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When one State, imposed high duties on the goods or vessels of a foreign power to countervail the regulations of such powers, the next adjoining States imposed lighter duties to invite those articles into their port, that they might be transferred thence into the other States, securing the duties to themselves. This contracted policy in some of the States was soon counteracted by others. Restraints were immediately laid on such commerce by the suffering States; and thus a state of affairs disorderly and unnatural grew up, the necessary tendency of which was to destroy the Union itself. The history of other nations, also, furnishes the same admonition. In Switzerland, where the union is very slight, it has been found necessary to provide that each canton shall be obliged to allow a passage to merchandise through its jurisdiction. into other cantons without an augmentation of tolls. In Germany, it is a law of the empire that the princes shall not lay tolls on customs or bridges, rivers or passages, without the consent of the emperor and diet. But these regulations are but imperfectly obeyed; and great public mischiefs have consequently followed.2 Indeed, without this power to regulate commerce among the States, the power of regulating foreign commerce would be incomplete and ineffectual. The very laws of the Union in regard to the latter, whether for revenue, for restriction, for retaliation, or for encouragement of domestic products or pursuits, might be evaded at pleasure, or rendered impotent. In short, in a practical view, it is impossible to separate the regulation of foreign commerce and domestic commerce among the States from each other. The same public policy applies to each; and not a reason can be assigned for confiding the power over the one, which does not conduce to establish the propriety of conceding the power over the other.5

§ 1067. The next inquiry is, whether this power to regulate commerce is exclusive of the same power in the States, or is concurrent with it. It has been settled, upon the most solemn

1 See President Monroe's Exposition and Message, 4 May, 1822, p. 31, 32. [See History of the Constitution, by Curtis, B. III. ch. 1 and 6; Writings of Madison, I. 320.]

2 The Federalist, No. 22, 42.

4 The Federalist, No. 11, 12.

3 The Federalist, No. 42.

5 See the opinion of Mr. Justice Johnson, 9 Wheat. R. 224 to 228.

6 In the convention it was moved to amend the article, so as to give to Congress "the sole and exclusive " power; but the proposition was rejected by the vote of six States against five. Journal of Convention, 220, 270.

deliberation, that the power is exclusive in the government of the United States.1 The reasoning upon which this doctrine is founded is to the following effect: The power to regulate commerce is general and unlimited in its terms. The full power to regulate a particular subject implies the whole power, and leaves no residuum. A grant of the whole is incompatible with the existence of a right in another to any part of it. A grant of a power to regulate necessarily excludes the action of all others who would perform the same operation on the same thing. Regulation is designed to indicate the entire result, applying to those parts which remain as they were as well as to those which are altered. It produces a uniform whole, which is as much disturbed and deranged by changing what the regulating power designs to have unbounded as that on which it has operated.2

§ 1068. The power to regulate commerce is not at all like that to lay taxes. The latter may well be concurrent, while the former is exclusive, resulting from the different nature of the two powers. The power of Congress, in laying taxes, is not necessarily or naturally inconsistent with that of the States. Each may lay a tax on the same property, without interfering with the action of the other; for taxation is but taking small portions from the mass of property, which is susceptible of almost infinite division. In imposing taxes for State purposes, a State is not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But when a State proceeds to regulate commerce with foreign. nations, or among the several States, it is exercising the very power which is granted to Congress, and is doing the very thing which Congress is authorized to do. There is no analogy, then, between the power of taxation and the power of regulating commerce.3

§ 1069. Nor can any power be inferred in the States to regulate commerce, from other clauses in the Constitution or the acknowledged rights exercised by the States. The Constitution

1 Gibbons v. Ogden, 9 Wheat. R. 1, 198, 199, 200, 201, 202; Brown v. Maryland, 12 Wheat. R. 419, 445, 446; 1 Tuck. Black. Comm. App. 180, 309; North River Steamboat Company v. Livingston, 3 Cowen's R. 713. [See note to § 1072.]

29 Wheat. R. 196, 198, 209; Ib. 227, 228.

3 Gibbons v. Ogden, 9 Wheaton's R. 199, 200.

has prohibited the States from laying any impost or duty on imports or exports; but this does not admit that the State might otherwise have exercised the power, as a regulation of commerce. The laying of such imposts and duties may be, and indeed often is used, as a mere regulation of commerce, by governments possessing that power.1 But the laying of such imposts and duties is as certainly, and more usually, a right exercised as a part of the power to lay taxes, and with this latter power the States are clearly intrusted. So that the prohibition is an exception from the acknowledged power of the State to lay taxes, and not from the questionable power to regulate commerce. Indeed, the Constitution treats these as distinct and independent powers. The same remarks apply to a duty on tonnage."

§ 1070. Nor do the acknowledged powers of the States over certain subjects, having a connection with commerce, in any degree impugn this reasoning. These powers are entirely distinct in their nature from that to regulate commerce; and though the same means may be resorted to, for the purpose of carrying each of these powers into effect, this by no just reasoning furnishes any ground to assert that they are identical. Among these are inspection laws, health laws, laws regulating turnpikes, roads, and ferries, all of which, when exercised by a State, are legitimate, arising from the general powers belonging to it, unless so far as they conflict with the powers delegated to Congress. They are not so much regulations of commerce as of police; and may truly be said to belong, if at all to commerce, to that which is purely internal. The pilotage laws of the States may fall under the same description. But they have been adopted by Congress, and, without question, are controllable by it.5

§ 1071. The reasoning, by which the power given to Congress to regulate commerce is maintained to be exclusive, has not been of late seriously controverted; and it seems to have the cheerful acquiescence of the learned tribunals of a particular

19 Wheaton's R. 201, 202; 1 Jefferson's Corresp. 7; The Federalist, No. 56; 12 Wheaton's R. 446, 447.

29 Wheaton's R. 201, 202.

3 See Corfield v. Coryell, 4 Wash. C. C. R. 371, 379, &c.

9 Wheaton's R. 203 to 207, 209; post, § 1071; City of New York v. Miln, 11 Peters, S. C. R. 103.

59 Wheaton's R. 207, 208, 209.

State, one of whose acts brought it first under judicial examination.1

$1072. The power to Congress, then, being exclusive, no State is at liberty to pass any laws imposing a tax upon importers importing goods from foreign countries, or from other States. It is wholly immaterial whether the tax be laid on the goods imported or on the person of the importer. In each case it is a restriction of the right of commerce, not conceded to the States. As the power of Congress to regulate commerce reaches the interior of a State,2 it might be capable of authorizing the sale of the articles which it introduces. Commerce is intercourse; and one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize traffic, when given in the most comprehensive terms, with the intent that its efficacy should be complete, should cease at the point when its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize the sale of the thing imported? Sale is the object of importation; and it is an essential ingredient of that intercourse of which importation constitutes a part. As Congress have the right to authorize importation, they must have a right to authorize the importer to sell. What would be the language of a foreign government which should be informed that its merchants, after importation, were forbidden to sell the merchandise imported? What answer could the United States give to the complaints and just reproaches to which such extraordinary conduct would expose them? No apology could be received or offered. Such a state of things would annihilate commerce. It is no answer that the tax may be moderate; for, if the power exists in the States, it may be carried to any extent they may choose. If it does not exist, every exercise of it is, pro tanto, a violation of the power of Congress to regulate commerce.3

1 1 Kent's Comm. Lect. 19, p. 404, 410, 411. See also Rawle on the Constitution, ch. 9, p. 81 to 84; Sergeant on the Const. ch. 28, p. 291, 292. There is a very able and candid review of the whole subject, by Mr. Chancellor Kent, in his excellent Commentaries. 1 Kent's Comm. Lect. 19, p. 404. I gladly avail myself of this, as well as of all other occasions, to recommend his learned labors to those who seek to study the law, or the Constitution, with a liberal and enlightened spirit.

29 Wheaton's R. 197 to 204.

3 Brown v. State of Maryland, 12 Wheaton's R. 419, 445 to 447; 9 Wheaton's R. 197, &c. Mr. Justice Thompson dissented from this doctrine, as will be seen in his

§ 1073. How far any State possesses the power to authorize an obstruction of any navigable stream or creek, in which the

opinion in 12 Wheaton's R. 449, &c. [Whether the power conferred upon Congress over commerce is exclusive, or whether, on the other hand, the States may establish regulations not inconsistent with those prescribed by Congress, is a question in respect to which a diversity of opinion among the justices of the Supreme Court has manifested itself in several important cases.

It has never been doubted that to the extent to which regulations have been estab. lished by Congress its authority is supreme, and all State laws or regulations that would conflict therewith must give way. The case of Pennsylvania v. The Wheeling and Belmont Bridge Co., 13 How. 515, may be referred to as one of the cases presenting this view. The State of Pennsylvania filed its bill on the equity side of the federal court to have the Wheeling Bridge declared a public nuisance, and abated as such. The bridge was built under the authority of the State of Virginia, across the Ohio River, at a point within the jurisdiction of that State. The Ohio River was navigable at that point, and for many years the commerce upon it had been regulated by Congress, under the commercial power, by establishing ports, requiring vessels which navigated it to take out licenses, and to observe certain rules for the safety of their passengers and cargoes.

Appropriations by Congress had been frequently made to remove obstructions to navigation from its channel. The bridge was an impediment to commerce as carried on upon some of the vessels navigating it; but how serious, was a question in dispute. Congress had never declared it an obstruction, or taken any hostile action whatever in regard to it. The State of Pennsylvania, as proprietor of public works upon which commerce was carried on in connection with the river Ohio, was specially damaged from day to day by the existence of the bridge. The majority of the court, delivering its opinion through Mr. Justice McLean, held the law of Virginia which authorized the construction of the bridge void, because in conflict with the laws of Congress regulating the commerce among different States and with foreign nations carried on upon this river. Taney, C. J., and Daniels, J., dissented, taking the ground, among others, that the erection of the bridge was in conflict with no regulation established by Congress. The view of the majority was more pointedly stated when the case again came before the court, "that Congress had acted upon the subject, and had regulated the navigation of the Ohio River, and had thereby secured to the public, by virtue of its authority, the free and unobstructed use of the same; and that the erection of the bridge, so far as it interfered with this use, was inconsistent with and in violation of the acts of Congress, and destructive of the right derived under them, and that, to the extent of this interference with this free navigation of the river, the act of the legislature of Virginia afforded no authority or justification. It was in conflict with the acts of Congress, which were the paramount law." 18 How. 430.

And it was declared on the occasion last referred to that the power of Congress to regulate commerce included the power to determine what should or should not be deemed, in judgment of law, an obstruction to navigation; and Congress having since the first decision declared the Wheeling Bridge a lawful structure, it must be regarded as such.

In Gilman v. Philadelphia, 3 Wall. 713, a riparian proprietor sought to enjoin the erection of a bridge about to be built, and which it was claimed would constitute an obstruction to navigation. The river was tidal and navigable, but was wholly within the limits of the State of Pennsylvania; and it was under the authority of that State that the bridge was to be erected. The court denied the relief prayed. "Commerce,"

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