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1824. of State legislation; and, as it is clear, that Con

g ress is to give the general rule, he contended,

that this power of giving the general rule was Ogden.

transferred, by the constitution, from the States
to Congress, to be exercised as that body might
see fit. And, consequently, that all those high
exercises of power, which might be considered as
giving the rule, or establishing the system, in re-
gard to great commercial interests, wera necessa-
rily left with Congress alone. Of this character
he considered monopolies of trade or navigation;
embargoes; the system of navigation laws; the
countervailing laws, as against foreign states ;
and other important enactments respecting our
connexion with such states. It appeared to him .
a most reasonable construction, to say, that in
these respects, the power of Congress is exclu-
sive, from the nature of the power. If it be not
80, where is the limit, orówho shall fix a boundary
for the exercise of the power of the States ? Can
a State grant a monopoly of trade? Can New-
York shut her ports to all but her own citizens ?
Can she refuse admission to ships of particular
nations ? The argument on the other side is,
and must be, that she might do all these things,
until Congress should revoke her enactments.
And this is called concurrent legislation. What
confusion such notions lead to, is obvious enough.
A power in the States to do any thing, and every
thing, in regard to commerce, till Congress shall
undo it, would suppose a state of things, at least
as bad as that which existed before the present
constitution. It is the true wisdom of these go-

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vernments to keep their action as distinct as possible. The general government should not seek to operate where the States can operate with more advantage to the community ; nor should the States encroach on ground, which the public good, as well as the constitution, refers to the exclusive control of Congress.

If the present state of things—these laws of New-York, the laws of Connecticut, and the laws of New Jersey, had been all presented, in the convention of New-York, to the eminent person whose name is on this record, and who acted, on that occasion, so important a part; if he had been told, that, after all he had said in favour of the vew government, anel of its salutary effects on commercial regulations, the time should yet come, when the North River would be shut up by a monopoly from New York; the Sound interdicted by a penal law of Connecticut; reprisals authorized by New-Jersey, against citizens of NewYork; and when one could not cross a ferry, without transhipment; does any one suppose he would have admitted all this, as compatible with the government which he was recommending ?

This doctrine of a general concurrent power in the States, is insidious and dangerous. . If it be admitted, no one can say where it will stop. The States may legislate, it is suid, wherever Congress has not made a plenary exercise, of its power. But who is to judge whether Congress has made this plenary exercise of power? Congress has acted on this power; it has done all that it deemed wise ; and arc the States now to do whatever

VOL. IX.

41

1324. Congress bas left undone? Congress makes such

rules as, in its judgment, the case requires; and Qibbons

those rules, whatever they are, constitute the Ogden.

system.

All useful regulation does not consist in restraint; and that which Congress sees fit to leave free, is a part of its regulation, as much as the rest.

He thought the practice under the constitution sufficiently evinced, that this portion of the commercial power was exclusive in Congress. When, before this instance, have the States granted wonopolies? When, until now, have they interfered with the navigation of the country? The pilot laws, the health laws, or quarantine laws; and various regulations of that class, which have been recognised by Congress, are no arguments to prove, even if they are to be called commercial regulations, (which they are not,) that other regulations, more directly and strictly commercial, are not solely within the power of Congress. There was a singular fallacy, as he humbly ventured to think, in the argument of very learned and most respectable persons, on this subject. That argument alleges, that the States have a concurrent power with Congress, of regulating commerde; and its proof of this position is, that the States have, without any question of their right, passed acts respecting turnpike roads, toll bridges, and ferries. These are declared to be acts of commercial regulation, affecting not only the interior commerce of the State itself, but also commerce between different States. Therefore,

as all these are commercial regulations, and are 182A. yet acknowledged to be rightfully established by a the States, it follows, as is supposed, that the v. States must have a concurrent power to regulate

Ogdon, commerce. .

Now, what was the inevitable consequence of this mode of reasoning? Does it not admit the power of Congress, at once, upon all these minor objects of legislation? If all these be regulations of commerce, within the meaning of the constitution, then, certainly, Congress having a con current power to regulate commerce, may establish ferries, turnpikes, bridges, &c. and provide for all this detail of interior legislation. To sustain the interference of the State, in a high concern of maritime commerce, the argument adopts & principle which acknowledges the right of Congress, over a vast scope of internal legislation, which no one has heretofore supposed to be within its powers. But this is not all; for it is admitted, that when Congress and the States have power : to legislate over the same subject, the power of Congress, when exercised, controls or extinguishes the State power; and, therefore, the consequence would seem to follow, from the argum ment, that all State legislation, over such subjects as have been mentioned, is, at all times, liable to the superior power of Congress; a consequence, which no one-would admit for a moment. The truth was, he thought, that all these things were, in their general character, rather regulations of police than of commerce, in the constitutional understanding of that term. A road, indeed,

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1824. might be a matter of great commercial concern.

In many cases it is so; and when it is so, he Gibbons

thought there was no doubt of the power of Con· Ogden.

gress to make it. But, generally speaking, roads, and bridges, und ferries, though, of course, they affect commerce and intercourse, do not obtain that importance and clevation, as to be deemed commercial regulitions. A reasonable construetion must be given to the constitution; and such construction is as necessary to the just power of the States, as to the authority of Congress. Quarantine laws, for example, may be considered as affecting commerce; yet they are, in their nature, health laws. In England, we speak of the power of regulating commerce, as in Parliament, or the King, as arbiter of commerce; yet the city of

London enacts health laws. Would any one infer . from that circumstance, that the city of London had concurrent power with Parliament or the Crown to regulate commerce ? or, that it might grant a monopoly of the navigation of the Thames? While a health law is reasonable, it is a health law; but if, under colour of it, enactments should be made for other purposes, such enactments might be void.

In the discussion in the New-York Courts, no small reliance was placed on the law of that State prohibiting the importation of slaves, as an example of a commercial regulation, enacted by State authority. That law may or may not be constitutional and valid. It has been referred to generally, but its particular provisions have not

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