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result from transporting the produce of Canada, 1824. or other States, to New-York, principally for exportation and foreign trade; and bearing back, in return, the products of foreign commerce to those
Ogden. places. They are, then, instruments of foreign commerce, and of that among the States; and mere channels of communication between navigable waters, or different States. Now, where a power is given to Congress, all the means which are appropriate and plainly adapted to the execution of that power, are also given.“ It is contended, that it belongs exclusively to Congress to regulate the navigation and vessels that are the medium of foreign trade, and that between the States; this commerce is an unit, and cannot be divided; the navigable waters belong to the general government, and not to the States ; no State has a right to collect revenue from foreign trade, or that between the States. If these positions be considered together, what becomes of the State control over our canals, the craft on them, or the tolls from them ? the pier at Black Rock, or the basin at Albany? If the power of Congress over commerce be exclusive, it must also have exclusive con-, trol over the means of carrying it on.
No. State, then, should be mad enough to make another ca. nal, susceptible of being used for intercourse between the States, or foreign commerce.
But there is no grant in the constitution giving the navigable waters peculiarly to the Federal go
a United States v. Fisher, 2 Cranch, 358. M‘Culloch v. Maryland, 4 Wheat. Rep. 316
1894. vernment, and not to the States within which they
may be ; nor is it traced to any grant, but to some Gun
mystical consequence of the Union itself. The position is entirely denied, and mèt by another, of which the strictest examination is solicited. It is this : the Federal government can do no act on the navigable waters within the limits of the Una ted States, which, or a corresponding act to rohich, it cannot do on the land, within the same limite. If it can, let the act be named. Thon the navigable waters belong no more to the Federal government, and are no otherwise affected by the Union, than the land itself. Both are equally subject to the jurisdiction of the general govemment, for the exercise of all powers delegated to it by the constitution, and both equally subject to State jurisdiction, for the exeroine of all powers connected with State sovereignty. It is said, shat admiralty and maritime jurisdiction belong exclusively to the Federal government ; but this Court bas decided, that the grant to the United States in the constitution, of all cases of admiralty and maritime jurisdiction, does not extend to a cession of the waters in which those cases may arise, or of generál jurisdiction over the same; and that the goneral jurisdiction over the place, subject to this grant, adheres to the territory as a portion not yet . given away ; and that the residuary powers of legislation still remain in the State. Besides, admiralty and maritime jurisdiction depends either on the place where the act is done, or the nature of
" lnited States v. Bevans, 3 Wheat. Rep. 386.
the act itself. The place gives no jurisdiction, 1824. where the navigable waters in wbich the tide ebbs
Gibbons and flows are within the body of a county or a
Ogdon State, or of two States. Accordingly, the laws giving jurisdiction of crimes to the District and Circuit Courts, confine it to “plaçes out of the ju risdiction of any particular State.” If the Admi, ralty Court has cognisance of any matter done on navigable waters within a State, it is derived, not from the locus, but from the causa litis, which gives jurisdiction, though it should arise on land : for instance, seamen's wages, founded on shipping articles made on land, have always, and charter parties and policies of insurance, bave lately, been held to be of admiralty jurisdiction.
But, it is further said, to prove the exclusive control of the general government over those navigable waters, that they are regarded and treated as the high seas, since this admiralty and mari. time jurisdiction includes "all seizures under lawa of impost, navigation or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels, of ten or more tons burthen, within their respective districts, as well as upon the high seas." The seizures alluded to, are for breaches of commercial laws, coming under the constitutional powers of Congress, and the authority of the United States over the place, on that-account, is equal, whether the of
a 4 Inst. 137, 138, 139, 140. 12 Co. 129. Moor, 122. 891, 892.
b. De Lorio v. Boit, 2 Gallis. Rep. 308.
1824. fence be committed on land or water; and the
very next sentence gives to the same District Gibbons
Court “exclusive original cognisance of all seiOgden.
zures on land, or other waters, than as aforesaid made.” In fact, analogous provisions for regulating foreign commerce by land, are made by the act of the 2d of March, 1821, “further to regulate the entry of merchandise imported into the United States from any adjacent territory.” It directs every conductor of any carriage or sleigh, and every other person coming from any adjacent foreign territory into the United States, with morchandise subject to duty, immediately on arrival within the United States, to deliver a manifest, &c. at the office of the nearest Collector, or Deputy Collector, to be verified on oath; for noncompliance, the carriage or sleigh shall be forfeited. The duties to be paid or secured by bonds; and all penalties and forfeitures to be sued for and recovered in the manner prescribed by the general collection law. Clearly, then, Congress has no more power over the navigable waters, than over the land; nor over the ships, than it has over the carriages and sleighs engaged in the same kind of commerce. It might register, enrol and license the latter, if it thought fit, as well as ships. Nor is there any greater control acquired by the general government, in virtue of the existence of the Union, over navigable waters or shipping, than over land and land carriages. The power it possesses as to ships or vessels, is only in so far as they are instruments of foreign commerce, or of that between the different States; but in so far
as the employment of a ship or vessel in naviga- 1824. ting the waters of any State or States, has no con
Gibbons nexion with the commerce which Congress has
Ogdent power to regulate; neither that employment, nor its regulation or prohibition, falls within the purview of the federal constitution. It could
I think, be seriously contended, that Congress can regulate the carrying of passengers from any part of the Union, who are travelling to Balston, Saratoga, or any other place, for health or pleasure; and even if the object of their passing were to trade, that would not legalize the interference of Congress as to the mode of their conveyance from place to place. That naturally falls within the sphere of State legislation ; and we must keep in memory the rule of construction laid down by Judge Tucker, and already cited, “that the powers delegated to the federal government are, in all cases, to receive the most strict construction that the instrụment will bear, where the rights of a State or of the people, either collectively or individually, may be drawn in question.” Those who contend, that navigating by steam boats between different States, falls within the powers of Congress, must admit that it would have the power to prohibit the carrying of goods, wares or merchandise in a steam boat from any foreign place, or different State, to another. Now, would Congress have the power to prohibit the carrying of passengers in steam boats from Norfolk or Elizabethtown Point to New York ? Certainly such a power could not be contended for; and why not?