as to impair its efficacy, would tend to defeat an object in the attainment of which the American people felt that deep interest which arose from a strong and just conviction that the whole commerce of the nation should be regulated by Congress. From its very nature, this power must be considered as exclusive; for if the several states had retained the right of regulating their own commerce, each of them, as experience had indicated, would probably have pursued a different system; mutual jealousies, rivalries, restrictions, and prohibitions would have ensued, which a common superior alone could prevent or cure, and, at the same time, command that confidence of foreign nations, which is necessary to the negotiation of commercial treaties.

But the nature and extent of this power has been fully and ably discussed, and satisfactorily settled by the Supreme Court of the United States, especially in a case which drew in

tion, and overruled the constitutionality of the laws of New-York, vesting in certain individuals the exclusive right of steam navigation upon its waters.* On that occasion it was held, that the general power to regulate commerce was not restricted merely to the buying and selling or exchanging commodities, but included the navigation of vessels, and commercial intercourse in all its branches, and extended to all vessels, by whatsoever force propelled, and to whatever purpose appropriated. It was observed by the venerable and lamented Chief-justice Marshall, in

* 19 Wheaton, 446. Having beer consulted by the late Mr. Gibbons before he determined to try the validity of this grant, it may not be improper to subjoin the opinion given on that occa sion. Vide Appendix F.

delivering the opinion of the court, that, if com merce did not include navigation, the govern ment of the Union had no direct power over that subject, and could make no law prescribing the requisites to constitute American vessels, or require them to be navigated by American séamen; yet this power had been exercised from the beginning of the government, with the universal consent of the states and of the Union, and had been as universally understood to be a commercial regulation. The word commerce, indeed, must have been understood to comprehend navigation when the Constitution was adopted, as the pow er over both was one of the primary objects for which the Constitution was formed; and in that comprehensive sense is the term used in the Constitution. It is a rule of construction universally acknowledged, that the exceptions from a power mark its extent; for it would be absurd as well as useless to except from a power granted, that which the words of the grant could never comprehend. If, therefore, the Constitution contains plain exceptions from the power over navigation-plain inhibitions against the exercise of that power in a particular way-it is evident that the power to which they apply must have been intended to have been granted.

The power to regulate commerce, thus understood, is held to extend to every species of commercial intercourse between the United States and foreign nations, and among the states; and although the expressions relative to the states were not intended to comprehend that commerce which is completely internal, and carried on between individuals in a state, or different parts of the same state, without extending to, or affect

ing other states, yet, 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 limits. The commerce of the United States with foreign nations is the commerce of the whole Union, and 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 have the power to regulate, that power must be exercised wherever the subject exists. If it exist 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.

The power to prescribe the rule by which commerce is to be governed, like all other powers vested in Congress, is complete in itself, and may be exercised to its utmost extent, without any limitations but such as are prescribed in the Constitution. The restrictions on the powers of Congress are there plainly expressed, and not one of them affects the power in question. If, then, as has always been understood, the sovereignty of Congress, though limited to specific objects, be, nevertheless, plenary as to those objects, the power over commerce with foreign nations, and among the several states, is as absolutely vested in the government of the Union, as it would be in the government of any single state, if the Union did not exist, and the state Constitution had contained the same restrictions on the exercise of the legislative power as are found in the Constitution of the United States. The wisdom and

the discretion of Congress; the identity of its members with the people; and their dependance on their constituents, are in this instance, as in that of declaring war, and many others, the sole restraints upon which the community have relied to secure them from the abuse of the power they have granted; and such are the securities upon which the people must often, of necessity, rely in all representative governments.

From these considerations, the power of Congress was held to comprehend 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." Although this extensive power, like many other of the powers formerly exercised by the several states, is now transferred to the government of the Union, yet the state governments constitute an important part of our system, and have retained a concurrent power of legislation over many subjects of Federal jurisdiction. The power of taxation, for instance, is indispensable to their existence, and is a power which in its own nature is capable of residing in, and of being exercised by, different authorities at the same time. But the power of Congress to lay and collect taxes and duties for the purposes of the Union does not, as we have seen, necessarily interfere with the power of the states to impose taxes for state objects; nor is the exercise of that power by the states an exercise of any portion of the power granted to the United States. In imposing taxes for state purposes, the state legislatures are not exercising a power vested in them even concurrently with Congress; for Congress is not em

powered to levy taxes for objects within the exclusive province of the states. Each government therefore, when it respectively exercises its proper power of taxation, does not exercise the power of the other. But when a state proceeds to regulate commerce with foreign nations, or among the several states, it exercises the identical power which is granted to the Union, and does the very thing that Congress is authorized to do. The sole question, then, is, whether the states can exercise the power of regulating commerce concurrently with the United States.

It was insisted, in the case last referred to, that the states possessed such concurrent power, and the party maintaining the proposition relied on the restriction in the Federal Constitution, which prohibits the states from laying duties on imports or exports. It was alleged, very truly, that limitations of a power furnish a strong argument in favour of its existence, and that the prohibition in this case proved that the power to which it related might have been exercised had it not been expressly forbidden; and hence it was inferred that any commercial regulation, not expressly prohibited, to which the power of the state was originally competent, might still be made by its Legislature.

It was admitted, indeed, on the other hand, that the restriction in question proved that the states might have imposed duties on imports and exports, had they not been expressly prohibited; but it was denied that it followed, as a consequence from that concession, that a state may regulate commerce. The levying of duties on imports and exports was held to be a branch of the taxing power, and entirely distinct from the Q

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