is a power which, in its own nature, is capable that it is considered as a branch of the taxing of residing in, and being exercised by, differ- power. It is so treated in the first clause of ent authorities at the same time. We are ac- the 8th section: Congress shall have power customed to see it placed, for different purpos- to lay and collect taxes, duties, imposts and exes, in different hands. Taxation is the simple cises;" and, before commerce is mentioned, the operation of taking small portions from a per- rule by which the exercise of this power must petually accumulating mass, susceptible of al- be governed is declared. It is, that all duties, most infinite division; and a power in one to imposts and excises shall be uniform. In a take what is necessary for certain purposes, is separate clause of the enumeration, the power not, in its nature, incompatible with a power in to regulate commerce is given, as being enanother to take what is necessary for other pur- tirely distinct from the right to levy taxes and poses. Congress is authorized to lay and col- imposts, and as being a new power, not before lect taxes, &c., to pay the debts, and provide conferred. The constitution, then, considers for the common defense and general welfare of these powers as substantive and distinct from the United States. This does not interfere with each other; and so places them in the enumerathe power of the states to tax for the support tion it contains. The power of imposing duties of their own governments; nor is the exercise on imports is classed with the power to levy of that power by the states an exercise of any taxes, and that seems to be its natural place. portion of the power that is granted to the But the power to levy taxes could never be United States. In imposing taxes for state considered as abridging the right of the states purposes, they are not doing what Congress is on that subject; and they might, consequently, empowered to do. Congress is not empowered have exercised it by levying duties on imports to tax for those purposes which are within the or exports, had the constitution contained no exclusive province of the states. When, then, prohibition on this subject. This prohibition, each government exercises the power of taxa- then, is an exception from the acknowledged tion, neither is exercising the power of the oth- power of the states to levy taxes, not [*202 But, when a state proceeds to regulate from the questionable power to regulate comcommerce with foreign nations, or among the merce. several states, it is exercising the very power 200*] that is granted to Congress, and is doing the very thing which Congress is authorized to do. There is no analogy, then, between the power of taxation and the power of regulating commerce.

er.

In discussing the question, whether this power is still in the states, in the case under consideration, we may dismiss from it the inquiry, whether it is surrendered by the mere grant to Congress, or is retained until Congress shall exercise the power. We may dismiss that inquiry, because it has been exercised, and the regulations which Congress deemed it proper to make, are now in full operation. The sole question is, can a state regulate commerce with foreign nations and among the states, while Congress is regulating it?

The counsel for the respondent answer this question in the affirmative, and rely very much on the restrictions in the tenth section, as supporting their opinion. They say, very truly, that limitations of a power furnish a strong argument in favor of the existence of that power, and that the section which prohibits the states from laying duties on imports or exports, proves that this power might have been exercised, had it not been expressly forbidden; and, consequently, that any other commercial regulation, not expressly forbidden, to which the original power of the state was competent, may still be made.

That this restriction shows the opinion of the convention, that a state might impose duties on exports and imports, if not expressly forbidden, will be conceded; but that it follows as 201*] a consequence, *from this concession, that a state may regulate commerce, with foreign nations and among the states, cannot be admitted.

We must first determine whether the act of laying duties or imposts on imports or exports" is considered in the constitution as a branch of the taxing power, or of the power to regulate commerce. We think it very clear

A duty of tonnage" is as much a tax as a duty on imports or exports; and the reason which induced the prohibition of those taxes, extends to this also. This tax may be imposed by a state, with the consent of Congress; and it may be admitted that Congress cannot give a right to a state. in virtue of its own powers. But a duty of tonnage being part of the power of imposing taxes, its prohibition may certainly be made to depend on Congress, without af fording any implication respecting a power to regulate commerce, It is true, that duties may often be, and in fact often are, imposed on tonnage, with a view to the regulation of commerce; but they may be also imposed with a view to revenue; and it was, therefore, a prudent precaution to prohibit the states from exercising this power. The idea that the same measure might, according to circumstances, be arranged with different classes of power, was no novelty to the framers of our constitution. Those illustrious statesmen and patriots had been, many of them, deeply engaged in the discussion which preceded the war of our revolution, and all of them were well read in those discussions. The right to regulate commerce, even by the imposition of duties, was not controverted; but the right to impose a duty for the purpose of revenue, produced a war as important, perhaps, in its consequences to the human race, as any the world has ever witnessed.

These restrictions, then, are on the taxing power, *not on that to regulate com- [*203 merce; and presuppose. the existence of that which they restrain, not of that which they do not purport to restrain.

But the inspection laws are said to be regulations of commerce, and are certainly recognized in the constitution, as being passed in the exercise of a power remaining with the states.

That inspection laws may have a remote and considerable influence on commerce, will not be denied; but that a power to regulate com

merce is the source from which the right to| 1799,1 empowering and directing the officers of pass them is derived, cannot be admitted. The the general government to conform to, and asobjects of inspection laws is to improve the sist in the execution of the quarantine and quality of articles produced by the labor of the health laws of a state, proceed, it is said, upon country to fit them for exportation; or, it may the idea that these laws are constitutional. It be, for domestic use. They act upon the sub- is undoubtedly true that they do proceed upon ject before it becomes an article of foreign that idea; and the constitutionality of such commerce, or of commerce among the states, laws has never, so far as we are imformed, been and prepared it for that purpose. They form denied. But they do not imply an acknowla portion of that immense mass of legislation edgement that a state may rightfully regulate which embraces everything within the territory commerce with foreign nations, or among the of a state not surrendered to the general gov states; for they do not imply that such laws ernment; all which can be most advantageous- are an exercise of that power, or enacted with ly exercised by the states themselves. Inspec a view to it. On the contrary, they are treated tion laws, quarantine laws, health laws of as quarantine and health laws, are so denominaevery description, as well as laws for regulating ted in the acts of Congress, and are considered as the internal commerce of a state, and those flowing from the acknowledged power of a which respect turnpike-roads, ferries, &c., are state, to provide for the health of its citizens. component parts of this mass. But, as it was apparent that some of the provisions made for this purpose, and in virtue of this power, might interfere with, and [*206 be affected by the laws of the United States, made for the regulation of commerce, Congress, in that spirit of harmony and conciliation which ought always to characterize the conduct of governments standing in the relation which that of the Union and those of the states bear to each other, has directed its officers to aid in the execution of these laws; and has, in some measure, adapted its own legislation to this object, by making provisions in aid of those of the states. But in making these provisions, the opinion is unequivocally manifested, that Congress may control the state laws, so far as it may be necessary to control them, for the regulation of commerce.

No direct general power over these objects is granted to Congress; and, consequently, they remain subject to state legislation. If the legislative power of the Union can reach them, it must be for national purposes; it must be 204*] where the *power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given. It is obvious, that the government of the Union, in the exercise of its express powers, that, for example, of regulating commerce with foreign nations and among the states, may use means that may also be employed by a state, in the exercise of its acknowledged power: that, for example, of regulating commerce within the state. If Congress license vessels to sail from one port to another, in the same state, the act is supposed to be, necessarily, incidental to the power expressly granted to Congress, and implies no claim of a direct power to regulate the purely internal commerce of a state, or to act directly on its system of police. So, if a state, in passing laws on subjects acknowledged to be within its control, and with a view to those subjects, shall adopt a measure of the same character with one which Congress may adopt, it does not derive its authority from the particular power which has been granted, but from some other, which remains with the state, and may be executed by the same means. All experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers themselves are identical. Although the means used in their execution may sometimes approach each other so nearly as to be confounded, there are other situations in which they are sufficiently distinct to establish their individuality.

In our complex system, presenting the rare and difficult scheme of one general government, 205*] whose *action extends over the whole, but which possesses only certain enumerated powers, and of numerous state governments, which retain and exercise all powers not delegated to the Union, contests respecting power must arise. Were it even otherwise, the measures taken by the respective governments to execute their acknowledged powers, would often be of the same description, and might, sometimes, interfere. This, however, does not prove that the one is exercising, or has a right to exercise, the powers of the other.

The acts of Congress, passed in 1796 and

The act passed in 1803,2 prohibiting the importation of slaves into any state which shall itself prohibit their importation, implies, it is said, an admission that the states possessed the power to exclude or admit them; from which it is inferred that they possess the same power with respect to other articles.

If this inference were correct; if this power was exercised, not under any particular clause in the constitution, but in virtue of a general right over the subject of commerce, to exist as long as the constitution itself, it might now be exercised. Any state might now import African slaves into its own territory. But it is obvious that the power of the states over this subject, previous to the year 1808, constitutes an exception to the power of *Congress [*207 to regulate commerce, and the exception is expressed in such words as to manifest clearly the intention to continue the pre existing right of the states to admit or exclude, for a limited period. The words are: The migration or importation of such persons as any of the states, now existing, shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808." The whole object of the exception is to preserve the power to those states which might be disposed to exercise it; and its language seems to the court to convey this idea unequivocally. The possession of this particular power, then, during the time limited in the constitution, cannot be admitted to prove the possession of any other similar power.

It has been said that the act of August 7th,

1.-2 U. S. L., p. 545; 3 U. S. L., p. 126.
2.-3 U. S. L., p. 529.

1789, acknowledges a concurrent power in the states to regulate the conduct of pilots, and hence is inferred an admission of their concurrent right with Congress to regulate commerce with foreign nations, and amongst the states. But this inference is not, we think, justified by the fact.

Although Congress cannot enable a state to legislate, Congress may adopt the provisions of a state on any subject. When the government of the Union was brought into existence, it found a system for the regulation of its pilots in full force in every state. The act which has been mentioned, adopts this system, and gives it the same validty as if its provisions had been specially made by Congress. But the act, it may be said, is prospective also, and the adop208*] tion of laws to be made in future, presupposes the right in the maker to legislate on the subject.

of all others that would perform the same
operation on the same thing. That regulation
is designed for the entire result, applying to
those parts which remain as they were, as well
as to those which are altered. It produces a
uniform whole, which is as much disturbed and
deranged by changing what the regulating
power designs to leave untouched, as that on
which it has operated.

There is great force in this argument, and the
court is not satisfied that it has been refuted.
Since, however, in exercising the power of
regulating their own purely internal affairs,
whether of trading or police, the [*210
states may sometimes enact laws, the validity
of which depends on their interfering with,
and being contrary to, an act of Congress
passed in pursuance of the constitution, the
court will enter upon the inquiry, whether the
laws of New York, as expounded by the highest
tribunal of that state, have, in their application
to this case, come into collision with an act of
Congress, and deprived a citizen of a right to
which that act entitles him. Should this collis-
ion exist, it will be immaterial whether those
laws were passed in virtue of a concurrent
power "to regulate commerce with foreign
nations and among the several states," or in
virtue of a power to regulate their domestic
trade and police. In one case and the other,
the acts of New York must yield to the law of
Congress; and the decision sustaining the privi-
lege they confer, against a right given by a law
of the Union, must be erroneous.

The act unquestionably manifests an intention to leave this subject entirely to the states, until Congress should think proper to interpose; but the very enactment of such a law indicates an opinion that it was necessary; that the existing system would not be applicable to the new state of things, unless expressly applied to it by Congress. But this section is confined to pilots within the bays, inlets, rivers, harbors, and ports of the United States," which are, of course, in whole or in part, also within the limits of some particular state. The acknowledged power of a state to regulate its police, its domestic trade, and to govern its own citizens, may enable it to legislate on this subject to a This opinion has been frequently expressed considerable extent; and the adoption of its in this court, and is founded as well on the system by Congress, and the application of it nature of the government as on the words of to the whole subject of commerce, does not the constitution. In argument, however, it seem to the court to imply a right in the states has been contended that if a law, passed by a so to apply it of their own authority. But the state in the exercise of its acknowledged adoption of the state system being temporary, sovereignty, comes into conflict with a law being only "until further legislative provision passed by Congress in pursuance of the constishall be made by Congress," shows, conclusive-tution, they affect the subject, and each other, ly, an opinion that Congress could control the whole subject, and might adopt the system of the states, or provide one of its own.

A state, it is said, or even a private citizen, may construct light-houses. But gentlemen must be aware, that if this proves a power in a state to regulate commerce, it proves that the same power is in the citizen. States, or individuals who own lands, may, if not forbidden 209*] by law, *erect on those lands what buildings they please; but this power is entirely distinct from that of regulating commerce, and may, we presume, be restrained, if exercised so as to produce a public mischief.

like equal opposing powers.

But the framers of our constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of any act, *inconsistent with [*211 the constitution, is produced by the declaration that the constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the state legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged state powers, interfere with, or These acts were cited at the bar for the pur- are contrary to the laws of Congress, made in pose of showing an opinion in Congress that pursuance of the constitution, or some treaty the states possess, concurrently with the legis-made under the authority of the United States. lature of the Union, the power to regulate commerce with foreign nations and among the states. Upon reviewing them, we think they do not establish the proposition they were intended to prove. They show the opinion that the states retain powers enabling them to pass the laws to which allusion has been made, not that those laws proceed from the particular power which has been delegated to Congress.

It has been contended by the counsel for the appellant, that, as the word "to regulate" implies in its nature, full power over the thing to be regulated, it excludes, necessarily, the action

In every such case, the act of Congress, or the
treaty, is supreme; and the law of the state,
though enacted in the exercise of powers not
controverted, must yield to it.

In pursuing this inquiry at the bar, it has
been said that the constitution does not confer
the right of intercourse between state and
state. That right derives its source from those
laws whose authority is acknowledged by
civilized man throughout the world. This is
true.

The constitution found it an existing right, and gave to Congress the power to regu late it. In the exercise of this power, Congress

(net

has passed "an act for enrolling or licensing | give, and operate as effectually, as if they had ships or vessels to be employed in the coasting been inserted in any other part of the act than trade and fisheries, and for regulating the in the license itself. same.' The counsel for the respondent contend that this act does not give the right to sail from port to port, but confines itself to regulating a pre-existing right, so far only as to confer certain privileges on enrolled and licensed vessels in its exercise.

This section seems to the court to contain a positive enactment, that the vessels it describes 213*] shall be entitled to the privileges of ships or vessels employed in the coasting trade.character. The license can be granted only to Those privileges cannot be separated from the trade, and cannot be enjoyed, unless the trade may be prosecuted. The grant of the privilege is an idle, empty form, conveying nothing, unless it convey the right to which the privilege is attached, and in the exercise of which its whole value consists. To construe these words otherwise than as entitling the ships or vessels described, to carry on the coasting trade, would be, we think, to disregard the apparent intent of the act.

clear distinction is perceived between the pow-| have attracted the particular attention of gover to regulate vessels employed in transporting ernment. Congress was no longer satisfied men for hire, and property for hire. The with comprehending vessels engaged specially subject is transferred to Congress, and no in this business, within those provisions which exception to the grant can be admitted were intended for vessels generally; and, on the which is not proved by the words or the 2d of March, 1819, passed "an act regulating nature of the thing. A coasting vessel em- passenger ships and vessels." This [*218 ployed in the transportation of passengers, is wise and humane law provides for the safety as much a portion of the American marine as and comfort of passengers, and for the com216*] one employed *in the transportation of munication of everything concerning them a cargo; and no reason is perceived why such which may interest the government, to the Devessel should be withdrawn from the regulating partment of state, but makes no provision conpower of that government, which has been cerning the entry of the vessel, or her conduct thought best fitted for the purpose generally. in the waters of the United States. This, we The provisions of the law respecting native sea- think, shows conclusively the sense of Congress men, and respecting ownership, are as appli- (if, indeed, any evidence to that point could be cable to vessels carrying men as to vessels car- required), that the pre-existing regulations comrying manufacturers; and no reason is perceiv-prehended passenger ships among others; and, ed why the power over the subject should not in prescribing the same duties, the legislature be placed in the same hands. The argument must have considered them as possessing the urged at the bar, rests on the foundation that same rights. the power of Congres does not extend to navigation, as a branch of commerce, and can only be applied to that subject incidentally and occasionally. But if that foundation be removed, we must show some plain, intelligible distinction, supported by the constitution, or by reason, for discriminating between the power of Congress over vessels employed in navigating the same seas. We can perceive no such distinction.

If we refer to the constitution, the inference to be drawn from it is rather against the distinction. The section which restrains Congress from prohibiting the migration or importation of such persons as any of the states may think proper to admit, until the year 1808, has always been considered as an exception from the power to regulate commerce, and certainly seems to class migration with importation. Migration applies as appropriately to voluntary, as importation does to involuntary, arrivals; and, so far as an exception from a power proves its existence, this section proves that the power 217*to regulate commerce applies equally *to the regulation of vessels employed in transporting men, who pass from place to place voluntarily and to those who pass involuntarily.

If the power reside in Congress, as a portion of the general grant to regulate commerce, then acts applying that power to vessels generally, must be construed as comprehending all vessels. If none appear to be excluded by the language of the act, none can be excluded by construction. Vessels have always been employed to a greater or less extent in the transportation of passengers, and have never been supposed to be, on that account, withdrawn from the control or protection of Congress. Packets which ply along the coast, as well as those which make voyages between Europe and America, consider the transportation of passengers as an important part of their business. Yet it has never been suspected that the general laws of navigation did not apply to them.

The duty act, sections twenty-three and forty-six, contains provisions respecting passengers, and shows that vessels which transport them, have the same rights, and must perform the same duties, with other vessels. They are governed by the general laws of navigation.

In the process of things, this seems to have grown into a particular employment, and to

If, then, it were even true, that the Bellona and the Stoudinger were employed exclusively in the conveyance of passengers between New York and New Jersey, it would not follow that this occupation did not constitute a part of the coasting trade of the United States, and was not protected by the license annexed to the answer. But we cannot perceive how the occupation of these vessels can be drawn into question, in the case before the court. The laws of New York, which grant the exclusive privilege set up by the respondent, take no notice of the employment of vessels, and relate only to the principle by which they are propelled. Those laws do not inquire whether vessels are engaged in transporting men or merchandise, but whether they are moved by steam or wind. If by the former, the waters of New York are closed against them, though their cargoes be dutiable goods, which the laws of the United [*219 States permit them to enter and deliver in New York. If by the latter, those waters are free to them, though they should carry passengers only. In conformity with the law, is the bill of the plaintiff in the state court. The bill does not complain that the Bellona and the Stoudinger carry passengers, but that they are moved by steam. This is the injury of which he complains, and is the sole injury against the continuance of which he asks relief. The bill does not even allege, specially, that those vessels were employed in the transportation of passengers, but says, generally, that they were employed "in the transportation of passengers, or otherwise." The answer avers, only, that they were employed in the coasting trade, and insists on the right to carry on any trade authorized by the license. No testimony is taken, and the writ of injunction and decree restrain these licensed vessels, not from carrying passengers, but from being moved through the waters of New York by steam, for any purpose whatever.

The questions, then, whether the conveyance of passengers be a part of the coasting trade, and whether a vessel can be protected in that occupation by a coasting license, are not, and cannot be, raised in this case. The real and sole question seems to be, whether a steam machine, in actual use, deprives a vessel of the privileges conferred by a license.

In considering this question, the first idea which presents itself, is that the laws of Con