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§ 167. The next inquiry is, whether this power to regulate commerce, is like that to lay taxes. The latter, may well be concurrent, while the former, is exclusive, resulting from the different nature of the two powers. The power of Congress in laying taxes is not necessarily, or naturally inconsistent with that of the States. Each may lay a tax on the same property, without interfering with the action of the other; for taxation is but taking small portions from the mass of property, which is susceptible of almost infinite division. In imposing taxes for State purposes, a State is not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes, which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power, which 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.
$ 168. Nor can any power be inferred in the States, to regulate commerce, from other clauses in the Constitution, or the acknowledged rights exercised by the States. The Constitution has prohibited the States from laying any impost or duty on imports or exports ; but this does not admit, that the State might otherwise have exercised the power, as a regulation of commerce. The laying of such imposts and duties may be, and indeed often is, used, as a mere regulation of commerce, by governments possessing that power. But the laying of such imposts and duties is as certainly, and more usually, a right exercised as a part of the power to lay taxes ; and with this latter power the States are clearly intrusted. So that the prohibition is an exception from the acknowledged power of the State to lay taxes, and not from the questionable power to regulate commerce. Indeed, the Constitution treats these as distinct and independent powers. The same remarks apply to a duty on tonnage.
§ 169. In the next place, to what extent, and for what objects and purposes, the power to regulate commerce may be constitutionally applied.
$ 170. And first, among the States. It is not doubted, that it extends to the regulation of navigation, and to the coasting trade and fisheries, within, as well as without any State, wherever it is connected with the commerce or intercourse with any other State, or with foreign nations. It extends to the regulation and government of seamen on board of American ships; and to conferring privileges upon ships built and owned in the United States, in domestic, as well as in foreign trade. It extends to quarantine laws, and pilotage laws, and wrecks of the sea. It extends, as well to the navigation of vessels engaged in carrying passengers, and whether steam vessels or of any other description, as to the navigation of vessels engaged in traffic and general coasting business. It extends to the laying of embargoes, as well on domestic, as on foreign voyages. It extends to the construction of lighthouses, the placing of buoys and beacons, the removal of obstructions to navigation in creeks, rivers, sounds, and bays, and the establishment of securities to navigation against the inroads of the ocean. It extends also to the designation of a particular port or ports of entry and delivery for the purposes of foreign commerce. These powers have been actually exerted by the National Government under a system of laws, many of which commenced with the early establishment of the Constitution; and they have continued unquestioned unto our day, if not to the utmost range of their reach, at least to that of their ordinary application.
§ 171. Many of the like powers have been applied in the regulation of foreign commerce. The commercial system of the United States has also been employed sometimes for the purpose of revenue ; sometimes for the purpose of prohibition ; sometimes for the purpose of retaliation and commercial reciprocity ; sometimes to lay embargoes ; sometimes to encourage domestic navigation, and the shipping and mercantile interest, by bounties, by discriminating duties, and by special preferences and privileges; and sometimes to regulate intercourse with a view
to mere political objects, such as to repel aggressions, increase the pressure of war, or vindicate the rights of neutral sovereignty. In all these cases, the right and duty have been conceded to the National Government by the unequivocal voice of the people.
$ 172. It may be added, that Congress have also, from the earliest period of the government, applied the same power of regulating commerce for the purpose of encouraging and protecting domestic manufactures; and although this application of it has been recently contested, yet Congress have never abandoned the exercise of it for such a purpose. Indeed, if Congress does not possess the power to encourage domestic manufactures, by regulations of commerce, it is a power, that is utterly annihilated ; for it is admitted, on all sides, that the States do not possess it. And America would then present the singular spectacle of a nation voluntarily depriving itself, in the exercise of its admitted rights of sovereignty, of all means of promoting some of its most vital interests.
§ 173. In respect to trade with the Indian tribes. Antecedently to the American Revolution, the authority to regulate trade and intercourse with the Indian tribes, whether they were within, or without the boundaries of the Colonies, was understood to belong to the prerogative of the British crown. And after the American Revolution, the like power would naturally fall to the Federal Government, with a view to the general peace and interests of all the States. Two restrictions, however, upon the power, were, by express terms, incorporated into the Confederation, which occasioned endless embarrassments and doubts. The power of Congress was restrained to Indians, not members of any of the States; and was not to be exercised so as to violate or infringe the legislative right of any State, within its own limits. What description of Indians were to be deemed members of a State, was never settled under the Confederation ; and was a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, was to be regulated by an external authority, without so far intrud
ing on the internal rights of legislation, was absolutely incomprehensible. In this case, as in some other cases, the Articles of Confederation inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States ; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. The Constitution has wisely disembarrassed the power of these two limitations ; and has thus given to Congress, as the only safe and proper depositary, the exclusive power, which belonged to the Crown in the ante-revolutionary times ; a power indispensable to the peace of the States, and to the just preservation of the rights and territory of the Indians.
Naturalization, Bankruptcy, and Coinage of Money.
174. The next power of Congress is, “ to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the States.” The power of naturalization is, with great propriety, confided to Congress, since, if left to the States, they might naturalize foreigners upon very different, and even upon opposite systems; and, as the citizens of all the States have common privileges in all, it would thus be in the power of any one State to defeat the wholesome policy of all the others in regard to this most important subject. Congress alone can have power to pass uniform laws, obligatory on all the States, and thus to adopt a system, which shall secure all of them against any dangerous results from the indiscriminate admission of foreigners to the right of citizenship upon their first landing on our shores. And, accordingly, this power is exclusive in Congress.
§ 175. The power to pass bankrupt laws is equally important, and proper to be intrusted to Congress, although it is greatly to be regretted, that it has not, except for a very brief period, been acted upon by Congress.
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Bankrupt and insolvent laws, when properly framed, have two great objects in view ; first, to secure to honest but unfortunate debtors a discharge from debts, which they are unable to pay, and thus to enable them to begin anew in the career of industry, without the discouraging fear, that it will be wholly useless ; secondly, to secure to creditors a full surrender, and equal participation, of and in the effects of their debtors, when they have become bankrupt, or failed in business. On the one hand, such laws relieve the debtor from perpetual bondage to his creditors, in the shape, either of an unlimited imprisonment for his debts, or of an absolute right to appropriate all his future earnings. The latter course obviously destroys all encouragement to future enterprise and industry, on the part of the debtor ; the former is, if possible, more harsh, severe, and indefensible ; for it makes poverty, in itself sufficiently oppressive, the cause or occasion of penalties and punishments.
§ 176. It is obvious, that no single State is competent to pass a uniform system of bankruptcy, which shall operate throughout all of them. It can have no power to discharge debts, contracted in other States; or to bind creditors in other States. And it is hardly within the range of probability, that the same system should be universally adopted, and persevered in permanently, by all the States. In fact, before, as well as since the adoption of the Constitution, the States have had very different systems on the subject, exhibiting a policy as various and sometimes as opposite, as could well be imagined. The future will, in all human probability, be, as the past. And the utter inability of any State to discharge contracts made within its own territorial limits, before the passage of its own laws, or to discharge any debts whatever, contracted in other States, or due to the citizens thereof, must perpetually embarrass commercial dealings, discourage industry, and diminish private credit and confidence. The remedy is in the hands of Congress. It has been given for wise ends, and has hitherto been strangely left without any efficient operation.
$ 177. The next power of Congress is, to “coin mon