Gibbons Ogden. principle of interpretation, that where a general 1824. power is given, but not in exclusive terms, and the States are restrained, in express terms, from exercising that power in particular cases, that in all other cases, the power remains in the States as a concurrent power. Thus, the commentators on the constitution, speaking of the taxing power, say, "this restriction implies an admission that, if it were not inserted, the States would possess the power it excludes. And it implies a further admission, that, as to all other taxes, the authority of the States remains undiminished." And, again: "In all cases in which the restriction does not apply, the States would have a concurrent power with the Union." This doctrine applies precisely to the power to regulate commerce. Laying imposts or duties of tonnage, is a part of the power to regulate commerce; and the making of a compact or agreement with other States or nations, is the only method by which a State could make any commercial regulation, which, as it regards its own citizens, would operate beyond its territorial limits. These restrictions imply, that the general power to regulate commerce, is concurrently in the States, and that it may be exercised by the States in air cases to which these prohibitions do not extend. But, the Same implication is still stronger rom the nature ano terms of those prohibitory clauses. The State may lay duties on imports and exports, to execute its inspection laws. That class of laws a The Federalist, No. 32. 1824. Gibbons V. are, or may be, essential regulations of commerce, and they derive their authority altogether from State power. The existence of a power to pass Ogden. them, is, therefore, expressly recognised by the constitution. So, also, a State may lay any duty upon imports or exports, or of tonnage, with the consent of Congress. This provision implies, that the power to lay all duties remains essentially in the States; that the exercise of the power is suspended, until Congress consent; and that, when the consent is given, the State law acts of itself, and by State authority alone. The States no where derive any powers from the constitution. All its provisions are in restraint of their authority, and the consent of Congress, in this instance only removes the restraint. A State may not enter into any treaty; but, with the consent of Congress, may enter into an agreement or compact with another State, or with a foreign power. A treaty is made with a view to the public welfare, either in perpetuity, or for a considerable length of time, and binds the whole Union. A compact or agreement is generally temporary in its nature and operation, and is executed by a single act, and binds only the State that makes it. In this sense the constitution must be understood, when it speaks of treaties as distinguished from compacts. It follows, that general and permanent commercial regulations with foreign powers, must be made by treaty, but that particular and temporary regulations of commerce may be made by an agreement of a State with another, or with a foreign power, by the consent of Congress. But, in this case, the compact would derive all its efficacy from the original inherent power of the State, not from the act of consent by Congress, which would merely remove an existing restraint. There is nothing in the nature of this power, which renders it exclusive in Congress. The power itself does not grow out of the Union, like the power "to borrow money on the credit of the United States." It does not operate, when exercised by a State beyond its territorial limits, like the power of naturalization. There is no necessary repugnancy between the acts of the two governments under this power, since it clearly admits of a great variety of regulations, which may operate together, without direct interference. The restraints specially imposed on the power of the State, relating to commerce, would have been unnecessary, if it were not considered as a concurrent power. The practice of the States shows that the power has always been considered as concurrent. Thus, the State of New-York has passed numerous laws, which are regulations of commerce with foreign nations, with other States, and with the Indian tribes." As to that part of the power, which relates to trade with the Indian tribes, the people here referred to may be within the limits of a State. Thus, the commentators on the constitution consider it in that light, and contrast the power with that relating to the same subject in the a These laws will be found specifically enumerated and stated in a note to Mr. Emmett's argument. 1824. Gibbons V. Ogden. Gibbons V. Ogden. 1824. old confederation, which was qualified so as “not to infringe the legislative rights of any State within its own limits." Thus, Congress has legislated on that basis. By the act to regulate trade and intercourse with the Indian tribes, it is provided, s. 19, "that nothing contained in the act shall be so construed as to prevent any trade with Indians, on lands surrounded by settlements of citizens, and being within the ordinary jurisdiction of any of the individual States." But the State of NewYork has also legislated on the same subject, and by the "act relative to the different tribes and nations of Indians within this State," prohibits the purchase of land from any Indian, without the authority of the Legislature; prohibits the sale of various articles to any Indian or tribe; makes numerous other regulations, as to trade and intercourse with them, by the citizens who surround them, so as to cover the whole ground over which Congress has declared its act should not extend. An examinatien of the laws of other States, will show that many of them have legislated, under every part of this power, to the same extent, and, in some cases, to a greater extent than New-York; and will show the havoc which must be made in the State laws, if tais power is not to be considered concurrent. This power is not only concurrent, but is limited in Congress. It does not extend to the regulation of the internal commerce of any State. This results from the terms used in the grant of power, a The Federalist Ne. 12. Gibbons Ogden. "among the several States." the several States." It results also from 1824. the effects of a contrary doctrine. on the whole mass of State power. Internal commerce must be that which is wholly carried on within the limits of a State: as where the commencement, -progress, and termination of the voyage, are wholly confined to the territory of the State. This branch of power includes a vast range of State legislation, such as turnpike roads, toll bridges, exclusive rights to run stage wagons, auction li- · censes, licenses to retailers, and to hawkers and pedlers, ferries over navigable rivers and lakes, and all exclusive rights to carry goods and passengers, by land or water. All such laws must necessarily affect, to a great extent, the foreign trade, and that between the States, as well as the trade among the citizens of the same State. But, although these laws do thus affect trade and commerce with other States, Congress cannot interfere, as its power does not reach the regulation of internal trade, which resides exclusively in the States. It has thus been seen, that this power is concurrent; and as such, may be exercised by the States, subject, like all other concurrent powers, to the power of Congress, when actually exercised; and that it is limited, not extending to the internal trade of a State. We contend, that the exclusive right elaimed by the respondent is valid, considered either as a regulation of intercourse and trade among the several States, or as: a regulation of the internal navigation of the State, Considering it then, as a regulatcin of trade VOL. IX. 9 |