from unjust contributions levied on them by the latter. It was foreseen that, if the several states were left at liberty to regulate their mutual commerce, means would be discovered or devised to load articles of produce and merchandise, in their transit, with duties that would eventually fall on the growers or manufacturers of the one, and the consumers of the other. Such practices had prevailed, and it was justly apprehended that their continuance would nourish increasing animosities, and not improbably terminate in serious interruptions of the public tran quillity.

In the important case referred to in the last lecture, the whole doctrine relative to the construction of this part of the Constitution was largely and deliberately discussed, and definitively and satisfactorily settled It was declared on that occasion, that the power to regulate commerce among the states did not extend to that commerce which is completely internal; and that, comprehensive as are the terms in which it is conferred, the power in question is, nevertheless, restricted to that commerce which concerns more states than one. Those terms would hardly have been selected to indicate the completely interior traffic of a state, because they are not apt terms for that purpose; and the enumeration of the particular classes of commerce to which the power was to extend would not have been made, had the intention been to extend the power to commerce of every description. The specification itself presupposes something not specified, and from the language and subject of the clause, it would seem that the exclusively internal commerce of a state is not comprehended. The genius and character of the whole government, indeed, evince 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 any of the general powers of the Federal Government.

The completely internal commerce, therefore, of every state is reserved for the state itself. But as the power of Congress in regulating foreign commerce does not stop at the jurisdictional lines of the states, and would be a very useless power if it did not pass those limits, it is, if possible, clearer that the power to regulate commerce among the states is not limited by state boundaries. For not only do waters communicating with the ocean penetrate into the interior of the country, and pass in their course through several states, but in many cases-in the signal instance of the Western Lakes-there are waters in and upon the boundaries of several states, which are not navigable to the sea for the purposes of foreign commerce, while they furnish means of commercial intercourse between those states, and, consequently, afford occasions to Congress for the exercise of the power in question. This power must be exercised wherever the subject exists, and if the means of commercial intercourse among the states exist within a state-if a coasting voyage may commence or terminate within a state-then the power of Congress to regulate commerce among the several states may be exercised within a state.

The states 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. How, then, it has been asked, is commercial intercourse between them to be conducted? A trading expedition between two adjoining states

cannot commence and terminate beyond the limits of either; and if the trading intercourse be between two states remote from each other, it must commence in one, terminate in another, and pass through at least a third. Commerce among the states must of necessity, then, be commerce within a state. In the regulation of the trade with the Indian tribes, the action of the law, especially when the Constitution was made, was chiefly within a state; and in this case, as well as in regard to commerce among the states, the power of Congress is coextensive with the subject on which it acts. It cannot, in either case, be stopped at the external boundary of a state, but must enter the limits, and be exercised within the territorial jurisdiction of all the states. The grant of Congress, however, to regulate commerce on the navigable waters of the several states, contains no cession of territory, or of public or private property; the states may regulate the use of fisheries within their territorial limits, though upon navigable waters, provided their free use for the purposes of navigation and commerce be not interrupted.*

The power of Congress to regulate commerce among the states, extends to the regulation of navigation, and to the coasting trade, and fisheries within, as well as without any state, wherever they are connected with the commercial intercourse with any other state, or with foreign nations. It extends also to the regulation and government of seamen; to conferring privileges upon vessels engaged in the coasting trade; and to the navigation of vessels engaged solely in carrying passengers, as well as to those engaged in traffic, whether propelled by steam or otherwise.

* 4 Wash. Cir. Rep., 371.

The principles laid down in another case, also referred to in my last lecture, where an act of a legislature requiring importers and venders of foreign goods to pay for a license from a state government in order to entitle them to pursue that branch of mercantile business, were declared repugnant to the Constitution, were held to apply equally to a similar interference with importations from one state into another. In that case, although the power of the state to regulate its purely internal commerce, and to establish its own police to control and promote that trade and intercourse, and to guard the public health and safety, was held to be sacred; yet it was by no means admitted that these, or any other acknowledged state powers, could, consistently with the Federal Constitution, be so used as to obstruct or defeat the power of Congress to regulate commerce in any of its branches. But it was again explicitly declared that, whenever the powers remaining in the states are so exercised as to come into conflict with those vested in Congress, the former must yield to what the Constitution has ordained to be the supreme law of the land. Nevertheless, if measures undoubtedly within the powers of the states do not come into actual collision with those of the General Government, the Federal Courts can take no cognizance of them or their effects.*

*

With respect to commerce with the Indian tribes, we are to adopt the same broad interpretation of the power of Congress. Under the Confederation, this power was restrained to Indians not members of any of the states; and was not to violate or infringe the legislative right of any state within its own limits. But what description of Indians were to be deemed

* 2 Peters, 250.

members of a state, was a question of perplexity and contention in the Federal councils, and was never settled; and how the trade with the Indians not members of a state, yet residing within its legislative jurisdiction, could be regulated by Congress without intruding upon the right of internal legislation, seems to have been considered incomprehensible by that compact. The power in question was, therefore, very properly, unfettered by the new Constitution from limitations which rendered the former provision so obscure and contradictory. As it now stands, it is applicable to all the Indian tribes; and it is immaterial whether they continue within the boundaries of a state, or inhabit a part of one of the territories, or roam at large through regions over which the United States have no jurisdiction; the trade with them is, in all its forms, subject exclusively to the regulation of Congress. By the wisdom and benevolence of this provision, the Indians are no longer distracted by the discordant regulations of different sovereignties, but are taught to trust to one supreme head, whose justice they should ever have as much reason to respect, as cause to fear its power.

The relation of the aborigines to the Government of the United States is marked by peculiar and cardinal distinctions. The Indian territory is admitted to compose a part of the Federal domain; in all our maps, geographical treatises, histories, and laws, it is so considered in all our intercourse with foreign nations; in our commercial regulations; in any attempt at intercourse between the Indians and foreign powers, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed on our own citi zens. They acknowledge themselves in their treaties to be under the protection of the Federal Gov