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and practicable rule; it is one which the extent of 1824. our territory would indicate, even if the government were despotic. In China, the Mandarins of provinces must be intrusted with some subordi- Ogden. nate authority, to make commercial regulations adapted to local circumstances. With us, the peculiar nature and principles of our free and federative government, make the existence of such subordinate legislation more prudent and politic. There must be, even in respect to foreign commerce, local interests and details, which cannot well be presented to the view of Congress, and can be, at least, better provided for by the State Legislatures, emanating from the very people to whom they relate. This must have been perceived by the framers of the constitution, and they must have felt the difficulty of designating the limits of what ought to be permitted to State authority. They did not, therefore, attempt the limitation, except in some plain cases, which they marked by restrictions and prohibitions; but they guarded against any practical abuse of the permission, by securing to Congress the paramount and controlling power over the whole matter. This view of the subject is exceedingly strengthened, when we contemplate the probable future increase and extent of this confederacy. The thirteen original States were a band of brothers, who suffered, fought, bled, and triumphed together; they might, perhaps, have safely confided each his separate interest to the general will; but if ever the day should come, when representatives from bevond the Rocky Mountains shall sit in this capi-'

Gibbons

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1824. tol; if ever a numerous and inland delegation shall wield the exclusive power of making regulations for our foreign commerce, without community of interest or knowledge of our local circumstances, the Union will not stand; it cannot stand; it cannot be the ordinance of God or nature, that it should stand. It has been said by very high authority, that the power of Congress to regulate commerce, "sweeps away the whole subject matter." If so, it makes a wreck of State legislation, leaving only a few standing ruins, that mark the extent of the desolation. The position, however, is not correct. A power of regulating commerce is impliedly acknowledged to be in the States, by the 10th section of the 1s article; for that section makes specific limitation: on its exercise by them, which would be unnecessary, if the power were not possessed by them; and tacitly admits (what is true as to all the State powers) that it is possessed in all other matters not expressly restrained. Congress can lay no tax or duty on any articles exported from any State. If the word exports were not in the 10th section, what would be the consequence? that the States, and they only, could lay duties on exports; and as it is, what is the construction? that, although Congress can, under no circumstances, impose a duty on exports, any State can, with the consent of Congress, to any amount; and without asking the consent of Congress, to an amount and extent necessary for executing its inspection laws; possessing, in that respect, a power of regulating external commerce, which is directly withheld from Congress. And

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from whence is derived the power to make inspec- 1824. tion laws, but from the existing and more extensive right of making laws to regulate commerce? It seems, also, that the 9th section of the same article, paragraph 1, in like manner, admits the power to be in the States. The importation of slaves is, and has always been, considered as a branch of commerce; and it is in that point of view only, that Congress has authority to legislate on the subject. When, then, that paragraph speaks of any of the States thinking proper to allow that importation, it surely admits in them a right to permit or prohibit; and thus to legislate on what is undoubtedly a branch of commerce with foreign hations, or among the several States.

Indeed, it seems susceptible of demonstration, that Congress did not intend to ask, nor the States to give to that body, the exclusive power of regulating foreign commerce, or that between the States. In Colvin's edition of the Laws of the United States, we find the proceedings, which led to the formation of the General Convention. The appellant's counsel has selected, as one of these, the representation from New-Jersey, to be found in pages 22, 23. art. 2d. But that can scarcely be said to have led to the convention. It was made in 1778, during the revolutionary war, and to meet objectionable parts of the old articles of confederation. At any rate, it appears from page 25, that the proposed alterations were rejected in Congress. In 1781,' Mr. Witherspoon

a 1st vol.

b Ib. p. 28.

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1824. proposed in Congress a modified change of the power of regulating commerce, which was also negatived. None of the other States made any Ogden. proposition similar to that from New-Jersey, in 1778. The following, more nearly approaching the time of the convention, better shows the extent of what Congress asked, and the States appeared willing to concede." "In Congress, Wednesday, July 13th, 1785. The committee, consisting of Mr. Monroe, Mr. Spaight, Mr. Houston, Mr. Johnson, and Mr. King, to whom was referred the motion of Mr. Monroe, submit the following report: That the 1st paragraph of the 9th of the articles of confederation, be altered, so as to read thus, viz. The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace or war, except in cases mentioned in the 6th article ; of sending and receiving ambassadors; entering into treaties and alliances; of regulating the trade of the States, as well with foreign nations as with each other; and of laying such imposts and duties upon imports and exports, as may be necessary for the purpose. Provided, that the citizens of the States shall, in no instance, be subjected to pay higher imposts or duties than those imposed on the subjects of foreign powers. Provided also, that the legislatire power of the several States, shall not be restrained from prohibiting the importation or exportation of any species of goods or commodities whatsoever,"" This is what the

a 1.L. U. S. p. 49, 50.

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Congress itself asked for and required. The 1824. State of Virginia was among the first to meet its views; and Mr. Madison, in the Legislature of that State, proposed a resolution, which will be found in the same book," as follows:

66

Virginia, to wit: In the House of Delegates, Wednesday, November 30th, 1785."

[Mr. Madison's resolution for empowering Congress to regulate trade.]

"Mr. Alexander White reported, according to order, a resolution agreed to by the committee of the whole house, on Monday last, respecting commerce," &c.

"Whereas the relative situation of the United States has been found, on trial, to require uniformity in their commercial regulations, as the only effectual policy for obtaining, in the ports of foreign nations, a stipulation of privileges reciprocal to those enjoyed by the subjects of such nations in the ports of the United States; for preventing animosities, which cannot fail to arise among the several States, from the interference of partial and separate regulations; and whereas such uniformity can be best concerted and carried into effect by the federal councils, which, having been instituted for the purpose of managing the interests of the States, in cases which cannot so well be provided for by measures individually pursued, ought to be invested with authority in this case, as being within the reason and policy of their institution:

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