§ 336. Powers held by the States. How far they interfere with those held by Congress. The Chief Justice continues: 1 "But the inspection laws are said to be regulations of commerce, and are certainly recognized in the Constitution as being passed in the exercise of a power remaining with the states. That inspection laws may have a remote and considerable influence on commerce, will not be denied; but that a power to regulate commerce is the source from which the right to pass them is derived, cannot be admitted. The object of inspection laws is to improve the quality of articles produced by the labor of a country; to fit them for exportation, or, it may be, for domestic use. They act upon a subject before it becomes an article of foreign commerce, or of commerce among the states, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces every thing within the territory of a state not surrendered to the general government; all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are component parts of this mass. No direct general power over these objects is granted to Congress; and, consequently, they remain subject to state legislation. If the legislative power of the Union can reach them, it must be for national purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given.

It is obvious that the government of the Union in the exercise of its express powers, that, for example, of regulating commerce with foreign nations, and among the states, may use means which may also be employed by a state in the exercise of its acknowledged powers, -that, for example, of regulating commerce within the state. If Congress license vessels to sail from one port to another in the same state, the act is supposed to be necessarily incidental to the powers expressly granted to Congress, and implies no claim of a direct

19 Wheaton's R. 203.

power to regulate the purely internal commerce of a state, or to act directly on its system of police. So if a state, in passing laws on subjects acknowledged to be within its control, and with a view to those subjects, shall adopt a measure of the same character with one which Congress may adopt, it does not derive its authority from the particular power which has been granted, but from some other which remains with the state, and may be executed by the same means. All experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers themselves are identical. 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.'

§ 337. Conclusions of the Court. Proceeding to apply these general principles, the Chief Justice discusses and decides the following propositions. (1.) That1 the laws of New York in question are in collision with the acts of Congress regulating the coasting trade, which being made in pursuance of the Constitution are supreme; and the state laws must yield to that supremacy, even though enacted in pursuance of powers acknowledged to remain in the states. (2.) That 2 a license under the acts of Congress for regulating the coasting trade, gives a permission to carry on that trade. (3.) That 3 the act of Congress applies as well to steam as to sailing ves sels. The decree appealed from was unanimously reversed, and the statute of New York declared unconstitutional and void. Mr. Justice Johnson also delivered an opinion in which he went even further than the Chief Justice; for he held that though Congress had passed no statute regulating the coasting trade, the State of New York would have had no authority to give the exclusive right of navigating the waters in question to any of her citizens, or to any particular persons whatever.

§ 338. I have quoted thus largely from this case, because it is one of the grand landmarks of constitutional interpretation which have been placed along the course of our political his

19 Wheaton's R. 210.

2 Ibid. 212.

3 Ibid. 219.

tory; one of those decisions so fruitful in results, that it may be said to contain within itself the germs of all future develop

ment.

It is very important, however, to ascertain exactly what the case decided; for what legal propositions it is an authority. And (1) it did not decide that the mere grant to Congress of power to regulate commerce with foreign nations, etc., ipso facto, excluded the states from the exercise of a like power; although much of the reasoning of C. J. Marshall plainly leads to that conclusion. (2.) It did decide that the grant contained in the Constitution, together with legislation of Congress in pursuance thereof, inhibited the states from interfering with the subject-matter of the congressional legislation. (3.) It also decided, that the subject-matter thus withdrawn from the state jurisdiction, need not have been the direct object of the national legislation, need not have been the self-same thing with which that legislation was concerned; but it was sufficient if the subject-matter were incidentally and indirectly within the scope of the congressional acts.

§ 339. Brown v. Maryland: Facts and question at issue. The next case in order, (1827,) and one which has always. been considered as leading, both by those who assent to it, and by those who oppose it, was Brown v. The State of Maryland.' That state had enacted a statute requiring all importers of foreign goods by the bale or package, and other persons selling the same by the wholesale, bale, or package, to take out a license, for which they should pay a certain fee; and in default thereof, they should be subject to certain fines and other penalties. Brown, having violated this statute, was indicted thereunder, and demurred to the indictment on the ground that the state law was unconstitutional and void. The courts of Maryland having rendered judgment against him, he carried the case to the Supreme Court of the United States. It was there urged that the statute in question was void, because it contravened (1) the provisions of the Constitution forbidding states to lay duties on imports; and (2) those granting to. Congress the power to regulate foreign commerce. The case

1 12 Wheaton's R. 419.

has already been cited to illustrate the first of these positions,1 and it is only now to be examined in reference to the second. § 340. Opinion of the Court. Extent of the power to regulate. The opinion was delivered by Chief Justice Marshall. After arriving at the conclusion that the statute was void on the first ground, he proceeds to say: 2 "Is it also repugnant to that clause of the Constitution which empowers Congress to regulate commerce with foreign nations and among the several states?" Describing the degraded and disorganized condition of commerce during the confederation, and the fact that one of the powerful incentives for the adoption of the Constitution, was the desire to remedy this great evil, he continues: "It is not, therefore, matter of surprise that the grant should be as extensive as the mischief, and should comprehend all foreign commerce, and all commerce among the states. To construe the power so as to impair its efficacy, would tend to defeat an object, in the attainment of which the American public took, and justly took, that strong interest which arose from a full conviction of its necessity."

§ 341. Foreign commerce includes the sale of imported articles. After quoting some propositions from Gibbons v. Ogden, he adds: "If this power reaches the interior of a state and may be there exercised, it must be capable of authorizing the sale of those articles which it introduces. Commerce is intercourse, one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficacy should be complete, should cease at the point where its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of importation, and is an essential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, therefore, as importation itself. It must be considered as a component part of the power to regulate com

1 See § 309.
3 Ibid. 446.

2 12 Wheaton's R. 445.

4 Ibid. 446.

merce.

Congress has a right, not only to authorize importation, but to authorize the importer to sell."

§ 342. States cannot interfere with the Importer's right to Sell. -The Chief Justice further proceeds: 1"What would be the language of a foreign government which should be informed that its merchants, after importing according to law, were forbidden to sell the merchandise imported? What answer would the United States give to the complaints and just reproaches to which such an extraordinary circumstance would expose them? No apology could be received or even offered. Such a state of things would break up commerce. It will not meet this argument to say that this state of things will never be produced, that the good sense of the states is a sufficient security against it. The Constitution has not confided this subject to that good sense; it is placed elsewhere. The question is, Where does the power reside? not, how far will it probably be abused. The power claimed by the state is, in its nature, in conflict with that given to Congress; and the greater or less extent in which it may be exercised, does not enter into the inquiry concerning its existence. We think, then, that if the power to authorize a sale exists in Congress, the conclusion that the right to sell is connected with the law permitting importation as an inseparable incident, is inevitable. If the principles we have stated be correct, the result to which they conduct us cannot be mistaken. Any penalty inflicted on the importer for selling the article in his character of importer, must be in opposition to the act of Congress, which authorizes importation. Any charge on the introduction and incorporation of the articles into and with the mass of property in the country, must be hostile to the power given to Congress to regulate commerce; since an essential part of that regulation, and principal object of it, is to prescribe the regular means for accomplishing that introduction and incorporation."

The judgment of the Maryland court was reversed; the state statute was declared unconstitutional and void. From this decision Mr. Justice Thompson dissented.

§ 343. The case of Brown v. Maryland reaffirms in the most

1 12 Wheaton's R. 447.