State, one of whose acts brought it first under judicial examination.1

§ 1072. The power to Congress, then, being exclusive, no State is at liberty to pass any laws imposing a tax upon importers importing goods from foreign countries, or from other States. It is wholly immaterial whether the tax be laid on the goods imported or on the person of the importer. In each case it is a restriction of the right of commerce, not conceded to the States. As the power of Congress to regulate commerce reaches the interior of a State, it might be capable of authorizing the sale of the articles which it introduces. Commerce is intercourse; and one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize traffic, when given in the most comprehensive terms, with the intent that its efficacy should be complete, should cease at the point when its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize the sale of the thing imported? Sale is the object of importation; and it is, an essential ingredient of that intercourse of which importation constitutes a part. As Congress have the right to authorize importation, they must have a right to authorize the importer to sell. What would be the language of a foreign government which should be informed that its merchants, after importation, were forbidden to sell the merchandise imported? What answer could the United States give to the complaints and just reproaches to which such extraordinary conduct would expose them? No apology could be received or offered. Such a state of things would annihilate commerce. It is no answer that the tax may be moderate; for, if the power exists in the States, it may be carried to any extent they may choose. If it does not exist, every exercise of it is, pro tanto, a violation of the power of Congress to regulate commerce.3

1 1 Kent's Comm. Lect. 19, p. 404, 410, 411. See also Rawle on the Constitution, ch. 9, p. 81 to 84; Sergeant on the Const. ch. 28, p. 291, 292. There is a very able and candid review of the whole subject, by Mr. Chancellor Kent, in his excellent Commentaries. 1 Kent's Comm. Lect. 19, p. 404. I gladly avail myself of this, as well as of all other occasions, to recommend his learned labors to those who seek to study the law, or the Constitution, with a liberal and enlightened spirit.

29 Wheaton's R. 197 to 204.

3 Brown v. State of Maryland, 12 Wheaton's R. 419, 445 to 447; 9 Wheaton's R. 197, &c. Mr. Justice Thompson dissented from this doctrine, as will be seen in his

§ 1073. How far any State possesses the power to authorize an obstruction of any navigable stream or creek, in which the

opinion in 12 Wheaton's R. 449, &c. [Whether the power conferred upon Congress over commerce is exclusive, or whether, on the other hand, the States may establish regulations not inconsistent with those prescribed by Congress, is a question in respect to which a diversity of opinion among the justices of the Supreme Court has manifested itself in several important cases.

It has never been doubted that to the extent to which regulations have been estab lished by Congress its authority is supreme, and all State laws or regulations that would conflict therewith must give way. The case of Pennsylvania v. The Wheeling and Belmont Bridge Co., 13 How. 515, may be referred to as one of the cases presenting this view. The State of Pennsylvania filed its bill on the equity side of the federal court to have the Wheeling Bridge declared a public nuisance, and abated as such. The bridge was built under the authority of the State of Virginia, across the Ohio River, at a point within the jurisdiction of that State. The Ohio River was navigable at that point, and for many years the commerce upon it had been regulated by Congress, under the commercial power, by establishing ports, requiring vessels which navigated it to take out licenses, and to observe certain rules for the safety of their passengers and cargoes.

Appropriations by Congress had been frequently made to remove obstructions to navigation from its channel. The bridge was an impediment to commerce as carried on upon some of the vessels navigating it; but how serious, was a question in dispute. Congress had never declared it an obstruction, or taken any hostile action whatever in regard to it. The State of Pennsylvania, as proprietor of public works upon which commerce was carried on in connection with the river Ohio, was specially damaged from day to day by the existence of the bridge. The majority of the court, delivering its opinion through Mr. Justice McLean, held the law of Virginia which authorized the construction of the bridge void, because in conflict with the laws of Congress regulating the commerce among different States and with foreign nations carried on upon this river. Taney, C. J., and Daniels, J., dissented, taking the ground, among others, that the erection of the bridge was in conflict with no regulation established by Congress. The view of the majority was more pointedly stated when the case again came before the court, "thrat Congress had acted upon the subject, and had regulated the navigation of the Ohio River, and had thereby secured to the public, by virtue of its authority, the free and unobstructed use of the same; and that the erection of the bridge, so far as it interfered with this use, was inconsistent with and in violation of the acts of Congress, and destructive of the right derived under them, and that, to the extent of this interference with this free navigation of the river, the act of the legislature of Virginia afforded no authority or justification. It was in conflict with the acts of Congress, which were the paramount law." 18 How. 430.

And it was declared on the occasion last referred to that the power of Congress to regulate commerce included the power to determine what should or should not be deemed, in judgment of law, an obstruction to navigation; and Congress having since the first decision declared the Wheeling Bridge a lawful structure, it must be regarded as such.

In Gilman v. Philadelphia, 3 Wall. 713, a riparian proprietor sought to enjoin the erection of a bridge about to be built, and which it was claimed would constitute an obstruction to navigation. The river was tidal and navigable, but was wholly within the limits of the State of Pennsylvania; and it was under the authority of that State that the bridge was to be erected. The court denied the relief prayed. Commerce,"

tide ebbs and flows, within its territorial limits, as by authorizing the erection of a dam across it, has been a subject of much recent

it was said, "includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States, which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. Gibbons v. Ogden, 9 Wheat. 1; Corfield v. Coryell, 4 Wash. C. C. 378. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England. It is for Congress to determine when its full power shall be brought into activity, and as to the regulations and sanctions which shall be provided. United States v. New Bedford Bridge, 1 Wood. & Minot, 420, 421; United States v. Coombs, 12 Pet. 72; New York v. Miln, 11 Pet. 102, 155. A license, under the act of 1793, to engage in the coasting trade, carries with it right and authority. Commerce among the States does not stop at a State line. Coming from abroad, it penetrates wherever it can find navigable waters reaching from without into the interior, and may follow them up as far as navigation is practicable. Wherever commerce among the States goes, the power of the nation, as represented in this court, goes with it to protect its rights. Gibbons v. Ogden, 9 Wheat. 1; Steamboat Co. v. Livingston, 3 Cow. 713. There can be no doubt that the coasting trade may be carried on where the bridge in question is to be built.

"We will now turn our attention to the rights and powers of the States which are to be considered. The national government possesses no powers but such as have been delegated to it. The States have all but such as they have surrendered. The power to authorize the building of bridges is not to be found in the federal Constitution. It has not been taken from the States. It must reside somewhere. They had it before the Constitution was adopted, and they have it still. . . . The power to regulate commerce covers a wide field, and embraces a great variety of subjects. Some of these subjects call for uniform rules and national legislation; others can be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities respectively. To this extent the power to regulate commerce may be exercised by the States. Whether the power in any given case is vested exclusively in the general government depends upon the nature of the subject to be regulated. Pilot laws are regulations of commerce; but if a State enact them in good faith, and not covertly for another purpose, they are not in conflict with the power to regulate commerce committed to Congress by the Constitution. Cooley v. The Board of Wardens, 12 How. 319.”

The court proceed to say that the most important case in its application to the one then under judgment was that of Wilson v. The Blackbird Creek Marsh Co., 2 Pet. 245. In that case was drawn in question the validity of a State law, which, for the purpose of improving its marsh lands and promoting the public health, permitted the construction of a dam across a creek previously navigable from the sea by vessels enrolled and licensed for the coasting trade. There was no act of Congress forbidding its erection or declaring it an obstruction to commerce, - a fact deemed of the highest importance by Chief Justice Taney in the Wheeling Bridge case, -nor was there any legislation of Congress which could be regarded as in conflict with the State law,

discussion. If Congress, in regulating commerce, should pass any act, the object of which should be to control State legislation over

unless the general regulations for the coasting trade and the enrolling and licensing of vessels therefor could be so treated. The court sustained the law, Marshall, C. J. saying: "If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce, the object of which was to control legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and Southern States, we should feel not much difficulty in saying that a State law coming in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States, a power which has not been so exercised as to affect the question."

The difference between the facts in the Wheeling Bridge Case and those in the one last referred to, in which a conclusion so different was reached, is not so obvious at first as to preclude possible misapprehension. In neither case was the particular structure in question forbidden by congressional legislation, and in each, privileges derived by vessels engaged in navigation under the laws of Congress were, or might be, prevented from being exercised. But in the case of the Ohio River, these laws, and the regulations established under them, had recognized it as a highway of commerce, while in the case of Blackbird Creek there was no such explicit recognition, and all that could be said of it was that it was capable from its navigable character of being such a highway. In the one case the indirect conflict was palpable and important, in the other it was argumentative rather than actual.

In the Wheeling Bridge Case, however, it will be perceived that it was not regarded as a matter of course that the State bridge across a navigable stream covered by the regulations of commerce should be destroyed as unlawful. The bridge itself was to be a highway for travel and traffic; and although it might in some degree constitute an impediment to commerce, its advantages to the general business of the country might be so great as to more than overbalance the inconvenience. Considerations of this character are of very great importance when a power is being exercised which is conferred for the regulation and protection of commerce, and the court very properly went into them in that case, and would have denied the relief prayed had they been satisfied that the interference was immaterial. They did deny such relief in Gilman v. Philadelphia. See also the important case of Jolly v. The Terre Haute Drawbridge Co., 6 McLean, 237; Columbus Ins. Co. v. Peoria Bridge Co., 6 McLean, 70; Same v. Curtenius, Id. 209; United States v. Railroad Bridge, Id. 518; Avery v. Fox, 1 Abb. U. S. Reps. 246; Woodman v. Kilbourn Manuf. Co., Id. 158; Works v. Junction R. R. Co., 5 McLean, 425; Halderman v. Beckwith, 4 McLean, 286; Silliman v. Bridge Co., 4 Blatch. 74, 395.

The case of New York v. Miln, 11 Pet. 102, referred to above, involved the validity of an act of the State of New York which required the master of any vessel arriving at the port of New York from a foreign port or from one of the other States, within twenty four hours after its arrival, to report to the mayor in writing and on oath or affirmation, the name, place of birth, last legal settlement, age, and occupation of every passenger brought in such ship to the city, or permitted to land at any place, or put on board any ship with an intention of proceeding to the city, under a penalty of seventy-five dollars, to be paid by the master, owner, or consignee for every such passenger. The master was also required to give bond to the mayor to save harm

such navigable streams or creeks, there would be little difficulty in saying that a State law in conflict with such an act would be

less the city authorities from all expenses and charges which might be incurred in the maintenance and support of any passenger not a citizen of the United States, and was compellable, on the order of the mayor, under a heavy penalty, to remove to the place of his last settlement any passenger, being a citizen of the United States, who should be likely to become chargeable on the city. The majority of the court (Justice Story dissenting) held that this act was to be regarded not as a regulation of commerce, but one of police merely, and consequently as referable to an undoubted power reserved to the States.

On the other hand, in the Passenger cases, 7 How. 283, certain acts of the States of New York and Massachusetts having in view a similar purpose to the act last referred to were declared void. The New York act imposed upon the master of every vessel arriving from a foreign port a tax of one dollar and fifty cents for himself and each cabin passenger, and one dollar for each steerage passenger, mate, or sailor, and on the master of every coasting vessel twenty-five cents for each person on board, which sums, when collected, after defraying the expenses of enforcing the law, were to be paid over to the Society for Reformation of Juvenile Delinquents in the city of New York. The Massachusetts act authorized certain State officers to go on board of every vessel arriving from a port out of the State, and examine into the condition of the passengers; and to forbid any alien pauper or person incompetent in their opinion to maintain himself, to land, until the master, owner, or consignee of the vessel should give security that such person should not become a city, town, or State charge for ten years; and a heavy penalty was imposed on the master, owner, or consignee of the vessel for every person permitted to land contrary to the prohibition, the money collected to be paid into the city or town treasury for the support of alien paupers. The majority of the court (Justices McLean, Wayne, Catron, Grier, and McKinley: Ch. Justice Taney and Justices Daniel, Nelson, and Woodbury dissenting) held these acts void. Mr. Justice Wayne sums up the conclusions of the majority as follows:

"1. That the acts of New York and Massachusetts imposing a tax upon passengers, either foreigners or citizens, coming into the ports in those States, either in foreign vessels, or vessels of the United States, from foreign nations or from ports in the United States, are unconstitutional or void, being, in their nature, regulations of commerce contrary to the grant in the Constitution to Congress of the power to regulate commerce with foreign nations and among the several States.

"2. That the States of this Union cannot constitutionally tax the commerce of the United States for the purpose of paying any expense incident to the execution of their police laws; and that the commerce of the United States includes an intercourse of persons, as well as the importation of merchandise.

"3. That the acts of Massachusetts and New York in question in these cases conflict with treaty stipulations existing between the United States and Great Britain, permitting the inhabitants of the two countries 'freely and securely to come, with their ships and cargoes, to all places, ports, and rivers in the territories of each country to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of said territories respectively; also to hire and occupy houses and warehouses for the purposes of their commerce; and generally the merchants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce, but subject always to