Power to regulate commerce. (8.) The construction of the power of Congress to regulate commerce among the several states. I proceed next to examine the judicial decisions under the power given to Congress to "regulate commerce with 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. * 432 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 * of Congress of 22d December, 1807, an embargo was laid on all ships and vessels in the ports and harbors 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, (a) 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 when the laws of Congress have not otherwise provided; such, for instance, is the case under an analogous principle, when the United States are the holders of a bill of exchange, United States v. Barker, 12 Wheaton, 561, and when liable to damages on foreign bills of exchange, as, see supra, p. 297; and as to liability to general average. See infra, vol. iii. p. 171, a; and as to alluvions and land deposits, 10 Peters's R. 662, 717; and as to set-off, see supra, p. 297. But if the ceded lands have been accompanied with a cession of the jurisdiction, the lands are subject to the laws of Congress, and not to those of the state; and those state laws cannot be permitted to thwart or embarrass the object of the cession by taxes, or by overflowing the land with water, or otherwise, in any degree to conflict with what is required or provided by the general government of the United States, which may punish offences and trespasses, and remove intruders thereon. On the other hand, if Congress have not provided any adequate and exclusive remedy for injuries to public property, then the common law or laws of the states apply. But the United States have jurisdiction over its territory, though the particular lands have not been ceded, inasmuch as the lands are held for special purposes, and are to be protected. (a) 2 Hall's Amer. Law Journal, 255. 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) 1. A still graver question was presented for the consideration of the federal judiciary, in the case of Gibbons v. Ogden, (b)2 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 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. * 433 It had been decided in the Court of Errors of New York, in 1812, (c) that five several statutes of the state, passed between the years 1798 and 1811, inclusive, and granting and securing (a) Mr. Justice Story says, that the measure of a general embargo, indefinite as to time as that laid in 1807, went to the utmost verge of implied constitutional power. Commentaries, vol. iii. p. 163. (b) 9 Wheaton, 1. (c) Livingston v. Van Ingen, 9 Johns. Rep. 507. 1 Under the power to regulate commerce, Congress can exclude, either partially or wholly, anything falling within the legitimate sphere of commercial regulation; and under the power to coin money, and regulate the value thereof, Congress can protect the national coin. The Act of the 3d of March, 1825, (4 Stat. at Large, 121,) for the punishment of persons who shall bring into the United States, with intent to pass, any counterfeit coin, and also for the punishment of any persons who shall pass, &c., such coin, is therefore valid. The United States v. Marigold, 9 How. U. S. 560. 2 State of Pennsylvania v. Wheeling Bridge Co. 13 How. U. S. 518. Where a river in the state of Maine, above tide water, and not navigable, had been improved by an individual to whom the state by law granted exclusive navigation, such law was held to be constitutional. Veazie v. Moore, 14 How. U. S. 568. state, for a term of According to the to the plaintiffs the sole and exclusive right of using and navigating boats by steam, in the waters of the years, were constitutional and valid Acts. 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 steamboat 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 * 434 they might lawfully 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. 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, (a) the defendant set up, by way of right and title to navigate a steamboat 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, (b) that the coasting license merely gave to the steamboat 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. *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. 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 (a) 4 Johns. Ch. Rep. 150. * 435 It 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. * 436 * 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 provision, 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 steamboat navigating under a coasting license. (a) 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, (a) Gibbons v. Ogden, 9 Wheaton, 1. |