1824.

Gibbons

V.

Ogden.

"Resolved, That it is the opinion of this committee, that the delegates representing this Commonwealth in Congress, be instructed to propose in Congress a recommendation to the States in the Union, to authorize that assembly to regulate their trade on the following principles, and under the following qualifications: 1st. Giving power to Congress to prohibit foreign vessels from entering any port, or to impose duties on them and their cargoes; such duties to be uniform, and carried into the treasury of the State. 2d. That no State be at liberty to impose duties on any goods, wares, or merchandise imported, by land or by water, from any other State; but may altogether prohibit the importation from any State, of any particular species or description of goods, wares or merchandise, of which the importation is, at the same time, prohibited from all other places whatsoever." In each of those proceedings, it was clearly contemplated, that the individual States should at least retain the power of absolutely prohibiting the importation of any article they thought fit, within their own respective limits. How far was this intention subsequently departed from? Where is the power of prohibiting the exportation or importation of any article taken from the States by the constitution? They are indeed qualifiedly restrained from laying imposts or duties on exports or imports, but not from entirely prohibiting their exportation or importation; and they are also restrained from laying any duty on tonnage; and it is, perhaps, the fair construction of the instrument, that even their prohibitory legislation, is

Gibbons

V.

Ogden.

under the control of Congress, as having the pa- 1824. ramount authority to regulate commerce; but valid until Congress shall have made regulations inconsistent with their laws. A review of some of the laws of different States, will show that they have always exercised the power of making very material regulations respecting commerce. This review must be abridged; but it is of, extreme importance, and if it were possible to spread out in detail the immense mass of State laws, regulating and affecting foreign commerce, and that among the States, it would be conclusively seen, that they have always considered themselves as possessing, and have, accordingly, exercised a concurrent power over both those branches of trade; and that the power of Congress cannot be decided to be exclusive, without declaring to be unconstitutional, an appalling body of State legislation.

To begin with the laws respecting slaves. The appellant's counsel has questioned their constitutionality, and called them of doubtful authority. That expression showed he felt their application and important bearing, if their constitationality be admitted; and it has never before been called in question. The constitution most clearly admits the right of the States to legislate on this subject, not merely till 1808, but always, unless Congress should prohibit the trade; and yet, as has been already suggested, slaves are treated in that very paragraph itself, as an article of commerce of trade. Congress, renouncing for a time the paramount right to prohibit their importation, claims the right to lay a tax or duty on it. So also, they

1824.

Gibbons

Y.

Ogden.

are treated as an article of commerce in the laws of Congress; for it is only under the power to regulate foreign commerce, that, before 1808, they could forbid and make penal, the trade by our citizens to foreign nations, and since 1808, prohibit it entirely. In this point of view it was also considered, and the right of the States to prohibit it asserted, in the debates of the Virginia convention. On this article Mr. George Mason observed, "should the government be amended, still this detestable kind of commerce cannot be discontinued till after the expiration of twenty years." To which Mr. Madison, in reply, says, "We are not in a worse situation than before. That traffic is prohibited by our laws, and we may continue the prohibition. The Union, in general, is not in a worse situation. Under the articles of the confederation, it might be continued for ever." And again," "as to the restriction in the clause under consideration, it was a restraint on the exercise of a power expressly delegated to Congress, namely, that of regulating commerce with foreign nations." Mr. George Nicholas also, alluding to both objections, says, "Virginia might continue the prohibition of such importation during the intermediate period." And to obviate the objection, that the restriction of Congress was a proof that they would have power not

a.p. 321. b p. 322. cy. 323. d p. 824.

given to them, he remarked, "that they would only have had a general superintendency of trade, if the restriction had not been inserted. But the southern States insisted on this exception to that general superintendency for twenty years. It could not, therefore, have been a power by implication, as the restriction was an exception to a delegated power." And, finally, Governor Randolph says," "the power respecting the importation of negroes, is an exception from the power given to Congress to regulate commerce." The same doctrine is also maintained in the Federalist. Let us then see the laws that have been made by some of the different States respecting this branch of trade."

ú p. 330.

b No. 42.

c New-York, as well as many other States, prohibited the importation and exportation of slaves before the adoption of the constitution. The first law was passed in February, 1788; (2 Greenleaf, 85.) it prohibits the selling of an imported slave, and the buying of a slave with intent to export him: and subsequent laws have confirmed and increased the probibition of exporting and importing slaves. It may be proper here to observe, as applicable to this, as well as to many other laws of the States respecting commerce, that if, after the adoption of the constitution, the individual States had not a right to make them, they, and all other previously made similar laws, would, by force of that disqualification, have become inoperative.

In 1792, the State of Virginia passed a law prohibiting the importation or selling of imported slaves. (1 Pleasants & Pace's ed. p. 186. sec. 13.) In Delaware, (Laws of Del. ed. of 1797, by S. & J. Adams, p. 942.) un act passed February 3, 1789, enacts, that if any o vner, master, &c. shall fit out, equip, man, or otherwise prepare any ship or vessel, within any port or place in that

1824.

Gibbons

V.

Ogden.

Indeed, Congress itself has recognised and acted on the power of the States to prohibit this trade. The constitution restrained Congress (as

State, or shall cause any vessel to sail from any port or place in that State, for the purpose of carrying on a trade or traffic in slaves, to, or from, or between Europe, Asia, Africa, or America, or any places or countries whatsoever, or of transporting slaves to or from one port or place to another, in any part of the world, such ship, &c. her tackle, &c. shall be forfeited to the State, and shall be liable to be seized and prosecuted by any officer of the customs, by information, &c. And, moreover, every person so fitting out, &c. shall severally forfeit and pay the sum of 500 pounds, one half to the use of the State, the other half to the informer. It further enacts, that if any person shall export, or sell, with intention to export or carry out for sale, any negro or mulatto slave, from that State to Maryland, Virginia, either of the Carolinas, Georgia, or the West Indies, without licen: e or permit of five Justices, &c. he shall pay, for every slave so exported, 100 pounds, and for every attempt so to do, 20 pounds, one half to the use of the State, and one half to the informer. Here is a State law minutely controlling a branch of foreign trade, and of that between the States, and operating explicitly by the. officers of the customs. It was passed, indeed, a few weeks before the present constitution went into operation, but long after it had been accepted by Delaware; at all events, it is referred to, and confirmed, by an act, passed June 24, 1793, (c. 22. p. 1094.) requiring bail as to those offences.

In Pennsylvania, (Bioren's ed. vol. 2. p. 413.) an act was passed, March, 1788, also prohibiting the trade; but, before examining it, let it be remembered, that the first law Congress passed on that subject, was in 1794, and that Pennsylvania had accepted the constitution in December, 1787, which, at the time of passing this act, she had recently studied and discussed. Her legislation, then, was not founded on, and did not rely on, any law of Congress in pari materia. She not only prohibited the exportation and importation of slaves, but, by sec. 5. of that act, prohibits the building, fitting out, &c. of any vessel for the slave trade, or to sail from the port for that trade, under the penalty of forfeiture of the vessel, &c. and 1000 pounds by qui tam.

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