*

such process, as being quoad hoc his own process. This * 430 construction has been frequently declared by the courts of the United States, and it comports entirely with the intention of the parties; and upon any other construction the cession would be nugatory and void. Judge Story doubted whether Congress were even at liberty, by the terms of the constitution, to purchase lands with the consent of a state, under any qualification of that consent, which would deprive them of exclusive legislation over the place. The courts of the United States have sole and exclusive jurisdiction over an offence committed within a ceded place, notwithstanding the ordinary reservation of the right to execute civil and criminal process of the state. That was no reservation of any sovereignty or jurisdiction.

Congress, in exercising powers of exclusive legislation over a ceded place or district, unite the powers of general with those of local legislation. The power of local legislation carries with it, as an incident, the right to make that power effectual. Congress exercises that particular local power, like all its other powers, in its high character as the legislature of the Union; and its general power may come in aid of these local powers. It is, therefore, competent for Congress to try and punish an offender for an offence committed within one of those local districts, in a place not within such jurisdiction; or to provide for the pursuit and arrest of a criminal escaping from one of those districts after committing a felony there; or to punish a person for concealing, out of the district, a felony committed within it. All these incidental powers are necessary to the complete execution of the principal power; and the Supreme Court, in Cohens v. Virginia, (a) held, that they were vested in Congress.

It follows, as a consequence, from this doctrine of the federal courts, that state courts cannot take cognizance of any *offences committed within such ceded districts; and, on *431 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. (a) But if, in any case, the United States have not actually purchased, and the state has not, in point

(a) 6 Wheaton, 426-429.

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

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, (b) 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, (c)

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.

The first question that arose upon this part of the constitution

(b) 17 Johns. 225.

(c) 1 Hall's Journal of Jurisprudence, 47. The jurisdiction of the United States over the lands within places ceded by a state was fully and learnedly examined by Mr. Justice Woodbury, in the Circuit Court of the United States in Massachusetts, in October, 1845, in the case of the United Sates v. Ames, 1 Wood. & Minot, 76. It was adjudged, that if the United States own lands in any state, and there be no cession of the jurisdiction, the lex rei sitæ applicable to the land-owners of the state, governs, as to rights and remedies, equally applying to non-residents and citizens, 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 U. S. 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.

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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 432 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 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. (b) 1

A still graver question was presented for the consideration of the federal judiciary, in the case of Gibbons v. Ogden, (c)2 de

(a) 2 Hall's Amer. Law Journal, 255.

(b) 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.

(c) 9 Wheaton, 1.

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

cided 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 pro

pelled by steam, were unconstitutional and void acts, and *433 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.

It had been decided in the Court of Errors of New York, in 1812, (a) that five several statutes of the state, passed between the years 1798 and 1811, inclusive, and granting and securing to the plaintiffs 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 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 commer

(a) Livingston v. Van Ingen, 9 Johns. 507.

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.

cial regulations as Congress might lawfully prescribe; and

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to what extent they might lawfully prescribe them was *434 admitted to be a question within the ultimate cognizance

of the Supreme Court of the United States. The opinion of the court went no further 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 *435 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,

(a) 4 Johns. Ch. 150.

VOL. I.

40

(b) 17 Johns. 488.