Imatges de pÓgina

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

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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 st es, 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 concur. rently 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 reg. ulate 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


power to regulate commerce. The latter power 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 chem, 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.

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