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merce is the source from which the right to 1799,' empowering and directing the officers of pass them is derived, cannot be admitted. The the general government to conform to, and asobjects of inspection laws is to improve the sist in the execution of the quarantine and quality of articles produced by the labor of the health laws of a state, proceed, it is said, upon country: to fit them for exportation; or, it may !he idea that these laws are constitutional. It be, for domestic use. They act upon the sub- is undoubtedly true that they do proceed upon ject before it becomes an article of foreign that idea; and the constitutionality of such commerce, or of commerce among the states, laws has never, so far as we are imformed, been and prepared it for that pu ose. They form denied. But they do not imply an acknowla portion of that immense mass of legislation edgement that a state may righifully regulate which embraces everything within the territory commerce with foreign nations, or among the of a state not surrendered to the general gov- states; for they do not imply that such laws ernment; all which can be most advantageous are an exercise of that power, or enacted with ly exercised by the states themselves. Inspec. a view to it. On the contrary, they are treated tion laws, quarantine laws, health laws of as quarantine and health laws, are so denominaevery description, as well as laws for regulating ted in the acts of Congress, and are considered as the internal commerce of a state, and those flowing from the acknowledged power of a which respect turnpike-roads, ferries, &c., are state, to provide for the health of its citizens. component parts of this mass.
But, as it was apparent that some of the proNo direct general power over these objects visions made for this purpose, and in virtue of is granted to Congress; and, consequently, they this power, might *interfere with, and (*206 remain subject to state legislation. If the be affected by the laws of the United States, legislative power of the Union can reach them, made for the regulation of commerce, Congress, it must be for national purposes; it must be in that spirit of harmony and conciliation 204*) where the *power is expressly given for which ought always to characterize the conduct a special purpose, or is clearly incidental to of governments standing in the relation which some power which is expressly given. It is that of the Union and those of the states bear obvious, that the government of the Union, in to each other, has directed its officers to aid in the exercise of its express powers, that, for ex. the execution of these laws; and has, in some ample, of regulating commerce with foreign measure, adapted its own legislation to this obpations and among the states, may use means ject, by making provisions in aid of those of that may also be employed by a state, in the the states. But in making these provisions, exercise of its acknowledged power: that, for the opinion is unequivocally manifested, that example, of regulating commerce within the Congress may control the state laws, so far as state. If Congress license vessels to sail from it may be necessary to control them, for the one port to another, in the same state, the act regulation of commerce. is supposed to be, necessarily, incidental to the The act passed in 1803,? prohibiting the im. power expressly granted to Congress, and im- portation of slaves into any state which shall plies no claim of a direct power to regulate the itself probibit their importation, implies, it is purely internal commerce of a state, or to act said, an admission that the states possessed the directly on its system of police.' So, if a power to exclude or admit them; from which state, in passing laws on subjects acknowledged it is inferred that they possess the same power to be within its control, and with a view to with respect to other articles. those subjects, shall adopt a measure of the
If this inference were correct; if this power same character with one which Congress may was exercised, not under any particular clause adopt, it does not derive its authority from the in the constitution, but in virtue of a general particular power which has been granted, but right over the subject of commerce, to exist as from some other, which remains with the state, long as the constitution itself, it might now be and may be executed by the same means. All ex- exercised. Any state might now import perience shows that the same measures,or meas- African slaves into its own territory. But it is ures scarcely distinguishable from each other, obvious 1 hat the power of the states over this may flow from distinct powers; but this does not subject, previous to the year 1808, constitutes prove that the powers themselves are identical. an exception to the power of *Congress [*207 Although the means used in their execution to regulate commerce, and the exception is exmay sometimes approach each other so nearly pressed in such words as to manifest clearly the as to be confounded, there are other situations intention to continue the pre existing right of in which they are sufficiently distinct to estab- the states to admit or exclude, for a limited lish their individuality.
period. The words are: The migration or imIn our complex system, presenting the rare portation of such persons as any of the states, and difficult scheme of one general government, now existing, shall think proper to admit, shall 205*] whose *action extends over the whole, not be prohibited by the Congress prior to the but which possesses only certain enumerated year 1808.” The whole object of the exception powers, and of numerous state governments. is to preserve the power to those states which which retain and exercise all powers not dele might be disposed to exercise it; and its language gated to the Union, contests respecting power seems to the court to convey this idea unequivmust arise. Were it even otherwise, the ocally. The possession of this particular power, measures taken by the respective governments then, during the time limited in the constituto execute their acknowledged powers, would tion, cannot be admitted to prove the possession often be of the same description, and might, of any other similar power. sometimes, interfere. This, however, does not It ñas been said that the act of August 7th. prove that the one is exercising, or has a right to exercise, the powers of the other.
1.-2 U.S. L., p. 545; 3 U.S. L., p. 126. The acts of Congress, passed in 1796 and 2.-3 U.S. L., p. 529.
1789, acknowledges a concurrent power in the of all others that would perform the same states to regulate the conduct of pilots, and operation on the same thing. That regulation hence is inferred an admission of their concur- is designed for the entire result, applying to rent right with Congress to regulate commerce those parts which remain as they were, as well with foreign nations, and amongst the states. as to those which are altered. It produces a But this inference is not, we think, justified by uniform whole, which is as much disturbed and the fact.
deranged by changing what the regulating Althongh Congress cannot enable a state to power designs to leave untouched, as that on legislate, Congress may adopt the provisions of which it has operated. a state on any subject. When the government There is great force in this argument, and the of the Union was brought into existence, it court is not satisfied that it has been refuted. found a system for the regulation of its pilots Since, however, in exercising the power of in full force in every state. The act which has regulating their own purely internal affairs, been mentioned, adopts this system, and gives it whether *of trading or police, the [*210 the same validty as if its provisions had been states may sometimes enact laws, the validity specially made by Congress. But the act, it of which depends on their interfering with, may be said, is prospective also, and the adop- and being contrary to, an act of Congress 208*) tion of laws to be made *in future, pre- passed in pursuance of the constitution, the supposes the right in the maker to legislate on court will enter upon the inquiry, whether the the subject.
laws of New York, as expounded by the highest The act unquestionably manifests an inten- tribunal of that state, have, in their application tion to leave this subject entirely to the states, to this case, come into collision with an act of until Congress should think proper to inter-Congress, and deprived a citizen of a right to pose; but the very enactment of such a law in which that act entitles him. Should this collisdicates an opinion that it was necessary; that the ion exist, it will be immaterial whether those existing system would not be applicable to the laws were passed in virtue of a concurrent new state of things, unless expressly applied to power “to regulate commerce with foreign it by Congress. But this section is confined to nations and among the several states," or in pilots within the bays, inlets, rivers, harbors, virtue of a power to regulate their domestic and ports of the United States," which are, of trade and police. In one case and the other,
course, in whole or in part, also within the the acts of New York must yield to the law of
edged power of a state to regulate its police, its lege they confer, against a right given by a law
this state of things, and provided for it, by A state, it is said, or even a private citizen, declaring the supremacy not only of itself, but may construct light-houses. But gentlemen of the laws made in pursuance of it. The must be aware, that if this proves a power in a nullity of any act. *inconsistent with [*211 state to regulate commerce, it proves that the the constitution, is produced by the declaration same power is in the citizen. States, or indi- that the constitution is the supreme law. The viduals who own lands, may, if not forbidden appropriate application of that part of the 209*] by law, *erect on those lands what clause which confers the same supremacy on buildings ihey please; but this power is entirely laws and treaties, is to such acts of the state distinct from that of regulating commerce, and legislatures as do not transcend their powers, may, we presume, be restrained, if exercised so but, though enacted in the execution of acas to produce a public mischief.
knowledged state powers, interfere with, or These acts were cited at the bar for the pur- are contrary to the laws of Congress, made in pose of showing an opinion in Congress ihat pursuance of the constitution, or some treaty the states possess, concurrently with the legis made under the authority of the United States. lature of the Union, the power to regulate com- In every such case, the act of Congress, or the merce with foreign nations and among the treaty, is supreme; and the law of the state, states. Upon reviewing them, we think they though enacted in the exercise of powers not do not establish the proposition they were in controverted, must yield to it. tended to prove. They show the opinion that In pursuing this inquiry at the bar, it has the states retain powers enabling them to pass been said that the constitution does not confer the laws to which allusion has been made, not the right of intercourse between state and that those laws proceed from the particular state. That right derives its source from those power which has been delegated to Congress. laws whose authority is acknowledged by
It has been contended by the counsel for the civilized man throughout the world. This is appellant, that, as the word “to regulate” im- true. The constitution found it an existing plies in its nature, full power over the thing to right, and gave to Congress the power to regu be regulated, it excludes, necessarily, the action late it. In the exercise of this power, Congress
has passed "an act for enrolling or licensing give, and operate as effectually, as if they had ships or vessels to be employed in the coasting been inserted in any other part of the act than trade and fisheries, and for regulating the in the license itself. same.” The counsel for the respondent con- The word “ license” means permission, or tend that this act does not give the right to sail authority; and a license to do any particular from port to port, but contines itself to regulat- thing is a permission or authority to do that ing a pre-existing right, so far only as to confer thing; and if granted by a person having certain privileges on enrolled and licensed power to grant it, transfers to the grantee the vessels in its exercise.
right to do whatever it purports to authorize. It will at once occur, that, when a legisla- It certainly transfers to *him all the [*214 212*] ture *attaches certain privileges and right which the grantor can transfer, to do exemptions to the exercise of a right over which what is within the terms of the license. its control is absolute, the law must imply a Would the validity or effect of such an inpower to exercise the right. The privileges strument be questioned by the respondent, if are gone, if the right itself be annihilated. It executed by persons claiming regularly under would be contrary to all reason, and to the the laws of New York? course of human affairs, to say that a state is The license must be understood to be what it unable to strip a vessel of the particular privi: purports to be—a legislative authority to the leges attendant on the exercise of a right, and steamboat Bellona, "to be employed in carryyet may annul the right itself; that the state of ing on the coasting trade, for one year from New York cannot prevent an enrolled and this date." licensed vessel, proceeding from Elizabeth- It has been denied that these words authorize town, in New Jersey, to New York, from a voyage from New Jersey to New York. It is enjoying, in her course, and on her entrance true that no ports are specified; but it is equally into port, all the privileges conferred by the true that the words used are perfectly intelliact of Congress; but can shut her up in her gible, and do confer such authority as unquesown port, and prohibit altogether her entering tionably as if the ports had been mentioned. the waters and ports of another state. To the The coasting trade is a term well understood. court it seems very clear, that the whole act on The law has defined it, and all know its meanthe subject of the coasting trade, according to ing perfectly. The act describes, with great those principles which govern the construction minuteness, the various operations of a vessel of statutes, implies, unequivocally, an authority engaged in it; and it cannot, we think, be to licensed vessels to carry on the coasting doubted, that a voyage from New Jersey to trade.
those operations. But we will proceed briefly to notice those Notwithstanding the decided language of the sections which bear more directly on the license, it has also been maintained that it gives subject.
no right to trade; and that its sole purpose is The first section declares that vessels enrolled to confer the American character. by virtue of a previous law, and certain other The answer given to this argument, that the or vessels enrolled as described in that act, and American character is conferred by the enrollhaving a license in force, as is by the act re- ment, and not by the license, is, we think, quired, “and no others, shall be deemed ships founded too clearly in the words of the law to or vessels of the United States, entitled to the require the support of any additional observaprivileges of ships or vessels employed in the tions. The enrollment of vessels designed for coasting trade."
the coasting trade, corresponds precisely with This section seems to the court to contain a the registration of vessels #designed for [*215 positive enactment, that the vessels it describes the foreign trade, and requires every circum213*] shall *be entitled to the privileges of stance which can constitute the American ships or vessels employed in the coasting trade. character. The license can be granted only to Those privileges cannot be separated from the vessels already enrolled, if they be of the trade, and cannot be enjoyed, unless the trade burden of twenty tons and upwards; and remay be prosecuted. The grant of the privi- quires no circumstance essential to the Amerilege is an idle, empty form, conveying nothing, can character. The object of the license, then, unless it convey ihe right to which the privi- cannot be to ascertain the character of the lege is attached, and in the exercise of which vessel, but to do what it professes to do; that its whole value consists. To construe these is, to give permission to a vessel already proved words otherwise than as entitling the ships or by her enrollment to be American, to carry on vessels described, to carry on the coasting trade, the coasting trade. would be, we think, to disregard the apparent But, if the license be a permit to carry on intent of the act.
the coasting trade, the respondent denies that The fourth section directs the proper officer these boats were engaged in that trade, or that to grant to a vessel qualified to receive it, "a the decree under consideration has restrained license for carrying on the coasting trade;" and them from prosecuting it. The boats of the prescribes its form. After reciting the compli- appellant were, we are told, employed in the ance of the applicant with the previous transportation of passengers; and this is no requisites of the law, the operative words of part of that commerce which Congress may the instrument are, license is hereby granted regulate. for the said steamboat, Bellona, to be employed If, as our whole course of legislation on this in carrying on the coasting trade for one year subject shows, the power of Congress has been from the date hercof, and no longer.”
universally understood in America to compreThese are not the words of the officer; they hend navigation, it is a very persuasive, if not a are the words of the legislature; and convey as conclusive argument, to prove that the conexplicitly the authority the act intended to struction is correct; and, if it be correct, no clear distinction is perceived between the pow-| have attracted the particular attention of gover to regulate vessels employed in transporting ernment. Congress was no longer satisfied men for hire, and property for hire. The with comprehending vessels engaged specially subject is transferred to Congress, and no in this business, within those provisions which exception to the grant can be admitted were intended for vessels generally; and, on the which is not proved by the words or the 2d of March, 1819, passed an act regulating nature of the thing. A coasting vessel em passenger ships and *vessels.” This [*218 ployed in the transportation of passengers, is wise and humane law provides for the safety as much a portion of the American marine as and comfort of passengers, and for the com216*) one employed *in the transportation of munication of everything concerning them a cargo; and no reason is perceived why such which may interest the government, to the Devessel should be withdrawn from the regulating partment of state, but makes no provision conpower of that government, which has been cerning the entry of the vessel, or her conduct thought best fitted for the purpose generally. in the waters of the United States. This, we The provisions of the law respecting native sea- think, shows conclusively the sense of Congress men, and respecting ownership, are as appli- (if, indeed, any evidence to that point could be cable to vessels carrying men as to vessels car- required), that the pre-existing regulations comrying manufacturers; and no reason is perceiv- prehended passenger ships among others; and, ed why the power over the subject should not in prescribing the same duties, the legislature be placed in the same hands. The argument must have considered them as possessing the urged at the bar, rests on the foundation that same rights. the power of Congres does not extend to navi- If, then, it were even true, that the Bellona gation, as a branch of commerce, and can only and the Stoudinger were employed exclusively be applied to that subject incidentally and oc- in the conveyance of passengers between New casionally. But if that foundation be removed, York and New Jersey, it would not follow that we must show some plain, intelligible distinction, this occupation did not constitute a part of the supported by the constitution, or by reason, coasting trade of the United States, and was not for discriminating between the power of Con protected by the license annexed to the answer. gress over vessels employed in navigating the But we cannot perceive how the occupation of same seas. We can perceive no such distinc- these vessels can be drawn into question, in the tion.
case before the court. The laws of New York, If we refer to the constitution, the inference which grant the exclusive privilege set up by to be drawn from it is rather against the dis- the respondent, take no notice of the employtinction. The section which restrains Congress ment of vessels, and relate only to the principle from prohibiting the migration or importation by which they are propelled. Those laws do of such persons as any of the states may think not inquire whether vessels are engaged in proper to admit, until the year 1808, has al- transporting men or merchandise, but whether ways been considered as an exception from the they are moved by steam or wind. If by the power to regulate commerce, and certainly former, the waters of New York are closed seems to class migration with importation. Mi- against them, though their cargoes be dutiable gration applies as appropriately to voluntary, goods, which the laws of the *United [*219 as importation does to involuntary, arrivals; States permit them to enter and deliver in New and, so far as an exception from a power proves York. If by the latter, those waters are free its existence, this section proves that the power to them, though they should carry passengers 217*]to regulate commerce applies equally *to only. In conformity with the law, is the bill the reguiation of vessels employed in transport of the plaintiff in the state court. The bill ing men, who pass from place to place vol- does not complain that the Bellona and the Stouuntarily and to those who pass involuntarily: dinger carry passengers, but that they are
If the power reside in Congress, as a portion moved by steam. This is the injury of which he of the general grant to regulate commerce, then complains, and is the sole injury against the acts applying that power to vessels generally, continuance of which he asks relief. The bill must be construed as comprehending all vessels. does not even allege, specially, that those vesIf none appear to be excluded by the language sels were employed in the transportation of pasof the act, none can be excluded by construc- sengers, but says, generally, that they were em. tion. Vessels have always been employed to a ployed in the transportation of passengers, or greater or less extent in the transportation of otherwise." The answer avers, only, that they passengers, and have never been supposed to were employed in the coasting trade, and inbe, on that account, withdrawn from the consists on the right to carry on any trade authortrol or protection of Congress. Packets which ized by the license. No testimony is taken, and ply along the coast, as well as those which make the writ of injunction and decree restrain these voyages between Europe and America, consid- licensed vessels, not from carrying passengers, er the transportation of passengers as an impor- but from being moved through the waters of tant part of their business. Yet it has never New York by steam, for any purpose whatever. been suspected that the general laws of naviga- The questions, then, whether the conveyance tion did not apply to them.
of passengers be a part of the coasting trade, The duty act, sections twenty-three and for- and whether a vessel can be protected in that ty-six, contains provisions respecting passen- occupation by a coasting license, are not, and gers, and shows that vessels which transport cannot be, raised in this case. The real and them, have the same rights, and must perform sole question seems to be, whether a steam mathe same duties, with other vessels. They are chine, in actual use, deprives a vessel of the governed by the general laws of navigation. privileges conferred by a license.
In the process of things, this seems to have In considering this question, the first idea grown into a particular employment, and to which presents itself, is that the laws of Congress, for the regulation of commerce, do not principles which it was necessary to preserve 220*) look to the *principle by which vessels ! unbroken; and, although some of them were are moved. That subject is left entirely to in- thought nearly self-evident, the magnitude of dividual discretion; and, in that vast and com- the question, the weight of character belonging plex system of legislative enactment con- to those from whose judgment we dissent, and cerning it, which embraces everything that the the argument at the bar, demanded that we legislature thought it necessary to notice, there should assume nothing. is not, we believe, one word respecting the pe- Powerful and ingenious minds, taking, as culiar principle by which vessels are propelled postulates, that the powers expressly granted through the water, except what may be found to the government of the Union are to be conin a single act, granting a particular privilege tracted, by construction, into the narrowest to steamboats. With this exception, every act, possible compass, and that the original powers either prescribing duties, or granting privileges, of the States are retained, if any possible conapplies to every vessel, whether navigated by struction will retain them, may, by a course of the instrumentality of wind or fire, of sails or well digested, but refined and metaphysical machinery. The whole weight of proof, then, reasoning, founded on these premises, explain is thrown upon him who would introduce a away the constitution of our country, and leave distinction to which the words of the law give it a magnificent structure indeed, to look at, no countenance.
but totally unfit for use. They may so entanIf a real difference could be admitted to exist gle and perplex the understanding, as to obbetween vessels carrying passengers and others, scure principles which were before thought it has already been observed that there is no quite plain, and induce doubts where, if the fact in this case which can bring up that ques- mind were to pursue its own course, none tion. And, if the occupation of steamboals be would be perceived. In such a case, it is pecula matter of such general notoriety that the iarly necessary to recur to safe and fundacourt may be presumed to know it, although mental principles to sustain those principles, not specially informed by the record, then we and, when sustained, to make them the tests of deny that the transportation of passengers is the arguments to be examined. their exclusive occupation. It is a matter of general history, that, in our western waters, Mr. Justice JOHNSON. The judgment entered their principal employment is the transportation by the court in this cause has my entire approof merchandise; and all know, that in the wa- bation; but having adopted my conclusions on ters of the Atlantic they are frequently so em- views *of the subject materially differ- [*223 ployed.
ent from those of my brethren, I feel it incumBut all inquiry into this subject seems to the bent on me to exhibit those views. I have, court to be put completely at rest by the act also, another inducement. In questions of great 221*] already *mentioned, entitled, "An act importance and great delicacy, I feel my duty for the enrolling and licensing of steamboats." to the public best discharged by an effort to
This act authorizes a steamboat employed, or maintain my opinions in my own way. intended to be employed, only in a river or bay In attempts to construe the constitution, I of the United States, owned wholly or in part have never found much benefit resulting from by an alien, resident within the United States, the inquiry, whether the whole, or any part of to be enrolled and licensed as if the same be- it, is to be construed strictly, or literally. The longed to a citizen of the United States. simple, classical, precise, yet comprehensive
This act demonstrates the opinion of Con- language in which it is couched, leaves, at gress, that steamboats may be enrolled and most, but very little latitude for construction; licensed, in common with vessels using sails. and when its intent and meaning is discovered, They are, of course, entitled to the same priv. nothing remains but to execute the will of ileges, and can no more be restrained from those who made it, in the best manner to effect navigating waters, and entering ports which the purposes intended. The great and paraare free to such vessels, than if they were mount purpose, was to unite this mass or wafted on their voyage by the winds, instead wealth and power, for the protection of the of being propelled by the agency of fire. The humblest individual; his rights, civil and politione element may be as legitimately used as the cal, his interests and prosperity, are the sole end; other, for every commercial purpose authorized the rest are nothing but the means. But the by the laws of the Union; and the act of a principal of those means, one so essential as to state inhibiting the use of either to any vessel approach nearer the characteristics of an end, having a license under the act of Congress, was the independence and harmony of the states, comes, we think, in direct collision with that act. that they may the better subserve the purposes
As this decides the cause, it is unnecessary to of cherishing and protecting the respective famenter in an examination of that part of the con- ilies of this great republic. stitution which empowers Congress to promote The strong sympathies, rather than the feeble the progress of science and the useful arts. government, which bound the states together
The court is aware that, in stating the train during a common war, dissolved on the return of reasoning by which we have been conducted of peace; and the very principles which gave to this result, much time has been consumed in rise to the war of the revolution, began to the attempt to demonstrate propositions which threaten the *confederacy with anarchy (*224 may have been thought axioms. It is felt that and ruin. The states had resisted a tax imposed the tediousness inseparable from the endeavor by the parent state, and now reluctantly subto prove that which is already clear, is imputa mitted to, or altogether rejected, the moderate 222*] ble to *a considerable part of this opin- demands of the confederation. Everyone recion. But it was unavoidable. The conclusion ollects the painful and threatening discussions to which we have come, depends on a chain of which arose on the subject of the five per cent.