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1824. powers was, that when power was given, it was
exclusively given.” And Mr. George Masona asks, Gibbons
“ will powers remair to the States, which are not Ogden.
expressly guarded and reserved?” This construction, which was the general foundation of the opposition to the constitution, was strenuously disavowed and reasoned against in the Federalist, and actually produced the 10th article of the amendment. The same doctrine was, nevertheless, mairtained by one of the counsel in the case of Sturges o. Crowninshield. He says, “every power given to the constitution, unless limited, is entire, exclusive and supreme." But the. Court held differently; that the grant of a power to Congress does not imply a prohibition on a State to exercise the same right. And the doctrine is very fully enlarged upon by Mr. Justice Story, in Houston o. Moore. It is also very clearly laid down in the case already cited, by Thompson, J. and by Kent, Ch. J. But the rule is more strongly, and perhaps not less justly, laid down by Judge Tucker, in his edition of Blackstone's Commentaries ;after alluding to the clauses restraining the powers given, he says, “ the sum of all which appears to be, that the powers delegated to the federal government are, in all cases, to receive the
a Virginia Debates, 313.
most strict construction that the instrument will 1824. bear, where the rights of a State, or of the people, either collectively or individually, may be drawn in question.” This rule of construction o must be correct; for the constitution gives nothing to the States or to the people. Their rights existed before it was formed; and are derived from the nature of sovereignty and the principles of freedom. The constitution gides only to the general government, and so far as it operates on State or popular rights, it takes away a portion, wbich it gives to the general government. In respect to extent and range, this delegation of powers ought, perhaps, to be liberally construed; but the States or the people must not be thereby excluded from the exercise of any part of the sovereign or popular rights held by them before the adoption of the constitution, except where that instrument has given it exclusively to the general government. The 10th amendment of the constitution was adopted to secure that construction, and it is conformable to the rules of reason and law, in construing every similar instrument. The truth of this rule has, however, been sometimes controverted, by referring to the power of naturalization as exclusive, and reasoning from that to the others. Naturalization is decided by this Court to be an exclusive power; but it must be 80 CONsidered, not from the grant of it in the 7th article, but from the force and necessary effect of the 2d. sec. of the 4th article. It is, therefore, an exception; -and does not shake the general rule. :
It is of very little importance, whether the power
to regulate commerce be exclusive or concurrent. since this State grant does not, in fact, interfere with any congressional regulation of commerce But as the exclusive nature of that power has been always insisted on, and used as an argument against this grant, it may be right to consider the solidity of the assertion.
The expression, concurrent powers, is objectcd to, as if it implied equality in the rights vested in Congress and the States. It is only a verbal criticism, that it would be more correct if the term used was co-ordinate. · The term, concurrent, is adopted by the Federalist, and has constantly been used to express thosc powers. It is always understood, when so applied, that the exercise by the States must be subordinate, and never can be in collision with that by Congress. It has been said, commerce is an unit; the meaning of that expression does not very clearly appear, nor its force and application to the argument. If it be an unit, the constitution has broken it into fractions, and given to the States the exclusive control of one of the fractions. But further, the regulations relating to that unit, are many and various : some acting on one part, and some on another, and operating on it in different ways. It is with these regulations, that this discussion has to do; and the question still remains, whether some of those regulations may not, subordinately, emanate from the States.
As Congress has no power to regulate the internal commerce of any State, none of its regulations can affect so much of the exclusive grant, ás
restrains vessels which are only used within the States ; nor can it give to any man a permission to carry on any steam boat navigation, which, in its beginning, and ending, and course, is entirely confined within the waters of the State : for instance, between New-York and Albany; on Cayuga lake; on lake Ontario, and the St. Lawrence, from Niagara to Ogdensburg. The only questions can be, as to navigation between foreign countries, or another State and New-York; and even there, the power of Congress could only be extended to fair cases of trading, within the purview of the constitution, and not to the mere transportation of passengers; nor to any colourable pretence of trading, as a cover for carrying passengers, and defeating the grant. This distinction is, in itself, of grer : consequence, and peculiarly applicable to the case before the Court, in which the complainant states, and the defendant admits, the vessels to have been employed in the transportation of passengers. The power given to Congress to regulate commerce with foreign nations, and between the several States, relates to commerce, in the proper acceptation of the term ; “the exchange of one thing for another; the interchange of commodities; trado or traffic.” This is the direct subject of the power; and by force of the auxiliary power, “to make all laws which shall be necessary for carrying into execution the foregoing powers,” Congress hgs passed laws for erecting ports of entry and delivery, for the collection of dutios, regulation of seamen and ships employed in foreign commerce, or that between the States. Ports, duties. seamėn. Vol. IX.
1824. and ships, afford the means of regulating com
merce, and therefore, so far as they are used in Gibbons
such commerce, they come within the powers of Ogden.
Congress. It has an incidental power, indeed, to