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1824. among the States, it becomes necessary to inquire
into the foundation of the right of intercourse Gibbons
among the States, either for the purposes of comOgden.
merce, or residence and travelling. From the declaration of independence, in 1776, until the establishment of the confederation, in 1781, the States were entirely and absolutely sovereign, and foreign to each other, as regarded their respective rights and powers as separate societies of men. During that period, the right of intercourse among them rested solely on the jus commune of nations. By the law of nations, the right of commerce has its foundation in the obligation resting upon all men, mutually to assist each other, and to contribute to the happiness of their fellow creatures. Right on one side, springs from obligation on the other. The right to purchase, springs from the obligation to sell. “ One nation has, therefore, a natural right to purchase of another the things which it wants, and which the other does not need.” The law of nations being only the application of the law of nature, as regulating the rights and obligations of individuals, to nations and sovereign States, this is the foundation of the right of buying. But the right of selling does not impose any obligation on another nation to buy, as that other may not want, and must be the sole judge of its own necessities. It follows, then, that any State has a natural right to purchase of any other the articles which it needs, and to open a commercial intercourse for that purpose; but that every
Vattel, Droit des liens, liv. 1, c. 8. 1. 2. c. 2.
State, being under no obligation to purchase of another, may, at its pleasure, prohibit the introduction of any foreign merchandise. These rights of purchasing are not perfect rights, and of course cannot be enforced by one nation against another; and, being thus imperfect, it depends upon the will ofeach nation, whether it will carry on any commerce with another, or upon what terms and under what regulations. These imperfect rights, like all other imperfect rights between nations, can become perfect only by treaty; the effect of which, is to secure to a nation rights of commerce or intercourse, -which it before enjoyed at the will of another.
The right of travelling, or of entering into and residing in one nation by the citizens or subjects of another, depends on the same principles of international law. But the sovereign may forbid the entrance into his territory, either to foreigners in general, or in particular cases, and under particular circumstances, or as to particular individuals, and for particular purposes. And as he may prohibit the entrance altogether, he may annex what conditions he pleases to the permission to enter. In the absence of any treaty stipulation, and of any prohibitory regulations, the natural right would exist, and might be exercised and enjoyed.
This being the relation subsisting between sovereign States, it follows, that before the confederation, each State enjoyed the right of intercourse with all the others, at the will of those others, both as respects the transit and residence of persons,
a Vattel, l. 2. c. 8. s. 180.
and the iatroduction and sale of property. The confederation was a treaty between sovereign States, and “the better to secure and perpetuate mutual friendship and intercourse among the people of the different States,” stipulated, that the free inhabitants of each State should have “free ingress and egress to and from any other State," and should enjoy in each State “all the privileges of trade and commerce; subject to the same duties, impositions, and restrictions, as the inhabir tants thereof respectively: provided, that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an iobabitant." This article, then, secured the right of passing from one State to another, but gave no new right of commerce as to the introduction of any goods, and not even the right of removing from the State any property purchased in it. The rights of commerce, therefore, as between the States, remained as before, subject to all the municipal laws of the State, except that those laws must be general and impartial in their application. Under the confederation, then, the States retained the whole power of regulating foreign commerce, and that between the States, except as stipulated in the treaty of confederation itself. Under it, all the trade and intercourse between any State and any foreign nation, was carried on by the law of nature and nations alone. All trade between any State and another State, as to the right of importation, &c., was carried on in the same manner. No State could make any freaty of com
merce with a foreign power, or with another 1824. State.
Gibbons The inconveniences resulting from these powers of the States, gave rise to the new constitu- ogded. tion. These inconveniences consisted principally in the impositions and taxes levied on property imported and exported by one State through another. There was no inconvenience as to the right of passing from State to State, as that was secured by the articles of confederation. The constitu : tion applied the remedy to these evils in two ways: (1.) By express prohibitions on the States, in those particulars in which the evils had been most sensibly felt, preventing them from levying any impost or duty of tonnage, without the consent of Congress. (2.) By vesting Congress with a general power to regulate commerce with foreign nations and among the States. The constitution does not profess to give, in terms, the right of ingress and regress for commercial or any other purposes, or the right of transporting articles for trade from one State to another. It only protects the personal rights of the citizens of one State, when within the jurisdiction of another, by securing to them “all the privileges and immunities of a citizen” of that other, which they hold subject to the laws of the State as its own citizens; and it protects their property against any duty to be imposed on its introduction. The right, then, of intercourse with a State, by the subjects of a foreign power, or by the citizens of another State, still rests on the original right, as derived from the law of nations. Suppose there
1824. was no treaty with a foreign power, and no act of
Congress regulating intercourse with that power, Gibbons
but barely a state of peace; that power would Ogden.
enjoy the right of trade and intercourse with NewYork, by the law of nations alone. But that right might be restrained, or regulated, or abolished by the law of New-York alone. Such was the situation of New York before the adoption of the constitution, both as to foreign nations and the other States. The constitution has not abridged the power of the State in this respect. It has only subjected it to the superior power of Congress when actually exercised.
An examination of the acts of Congress on this subject will show,'that, as the constitution has not given the right of intercourse and trade, so neither has Congress, in the exercise of its constitutional powers, by any law, given that right. Here the learned counsel entered into an elaborate examition of the statutes, for the purpose of establishing this position.
It would seem to follow, from this view of the constitution and the acts of Congress, that the right of transit from State to State, by land or water, for commercial or other purposes, is founded on the jus commune of nations; that the constitution does not affect that right, except in specified cases ; and as to all others, leaves the right as before, with a general power in Congress to regulate and control it, so far as it may be connected with commerce ; that the State has the concurrent power also, to regulate and control it, so far as it may be connected with commerce ; that the State has