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1824

Gibbons

V Ogden.

to derive a legitimate origin from the war making power; but the embargo of 1807 rests for its constitutionality on the power in Congress of providing for the common defence and general welfare of the United States. If, then, the power of entirely prohibiting trade, as a commercial measure, exists in some of the governing powers of those States, and does not exist in Congress, where does it exist? Assuredly in the State Legislatures. If its exercise should ever become void, it will not be because it is contrary to the constitution of the United States, but because it is oppressive to the people it affects to bind; not because it is unconstitutional, but because it is tyrannical.

Congress itself seems to acknowledge that the constitution does not deprive the States of this prohibitory power; for, if it did, as it binds all the citizens of the United States, it would necessarily bind the territorial governments, and all States admitted into the Union subsequent to its adoption. Yet, in the ordinance of the 13th of July, 1787, for the government of the territory of the United States north west of the river Ohio, by art. 4th, for the government of the said territory, and the States which may be formed therein, it is provided, among other matters, that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and for ever free, as well to the inhabitants of the said terri

a 1 L. U. S. p. 475. ed. 1815.

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tory, as to the citizens of the United States, and 1824. those of any other States that may be admitted into the Confederacy, without any tax, impost, or duty thereon.” It is made a fundamental provision

Ogden. of the different acts erecting portions of this territory into States, that their constitutions shall not be repugnant to this ordinance. In the act also for erecting the State of Louisiana, sec. 3. it is enacted, that the convention for making the constitution, shall provide by an ordinance, irrevocable without the consent of the United States, among other things, “that the river Mississippi, and the navigable waters leading into the same, or into the gulf of Mexico, shall be common highways, and for ever free, as well to the inhabitants of the said State, as to the other citizens of the United States, without any tax, duty, impost or toll theretor, imposed by the said Statc.” The same was also done with regard to the States of Mississippi and Missouri. Now, this provision, so studiously introduced into all those new compacts, which Congress had a right to make with new States, as the condition of their admittance into the Union, would be very singular, and very useless, if, by an effect of the Union itself, all navigable waters belonged exclusively to the general government; or if the federal constitution, which each State adopted, contained in itself an equivalent restraint on the States. The appellant's counsel has alluded to and denied a position, stated to have been used by counsel in arguing the case of Livingston 0. Van Ingen, before the Court of Errors, that the Legislature' might, if it thought fit, stop up the mouth of the

1824. Hudson. It is of very little importance to defend

what fell, on that occasion, from counsel, and has Gibbons

not been adopted by the Court; still, the learned Ogden.

counsel may be asked, by what authority the State of Rhode Island has erected a bridge over the Seakonnet branch of Taunton river, essentially impairing, if not destroying, its navigation from the sea, and far below where the tide ebbs and flows? By what authority his native State of New-Hampshire has erected a bridge from Portsmouth over the Piscataqua river? By what authority his adopted State of Massachusetts has built two bridges over Charles river, on its tide waters, one near Boston, and the other higher up? and, by what authority the State of Pennsylvania has built a dam over the Schuylkill, near Philadelphia, and three miles below where the tide uşed previously to ebb and flow?

There, however, is, in faet, no regulation of commerce, made by Congress, with which this exclusive right does or can interfere. What is that degree or kind of interference, which is sufficient to invalidate a State law?

The Federalist,“ discussing the cases where powers are exclusively delegated to the United States, makes one of the classes, (and, perhaps, unnecessarily, if not incorrectly,) where the constitution granted an authority to the Union, to which a similar authority in the States would be, absolutely and totally, contradictory and repugnant ; and then goes on: "I use these terms to distinguish this last case from another, which might ap

a The Federalist, No. 32.

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V.

pear to resemble it; but which would, in fact, be 1824. essentially different: I mean, where the exercise of a concurrent jurisdiction might be productive

Ogden. of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy, in point of constitutional authority.” And again : “It is not, however, a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can, by implication, alienate and extinguish a pre-existing right of sovereignty.”

That the third class of cases, as arranged by the Federalist, is unnecessary in its application to any of the powers, and that it is derived from an erroneous potion, as to the possibility of repugnancy and its consequences, seems to follow, from the principles laid down by Thompson, J. in Livingston o. Van Ingen.“ “ There are subjects upon which the United States and the individual States must, of necessity, have concurrent jurisdiction ; and all fears and apprehensions of collision in the exercise of these powers, which have been urged in argument, are u. :yunded. The constitution has guarded against such an event, by providing that the laws of the United States shall be the supreme lars of the land, any thing in the constitution of any State to the contrary notwithstanding. In case of collision, therefore, the State laws must yield to the superior authority of the United States.' The same doctrine is very ably maintained by Kent, Ch. J.' who gives, as a safe rule of construc

a 9 Johns. Rep. p. 568.
69 Johns. Rep. p. 575, 576.
VOL. IX.

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1824. tion and of action, “that if any given power was Gibbons originally dested in this State, if it has not been

exclusively ceded to Congress, or if the exercise of Ogden.

it has not been probibited to the States, we may then go on in the exercise of the power, until it comes practically in collision with the actual exercise of some congressional power. When that happens to be the case, the State authority will so far be controlled; but it will still be good in all those respects, in which it does not absolutely contravene the provision of the paramount law.

The same doctrine is very briefly, but very clearly laid down, by Mr. Ch. J. Marshall, in the case of Sturges v. Crownínshield :* “ It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the States.” In Houston v. Moore,' Mr. J. Story, however, adopts the arrangement of the Federalist, and goes on : "In all other cases, not falling within the classes already mentioned, it seems unquestionable, that the States retain concurrent authority with Congress, not only upon the letter and spirit of the 11th amendment of the constitution, but upon the soundest principles of general reasoning. There is this reserve, however, that in cases of concurrent authority, where the laws of the States and of the Union are in direct and manifest collision on the same subject, those of the Union, being the supreme law of the land, are of paramount authority; and the State

a 4 Wheat. Rep. 16.
b5 Wheat. Rep. 49.

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