22, 1851, from the bar of Boston, Massachusetts. The concurring Justices were TANEY, Chief Justice, and CATRON, McKINLEY, NELSON and GRIER, Associate Justices. Justice McLEAN dissented, because State pilot laws could have no force as regulations of commerce, until adopted by Congress (pages 322-3); Justice WAYNE also dissented, and Justice DANIEL agreed only to the judgment, because the Constitutional power over commerce did not appropriately and necessarily extend to such local subjects as the means of precaution and safety, adopted within the waters or limits of a State, for the preservation of vessels, cargoes, navigators and passengers (page 326).

The subject of pilotage lies outside the bounds of this article, except so far as determining the exclusiveness of the Constitutional power over commerce and the authority of Congress to adopt local regulations.

The dissenting opinion of Justice DANIEL is not far removed in principle from that of the Court, for Justice CURTIS denied that there was any conflict between this Pennsylvania statute and the Tenth Section of the Constitution, (supra, page 425) because

Indeed, the necessity of conforming regulations of pilotage to the local peculiarities of each port, and the consequent impossibility of having its charges uniform throughout the United States, would be sufficient of itself, to prove that they could not have been intended to be embraced within this clause of the Constitution: for it cannot be supposed uniformity was required, when it must have been known to be impracticable: (12 How. 53 U. S. 314.)

The Passenger Cases, supra, really called for a decision upon the exclusiveness of the constitutional power, but the four Justices, who, with Justice MCLEAN, composed the majority of the Court, differed from him in believing that a decision could be rendered without going to that extreme: WAYNE, J., page 411; CATRON, J., page 446; GRIER, J., page 462, who also thought that Congress had acted in confirming treaties which provided for the free admission of aliens. The position of Justice MCLEAN has, however, since been adopted, with an important exception, in such cases, under the rule first formulated in Cooley v. Port Wardens, as a subject of national,

and even international character, and to be governed by uniform laws: MILLER, J., Henderson v. The Mayor (1876), 2 Otto (92 U. S.) 259, 272, 273; and People v. Compagnie (1883), 17 Otto (107 U. S.) 59, 60; CLIFFORD, J., concurring in Hall v. De Cuir (1878), 5 Otto (95 U. S.) 485, 497; FIELD, J., Mobile v. Kimball (1881), 12 Otto (102 U. S.) 691, 702; Escanaba County v. Chicago (1883), 17 Otto (107 U. S.) 678, 687; IV. U. Tel. Co. v. Pendleton (1887), 122 U. S. 347, 357; BRADLEY, J., Transportation Co. v. Parkersburg (1883), 17 Otto (107 U. S.) 691, 702; Robbins v. Taxing District (1887), 120 U. S. 489, 492, and Walling v. Mich. (1886), 116 Id. 446, 455.

Chief Justice TANEY continued in the Passenger Cases, to hold the same opinion as in the License Cases, supra, page 454, gracefully dissenting in these words referring to the judgment in the latter Cases :—

I do not, however, object to the revision of it, and am quite willing that it be regarded hereafter as the law of this Court, that its opinion upon the construction of the Constitution is always open to discussion when it is supposed to have been founded in error, and that its judicial authority should hereafter depend altogether on the force of the reasoning by which it is supported: (Page 470.)

The rule for testing the exclusiveness of the commerce power, as stated on page 466 was formulated by Justice CURTIS, while carefully deciding no more than the validity of the pilot laws before the Court (12 How. 53 U. S. 320); but this conclusion was reached through an affirmance of the national control of navigation (supra, page 428), an acknowledgment that pilot laws do constituté regulations of commerce and that Congress had already been compelled to intervene (12 How. 53 U. S. 316), and a statement that the law of Pennsylvania had not been interferred with by Congress (Id. 318); whereby the decision necessarly defined the powers remaining in the States.

This question has never been decided by this Court, nor, in our judgment, has any case depending upon all the considerations which must govern this one, come before this Court.

The grant of commercial power to Congress, does not contain any terms which expressly exclude the States from exercising an authority over its subject matter. If they are excluded, it must be because the

nature of the power, thus granted to Congress, requires that a similar authority should not exist in the States.

If it were conceded on one side, that the nature of this power, like that to legislate for the District of Columbia, is absolutely and totally repugnant to the existence of similar power in the States, probably no one would deny that the grant of power to Congress, as effectually and perfectly excludes the States from all future legislation on the subject, as if express words had been used to exclude them.

And, on the other hand, if it were admitted that the existence of this power in Congress, like the power of taxation, is compatible with the existence of a similar power in the States. then it would be in conformity with the contemporary exposition of the Constitution, (Federalist No. 32, infra), and with the judicial construction, given from time to time by this Court after the most deliberate consideration, to hold that the mere grant of such a power to Congress, did not imply a prohibition on the States to exercise the same power; that it is not the mere existence of such a power, but its exercise by Congress, which may be incompatible with the exercise of the same power by the States, and that the States may legislate in the absence of Congressional regulations: (Sturgis v. Crowninshield 1819, 4 Wheat. 47 U. S. 193; Moore v. Houston, 1820, 5 Wheat. 46 U. S. 1; Wilson v. Black Bird Creek Marsh Co. supra, page 445.)

er.

The diversities of opinion, therefore, which have existed on this subject have arisen from the different views taken of the nature of this powBut when the nature of a power like this is spoken of, when it is said that the nature of the power requires that it should be exercised exclusively by Congress, it must be intended to refer to the subjects of that power, and to say they are of such a nature as to require exclusive legislation by Congress. *

*

*

Either absolutely to affirm or deny, that the nature of this power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert concerning all of them what is really applicable, but to a part. Whatever subjects of this power are, in their nature, national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress: CURTIS, J., Cooley v. Port Wardens (1851), 12 How. (53 U. S.) 318-20.

This statement of the exclusiveness of the Constitutional power has been recognized as correct by Justice GRAY, dissenting in the Original Package Case, infra; Justice MATTHEWS, in Bowman v. Chicago & N. WV. RR. Co. (1888), 125 U. S. 465, 481; Justice FIELD, Id. 508; Justice BRADLEY, in Phila. Steamship Co. v. Pennsylvania (1887), 122 U. S. 326, 339; in Robins v. Taxing District (1887), 120 Id. 489, 492; in Brown v. Houston (1885), 114 Id. 622, 630, and

in Ex parte Siebold (1880), 10 Otto (109 U. S.) 371, 385; Justice CLIFFORD concurring in Hall v. De Cuir (1878), 5 Otto (95 U. S.) 485, 497, 516; Justice STRONG in the Case of the State Freight Tax (1873), 15 Wall. (82 U. S.) 232, 280; Justice MILLER, in Henderson v. The Mayor (1876) 2 Otto (92 U. S.) 259, 272, and in Hinson v. Lott (1869), 8 Wall. (75 U. S.) 148, 153, and in Crandall v. Nevada (1868), 6 Wall. (73 U. S) 35, 42; Justice SWAYNE, in Gilman v. Phila. (1865), 3 Wall. (70 U. S.) 713, 721; though Chief Justice WAITE, not only in Stone v. Mississippi (supra, pages 411-12), but also in Hall v. De Cuir (1878), 5 Otto (95 U. S.) 485, 488, declared that

The line which separates the powers of the States from this exclusive power of Congress, is not always distinctly marked, and oftentimes it is not easy to determine on which side a particular case belongs. Judges not unfrequently differ in their reasons for a decision in which they concur. Under such circumstances, it would be a useless task to undertake to fix an arbitrary rule by which the line must, in all cases, be located. It is far better to leave a matter of such delicacy to be settled in each case, upon a view of the particular rights involved.

In addition to what has been already explained (pages 421, 422), a difficulty must be observed. Five years before Gibbons v. Ogden was decided, the same Justices held that the power conferred in the same section of the Constitution, to establish an uniform rule of naturalization and an uniform bankrupt law, were not exclusive. But such decision was rendered because these powers were said to be of a difficult description from those which require Congress to exercise exclusive powers; in the latter case, the rule was also plainly declared

Whenever the terms in which a power is granted by the Constitution, to Congress, or wherever the nature of the power itself requires that it shali be exclusively exercised by Congress, the subject is as completely taken away from State Legislatures as if they had been forbidden to act upon it: MARSHALL, C. J. (1819), 4 Wheat. (17 U. S.) 122, 193.

The opposite view was believed by TANEY and WOODBURY to be the same as the construction given to the Constitution by the eminent men who were concerned in framing it, and active in supporting it: that is

The necessity of a concurrent jurisdiction in certain cases, results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not only a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find, that notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses, prohibiting the exercise of them by the States. The Tenth Section of the First Article consists altogether of such provisions: The Federalist, No. 32.

All of which was, however, subject to the Sixth Article (supra, page 425), and consequently amounted in practice to no more than the position of KENT, to be again noticed presently.

Still there was no mere arbitrary division of the powers of Congress, and Justice MCLEAN, in these Passenger Cases, considered the test to be the same as subsequently laid down in the line of cases beginning ten years latter with Cooley v. Port Wardens; namely, the local action of the State in bankruptcies, as well as in governing the militia (see Houston v. Moore (1820), 5 Wheat. 18 U. S. 1), and this is probably what MARSHALL, meant

If, in the opinion of Congress, uniform laws concerning bankruptcies ought not to be established, it does not follow that partial laws may not exist, or that State legislation on the subject must cease: Sturgis v. Crowninshield (1819), 4 Wheat. (17 U. S.) 196.

At least, this seems to be the understanding of Justice BRADLEY, in Robins v. Taxing District (1887), 120 U. S. 489, 492, and the concurring Justices, MILLER, HARLAN, MATTHEWS, and BLATCHFORD. As Justice MATTHEWS did not sit, and Chief Justice WAITE dissented with Justices GRAY and FIELD, in the uniformity of the license, this understanding may be regarded as approved.

Against the exclusiveness of the Constitutional power, the practical position of KENT, supra, pages 421, 430, was frequently opposed, and as often denied: in the Passenger Cases, the judgment of the Court was the first to be placed upon the ground of exclusiveness, in denial of ungranted right in the