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It was, therefore, upon considerations like these, that the courts of justice in New-York did not consider the grant to Livingston and Fulton as disturbed by a coasting license under the act of 1793. They did not, either in the case of Ogden v. Gibbons, or in any of the cases which preceded it, deny to Congress the power to regulate commerce among the states, by express and direct provisions, so as to control and restrict the exercise of the state grant. They only insisted, that without some such explicit provision, the state jurisdiction over the subject remained in full force. This cause was afterwards carried up by appeal to the Supreme Court of the United States, and the decree reversed, on the ground, that the grant was repugnant to the rights and privileges conferred upon a steam boat navigating under a coasting license."
In the construction of the power to regulate commerce, the court held, that the term meant, not only traffic but intercourse, and that it included navigation, and the power to regulate commerce was a power to regulate navigation. Commerce among the several states, meant commerce intermingled with the states, and which might pass the external boundary line of each state, and be introduced into the interior. It was admitted, that the power did not extend to that commerce which was completely internal, and carried on between different ports of the same state, and which did not extend to, or affect other states. The power was restricted to that commerce which concerned more states than one, and the completely internal commerce of a state was reserved for the state itself. The power of Congress on this subject comprehended navigation within the limits of every state; and it might pass the jurisdictional line of a state, and be exercised within its territory, so far as the navigation was connected with foreign commerce, or with commerce among the several states. This power, like all
a Gibbons v. Ogden, 9 Wheaton, 1.
the other powers of Congress, was plenary and absolute within its acknowledged limits. But, it was admitted, that inspection laws relative to the quality of articles to be exported, and quarantine laws, and health laws of every description, and laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, &c. were component parts of an immense mass of legislation, not surrendered to the general government. Though Congress may license vessels to sail from one port to another, in the same state, the act is supposed to be necessarily incidental to the power expressly granted to Congress, and it implies no claim of a direct power to regulate the purely internal commerce of a state, or to act directly on its system of police. The court construed the word regulate to imply full power over the thing to be regulated, and to exclude the action of all others, that would perform the same operation on the same thing.
After laying down these general propositions, the court proceeded to observe, that the acts of New-York, granting exclusive privileges to certain steam boats, were in collision with the acts of Congress regulating the coasting trade, and that the acts of the state must, in that case, yield to the supreme or paramount law. If the law of Congress was made in pursuance of the constitution, the state laws must yield to the supremacy of it, even though they were enacted in pursuance of powers acknowledged to remain in the states. A license under the acts of Congress for regulating the coasting trade, was an authority to carry on that trade. The words of the act of Congress, directing the proper officer to grant to a vessel qualified to receive it, "a license for carrying on the coasting trade," was considered as conveying an explicit authority for that purpose. It was the legislative grant of a right, and it conferred all the right which Congress cou'd give in the case, and it was not intended to confer merely the national character. It was further held, that the power to regulate commerce extended to navigation, carried on by vessels exclu
sively employed in transporting passengers, and to vessels propelled by steam, as well as to vessels navigated by other
This is the substance of the argument of the Supreme Court of the United States in the steam boat case. The only great point on which the Supreme Court of the United States and the courts of New-York have differed, is in the construction and effect given to a coasting license. They did not differ in any general view of the powers of Congress; and the Supreme Court expressly waived any inquiry or decision on the point, whether the exercise of the power assumed by the steam boat laws, would have been illegal, provided there was no existing regulation of Congress that came in collision with them. The decision in Livingston v. Van Ingen, rested upon the assumption that there was no such regulation.
The Court of Errors of New-York, since the case of Gibbons v. Ogden, have given to it a very liberal extent, by the construction put upon a coasting trade. In that decision the power to regulate commerce" among the seve ral states," was supposed to be "very properly restricted to that commerce which concerns more states than one;" and that it did not "comprehend that commerce which was completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to, or affect other states." But in the case in New-York alluded to, the Court of Errors held, that the coasting trade meant, amongst other things, commercial intercourse carried on between different districts in the same state, and between different places in the same district, on the sea coast, or on a navigable river; and that a voyage from New-York to Albany,
a Steam Boat Company v. Livingston, 3 Cowen, 747. See, also, 1 Wendell, 560.
was as much a coasting voyage, as from Boston to NewBedford.
Under the power to regulate commerce, it has been further decided, that a state law requiring every importer of goods, by wholesale, bale, or package, to take out a license, and pay for it, under certain penalties or forfeitures for neglect or refusal, was repugnant to the constitution of the United States, and void; inasmuch as it belonged to Congress to regulate foreign commerce, and no state can lay a duty on imports. So it is held, that if Congress, in execution of the power to regulate commerce, should pass a statute controlling state legislation in erecting dams over small navigable creeks where the tide ebbs and flows, it would be valid and binding. It is admitted, however, that the grant to Congress to regulate commerce on the navigable waters of the several states, contains no cession of territory, or of public or private property; and that the states may by law regulate the use of fisheries and oysterbeds within their territorial limits, though upon navigable waters, provided the free use of the waters for purposes of navigation and commercial intercourse be not interrupted.
I have now finished the second general division of this Progress of course of lectures, relating to the government and constitu-jurisprutional jurisprudence of the United States. Though I have considered the subject in a spirit of free and liberal inquiry, as the series of decisions in the federal courts have been brought under examination, I have uniformly felt, and it has been my invariable disposition to inculcate, a strong sentiment of deference and respect for the judicial authorities of the Union. No point or question of any moment, touching the construction of the powers of the government, and which
a Brown v. State of Maryland, 12 Wheaton, 419.
b Wilson v. The Black-Bird Creek Marsh Company, 2 Peters' U. S. Rep. 245.
c Corfield v. Coryell, 4 Wash. Cir. Rep. 271.
has received an authoritative determination, has been inten tionally omitted. There are several important constitu tional questions which remain yet to be settled; but if we recur back to the judicial annals of the United States for the last thirty years, we shall find that many of the most interesting discussions which had arisen, and which were of a nature to affect deeply the tranquillity of the nation, have auspiciously terminated.
The definition of direct taxes within the intendment of the constitution; the extent of the power of Congress to regulate commerce with foreign nations and among the several states; the power to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies; the power of Congress over the militia of the states; their power of exclusive legislation over districts and ceded places; the mass of implied powers incidental to the express powers of Congress, such as the power to institute and protect an incorporated bank, to lay a general and indefinite embargo, and to give to the United States, as a creditor, priority of payment, have all received elaborate discussion in the Supreme Court, and they have, to a certain extent, been ascertained and defined by judicial decisions. So, also, the extent of the constitutional prohibitions upon the states not to pass ex post facto laws; and not to pass laws impairing the obligation of contracts; and not to impede or control, by taxes, or grants, or any other exercise of power, the lawful authorities, or institutions, or rights and privileges depending on the constitution and laws of the United States, has been explored, and declared by a series of determinations, which have contributed, in an eminent degreee, to secure and consolidate the Union, and to elevate the dignity and enlarge the influence of the national government.
The power of the president to remove all executive officers at his will and pleasure, has been settled, not indeed judicially, but perhaps as effectually, by the declared sense of the legislature, and the uniform acquiescence and practice of the government. The absolute and uncontrollable