The latter power power to regulate commerce. is enumerated in the Constitution subsequently to the former, and each is substantively and independently conferred on Congress. The power of imposing duties on imports is classed with the power of levying taxes; but the power of levying taxes conferred on Congress, although it abridges the subjects of state taxation, can never be considered as abridging the right of the states relative to taxation itself; and they might, consequently, have exercised it by levying duties on imports and exports, had not the Constitution forbidden them. This prohibition, then, is an exception from the acknowledged power of the states to levy taxes, and not from the questionable power to regulate commerce. So, also, the exception in the Constitution, with regard to duties on tonnage, is considered as a restriction on the power of taxation, not on that to regulate commerce; and, like the former prohibition, presupposes the existence of that which it restrains, and not of that which it does not purport to restrain. Neither are the state inspection laws regarded as commercial regulations, although they may have a remote and important influence on commerce, and are certainly recognised in the Constitution as proceeding from the exercise of a power remaining in the states. But these, together with quarantine regulations, and health laws of every description, as well as laws regulating the internal commerce of a state, and those which relate to canals, turnpike-roads, and ferries, are component parts of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the General Government, and which, being of a local character, can be more advantageously regulated by the states themselves. No direct general power being given over these subjects to Congress, they consequently remain subject to state legislation; and if the legislative power of the Union reaches them at all, it is for national purposes, and must then be either where the power is expressly given for a special purpose, or where it is clearly incidental to some power expressly given to the National Government. A state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, when that jurisdiction is not surrendered or restrained by the Federal Constitution. The laws of the United States regulating the transportation of passengers in vessels arriving from foreign ports, are obviously regulations of commerce, as they only affect, through the power over navigation, passengers on their voyage, and until they have landed; after that, and when they have ceased to be passengers, the acts of Congress, applying to them only as such, and as such only professing to legislate in regard to them, have then performed their office, and can with no propriety of language be said to come into conflict with the laws of a state requiring the master of every vessel arriving therein from abroad to make a report in writing of the names, ages, and last legal settlement of his passengers; for such law does not assume to regulate commerce;* its operation begins only where the laws of Congress end, and is not even on the same subject; for although the persons on whom it operates are the same, yet, having ceased to be pas * 11 Peters, 103. sengers, they no longer stand in the only relation in which the laws of Congress either professed or intended to act upon them. It is obvious, however, that the government of the Union, in the exercise of its express pow. ers, may use means which may also be employed by a state in the exercise of its acknowledged powers. If Congress, for instance, 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 regulate commerce with foreign nations and among the states, 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 domestic police. So, if a state, in passing laws on subjects acknowledged to be within its control, and, with a view to those subjects, adopt a measure of the same character with one which Congress may adopt, the state does not derive its authority from the residuum which it retains of the particular power granted to the Union, but from some other power which remains with the state, and may be executed by the same means used for the execution of the power by Congress. All experience shows that the same measure, or measures, scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers are identical; and 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 a Federal Government, pos supreme over the whole of its members, but sessing only certain enumerated powers, and of numerous state governments, retaining and exercising all power not delegated to the Federal head, contests respecting power must necessarily arise. Measures taken respectively by the governments of the Union and of the states, in the execution of their acknowledged powers, must often be of the same description, and may sometimes interfere. But this does not prove that the one is, in fact, exercising, or has a right to exercise, the powers of the other. The states may sometimes enact laws, the validity of which may depend on their not interfering with, or being contrary to, an act of Congress passed in pursuance of its constitutional powers; in all such cases, the inquiry is, whether the state law has, in its application, come into collision with the act of Congress; and should an actual collision be found to have take place, it would be immaterial whether the former were passed by the state in virtue of its concurrent power with Congress, or in virtue of a distinct and independent power relating to a different subject: in either case, the act of the State Legislature, and the right or privilege conferred by it, must yield to rights and privileges derived from the act of Congress. It was therefore held, in the case referred to, that a license under the acts of Congress, for regulating the coasting trade, is not merely intended to confer a national character on vessels engaging in it, but gives to them permission to carry on that trade; and as the power of Congress to regulate commerce extends to navigation carried on in vessels exclusively employed in the transportation of passengers, whether those vessels be propelled by steam, or by the instrumentality of wind and sails-on waters wholly within a state, but which may be approached by the ocean—a case of actual collision was presented between the exclusive privilege conferred by the state law on the one side, and the authority to carry on the coasting trade derived, on the other, from the act of Congress; and in so far as this interference extended, the state law was declared to be void, as repugnant to the Federal Constitution. In a subsequent case, it was laid down by the same authority, that, as the power to regulate commerce thus reaches the interior of a state, and may there be exercised, it must be capable of authorizing the sale of those articles which it introduces, because its efficacy would not be complete if it ceased to operate at the point where the continuance of its operation is indispensable to its value. The power to allow importation would, indeed, be nugatory, if unaccompanied with the power to authorize the sale of the thing imported; for sale is the object of importation, and an essential ingredient of that commercial intercourse of which importation constitutes a part, and is as indispensable to the existence of that intercourse as importation itself. The right of sale, as well as the right to import, was, therefore, considered as involved in the pow er to regulate commerce; and it was accordingly held that Congress had a right, not only to authorize importation, but to authorize the importer to sell. An act of the Legislature of Maryland, requiring all wholesale importers and sellers of foreign goods to obtain a license from that state, and to pay a sum of money on receiving it, was consequently adjudged to be void, as re |
