercised, so as to affect the commerce of the
country. The inferences to be correctly drawn from this whole article
appear to me to be altogether in favour of the exclusive grants to
Congress of power over commerce, and the reverse of that which the
appellee contends for.
This section contains the positive restrictions imposed by the
Constitution upon State power. The first clause of it specifies those
powers which the States are precluded from exercising, even though the
Congress were to permit them. The second, those which the States may
exercise with the consent of Congress. And here the sedulous attention
to the subject of State exclusion from commercial power is strongly
marked. Not satisfied with the express grant to the United States of the
power over commerce, this clause negatives the exercise of that power to
the States as to the only two objects which could ever tempt them to
assume the exercise of that power, to-wit, the collection of a revenue
from imposts and duties on imports and exports, or from a tonnage duty.
As [p*237] to imposts on imports or exports, such a revenue might have
been aimed at directly, by express legislation, or indirectly, in the
form of inspection laws, and it became necessary to guard against both.
Hence, first, the consent of Congress to such imposts or duties is made
necessary, and, as to inspection laws, it is limited to the minimum of
expenses. Then the money so raised shall be paid into the Treasury of
the United States, or may be sued for, since it is declared to be for
their use. And lastly, all such laws may be modified or repealed by an
act of Congress. It is impossible for a right to be more guarded. As to
a tonnage duty that could be recovered in but one way, and a sum so
raised, being obviously necessary for the execution of health laws and
other unavoidable port expenses, it was intended that it should go into
the State treasuries, and nothing more was required therefore than the
consent of Congress. But this whole clause, as to these two subjects,
appears to have been introduced ex abundanti cautela, to remove every
temptation to an attempt to interfere with the powers of Congress over
commerce, and to show how far Congress might consent to permit the
States to exercise that power. Beyond those limits, even by the consent
of Congress, they could not exercise it. And thus we have the whole
effect of the clause. The inference which counsel would deduce from it
is neither necessary nor consistent with the general purpose of the
clause.
But instances have been insisted on with much confidence in argument in
which, by municipal [p*238] laws, particular regulations respecting
their cargoes have been imposed upon shipping in the ports of the United
States, and one in which forfeiture was made the penalty of
disobedience.
Until such laws have been tested by exceptions to their
constitutionality, the argument certainly wants much of the force
attributed to it; but, admitting their constitutionality, they present
only the familiar case of punishment inflicted by both governments upon
the same individual. He who robs the mail may also steal the horse that
carries it, and would unquestionably be subject to punishment at the
same time under the laws of the State in which the crime is committed
and under those of the United States. And these punishments may
interfere, and one render it impossible to inflict the other, and yet
the two governments would be acting under powers that have no claim to
identity.
It would be in vain to deny the possibility of a clashing and collision
between the measures of the two governments. The line cannot be drawn
with sufficient distinctness between the municipal powers of the one and
the commercial powers of the other. In some points, they meet and blend
so as scarcely to admit of separation. Hitherto, the only remedy has
been applied which the case admits of -- that of a frank and candid
cooperation for the general good. Witness the laws of Congress requiring
its officers to respect the inspection laws of the States and to aid in
enforcing their health laws, that which surrenders to the States the
superintendence of pilotage, and the [p*239] many laws passed to permit
a tonnage duty to be levied for the use of their ports. Other instances
could be cited abundantly to prove that collision must be sought to be
produced, and when it does arise, the question must be decided how far
the powers of Congress are adequate to put it down. Wherever the powers
of the respective governments are frankly exercised, with a distinct
view to the ends of such powers, they may act upon the same object, or
use the same means, and yet the powers be kept perfectly distinct. A
resort to the same means therefore is no argument to prove the identity
of their respective powers.
I have not touched upon the right of the States to grant patents for
inventions or improvements generally, because it does not necessarily
arise in this cause. It is enough for all the purposes of this decision
if they cannot exercise it so as to restrain a free intercourse among
the States.
DECREE. This cause came on to be heard on the transcript of the record
of the Court for the Trial of Impeachments and Correction of Errors of
the State of New York, and was argued by counsel. On consideration
whereof, this Court is of opinion that the several licenses to the
steamboats the Stoudinger and the Bellona to carry on the coasting
trade, which are set up by the appellant Thomas Gibbons in his answer to
the bill of the respondent, Aaron Ogden, filed in the Court of Chancery
for the State of New York, which were granted under an act of Congress,
passed in pursuance of the Constitution of the [p*240] United States,
gave full authority to those vessels to navigate the waters of the
United States, by steam or otherwise, for the purpose of carrying on the
coasting trade, any law of the State of New York to the contrary
notwithstanding, and that so much of the several laws of the State of
New York as prohibits vessels, licensed according to the laws of the
United States, from navigating the waters of the State of New York by
means of fire or steam is repugnant to the said Constitution, and void.
This Court is therefore of opinion that the decree of the Court of New
York for the Trial of Impeachments and the Correction of Errors
affirming the decree of the Chancellor of that State, which perpetually
enjoins the said Thomas Gibbons, the appellant, from navigating the
waters of the State of New York with the steamboats the Stoudinger and
the Bellona by steam or fire, is erroneous, and ought to be reversed,
and the same is hereby reversed and annulled, and this Court doth
further DIRECT, ORDER, and DECREE that the bill of the said Aaron Ogden
be dismissed, and the same is hereby dismissed accordingly. |
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