upon vessels duly licensed, a right to navigate the navigable waters of the states. One of the states, however, with a view to encourage the reclaiming and improving of low and marshy lands within its jurisdiction, incorporated a company with power to construct a dam across a navigable creek connecting with the ocean. The owner of a vessel duly licensed, broke and injured the dam constructed by the company, asserting his right to navigate the stream by virtue of his license and enrolment agreeably to the act of congress. The question of the validity of the state legislation abridging the rights conferred by the act of congress, was thus presented; and being carried to the Supreme Court of the United States, the state legislation was fully sustained. The same high court, on a previous occasion, considering the question of the constitutionality of state legislation which granted to certain persons a right to the exclusive navigation of its waters, had adjudged the state laws void, so far as they prohibited vessels, duly licensed under the laws of congress, from navigating the waters of the state. These two cases, I regard as sustaining the general propositions above laid down.

The decision in relation to the stoppage of the creek, 218. proceeded on the grounds, that measures calculated to enhance the value of property on the banks of navigable streams, and to probably improve the health of the inhabitants, are, so far as they do not conflict with the constitutional powers of the general government, within those powers which are reserved to the states; that, although the measure authorized by the state may abridge the rights of those who have been accustomed to use such streams, yet this abridgement, unless it comes in conflict with the constitution or a law of the United States, is an affair between the state and its citizens, of which the federal courts can take no cognizance; that congress, in pursuance of the power to regulate commerce, had passed no act the immediate object of which was to control state legislation

1 Wilson v. Blackbird Creek Co., 2 Pet. 245.

2 Gibbons v. Ogden, 9 Wheat. 1.

219. The

over such streams; and that the act of the state empowering the company to place a dam across the creek, was not repugnant to the power to regulate commerce in its dormant state.1 The decision respecting the grant by a state of the exclusive right to navigate its waters, was placed on other grounds. Congress, in pursuance of the power to regulate commerce, had enacted laws, equally affecting the interests of all the states, and securing, and intending to secure, equal privileges of navigation, with which the grant by the state was in direct and open conflict. No state can pass laws interfering with these privileges.

The power to regulate commerce,' though limited by the rule of consti- words, with foreign nations, and among the several states, tutional con- and with the Indian tribes,' is so general in terms, that it struction ne- is difficult to determine its extent by reference merely to cessarily inthe language of the grant; and yet its importance can voked. only be determined when once its extent has been ascertained. A rule or principle of construction must therefore be found outside of the grant. Where shall we find that rule or principle of construction? In the nature and objects of the instrument containing the grant. True; but not all are of one opinion concerning the nature and objects of that instrument. Some regard the instrument as being in the nature of a statutory law prescribed by a power superior to the states-the power of 'the people of the United States' as one political body; although our records prove, as we have formerly shown, that no such political body ever existed; that the only political bodies known in our system, are the several bodies of electors,

1 See the opinion of the court, by Marshall, Ch. J., 2 Pet. 250. It is hardly to be supposed that the insignificance or importance of the stream was a ground of the decision: the stream in question being confessedly a navigable stream, communicating (indirectly) with the ocean, and the right of the licensed owner of the vessel to pursue his accustomed course in sailing up and down the same, being the only question before the court; and the question of the relative importance of navigable streams, being, I imagine, not only a difficult one for a court to decide, but also wholly of extra-judicial cognizance.

2 Sinnot v. Davenport, 22 How. U. S. 227.

* See ? 204.

being the several states. Others view the instrument as a federal compact between the states. The object of the instrument, is conceived and held, by the one of these schools, to be the establishment of a government strictly national, that is, for the people of the whole country as composing a single nation or state; by the other, to be the establishment of a government strictly federal, in the language of the preamble to the instrument, 'for the United States of America.' The powers of the general government are thus construed, by the one school, as co-extensive with the wants of the nation (as one political state), and as subject to such limitations only as are recognized by that government itself; by the other school, as measured and limited by the grants of power contained in the instrument, and as subject, finally, to the action of the states as the original fountains and sources of power. The principle of construction must therefore vary, according as the one or the other of these schools prevails. There also is, as we have seen, another theory; the advocates of which maintain, that though the instrument is a federal compact by and between the states, as co-equal members of the union, yet the object was, to form a common (national or federal) government, as to matters of common importance and equal interest to all the states, without any invasion of the internal right of self-government inherent in each; that, therefore, as to the enumerated powers confided to the general government, the rule of construction is, that 'whatever object of government is confined in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; and whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States.' This is the view which governed the framers of the federal constitution, and which has prevailed with the ablest expounders of that instrument, with the Supreme Court of the United States, and generally with the people at large. It was, as we have 1 1 Ante, ¿ 112.

T

? 220. Extent of the

power.

? 221. State licenses.

seen, recognized and adopted by Chief Justice Marshall, and sanctioned by the court, in the first great case involving the power to regulate commerce. It was never abandoned by that great chief justice, nor by any but political partisans of the one or the other of the two extreme schools.

In accordance with this view, the power of congress to regulate commerce, is restricted to that commerce which concerns more states than one; it does not comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to nor affect other states. This is the key to the whole subject. If, therefore, it extends to places, to navigable rivers or streams, and to all the means and instruments of 'commerce with foreign nations and among the several states,' it extends to such of these objects only as are of general and equal interest to all the states, only to such as concern more states than one; to such matters, in short, as leave to the people of each state, their internal right of self-government in all that peculiarly relates to themselves. True, the power of congress in this particular, cannot stop at the external boundary line of a state: it must stop, nevertheless, at the very threshold of what peculiarly, exclusively and immediately concerns the welfare of the people of a particular state.2

A state cannot, by way of regulating its internal commerce, require importers of foreign goods by the bale or package, to take out a license and pay for the same: because by doing so, it would contravene the provisions of the federal constitution, forbidding the states to lay duties on imports, and granting to congress the power to regulate commerce. But other restrictions such as a state may

1 Marshall, Ch. J. in Gibbons v. Ogden, 9 Wheat. 193.

2 Gilman v. Philadelphia, 3 Wallace, 713; Cooley v. Port Wardens, 12 How. U. S. R. 299.

3 Brown v. State of Maryland, 12 Wheat. 419.

deem reasonable and proper for the regulation of its own internal commerce, it is at liberty to impose. After imported goods have passed from the hands of the wholesale importer into those of the domestic trader, they are liable to state taxation, the same as other property of the citizens of the state;1 and non-importers dealing in imported articles, whether by wholesale or retail, may be required to have a state license, the same as if dealing in domestic goods.'

The control of matters involved in what is indefinitely 8 220. Inand vaguely termed the internal police of a state, is by all ternal police conceded to the state legislatures. Thus a state statute, regulations. requiring that every master of a vessel arriving at one of the ports of the state from a foreign country, or from a port in another state, should, within twenty-four hours, make a written report of the name, age, and last place of settlement of every passenger, was held to be valid, on the ground that it was merely a regulation of the internal police of the state. The court laid down the following as impregnable positions: That a state has the same undeniable, unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the constitution of the United States; that, by virtue of this, it is not only the right, but the bounden and solemn duty of a state, to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to those ends, where the power over the particular subject, or the manner of its exercise, is not surrendered or restrained in the manner just stated; that all these powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive.' But a law of a

1 See 1 Kent's Com. 439 and n.

2 See The License Cases, 5 How. U. S. R. 504 to 609. New York v. Miln, 11 Pet. 102, 138.