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gress has no authority to revoke or annul it. Such an act of Congress, therefore, would be either unconstitutional or supererogatory. The laws of Congress need no non obstante clause. The constitution makes them supreme, when State laws come into opposition to them; so that in these cases there is no question except this, whether there be, or be not, a repugnancy or hostility between the law of Congress and the law of the State. Nor is it at all material, in this view, whether the law of the State be a law regulating commerce, or a law of police, or by whatever other name or character it may be designated. If its provisions be inconsistent with an act of Congress, they are void, so far as that inconsistency extends. The whole argument, therefore, is substantially and effectually given up, when it is admitted, that Congress might, by express terms, abrogate the State grant, or declare that it should not stand in the way of its own legislation; because, such express terms would add nothing to the effect and operation of an act of Congress,

He contended, therefore, upon the whole of this point, that a case of actual collision had been made out, in this case, between the State grant and the act of Congress; and as the act of Congress was entirely unexceptionable, and clearly in pursuance of its constitutional powers, the State grant must yield.

There were other provisions of the constitution of the United States, which had more or less bearing on this question: "No State shall, without the consent of Congress, lay any duty of ton

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1824. nage. Under colour of grants like this, that prohibition might be wholly evaded. This grant authorizes Messrs. Livingston and Fulton to license navigation in the waters of New-York. They, of course, license it on their own terms. They may require a pecuniary consideration, ascertained by the tonnage of the vessel, or in any other manner. Probably, in fact, they govern themselves, in this respect, by the size or tonnage of the vessels, to which they grant licenses. Now, what is this but substantially a tonnage duty, under the law of the State? Or does it make any dif ference, whether the receipts go directly to her own treasury, or to the hands of those to whom she has made the grant?

There was, lastly, that provision of the constitution which gives Congress power to promote the progress of science and the useful arts, by securing to authors and inventors, for a limited time, an exclusive right to their own writings and discoveries. Congress had exercised this power, and made all the provisions which it deemed useful or necessary. The States might, indeed, like munificent individuals, exercise their own bounty towards authors and inventors, at their own discretion. But to confer reward by exclusive grants, even if it were but a part of the use of the writing or invention, was not supposed to be a power properly to be exercised by the States. Much less could they, under the notion of conferring rewards in such cases, grant monopolies, the enjoyment of which should be essentially incompatible with the exercise of rights holden under the laws

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of the United States. He should insist, however, 1824. the less on these points, as they were open to counsel, who would come after him, on the same side, and as he had said so much upon what appeared to him the more important and interesting part of the argument.

Mr. Oakley, for the respondent, stated, that there were some general principles applicable to this subject, which might be assumed, or which had been settled by the decisions of this Court, and which had acquired the force of maxims of political law. Among these was the principle, that the States do not derive their independence and sovereignty from the grant or concession of the British crown, but from their own act in the declaration of independence. By this act, they became "free and independent States," and as such, "have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do." The State of NewYork, having thus become sovereign and independent, formed a constitution, by which the "supreme legislative power" was vested in its Legisláture: and there are no restrictions on that power, which in any manner relate to the present controversy. On the other hand, the constitution of the United States is one of limited and expressly delegated powers, which can only be exercised as granted, or in the cases enumerated." This prin

a M'Culloch v. Maryland, 4 Wheat. Rep. 405. Per Marshall, C. J. Houston v. Moore, 5 Wheat. Rep. 48. Per Story, J

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1824. ciple, which distinguishes the national from the State governments, is derived from the nature of the constitution itself, as being a delegation of power, and not a restriction of power previously possessed; and from the express stipulation in the 10th amendment, that "the powers not delegated to the United States by the constitution, nor prohibited by it to the States, arc reserved to the States respectively, or to the people." The national constitution must, therefore, be construed strictly, as regards the powers expressly granted, and the objects to which those powers are to be applied. As it is a grant of power in derogation of State sovereignty, every portion of power, not granted, must remain in the State Legislature."

These principles are all founded on the doctrine, that a strict rule of construction must be applied, in ascertaining the extent and object of those powers which are expressly delegated. The powers delegated are of two classes: such as are expressly granted, and such as are implied, as "necessary and proper" to carry into execution. the powers expressly enumerated. As to these implied powers, the constitution must be construed liberally, as respects their nature and extent: because the constitution implies that rule, by not undertaking to enumerate these powers, and because the grant of these powers is general and unlimited. But this rule has one exception: When the means of executing any expressly grant

a The Federalist, No. 82. Houston v. Moore, 5 Wheat. Rep. 48. Per Story, J.

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ed power are particularly enumerated, then no other mode of executing that power can be implied or used by Congress, since the constitution itself determines what powers are "necessary and Ogden. proper" in that given case.

These delegated powers, whether express or implied, are, (1.) those which are exclusively vested in the United States; and, (2.) those which are concurrent in the United States and the respective States.

It is perfectly settled, that an affirmative grant of power to the United States does not, of itself, devest the States of a like power." The authorities cited settle this question, and it is no longer open for discussion in this Court.

The powers vested exclusively in Congress are, (1.) Those which are granted in express terms. (2.) Those which are granted to the United States, and expressly prohibited to the States. (3.) Thosc which are exclusive in their nature.

All powers, exclusive in their nature, may be included under two heads: (1.) Those which have their origin in the constitution. and where the object of them did not exist previous to the Union. These may be called strictly national powers. (2.) Those powers which, by other provisions in the constitution, have an effect and operation, when exercised by a State, without or beyond the territorial limits of the State.

a Sturges v. Crowninshield, 4 Wheat. Rep. 193. Per Marshall, C. J. Houston v. Moore, 5 Wheat. Rep. 15. 17. Per Washington, J. Id. 45. Per Johnson, J. Id. 48. Per Story, J.

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