of the Constitution have at all times been understood to include a power over navigation, as well as trade; over intercourse, as well as traffic; and that, in the practice of other countries, and especially in our own, there has been no diversity of judgment or opinion. During our whole colonial history, this was acted upon by the British Parliament as an uncontested doctrine. That government regulated not merely our traffic with foreign nations, but our navigation and intercourse, as unquestioned functions of the power to regulate commerce.2 § 1065. This power the Constitution extends to commerce with foreign nations, and among the several States, and with the Indian tribes. In regard to foreign nations, it is universally admitted that the words comprehend every species of commercial intercourse. No sort of trade or intercourse can be carried on between this country and another, to which they do not extend. Commerce, as used in the Constitution, is a unit, every part of which is indicated by the term. If this be its admitted meaning in its application to foreign nations, it must carry the same meaning The next words are, throughout the sentence.3 66 among the Mr. Dexter rose, and, facing the bench, commenced his remarks by stating that he had slept poorly, and had passed a night of great anxiety. He had reflected very solemnly upon the occurrence of yesterday, and he trusted it had not failed to exercise the thoughts of another, in all its bearings. No man cherished a higher respect for the legitimate authority of those tribunals before which he was called to practise his profession; but he entertained no less respect for his moral obligations to his clients. And finally, after a few additional remarks, he stated to the court that he had arrived at the clear conviction that it was his duty to argue the constitutional question to the jury, notwithstanding the decision of a single judge of an inferior grade; and that he should proceed to do so regardless of any consequences. He then turned to the jury, and, undisturbed by the court, began, continued, and ended a most elaborate argument against the constitutionality of the embargo law." Reminiscences of Dexter, by "Sigma," No. 9. When this scene took place, it was not so fully settled as it is now that juries in the federal courts are not the rightful judges of the law, even in criminal cases. See United States v. Battiste, 2 Sum. 240; Stittinus v. United States, 5 Cranch C. C. 573; United States v. Morris, 1 Curt. 53; United States v. Riley, 5 Blatch. 206.] 19 Wheat. 189, 190, 191, 193, 215, 216, 217; Id. 226; 12 Wheat. R. 446, 447; North River Steamboat Co. v. Livingston, 3 Cowen's R. 713. 2 Gibbons v. Ogden, 9 Wheat. R. 1, 201; Id. 224; Id. 225 to 228. See Mr. Verplanck's letter to Col. Drayton in 1831; Resolves of Congress, 14th Oct. 1774 (1 Journal of Congress, 27); 2 Marshall's Life of Washington (in five volumes), p. 77, 81; Dr. Franklin's Examination, before the House of Commons, in 1766; Dickerson's Farmer's Letters, No. 2, 1767; 1 Jefferson's Corresp. 7; Burke's Speech on American Taxation, 1774. 3 Gibbons v. Ogden, 9 Wheat. R. 194. several States." The word "among among" means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States cannot stop at the external boundary line. of each State, but may be introduced into the interior. It does not, indeed, comprehend any commerce, which is purely internal, between man and man in a single State, or between different parts of the same State, and not extending to, or affecting other States. Commerce among the States means, commerce which concerns more States than one. It is not an apt phrase to indicate the mere interior traffic of a single State. The completely internal commerce of a State may be properly considered as reserved to the State itself.1 § 1066. The importance of the power of regulating commerce among the States, for the purposes of the Union, is scarcely less than that of regulating it with foreign states.2 A very material object of this power is the relief" of the States, which import and export through other States, from the levy of improper contributions on them by the latter. If each State were at liberty to regulate the trade between State and State, it is easy to foresee that ways would be found out to load the articles of import and export, during their passage through the jurisdiction, with duties, which should fall on the makers of the latter, and the consumers of the former.3 The experience of the American States during the confederation abundantly establishes that such arrangements could be, and would be made under the stimulating influence of local interests, and the desire of undue gain. Instead of acting as a nation in regard to foreign powers, the States individually commenced a system of restraint upon each other, whereby the interests of foreign powers were promoted at their expense. 1 Gibbons v. Ogden, 9 Wheat. R. 194, 195, 196; Brown v. Maryland, 12 Wheat. 446, 447; Veazie v. Moor, 14 Howard, S. C. R. 568. [Although that commerce which is carried on entirely within the limits of a State, and does not extend to or affect other States, is excluded from federal control (Veazie v. Moor, 14 How. 561), yet a river entirely within a State, which, by uniting with other waters, forms a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water, is to be regarded as navigable waters of the United States, and is subject to the regulations of Congress. The Daniel Ball, 10 Wall. 558. See further, note to § 1072, post.] 2 See The Federalist, No. 6, 7, 11, 12, 22, 41, 42; North River Steamboat Company v. Livingston, 3 Cowen's R. 713. 8 12 Wheaton's R. 448, 449; 9 Wheaton, 199 to 204. The Federalist, No. 42; 1 Tuck. Black. Comm. App. 247 to 252. When one State imposed high duties on the goods or vessels of a foreign power to countervail the regulations of such powers, the next adjoining States imposed lighter duties to invite those articles into their port, that they might be transferred thence into the other States, securing the duties to themselves. This contracted policy in some of the States was soon counteracted by others. Restraints were immediately laid on such commerce by the suffering States; and thus a state of affairs disorderly and unnatural grew up, the necessary tendency of which was to destroy the Union itself. The history of other nations, also, furnishes the same admonition. In Switzerland, where the union is very slight, it has been found necessary to provide that each canton shall be obliged to allow a passage to merchandise through its jurisdiction into other cantons without an augmentation of tolls. In Germany, it is a law of the empire that the princes shall not lay tolls on customs or bridges, rivers or passages, without the consent of the emperor and diet. But these regulations are but imperfectly obeyed; and great public mischiefs have consequently followed.2 Indeed, without this power to regulate commerce among the States, the power of regulating foreign commerce would be incomplete and ineffectual. The very laws of the Union in regard to the latter, whether for revenue, for restriction, for retaliation, or for encouragement of domestic products or pursuits, might be evaded. at pleasure, or rendered impotent. In short, in a practical view, it is impossible to separate the regulation of foreign commerce and domestic commerce among the States from each other. The same public policy applies to each; and not a reason can be assigned for confiding the power over the one, which does not conduce to establish the propriety of conceding the power over the other.5 § 1067. The next inquiry is, whether this power to regulate commerce is exclusive of the same power in the States, or is concurrent with it. It has been settled, upon the most solemn 1 See President Monroe's Exposition and Message, 4 May, 1822, p. 31, 32. [See History of the Constitution, by Curtis, B. III. ch. 1 and 6; Writings of Madison, I. 320.] 2 The Federalist, No. 22, 42. The Federalist, No. 11, 12. 3 The Federalist, No. 42. 5 See the opinion of Mr. Justice Johnson, 9 Wheat. R. 224 to 228. 6 In the convention it was moved to amend the article, so as to give to Congress "the sole and exclusive " power; but the proposition was rejected by the vote of six States against five. Journal of Convention, 220, 270. deliberation, that the power is exclusive in the government of the United States.1 The reasoning upon which this doctrine is founded is to the following effect: The power to regulate commerce is general and unlimited in its terms. The full power to regulate a particular subject implies the whole power, and leaves no residuum. A grant of the whole is incompatible with the existence of a right in another to any part of it. A grant of a power to regulate necessarily excludes the action of all others who would perform the same operation on the same thing. Regulation is designed to indicate the entire result, applying to those parts which remain as they were as well as to those which are altered. It produces a uniform whole, which is as much disturbed and deranged by changing what the regulating power designs to have unbounded as that on which it has operated.2 § 1068. The power to regulate commerce is not at all 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.3 § 1069. 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 1 Gibbons v. Ogden, 9 Wheat. R. 1, 198, 199, 200, 201, 202; Brown v. Maryland, 12 Wheat. R. 419, 445, 446; 1 Tuck. Black. Comm. App. 180, 309; North River Steamboat Company V. Livingston, 3 Cowen's R. 713. [See note to § 1072.] 2 9 Wheat. R. 196, 198, 209; Ib. 227, 228. 3 Gibbons v. Ogden, 9 Wheaton's R. 199, 200. 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.1 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." § 1070. Nor do the acknowledged powers of the States over certain subjects, having a connection with commerce, in any degree impugn this reasoning. These powers are entirely distinct in their nature from that to regulate commerce; and though the same means may be resorted to, for the purpose of carrying each of these powers into effect, this by no just reasoning furnishes any ground to assert that they are identical.3 Among these are inspection laws, health laws, laws regulating turnpikes, roads, and ferries, all of which, when exercised by a State, are legitimate, arising from the general powers belonging to it, unless so far as they conflict with the powers delegated to Congress. They are not so much regulations of commerce as of police; and may truly be said to belong, if at all to commerce, to that which is purely internal. The pilotage laws of the States may fall under the same description. But they have been adopted by Congress, and, without question, are controllable by it.5 § 1071. The reasoning, by which the power given to Congress to regulate commerce is maintained to be exclusive, has not been of late seriously controverted; and it seems to have the cheerful acquiescence of the learned tribunals of a particular 19 Wheaton's R. 201, 202; 1 Jefferson's Corresp. 7; The Federalist, No. 56; 12 Wheaton's R. 446, 447. 29 Wheaton's R. 201, 202. 3 See Corfield v. Coryell, 4 Wash. C. C. R. 371, 379, &c. * 9 Wheaton's R. 203 to 207, 209; post, § 1071; City of New York v. Miln, 11 Peters, S. C. R. 103. 59 Wheaton's R. 207, 208, 209. |