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Supreme Court Establishes the Reach of the Commerce Clause - Gibbons v. Ogden, 22 U.S. 1 (1824)

SUPREME COURT OF THE UNITED STATES

MAJORITY DECISION

Argument of Counsel

The acts of the Legislature of the State of New­ York, granting to Robert R. Livingston and Robert Fulton the exclusive navigation of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of years, are repugnant to that clause of the constitution of the United States, which authorizes Congress to regulate commerce, so far as the said acts prohibit vessels licensed, according to the laws of the United States, for carrying on the coasting trade, from navigating the said waters by means of fire or steam.

APPEAL from the Court for the Trial of Impeachments and Correction of Errors of the State of New York. Aaron Ogden filed his bill in the Court of Chancery of that State, against Thomas Gibbons, setting forth the several acts of the Legislature thereof, enacted for the purpose of securing to Robert R. Livingston and Robert Fulton, the exclusive navigation of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of years which has not yet expired; and authorizing the Chancellor to award an injunction, restraining any person whatever from navigating those waters with boats of that description. The bill stated an assignment from Livingston and Fulton to one John R. Livingston, and from him to the complainant, Ogden, of the right to navigate the waters between Elizabethtown, and other places in New ­Jersey, and the city of New­ York; and that Gibbons, the defendant below, was in possession of two steam boats, called the Stoudinger and the Bellona, which were actually employed in running between New York and Elizabethtown, in violation of the exclusive privilege conferred on the complainant, and praying an injunction to restrain the said Gibbons from using the said boats, or any other propelled by fire or steam, in navigating the waters within the territory of New York. The injunction having been awarded, the answer of Gibbons was filed; in which he stated, that the boats employed by him were duly enrolled and licensed, to be employed in carrying on the coasting trade, under the act of Congress, passed the 18th of February, 1793, c. 3. entitled, 'An act for enrolling and licensing ships and vessels to be employed in the coasting trade and fisheries, and for regulating the same.' And the defendant insisted on his right, in virtue of such licenses, to navigate the waters between Elizabethtown and the city of New York, the said acts of the Legislature of the state of New York to the contrary notwithstanding. At the hearing, the Chancellor perpetuated the injunction, being of the opinion, that the said acts were not repugnant to the constitution and laws of the United States, and were valid. This decree was affirmed in the Court for the Trial of Impeachments and Correction of Errors, which is the highest Court of law and equity in the State, before which the cause could be carried, and it was thereupon brought to this Court by appeal.

Principles of interpretation.

The power of regulating commerce extends to the regulation of navigation.

The power to regulate commerce extends to every species of commercial intercourse between the United States and foreign nations, and among the several States. It does not stop at the external boundary of a State.

But it does not extend to a commerce which is completely internal.

The power to regulate commerce is general, and has no limitations but such as are prescribed in the constitution itself.

The power to regulate commerce, so far as it extends, is exclusively vested in Congress, and no part of it can be exercised by a State.

State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress.

The laws of N. Y. granting to R.R.L. and R. F. the exclusive right of navigating the waters of that State with steam boats, are in collision with the acts of Congress regulating the coasting trade, which being made in pursuance of the constitution, are supreme, and the State laws must yield to that supremacy, even though enacted in pursuance of powers acknowledged to remain in the States.

A license under the acts of Congress for regulating the coasting trade, gives a permission to carry on that trade.

The license is not merely intended to confer the national character.

The power of regulating commerce extends to navigation carried on by vessels exclusively employed in transporting passengers.

The power of regulating commerce extends to vessels propelled by steam or fire, as well as to those navigated by the instrumentality of wind and sails.

Arguement of Counsel

MARCH 2.

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 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 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 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 appeallee 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 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 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 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 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 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 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 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 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 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 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, 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, 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 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, 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 every thing 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 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 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, [116]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 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, [117]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 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 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, 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 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, law. The appropriate 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 pre­ existing 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 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, the vessels it describes shall 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 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 enrolment, 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 enrolment of vessels designed for the coasting trade, corresponds precisely with the registration of vessels 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 enrolment 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 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 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 vessels.' This wise and humane law provides for the safety and comfort of passengers, and for the communication of every thing 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 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 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 every thing 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 steam boats. 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 steam boats 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 mentioned, entitled, 'An act for the enrolling and licensing of steam boats.'

This act authorizes a steam boat 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 steam boats 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 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.

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 steam boats 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 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 steam boats 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.




[1] 1 Laws U. S. p. 28.

[2] Id. 50.

[3] 1 Bl. Com. 273. 4 Bl. Com. 160.

[4] M'Culloch v. Maryland, 4 Wheat. Rep. 405. Per Marshall, C.J. Houston v. Moore, 5 Wheat. Rep. 48. Per Story, J.

[5] The Federalist, No. 82. Houston v. Moore, 5 Wheat. Rep. 48. Per Story, J.

[6] Sturges v. Crowninshield, 4 Wheat. Rep. 193. Per Marshall, C. J. Houston v. Moore, 5 Wheat. Rep. 15. 17. Per Washington, J. Id. 45. Per Johnson, J. Id. 48. Per Story, J.

[7] Chirac v. Chirac, 2 Wheat. Rep. 268, 269.

[8] Sturges v. Crowninshield, 4 Wheat. Rep. 193.

[9] The Federalist, No. 32.

[10] Id. No. 82.

[11] Id. No. 32.

[12] Id. No. 32.

[13] M'Culloch v. Maryland, 4 Wheat. Rep. 425. Per Marshall, C.J. Huston v. Moore, 5 Wheat. Rep. 49. Per Story, J.

[14] 1 R. L. c. 30. s. 36.

[15] Sturges v. Crowninshield, 4 Wheat. Rep. 195, 196. Per Marshall, C. J. Houston v. Moore, 5 Wheat. Rep. 34. 45. Per Johnson, J. Id. 49, 50. 55. Per Story, J. Livingston v. Van Ingen, 9 Johns. Rep. 575, 576. Per Thompson, J.

[16] 1 R. L. p. 406. s. 5. 6.

[17] 4L. U. S. 67.

[18] 1 R. L. 404.

[19] 4 L. U. S. 91. 6 Id. 47.

[20] Houston v. Moore, 5 Wheat. Rep. 69. Per Story, J.

[21] Id. 51.

[22] 1 R. L. of N. Y. 216. Laws of Georgia, 468. 6 Laws of Pennsylvania, 320.

[23] The Federalist, No. 43.

[24] 4 Burr. 2408.

[25] 3 Wheat. Rep. App. p. 15.

[26] The Federalist, No. 32.

[27] These laws will be found specifically enumerated and stated in a note to Mr. Emmett's argument.

[28] The Federalist, No. 12.

[29] Vattel, Droit des Gens, liv. 1, c. 8. 1. 2. c. 2.

[30] Vattel, 1. 2. c. 8. s. 180.

[31] Ingersoll's Dig. 586

[32] Id. 583.

[33] Ingersoll's Dig. 506. 612. 617.

[34] Livingston v. Van Ingen, 9 Johns. Rep. 507.

[35] 6 Johns. Rep. 559, 560. Per Yates, J. 563. Per Thompson, J. 573, 574. Per Kent, Ch. J.

[36] Houston v. Moore, 5 Wheat. Rep. 1. Per Johnson, J. p. 33.

[37] p. 75.

[38] p. 222.

[39] p. 323, 324.

[40] Virginia Debates, 300.

[41] Virginia Debates, 313.

[42] Nos. 32. 82.

[43] 4 Wheat. Rep. 124.

[44] Id. 193.

[45] 5 Wheat. Rep. 48. 54.

[46] Livingston v. Van Ingen, 9 Johns. Rep. 565, 571.

[47] Tucker's Bl. Comm. Part 1. App. D. p. 154.

[48] United States v. Fisher, 2 Cranch, 358. M'Culloch v. Maryland, 4 Wheat. Rep. 316.

[49] United States v. Bevans, 3 Wheat. Rep. 336.

[50] 4 Inst. 137, 138, 139, 140. 12 Co. 129. Moor, 122. 891, 892.

[51] De Lorio v. Boit, 2 Gallis. Ren. 308.

[52] In those States, 1st, as to ferries and bridges: In the laws of New­ York, (3d vol. Webster's ed. p. 321.) an act passed 19th March, 1803, grants to John Ransom the exclusive right, for ten years, to keep a ferry across Lake Champlain, from his landing, at Cumberland Head, to Grand Isle, in Vermont, with a prohibition and penalty against any other person's keeping a ferry, or transporting any persons, goods or chattels, for hire or pay, across the lake, between the point of Cumberland Head and the north point, called Gravelly, Point, on said Cumberland Head. An act passed May 16th, 1810, (6th vol. Websters & Skinner's ed. p. 16.) makes the same grant for ten years more, with the same prohibition and penalties, to Russel Ransom. An act passed May 26th, 1812, (Id. 394.) grants, in the same way, to Peter Deall, and his assigns, to keep a ferry across Lake Champlain, from Ticonderoga to the town of Shoreham, in Vermont, for sixteen years, with a like prohibition and penalties for carrying, &c. from any place on the west shore, within half a mile north or south of Deall's dwelling house. An act, passed March 28, 1805, (4th vol. same ed. 66.) gives to David Mayo the same right, from his landing, in the said town of Champlain, to Windmill Point, in Vermont, for ten years, with a like prohibition and penalty. An act, passed February 20, 1807, (5th vol. same ed. p. 11.) gives to Peter Steenberg the same right to keep, &c. a ferry between the south west point of Carlton Island and the outlet of Lake Ontario, (the high road to Canada,) with the same prohibition and penalty. In Georgia, by an act of the 14th December, 1809, an exclusive right is given to Joseph Hill, &c. for one hundred years, to erect three toll bridges across the Savannah and its branches, (dividing South Carolina and Georgia,) a little above the city of Savannah, on the road between it and Charleston; and it prohibits any person's erecting a toll bridge across the said river Savannah, up or down it, within five miles of the city. An act of December 6, 1813, authorized John Hill to establish a ferry from Savannah to Proctor's Point, till he has built his bridges. An act of 15th of December, 1809, gives to William Garritt and Le Roy Hammond a right to make a toll bridge, and exact toll, across the Savannah river, from a place on the Georgia side, opposite Campbletown; and to Walter Leigh and Edward Rowell a similar bridge, &c. over the Savannah river, at Augusta. An act of December 5, 1800, gives to commissioners the right to establish a ferry over the river Savannah, at Augusta; the tolls to be for the benefit of the academy of Richmond county; which, perhaps, the appellant's counsel may think at variance with his position, that no State has a right to derive revenue by tolls on the trade or intercourse between two States. The same law prohibits any other ferry or bridge between Williams' ferry, opposite Fort Moore's bluff, and Ray's ferry, opposite Campbletown. An act of 6th of December, 1813, gives a ferry across the Savannah, to Ezekiel Dubze; and another is given to Zachariah Bowman and Daniel Tucker. An act, passed 9th of November, 1814, on the express ground of facilitating intercourse with South Carolina, gives to John M'Kinne and Henry Shultz, for twenty years, an exclusive right to a toll bridge over the Savannah, from Augusta, or within four miles thereof; and prohibits the establishing of any other toll bridge over the Savannah, from Augusta, or within four miles above or below the city. 2. As to stages. In the laws of New York, an act, passed March 30, 1798, (4th vol. Loring & Andrews' ed. p. 399.) grants to Alexander J. Turner and Adonijah Skinner, an exclusive right for five years, of running stages between Lansingburgh and the town of Hampton, in the county of Washington, (i. e. to Vermont, or the road through it to Canada.) An act, passed February 26, 1803, (3d vol. Webster's ed. p. 322.) grants to T. Donally and others, the exclusive right, for seven years, of the same kind, from the city of Albany to the north boundary line of the State of New Jersey. An act, passed April 6, 1807, (5th vol. Websters & Skinner's ed. p. 186.) grants to John Metcalf the exclusive right, for seven years, of running stage wagons between the village of Canandaigua and the village of Buffalo, (i. e. the road by lake Erie to Pennsylvania, Ohio and Michigan.) In Georgia, an act of November 25, 1802, gives to Nathaniel Twining, &c. for ten years, the sole and exclusive right of running a line of stage carriages between the city of Savannah and town of St. Marys, (on the borders of Florida.) Sec. 2, gives to him an exclusive right of conveying passengers and their baggage, by water, between Darien and St. Marys, (a coasting trade between two ports of entry, if carrying passengers be a branch of trade,) till a post road is established. An act of December 7th, 1812, gives to William Dunham the right of running stage carriages as above. Add to these, the decision of Perrins v. Sikes, in 1802, (Day's Connect. Rep. in Err. p. 19.) that a grant by the General Assembly, of an exclusive privilege to carry passengers by the stage, on the post road leading to Boston, as far as the Massachusetts line, was valid, which may be added as another legal decision on the constitutionality of those laws. Indeed, as to the regulation of passengers arriving in ships from foreign parts, some of the States have exercised, at least, a concurrent power. Of that kind is the act of the State of New York, (2 N. R. L. 440.) and New­ Jersey has passed a similar law on 10th of February, 1819. (Justice's ed. N. J. Laws, 655.) So also in Massachusetts, (2 Mass. Laws, 629.) by an act of February, 1794, masters of vessels coming from abroad, are required to report passengers, &c. And in Delaware, (2 Laws of Del. ed. 1797, by S. & J. Adams, c. 134. p. 1354.) an act to prevent infectious diseases, passed 24th of January, 1797, (sec. 5.) enacts, that no master, &c. of any ship bound to any port of that State, shall bring or import any greater number of passengers and servants than shall be well provided and supplied with good and wholesome meat, drink, and other necessaries, particularly vinegar, as well to wash and cleanse the vessel, as for the use of the persons on board, during the voyage; and it directs the size of each birth, &c.; and that if any master shall offend, &c. he shall forfeit 600 dollars for every such offence. Sec. 7, enacts, that every master, &c. shall pay to the physician who boards his ship, six cents for every person he shall import or land in that State, which he is thereby authorized to recover from such passengers and servants respectively; and the physician shall pay over the moneys so received, to the treasurer of the trustees of the poor in his county. Here is another instance inconsistent with the position of the appellant's counsel, (if carrying passengers be trading,) that a State has no right to raise a tax or revenue by foreign trade. By another act of that State, passed February 3, 1802, the master or owner is required to give bond, that the person so imported and landed, shall not become chargeable. If the regulation of passengers belong to commerce, and that exclusively, (as it must, if the power to regulate commerce be exclusive,) by what authority can a State Court issue a ne exeat against a trader or merchant about to leave the State?

[53] Vol. 1. Part 1. App. D. p. 180.

[54] p. 309.

[55] 9 Johns. Rep. 577, 578.

[56] 1st vol.

[57] Ib. p. 28.

[58] 1 L. U. S. p. 49, 50.

[59] p. 53.

[60] p. 321.

[61] p. 322.

[62] p. 323.

[63] p. 324.

[64] p. 330.

[65] New York, as well as many other States, prohibited the importation and exporation of slaves before the adoption of the constitution. The first law was passed in February, 1788; (2 Greenleaf, 85.) it prohibits the selling of an imported slave, and the buying of a slave with intent to export him: and subsequent laws have confirmed and increased the prohibition of exporting and importing slaves. It may be proper here to observe, as applicable to this, as well as to many other laws of the States respecting commerce, that if, after the adoption of the constitution, the individual States have not a right to make them, they, and all other previously made similar laws, would, by force of that disqualification, have become inoperative. In 1792, the State of Virginia passed a law prohibiting the importation or selling of imported slaves. (1 Pleasants & Pace's ed. p. 186, sec. 13.) In Delaware, (Laws of Del. ed. of 1797, by S. & J. Adams, p. 942.) an act passed February 3, 1789, enacts, that if any owner, master, &c. shall fit out, equip, man, or otherwise prepare any ship or vessel, within any port or place in that State, or shall cause any vessel to sail from any port or place in that State, for the purpose of carrying on a trade or traffic in slaves, to, or from, or between Europe, Asia, Africa, or America, or any places or countries whatsoever, or of transporting slaves to or from one port or place to another, in any part of the world, such ship, &c. her tackle, &c. shall be forfeited to the State, and shall be liable to be seized and prosecuted by any officer of the customs, by information, &c. And, moreover, every person so fitting out, &c. shall severally forfeit and pay the sum of 500 pounds, one half to the use of the State, the other half to the informer. It further enacts, that if any person shall export, or sell, with intention to export or carry out for sale, any negro or mulatto slave, from that State to Maryland, Virginia, either of the Carolinas, Georgia, or the West Indies, without license or permit of five Justices, & c. he shall pay, for every slave so exported, 100 pounds, and for every attempt so to do, 20 pounds, one half to the use of the State, and one half to the informer. Here is a State law minutely controlling a branch of foreign trade, and of that between the States, and operating explicitly by the officers of the customs. It was passed, indeed, a few weeks before the present constitution went into operation, but long after it had been accepted by Delaware; at all events, it is referred to, and confirmed, by an act, passed June 24, 1793, (c. 22. p. 1094.) requiring bail as to those offences. In Pennsylvania, (Bioren's ed. vol. 2. p. 443.) an act was passed, March, 1788, also prohibiting the trade; but, before examining it, let it be remembered, that the first law Congress passed on that subject, was in 1794, and that Pennsylvania had accepted the constitution in December, 1787, which, at the time of passing this act, she had recently studied and discussed. Her legislation, then, was not founded on, and did not rely on, any law of Congress in pari materid. She not only prohibited the exportation and importation of slaves, but, by sec. 5. of that act, prohibits the building, fitting out, &c. of any vessel for the slave trade, or to sail from the port for that trade, under the penalty of forfeiture of the vessel, &c. and 1000 pounds by qui tam. At that time, Congress absolutely permitted the slave trade; but, would not that law have been valid to prohibit it from that port? New Jersey passed a law to the same purport, in March, 1798, (Patterson's ed. p. 307. Justice's ed. p. 371, 372, 373.) when Congress had only prohibited, and could only prohibit, the trade as a foreign trade. Sec. 12, 13. prohibit the importation of slaves for sale. Sec. 17, 18, 19. prohibit the slave trade, and the fitting out of vessels, for the purpose of transporting slaves from one place to another, clearly including from one State to another, which Congress then could not do. Connecticut, in October, 1788, after she and nine States had ratified the constitution, (Hudson & Goodwin's ed. p. 626.) forbade any citizen or inhabitant of that State, either as master, factor, supercargo, owner, or hirer of any vessel, directly or indirectly, to transport, or buy, or sell, or receive on board his vessel, with intent to cause to be transported or imported, any of the inhabitants of Africa, as slaves, with qui tam penalties; and made all insurances on them void. And, in 1792, (p. 628.) let it be still remembered, when Congress had no such power, she enacted, that no citizen or inhabitant of that State should transport out of the State, for the purpose of selling into any other State, country or kingdom, or buy or sell, with intent to transport out of that State, or should sell, if transported, &c. In Massachusetts, (1 Laws of Mass. 407, 408.) an act, passed March 26, 1788, reciting the evils of the African, trade, enacts, that no citizens of that Commonwealth, or other person residing within the same, shall, for himself or any other person, as master, factor, supercargo, owner or hirer, in whole or in part, of any vessel, directly or indirectly, import or transport, or buy, or sell, or receive on board his or their vessels, with intent to cause to be imported or transported, any of the inhabitants of any state or kingdom, in that part of the world called Africa, as slaves, &c. under a penalty for every vessel fitted out with such intent, and actually employed, &c. Doubtless, the laws of other States might be produced to the same purpose, if the means of examination had been convenient; those already cited, however, are sufficient to show, that the individual States regulated the slave trade, as a trade, both with foreign nations, and between the States, by virtue of their own sovereign authority, after the adoption of the constitution; but before Congress did, and before they could do it:

[66] 3 U.S.L. p. 520.

[67] p. 233.

[68] Tuck. Black. part 1st. Appen. D. p. 251.

[69] Melcher's ed. p. 302.

[70] p. 304.

[71] p. 611.

[72] 1 vol. p. 270.

[73] p. 200.

[74] 1 vol. p. 244.

[75] p. 313.

[76] Marbury & Crawford's Dig. p. 393.

[77] 2 Del. Laws, ed. 1797, cap. 134, p. 1354.

[78] 2 Mass. Laws, p. 788.

[79] p. 872.

[80] 2 U. S. L. p. 34.

[81] 3 U. S. L. p. 366, c. 193, s. 3.

[82] 2 U. S. L. p. 34.

[83] 2 U. S. L. p. 121.

[84] For instance, as to the number of hoops on, and size of barrels or casks, (2 N. R. L. of N. Y. p. 321. s. 5. p. 325. s. 3. p. 330. s. 3, 4. 1 Laws of Maryland, Maxey's ed. 218. 1 Vir. Laws, Pace & Pleasant's ed. p. 352. s. 3. p. 350. s. 3. Laws of Conn. Hudson & Goodwin's ed. p. 394. s. 1, 2. 5, 6. 8, 9.) as to quantity as well as quality or kind, of their contents. What pieces of beef or pork, (2 N. R. L. of N. Y. p. 326. s. 4. p. 326. s. 5. 9. p. 327. s. 11.) or quantity and size of nails should be in one cask, (Laws of N. H. Melcher's ed. 386. Laws of Conn. p. 394. s. 2. p. 256. s. 2.) or the length, breadth, and thickness of staves and heading, lumber, boards, shingles, &c. (2 N. R. L. of N. Y. p. 336. s. 1. 1 Laws of Vir. 237. Laws of Conn. p. 397. s. 21.) These regulations have no object but to improve our foreign trade, and raise the character and reputation of the articles in a foreign market; and if the States have no right to pass laws prohibiting exportation, what can prevent a person having an inferior article, from exporting it, in its uninspected state, and taking his chance for the price it might bring in a foreign market? These laws are much too numerous and complicated to be detailed; but a very slight examination of some of them will show the very extensive powers for regulating commerce, possessed by the Legislatures from which they emanate. Some operate by the forfeiture of the uninspected article, as in the New­ York act for inspecting pot and pearl ashes. (2 N. R. L. p. 335. s. 8.) It gives the liberty of entering on board of any ship, &c. to search for any pot or pearl ashes, shipped or shipping for exportation; and, if any unbranded be discovered, it is forfeited, and the captain subject to a pecuniary fine. A similar forfeiture is given in the same State, (p. 339. s. 8.) and a penalty on the master. (p. 339, 340. s. 10.) In Kentucky, a similar forfeiture is given, for attempting to export unbranded flour. (Ky. Laws, Toulman's ed. 440.) In New­Hampshire, a like forfeiture is given of unpacked beef or pork shipped fro exportation. (Naws of N. H. p. 387, 388.) And in Connecticut, a forfeiture is given of unbranded nails. (Laws of Conn. p. 527. s. 5.) Virginia has enacted a forfeiture of unbranded fish, and a penalty on the master. (1 Laws of Va. p. 353. s. 6.) She has not only done the same in respect to lumber, but she has gone much farther, and acted on the collector and officers of the customs. (1 Laws of Va. p. 238. s. 4.) The collector, or other proper officer of the customs, is thereby charged and directed not to suffer any vessel to clear from his office, unless the master, &c. shall produce inspection notes or certificates, &c. and make oath that he has no lumber on board, but what is entered on his manifest. To this exercise of power, equal to that of Congress itself, I probably shall be told, that Congress has, in the collection laws, directed the collectors to pay regard to the inspection laws of the respective States. That is at least an admission that they are rightfully made; but the answer is entirely insufficient; for the first act of the United States, directing this, was passed the 2d of March, 1799, and the act of Virginia, that I have last referred to, was passed the 26th of December, 1792. In like manner, the laws of the same State give a forfeiture of uninspected tobacco, about to be exported, and similar duties are imposed on the master and collector. (1 Laws of Va. p. 263. s. 27. p. 269. s. 45. p. 271. s. 49.) This law was also passed in November, 1792. Connecticut, too, gives a forfeiture of unsurveyed tobacco; (1 Laws of Conn. p. 395. s. 13.) and, as to provisions, it also enacts a penalty against the master, and imposes a duty on the collector. (p. 397. s. 20. p. 303. s. 11. p. 407. s. 3.) Several of those inspection acts regulate as to the importation of articles, equally with their exportation. The New York act, relative to the inspection of sole leather, expressly says, 'Whether such leather be manufactured within the same, or imported or brought into it from any place whatsoever.' (2 N. R. L. p. 340. s. 2.) In Maryland, the act for the inspection of salted provisions, exported and imported from and to Baltimore, relates to beef, pork and fish 'imported into the said town, from any part of this State, or any one of the United States, or from any foreign port whatever.' (2 Laws of Maryland, p. 3. s. 5.) Sec. 6 relates to the size, quality, and make of all imported beef and pork barrels. This act, it is true, was passed in 1786, before the adoption of the constitution. If the power of Congress, however, was exclusive, it should then have ceased to operate. But the argument does not stop there. In 1796, it was extended to Havre de Grace, (p. 335. s. 9.) and in 1797 to Chester. (p. 369. s. 9.) The act of the same State, for the gauge of barrels for pork, beef, pitch, tar and turpentine, and tare of barrels for flour and bread, continued by several statutes down to 1810, and probably to the present time, prohibits the importation, by land or water, of those articles, except in barrels of certain dimensions and contents. In Virginia, the act for the inspection of fish, passed in December, 1795, sec. 6. provides for the inspection of imported fish, as well as of that packed for exportation; and it also enacts a forfeiture of the article, and a penalty on the master. (1 Laws of Va. p. 352. s. 3.) In Pennsylvania, the act providing for the inspection of gunpowder, relates to the inspection of imported as well as manufactured; and gives a forfeiture of the article for selling imported gunpowder without inspection. (3 Laws of Penn. p. 240.) And an antecedent law of March, 1787, directs the captain of every vessel, importing gunpowder into the port of Philadelphia, under a penalty and forfeiture of the article, if it be his own property, to deliver it at a magazine, and directs the health officer to give strangers notice of the act, and also enjoins the custom­house and naval officers, and their deputies, to do the same.' (2 Laws of Penn. p. 402. s. 3.) In New­ Hampshire, (Laws of N. H. ed. of 1815. p. 460.) by the act relating to gunpowder, sec. 2. it is enacted, that every master of any merchant vessel bringing gunpowder into Portsmouth, shall, within forty­eight hours, deposit it in a magazine, and, on neglect, shall pay a fine of 30 pounds to the poor of Portsmouth. Sec. 13. directs a keeper of the magazine to be chosen, who shall be entitled to a fee on all he shall receive and deliver out; another instance of what the appellant's counsel has declared to be unconstitutional, the raising of revenue by a State law from foreign commerce. In dassachusetts, (2 Mass. Laws, p. 37.) the act of June 19, 1801, sec. 1. directs imported gunpowder, landed at the port of Boston, to be deposited in a magazine. And by sec. 3. no gunpowder shall be kept on board any ship or other vessel, lying to or grounded at any wharf in Boston, under pain of confiscation and pecuniary penalty. More extensive examinations would produce a much greater variety of regulations of foreign commerce, and that between the States, made by State Legislatures; but only one more instance need be added, not indeed coming under any of the preceding heads. In Virginia, the act laying taxes for the support of government, passed in January, 1799, prohibits unlicensed merchants from selling, by wholesale or retail, goods of foreign growth or manufacture, on land, or on board of any vessel. (1 Laws of Va. p. 386. s. 2.) The same law has been renewed, from time to time, and it probably exists at this day.

[85] 1 L. U. S. p. 475. ed. 1815.

[86] The Federalist, No. 32.

[87] 9 Johns. Rep. p. 568.

[88] 9 Johns. Rep. p. 575, 576.

[89] 4 Wheat. Rep. 196.

[90] 5 Wheat. Rep. 49.

[91] 2 U. S. L. p. 6.

[92] 2 U. S. L. p. 7.

[93] Ib. p. 35. 42.

[94] 2 U. S. L. p. 6.

[95] Ib. p. 43. s. 23.

[96] 2 U. S. L. p. 119, 120.

[97] Ib. p. 332.

[98] 2 U. S. L. p. 335.

[99] Id. p. 343.

[100] Id. p. 346.

[101] 4 U. S. L. p. 393.

[102] 17 Johns. Rep. p. 488.

[103] The Federalist, No. 32.

[104] 4 Wheat. Rep. 168.

[105] 9 Johns. Rep. 567, 568.

[106] 2 Greenleaf's ed. of the Laws, p. 271.

[107] p. 269.

[108] 3 Dallas' Rep. 394.

[109] Act of Feb. 21, 1793, s. 1.

[110] Chirac v. Chirac, 2 Wheat. Rep. 269.

[111] The Federalist, No. 42.

[112] Sturges v. Crowninshield, 4 Wheat. Rep. 122.

[113] 17 Vin. 211.

[114] Tucker's Bl. Com. part 1. Appx. 180.

[115]  Mr. Webster.

[116] 2 U. S. L. p. 545. 3 U. S. L. p. 126.

[117] 3 U. S. L. p. 529.

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