ment of seamen on board of American ships; and to conferring privileges upon ships built and owned in the United States in

fostered and protected, is legitimately within the import of the phrase foreign commerce, or fairly implied in any investiture of the power to regulate such commerce. A pretension as far-reaching as this would extend to contracts between citizen and citizen of the same State, would control the pursuits of the planter, the grazier, the manufacturer, the mechanic, the immense operations of the collieries and mines and furnaces of the country; for there is not one of these avocations, the results of which may not become the subjects of foreign commerce, and be borne, either by turnpikes, canals, or railroads, from point to point within the several States, towards an ultimate destination, like the one above mentioned. Such a pretension would effectually prevent or paralyze every effort at internal improvement by the several States; for it cannot be supposed that the States would exhaust their capital and their credit in the construction of turnpikes, canals, and railroads, the remuneration derivable from which, and all control over which might be immediately wrested from them, because such public works would be facilities for a commerce which, whilst availing itself of those facilities, was unqestionably internal, although intermediately or ultimately it might become foreign.

"The rule here given with respect to the regulation of foreign commerce equally excludes from the regulation of commerce between the States and the Indian tribes the control over turnpikes, canals, or railroads, or the clearing and deepening of watercourses exclusively within the States, or the management of the transportation upon and by means of such improvements. In truth, the power vested in Congress by art. 1, sect. 8, of the Constitution, was not designed to operate upon matters like those embraced in the statute of the State of Maine, and which are essentially local in their nature and extent. The design and object of that power, as evinced in the history of the Constitution, was to establish a perfect equality amongst the several States as to commercial rights, and to prevent unjust and invidious distinctions which local jealousies, or local and partial interests might be disposed to introduce and maintain. These were the views pressed upon the public attention by the advocates for the adoption of the Constitution, and in accordance therewith have been the expositions of this instrument propounded by this court, in decisions quoted by counsel on either side of this cause, though differently applied by them. Vide The Federalist, Nos. 7 and 11, and the cases of Gibbons v. Ogden, 9 Wheat. 1; New York v. Miln, 11 Pet. 102; Brown v. The State of Maryland, 12 Wheat. 419; and The License Cases in 5 How. 504."

And alluding to the fact that the party contesting the validity of the State law had procured a coasting license under the laws of Congress, he adds:

"The fact of procuring from the collector of the port of Bangor a license to prosecute the coasting trade for the boat placed upon the Penobscot by the plaintiff in error (The Governor Dana), does not affect, in the slightest degree, the rights or condition of the parties. These remain precisely as they would have stood had no such license been obtained. A license to prosecute the coasting trade is a warrant to traverse the waters washing or bounding the coasts of the United States. Such a license conveys no privilege to use free of tolls, or of any condition whatsoever, the canals constructed by a State, or the watercourses partaking of the character of canals exclusively within the interior of a State, and made practicable for navigation by the funds of the State, or by privileges she may have conferred for the accomplishment of the same end. The attempt to use a coasting license for a purpose like

4

domestic as well as 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.3 It extends to the laying of embargoes, as well on domestic as on foreign voyages. It extends to the construction of light-houses, 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.5 It extends also to the designation of particular port or ports of entry and delivery for the purposes of foreign commerce.6 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.7

this, is, in the first place, a departure from the obvious meaning of the document itself, and an abuse wholly beyond the object and the power of the government in granting it."

Supporting this case, see Withers v. Buckley, 20 How. 84.

That the States may improve their navigable waters and charge tolls upon the use of the improvement, see further, Spooner v. McConnell, 1 McLean, 337; Palmer v. Commissioners of Cuyahoga County, 3 McLean, 227; Kellogg v. Union Co., 12 Conn. 7; Thames Bank v. Lovell, 18 Conn. 500.]

1 1 Tuck. Black. Comm. App. 252. [See other cases referred to in note to § 1072, supra. The power does not extend to the navigation of a river which is wholly within a State, and is separated from tide water by an impassable fall, and which consequently forms no part of any continuous track of commerce between States or with

a foreign country. Veazie v. Moor, 14 How. 568. Compare with The Daniel Ball, 10 Wall. 557.]

2 9 Wheat. R. 203, 204, 205, 206, 207, 208; 1 Tuck. Black. Comm. App. 251, 252. [But upon these subjects the power is not exclusive. See Cooley v. Board of Wardens, 12 How. 319; The James Gray v. The John Fraser, 21 How. 184.]

3 9 Wheat. R. 214, 215 to 221.

4 9 Wheat. R. 191, 192; 1 Kent's Comm. Lect. 19, p. 404, 405.

5 [State of Pennsylvania v. Wheeling & Belmont Bridge Co., 18 Howard, 421.]

6 1 Tuck. Black. Comm. App. 249, 251; 9 Wheat. R. 208, 209..

7 Mr. Hamilton, in his celebrated argument on the national bank (23d Feb. 1791), enumerates the following as within the power to regulate commerce, viz., the regulation of policies of insurance, of salvage upon goods found at sea, and the disposition of such goods; the regulation of pilots; and the regulation of bills of exchange drawn by one merchant upon a merchant of another State; and, of course, the regulation of foreign bills of exchange. 1 Hamilton's Works, 134.

§ 1076. 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; 1 sometimes to encourage domestic navigation, and the shipping and mercantile interest, by bounties, by discriminating duties, and by special preferences and privileges; 2 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.

§ 1077. A question has been recently made, whether Congress have a constitutional authority to apply the power to reglate commerce for the purpose of encouraging and protecting domestic manufactures. It is not denied that Congress may, incidentally, in its arrangements for revenue, or to countervail foreign restrictions, encourage the growth of domestic manufactures. But it is earnestly and strenuously insisted that, under the color of regulating commerce, Congress have no right permanently to prohibit any importations, or to tax any unreasonably for the purpose of securing the home market to the domestic manufacturer, as they thereby destroy the commerce entrusted to them to regulate, and foster an interest with which they have no constitutional power to interfere. This opinion constitutes the leading doctrine of several States in the Union at the present moment; and is maintained as vital to the existence of the Union. On the other hand, it is as earnestly and strenuously maintained that Congress does possess the constitutional power to encourage and protect manufactures by appropriate regulations of commerce; and that the opposite opinion is destructive of all the purposes of the Union, and would annihilate its value.

§ 1078. Under such circumstances, it becomes indispensable to review the grounds upon which the doctrine of each party is maintained, and to sift them to the bottom; since it cannot be dis

1 Sergeant on Const. Law, ch. 28 (ch. 30, 2d edit.).

2 See 1 Elliot's Debates, 144.

3 See Address of the Philadelphia Free Trade Convention, in Sept. and Oct. 1831.

guised, that the controversy still agitates all America, and marks the divisions of party by the strongest lines, both geographical and political, which have ever been seen since the establishment of the national government.

§ 1079. The reasoning by which the doctrine is maintained, that the power to regulate commerce cannot be constitutionally applied, as a means directly to encourage domestic manufactures, has been in part already adverted to in considering the extent of the power to lay taxes. It is proper, however, to present it entire in its present connection. It is to the following effect: The Constitution is one of limited and enumerated powers; and none of them can be rightfully exercised beyond the scope of the objects specified in those powers. It is not disputed that when the power is given, all the appropriate means to carry it into effect are included. Neither is it disputed that the laying of duties is, or may be an appropriate means of regulating commerce. But the question is a very different one, whether, under pretence of an exercise of the power to regulate commerce, Congress may in fact impose duties for objects wholly distinct from commerce. The question comes to this, whether a power exclusively for the regulation of commerce is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power granted for one purpose be transferred to another? If it can, where is the limitation in the Constitution? Are not commerce and manufactures as distinct as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether Congress has a right to regulate that which is not committed to it, under a power which is committed to it, simply because there is or may be an intimate connection between the powers. If this were admitted, the enumeration of the powers of Congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labor, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge, would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of Congress would embrace

the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the State and national governments. When duties are laid, not for purposes of revenue, but of retaliation and restriction, to countervail foreign restrictions, they are strictly within the scope of the power, as a regulation of commerce.1 But when laid to encourage manufactures, they have nothing to do with it. The power to regulate manufactures is no more confided to Congress than the power to interfere with the systems of education, the poor laws, or the road laws of the States. It is notorious that, in the convention, an attempt was made to introduce into the Constitution a power to encourage manufactures; but it was withheld.2 Instead of granting the power to Congress, permission was given to the States to impose duties, with the consent of that body, to encourage their own manufactures; and thus, in the true spirit of justice, imposing the burden on those who were to be benefited. It is true that Congress may, incidentally, when laying duties for revenue, consult the other interests of the country. They may so arrange the details as indirectly to aid manufactures. And this is the whole extent to which Congress has ever gone until the tariffs which have given rise to the present controversy. The former precedents of Congress are not, even if admitted to be authoritative, applicable to the question now presented.3

§ 1080. The reasoning of those who maintain the doctrine that Congress has authority to apply the power to regulate commerce to the purpose of protecting and encouraging domestic manufactures, is to the following effect: The power to regulate commerce being in its terms unlimited, includes all means appropriate to the end, and all means which have been usually exerted under the power. No one can doubt or deny that a power to regulate trade

1 Ante, § 1069, post, § 1087.

2 A proposition was referred to the committee of details and revision, "to establish public institutions, rewards, and immunities, for the promotion of agriculture, commerce, trade, and manufactures." The committee never reported on it. Journal of Convention, p. 261.

3 The above arguments and reasoning have been gathered, as far as could be, from documents admitted to be of high authority by those who maintain the restrictive doctrine. See the exposition and protest of the South Carolina legislature, in Dec. 1828, attributed to Mr. Vice-President Calhoun; the Address of the Free Trade Convention at Philadelphia, in Oct. 1831, attributed to Mr. Attorney-General Berrien; the Oration of the Hon. Mr. Drayton on the 4th of July, 1831; and the Speech of Mr. Senator Hayne, 9th of Jan. 1832. See also 4 Jefferson's Corresp. 421.