Gibbons

v.

Ogden.

from whence is derived the power to make inspec- 1824. tion laws, but from the existing and more extensive right of making laws to regulate commerce ? It seems, also, that the 9th section of the same article, paragraph 1, in like manner, admits the power to be in the States. The importation of slaves is, and has always been, considered as a branch of commerce; and it is in that point of view only, that Congress has authority to legislate on the subject. When, then, that paragraph speaks of any of the States thinking proper to allow that importation, it surely admits in them a right to permit or prohibit; and thus to legislate on what is undoubtedly a branch of commerce with foreign hations, or among the several States.

Indeed, it seems susceptible of demonstration, that Congress did not intend to ask, nor the States to give to that body, the exclusive power of regulating foreign commerce, or that between the States. In Colvin's edition of the Laws of the United States, we find the proceedings, which led to the formation of the General Convention. The appellant's counsel has selected, as one of these, the representation from New-Jersey, to be found in pages 22, 23. art. 2d. But that can soarcely be said to have led to the convention. It was made in 1778, during the revolutionary war, and to meet objectionable parts of the old articles of confederation. At any rate, it appears from page 25, that the proposed alterations were rejected in Congress. In 1781, Mr. Witherspoon

a 1st vol.

b Ib. p. 28.

Gibbons

V.

Ogden.

1824. proposed in Congress a modified change of the power of regulating commerce, which was also negatived. None of the other States made any proposition similar to that from New-Jersey, in 1778. The following, more nearly approaching the time of the convention, better shows the extent of what Congress asked, and the States appeared willing to concede." "In Congress, Wednesday, July 13th, 1785. The committee, consisting of Mr. Monroe, Mr. Spaight, Mr. Houston, Mr. Johnson, and Mr. King, to whom was referred the motion of Mr. Monroe, submit the following report: That the 1st paragraph of the 9th of the articles of confederation, be altered, so as to read thus, viz. The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace or war, except in cases mentioned in the 6th article ; of sending and receiving ambassadors; entering into treaties and alliances; of regulating the trade of the States, as well with foreign nations as with each other; and of laying such imposts and duties upon imports and exports, as may be necessary for the purpose. Provided, that the citizens of the States shall, in no instance, be subjected to pay higher imposts or duties than those imposed on the subjects of foreign powers. Provided also, that the legislatire power of the several States, shall not be restrained from prohibiting the importation or exportation of any species of goods or commodities whatsoever," This is what the

a 1.L. U. S. p. 49, 50.

Gibbons

Congress itself asked for and required. The 1824. State of Virginia was among the first to meet its views; and Mr. Madison, in the Legislature of that State, proposed a resolution, which will be found in the same book," as follows:

66

'Virginia, to wit: In the House of Delegates, Wednesday, November 30th, 1785."

[Mr. Madison's resolution for empowering Congress to regulate trade.]

"Mr. Alexander White reported, according to order, a resolution agreed to by the committee of the whole house, on Monday last, respecting commerce," &c.

"Whereas the relative situation of the United States has been found, on trial, to require uniformity in their commercial regulations, as the only effectual policy for obtaining, in the ports of foreign nations, a stipulation of privileges reciprocal to those enjoyed by the subjects of such nations in the ports of the United States; for preventing animosities, which cannot fail to arise among the several States, from the interference of partial and separate regulations; and whereas such uniformity can be best concerted and carried into effect by the federal councils, which, having been instituted for the purpose of managing the interests of the States, in cases which cannot so well be provided for by measures individually pursued, ought to be invested with authority in this case, as being within the reason and policy of their institution:

a.p.53.

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VOL. IX.

1824.

Gibbons

"Resolved, That it is the opinion of this committee, that the delegates representing this Commonwealth in Congress, be instructed to propose Ogden. in Congress a recommendation to the States in

V.

the Union, to authorize that assembly to regulate their trade on the following principles, and under the following qualifications: 1st. Giving power to Congress to prohibit foreign vessels from entering any port, or to impose duties on them and their cargoes; such duties to be uniform, and carried into the treasury of the State. 2d. That no State be at liberty to impose duties on any goods, wares, or merchandise imported, by land or by water, from any other State; but may altogether prohibit the importation from any State, of any particular species or description of goods, wares or merchandise, of which the importation is, at the same time, prohibited from all other places whatsoever." In each of those proceedings, it was clearly contemplated, that the individual States should at least retain the power of absolutely prohibiting the importation of any article they thought fit, within their own respective limits. How far was this intention subsequently departed from? Where is the power of prohibiting the exportation or importation of any article taken from the States by the constitution? They are indeed qualifiedly restrained from laying imposts or duties on exports or imports, but not from entirely prohibiting their exportation or importation; and they are also restrained from laying any duty on tonnage; and it is, perhaps, the fair construction of the instrument, that even their prohibitory legislation, is

under the control of Congress, as having the paramount authority to regulate commerce; but valid until Congress shall have made regulations inconsistent with their laws. A review of some of the laws of different States, will show that they have always exercised the power of making very material regulations respecting commerce. This re

view must be abridged; but it is of, extreme importance, and if it were possible to spread out in detail the immense mass of State laws, regulating and affecting foreign commerce, and that among the States, it would be conclusively seen, that they have always considered themselves as possessing, and have, accordingly, exercised a concurrent power over both those branches of trade; and that the power of Congress cannot be decided to be exclusive, without declaring to be unconstitutional, an appalling body of State legislation.

To begin with the laws respecting slaves. The appellant's counsel has questioned their constitutionality, and called them of doubtful authority. That expression showed he felt their application and important bearing, if their constitationality be admitted; and it has never before been called in question. The constitution most clearly admits the right of the States to legislate on this subject, not merely till 1808, but always, unless Congress should prohibit the trade; and yet, as has been already suggested, slaves are treated in that very paragraph itself, as an article of commerce oi trade. Congress, renouncing for a time the paramount right to prohibit their importation, claims the right to lay a tax or duty on it. So also, they

1824.

Gibbons

V.

Ogden.