offences committed within such ceded districts; and, on the other hand, that the inhabitants of such places cannot exercise any civil or political privileges under the laws of the state, because they are not bound by those laws. This has been so decided in the state courts." But if, in any case, the United States have not actually purchased, and the state has not, in point of fact, ceded the place or territory to the United States, its jurisdiction remains, notwithstanding the place may have been occupied, ever since its surrender by Great Britain, by the troops of the United States, as a fort or garrison. The Supreme Court of New-York accordingly held, in the case of The People v. Godfrey, that they had jurisdiction of a murder committed by one soldier upon another within Niagara fort. Nor would the purchase of the land by the United States be alone sufficient to vest them with the jurisdiction, or to oust that of the state, without being accompanied or followed with the consent of the legislature of the state. This was so decided in the case of The Commonwealth of Pennsylvania v. Young.

b

(8.) The construction of the power of Congress to regulate commerce among the several states.

regulate

I proceed next to examine the judicial decisions under Power to the power given to Congress to "regulate 'commerce with commerce. foreign nations, and among the several states ;" and it will be perceived, that the questions arising under this power have been of the utmost consequence to the interests of the Union, and the residuary claims and sovereignty of the

states.

The first question that arose upon this part of the constitution was, respecting the power of Congress to interrupt or destroy the commerce of the United States, by laying a general embargo, without any limitation as to time. By the act

a Commonwealth v. Clary, 8 Mass. Rep. 72. Same v. Young, 1 Hall's Journal of Jurisprudence, 53.

b 17 Johnson, 225.

c 1 Hall's Journal of Jurisprudence, 47.

of Congress of 22d December, 1807, an embargo was laid on all ships and vessels in the ports and harbours of the United States, and a prohibition of exportation from the United States, either by land or water, of any goods, wares, or merchandise, of foreign or domestic growth or manufacture. There were several supplementary acts auxiliary to this principal one, and intended more effectually to enforce it, under certain specific exceptions. In the case of The United States v. The Brigantine William, in the District Court of Massachusetts, in September, 1808, it was objected, that the act was unconstitutional, for that Congress had no right, under the power to regulate commerce, thus to annihilate it, by interdicting it entirely with foreign nations. But the court decided, that the embargo act was within the constitutional provision. The power of Congress was sovereign relative to commercial intercourse, qualified by the limitations and restrictions expressed in the constitution; and by the treaty-making power of the president and senate, Congress had a right to control or abridge commerce for the advancement of great national purposes. Non-intercourse and embargo laws are within the range of legislative discretion ; and if Congress have the power, for purposes of safety, or preparation, or counteraction, to suspend commercial intercourse with foreign nations, they are not limited as to the duration, more than as to the manner and extent of the

measure.

A still graver question was presented for the consideration of the federal judiciary, in the case of Gibbons v. Ogden, decided by the Supreme Court of the United States in February term, 1824. That decision went to declare, that several acts of the legislature of New-York, granting to Livingston and Fulton the exclusive navigation of the waters of the state in vessels propelled by steam, were unconstitutional and void acts, and repugnant to the power given to

a 2 Hall's Law Journal, 255.

b 9 Wheaton, 1.

Congress to regulate commerce, so far as those acts went to prohibit vessels licensed under the laws of Congress for carrying on the coasting trade, from navigating the waters of New-York.

It had been decided in the Court of Errors of New-York, in 1812," that five several statutes of the state, passed between the years 1798 and 1811, inclusive, and granting and securing to the claimants the sole and exclusive right of using and navigating boats by steam in the waters of the state, for a term of years, were constitutional and valid acts. According to the doctrine of the court in that case, the internal commerce of the state by land and water remained entirely and exclusively within the scope of its original sovereignty. It was considered to be very difficult to draw an exact line between those regulations which relate to external, and those which relate to internal commerce, for every regulation of the one will, directly or indirectly, affect the other. But it was supposed that there could be no doubt that the acts of the state which were then under consideration, were not within any constitutional prohibition, for not one of the restrictions upon state power, contained in the 9th and 10th sections of the 1st article of the constitution, appeared to apply to the case; nor was there any existing regulation of Congress on the subject of commerce with foreign nations, and among the several states, which was deemed to interfere with the grant. It was declared to be a very inadmissible proposition, that a state was devested of a capacity to grant an exclusive privilege of navigating a steam boat within its own waters, merely because Congress, in the plenary exercise of its power to regulate commerce, might make some future regulation inconsistent with the exercise of that privilege. The grant was taken, undoubtedly, subject to such future commercial regulations as Congress might lawfully prescribe; and to what extent they might lawfully

a Livingston v. Van Ingen, 9 Johnson's Rep. 507. VOL. I. 55

prescribe them, was admitted to be a question within the ultimate cognizance of the Supreme Court of the United States. The opinion of the court went no farther than to maintain, that the grant to Livingston and Fulton, was not within any constitutional prohibition upon the states, nor was it repugnant or contradictory to any existing act of Congress on the subject of commerce; and under those two restrictions, every state had a right to make its own commercial regulations. It was generally declared, that Congress had not, in the understanding of the court, any direct jurisdiction over our interior commerce or waters, and that they had concurrent jurisdiction over our navigable waters only so far as might be incidental and requisite to the due regulation of commerce between the states and with foreign nations.

a

In this case, in 1812, the defendants, who objected to the validity of the state grant, did not set up any patent right, or any other right under any particular act of Congress. They rested entirely on the objection, that the statutes conferring the exclusive privilege were absolutely unconstitutional and void. But afterwards, in the case of Ogden v. Gibbons, the defendant set up, by way of right and title to navigate a steam boat upon the waters of New-York, in opposition to the grant, that his boats were duly enrolled and licensed under the laws of the United States, at Perth Amboy, in the state of New-Jersey, to be employed in carrying on the coasting trade. The question in that case was, whether such a coasting license conferred any power to interfere with the grant; and it was decided in the Court of Chancery, and afterwards in the Court of Errors, that the coasting license merely gave to the steam boat an American character for the purpose of revenue, and that it was not intended to decide a question of property, or to confer a right of property, or a right of navigation or commerce.

a 4 Johnson's Ch. Rep. 150.

b 17 Johnson, 488.

The act of Congress regulating the coasting trade, was never intended to assert any supremacy over state regulations or claims, in respect to internal waters or commerce. It was not considered by our courts as the exercise of the power of Congress to regulate commerce among the states. The law concerning the coasting trade was passed on the 18th of February, 1793, and it never occurred to any one, during the whole period that the state laws were under consideration before the legislature, and in the council of revision, and in the courts of justice, from 1798 down to, and including the judicial investigations in 1812, that the coasting act of 1793 was a regulation of commerce among the states, prohibitory of any such grant. Such latent powers were never thought of, nor imputed to it. The great objects and policy of the coasting act were, to exclude foreign vessels from commerce between the states, in order to cherish the growth of our own marine, and to provide that the coasting trade should be conducted with security to the revenue. The register and enrolment of the vessel were to ascertain the national character; and the license was only evidence that the vessel had complied with the requisites of the law, and was qualified for the coasting trade under American privileges. The license did not define the coasting trade. Free trade between the states then existed, subject to local and municipal regulations. The requisitions of the coasting act were restrictions upon the general freedom of that commerce, and not the grant of new rights. Steam vessels were subject to those regulations equally with any other vessels. If Congress had intended that a coasting license should confer power and control, and a claim of sovereignty subversive of local laws of the states within their own jurisdictions, it was supposed they would have said so in plain and intelligible language, and not have left their claim of supremacy to be hidden from the observation and knowledge of the state governments, in the unpretending and harmless shape of a coasting license, obviously intended for other purposes.