So far we have the obvious meaning of the words, and their historical and contemporaneous interpretation, leading to the same result. It is hardly necessary to say that this result is confirmed by the usage of both the central and the State governments. The latter, during the past sixty years, have invariably exercised the exclusive power to develope their internal resources, the control over their roads, and that over their public rivers. No instance of any interference of the United States exists; though the bridging and damming of streams have gone on continuously before their eyes since the adoption of the constitution. Nor have the United States claimed · the right to declare a navigable stream, any more than a common road, within the limits of any single State, to be a public highway; such declaration always coming from the State.

Nor need we delay much to argue that this result is in accordance with the fundamental theory of our government. Whatever diversity of opinion there may have been upon the development of that theory, there never has been any question from the beginning, that it was designed to give the Federal government supreme power over all general matters, to which the States were incompetent or unsuited to legislate separately; and to leave to local action and development all internal affairs and such matters over which the States could legislate without affecting the harmony of the whole system. Such a system of government is the only one which could have been accepted in

jurisdiction, with duties which would fall on the makers of the latter, and the consumers of the former. To those who do not view the question through the medium of passion, or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair.

The necessity of a superintending authority over the reciprocal trade of confederated States has been illustrated by other examples, as well as our own." The writer then proceeds to illustrate the exercise of this power in the cases respectively of the Confederacies of Switzerland, Germany, and the Netherlands, in which, as he observes, it was employed to compel a free passage of merchandise over the constituent States, unrestricted by tolls or duties; but as we know, never to authorize the slightest interference in local or domestic improvements or affairs. (Federalist, No. xlii.) No other instance of commercial regulation, except Navigation Laws, which belong to foreign commerce, is given.

1789, and it is even more emphatically the only one possible in 1854. The vast expanse of our territory would make any attempt on the part of the Federal government to establish any system of regulations for internal application, whether commercial or otherwise, as ridiculous as unconstitutional. Does one man in a hundred in Congress know anything about the nature of the domestic wants of New Mexico, or Iowa, or Texas? Can he say what is the best. mode of developing the resources of those States? Can he take the map of California, for instance, and say, "Here should be a road, and here a bridge; this river shall be dammed to collect its golden sands; this shall be brought over an aqueduct to supply a city with water; and this shall be left free to bear upon its bosom the white sails of commerce?" There are few, indeed, who do not see that as regards at least the internal relations of the States, the only true system of regulations of commerce is that which simply removes all restrictions upon its free development, and leaves to the States themselves, who alone can be properly acquainted with their local circumstances, the determination of the channels in which it shall flow. Nor is this a policy which is suited to our own country alone. The best writers on government in Europe, agree upon its being the true and final theory for every civilized State, except those of the smallest territorial extent. Local self-government is viewed as the only guard and remedy against the evils which now afflict so profoundly the whole continent; and centralization, whether bureaucratic, in the hands of a department, or commercial, in the hands of large trading cities, is declared to be only tyranny in disguise. It is not for this country to prove retrograde in political science.

To conclude this part of the argument, therefore, we conceive it to be a matter of irrefragable demonstration that the power to regulate commerce, whatever else it may exactly comprehend, certainly does not authorize Congress to interfere in the development of the resources of any State, or to take out of her hands the disposal of her own property; nor, in particular, to exercise for the State the discretion, which is the chief element of such property, to determine whether her navigable streams shall be declared public highways, or dammed for sanitary or other local purposes, or bridged

to facilitate the intercourse of her citizens.

Assuming, therefore, that these are matters purely of State legislation, and not of commercial regulation, we proceed now to consider how far the power of Congress over the latter may incidentally, since it cannot directly, affect and control the former.

There is no doubt that where a power given to Congress is exclusive over its subject matter, legislation by a State over the same subject matter is void, and must be declared so by the judiciary. A power may be exclusive in terms, as is the case with the legislation of Congress over the District of Columbia, dock-yards, and so forth; or it may be so from necessary implication. This implication, again, may be made from the words of the Constitution, as with regard to the power to establish an uniform rule of.naturalization; or it may result from the nature of the object of the power, in cases where that object might be defeated by State legislation on the subject matter. Now, with regard to its object, a power may have been vested in Congress either from convenience or necessity. From necessity, as where the object cannot be attained by separate State legislation, in which case, whether exercised or not, if the power be for general purposes, it is absolutely exclusive; if for special purposes, as taxation, it is exclusive so far as those purposes extend. From convenience, as where the object is a necessary one, but can be better attained by the legislation of Congress; in which case, till Congress acts on the subject matter, State legislation is not only proper, but unavoidable. With regard to the last hypothesis, there is a further distinction to be taken between legislation by Congress over the whole subject matter, in which case State legislation is entirely excluded; and partial and incomplete action by Congress, in which case State legislation is only affected pro tanto. Again, a power may have several objects, and have been vested in Congress with reference to them, partly from convenience and partly from necessity. One or more of its objects may be such as cannot be attained by State legislation; others may be such as it is more expedient to vest in Congress. In such case it is exclusive before its exercise, only as to the former, and not as to the latter. Thus, as to the naturalization laws, Congress has only prescribed

the mode of naturalization, but its effect is left to the several States. And finally, since we have hitherto been dealing only with cases where a power of Congress and State legislation are directed over the same subject matter, there is a broad distinction between all such cases, and those where though the subject matter of the one power professedly differs from that of the other, a conflict is produced in their independent exercise, which requires a partial subordination of State authority, in order to the harmony of the system. In the latter class of cases, there is this most material and vital difference from the former, that whereas, when the subject matter is the same, complete legislation by Congress actually annuls State legislation in toto; when the subject matters are different, State legislation is only affected in so far, and to such an extent, as it touches incidentally the other subject matter. Thus, a general bankrupt law annihilates State bankrupt laws; but a general road law of a State, under which a road might be made to pass through a dock-yard, is only affected to that particular extent. In these last cases, however, the power of Congress which is to be considered, is still to be regarded as falling under one of the categories above enumerated, and which therefore need not be repeated.

Now, as we think we have established, the power to determine in what manner State property, and as a part thereof, its public rivers, shall be most advantageously employed, has never been expressly, or by implication as a regulation of commerce, granted to Congress. Hence, as its subject matter is different from that of the power over commerce, it falls within the final and comprehensive distinction which has just been taken. As a general power, it is not withdrawn from the States, whether the power to regulate commerce be exclusive or not; but will be merely limited in its exercise in so far as it overlaps, as it were, and intrudes upon the latter. The right and duty of a State as a matter of municipal sovereignty, to determine upon the best use of its navigable streams, consequently cannot be controlled by the judiciary upon any general principle of exclusion, but only, if at all, when in particular instances it incidentally affects commerce in a way inconsistent with Congressional supremacy.

In order to determine, then, the nature of this supremacy, we proceed to consider under which of the categories of exclusion, before considered, the power to regulate commerce falls. In the first place, even, admitting for the moment, which we have denied, that such a power comprehends the right to declare what roads or rivers in the separate States, shall be deemed public highways, and the right to decide in what channels, or in what directions, or by what instruments, the reciprocal commerce of the States shall be carried on; that right has never yet been exercised. These things have hitherto been left to the action of individuals, and the discretion of the States. No direct conflict, therefore, can arise between the two. A State, in the disposal of its public domain, cannot at present cause the prostration of any bridge, or the obstruction of any highway erected or opened under the power to regulate commerce. By the disposal of this question of fact, we are enabled to regard the power, as, in so far, merely potential and abstract. And since it is made exclusive neither expressly, nor by implication from the language of the Constitution, we must expect that exclusiveness to be involved in the objects for which it was conferred upon Congress. We have only to consider, according to our previous distinction, whether it be one which has been vested in Congress from necessity, from expediency, or from both.

Without embarrassing ourselves at present to discuss the exact limitations of the power, which indeed we have to some degree done before, it must be agreed that certain matters which come within the strictest definition of a regulation of commerce, are proper subjects of State legislation, at least in the absence of that of Congress. Thus quarantine laws, pilot laws, at least in most cases,' port regulations, the survey and improvement of the channels of rivers, inspection laws, the law which governs common carriers, are universally admitted to be matters of State jurisdiction, till Congress chooses to provide a general system for one or all. They are obviously matters upon which local legislation, until such general

1 Quarantine and pilot laws in the States have been indeed expressly authorized by Acts of Congress. But it is decided that if the power to regulate commerce be exclusive, it is one that cannot be delegated to the States by Congress; and, therefore, the acts would in that view be unconstitutional and inoperative. See Cooley vs. The Wardens, &c., 12 How. U. S. 299, 319.