Imatges de pàgina

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 inci. dental 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 authori. ty 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,

supreme over the whole of its members, but possessing 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 indis. pensable 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 according. ly 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- . pugnant not only to that provision of the Federal Constitution which declares that “no state shall, without the consent of Congress, lay any impost or duty on imports or exports,” but to that also which invests Congress with power “to regulate commerce."*

The principles laid down on this occasion apply equally to importations from another state, as, in both cases,


powers remaining in the states, when so exercised as to come in conflict with those vested in Congress, that which is not supreme must yield to that which is. This great universal truth is inseparable from the nature of things; and the Constitution has applied it to the often interfering powers of the General and State Governments, as a vital principle of perpetual operation, so long as the power to regulate commerce is admitted to be exclusive. It has been so considered by every department of the government, and by all classes of citizens in every quarter of the Union, ever since the adoption of the Federal Constitution. It was, indeed, to effect this transfer of power that the Constitution was established. This was the primary and avowed motive for assembling the Convention of 1787. The exclusive grant of this power to the National Government was essential to impart to our shipping engaged in foreign commerce its nationality and protection; and the surrender of this power became, in several of the states, the most formidable obstacle to the ratification of the new Constitution. The State of New York, where the opposition was the strongest, possessed the finest harbour on the coast; the fertility of its yet uncultivated western territory was al. ready known; the rapid increase of its population had been confidently anticipated; the tide of immigration had begun to flow in upon it; and the consequent accession of wealth and power afforded the most seductive objects to gratify the ambition of its statesmen and politicians. These causes, indeed, combined to delay and render doubtful its adoption of the Federal Constitution, until it was rendered certain, by the assent of nine of the thirteen members of the Confederation, that the new government would go into immediate operation among the states which had already acceded to it; and that the recusant states would thereby be deprived of the benefits both of the former confederacy, and of the new compact by which it was superseded.

* 9 Wheaton, 1.

The power of prohibiting the importation of slaves into the United States, after a certain period had elapsed, and of imposing a duty on their importation during the intermediate period, is virtually included in the power to regulate commerce, as the exception which postponed its exercise arose from an express restriction of the general power. The words of the Constitution vesting this power are, “ The migration or importation” (not of slaves, for that word is not to be found in the Constitution, but)“ of such persons as any of the states now existing shall think proper to admit, shall not be prohibited prior to the year 1808.” It is by no means difficult to account either for the existence of this restriction, or for the terms in which it is expressed; and although it is certainly to be wished that the power in question had been free from it, yet it ought to be remembered that a great point was gained in favour of humanity by fixing a period for the ter

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