Chapter 28

But although much has been said, in the discussion on former occasions, about this supposed concurrent power in the States, I find great difficulty in understanding what is meant by it. It is generally qualified by saying, that it is a power by which the States could pass laws on subjects of commercial regulation, which would be valid until Congress should pass other laws controlling them, or inconsistent with them, and that then the State laws must yield. What sort of concurrent powers are these, which cannot exist together? Indeed, the very reading of the clause in the Constitution must put to flight this notion of a general concurrent power. The Constitution was formed for all the States; and Congress was to have power to regulate commerce. Now, what is the import of this, but that Congress is to give the rule, to establish the system, to exercise the control over the subject? And can more than one power, in cases of this sort, give the rule, establish the system, or exercise the control? As it is not contended that the power of Congress is to be exercised by a supervision of State legislation, and as it is clear that Congress is to give the general rule, I contend that this power of giving the general rule is transferred, by the Constitution, from the States to Congress, to be exercised as that body may see fit; and consequently, that all those high exercises of power, which might be considered as giving the rule, or establishing the system, in regard to great commercial interests, are necessarily left with Congress alone. Of this character I consider monopolies of trade or navigation; embargoes; the system of navigation laws; the countervailing laws, as against foreign states; and other important enactments respecting our connection with such states. It appears to me a most reasonable construction to say, that in these respects the power of Congress is exclusive, from the nature of the power. If it be not so, where is the limit, or who shall fix a boundary for the exercise of the power of the States? Can a State grant a monopoly of trade? Can New York shut her ports to all but her own citizens? Can she refuse admission to ships of particular nations? The argument on the other side is, and must be, that she might do all these things, until Congress should revoke her enactments. And this is called _concurrent_ legislation! What confusion such notions lead to is obvious enough. A power in the States to do any thing, and every thing, in regard to commerce, till Congress shall undo it, would suppose a state of things at least as bad as that which existed before the present Constitution. It is the true wisdom of these governments to keep their action as distinct as possible. The general government should not seek to operate where the States can operate with more advantage to the community; nor should the States encroach on ground which the public good, as well as the Constitution, refers to the exclusive control of Congress.

If the present state of things, these laws of New York, the laws of Connecticut, and the laws of New Jersey, had been all presented, in the convention of New York, to the eminent person whose name is on this record, and who acted on that occasion so important a part; if he had been told, that, after all he had said in favor of the new government, and of its salutary effects on commercial regulations, the time would yet come when the North River would be shut up by a monopoly from New York, the Sound interdicted by a penal law of Connecticut, reprisals authorized by New Jersey against citizens of New York, and when one could not cross a ferry without transshipment, does any one suppose he would have admitted all this as compatible with the government which he was recommending?

This doctrine of a general concurrent power in the States is insidious and dangerous. If it be admitted, no one can say where it will stop. The States may legislate, it is said, wherever Congress has not made a plenary exercise of its power. But who is to judge whether Congress has made this plenary exercise of power? Congress has acted on this power; it has done all that it deemed wise; and are the States now to do whatever Congress has left undone? Congress makes such rules as, in its judgment, the case requires; and those rules, whatever they are, constitute the system.

All useful regulation does not consist in restraint; and that which Congress sees fit to leave free is a part of its regulation, as much as the rest.

The practice under the Constitution sufficiently evinces, that this portion of the commercial power is exclusive in Congress. When, before this instance, have the States granted monopolies? When, until now, have they interfered with the navigation of the country? The pilot laws, the health laws, or quarantine laws, and various regulations of that class, which have been recognized by Congress, are no arguments to prove, even if they are to be called commercial regulations (which they are not), that other regulations, more directly and strictly commercial, are not solely within the power of Congress. There is a singular fallacy, as I venture to think, in the argument of very learned and most respectable persons on this subject. That argument alleges, that the States have a concurrent power with Congress of regulating commerce; and the proof of this position is, that the States have, without any question of their right, passed acts respecting turnpike roads, toll-bridges, and ferries. These are declared to be acts of commercial regulation, affecting not only the interior commerce of the State itself, but also commerce between different States. Therefore, as all these are commercial regulations, and are yet acknowledged to be rightfully established by the States, it follows, as is supposed, that the States must have a concurrent power to regulate commerce.

Now, what is the inevitable consequence of this mode of reasoning? Does it not admit the power of Congress, at once, upon all these minor objects of legislation? If all these be regulations of commerce, within the meaning of the Constitution, then certainly Congress, having a concurrent power to regulate commerce, may establish ferries, turnpike-roads, and bridges, and provide for all this detail of interior legislation. To sustain the interference of the State in a high concern of maritime commerce, the argument adopts a principle which acknowledges the right of Congress over a vast scope of internal legislation, which no one has heretofore supposed to be within its powers. But this is not all; for it is admitted that, when Congress and the States have power to legislate over the same subject, the power of Congress, when exercised, controls or extinguishes the State power; and therefore the consequence would seem to follow, from the argument, that all State legislation over such subjects as have been mentioned is, at all times, liable to the superior power of Congress; a consequence which no one would admit for a moment. The truth is, in my judgment, that all these things are, in their general character, rather regulations of police than of commerce, in the constitutional understanding of that term. A road, indeed, may be a matter of great commercial concern. In many cases it is so; and when it is so, there is no doubt of the power of Congress to make it. But, generally speaking, roads, and bridges, and ferries, though of course they affect commerce and intercourse, do not possess such importance and elevation as to be deemed commercial regulations. A reasonable construction must be given to the Constitution; and such construction is as necessary to the just power of the States, as to the authority of Congress. Quarantine laws, for example, may be considered as affecting commerce; yet they are, in their nature, health laws. In England, we speak of the power of regulating commerce as in Parliament, or the king, as arbiter of commerce; yet the city of London enacts health laws. Would any one infer from that circumstance, that the city of London had concurrent power with Parliament or the crown to regulate commerce? or that it might grant a monopoly of the navigation of the Thames? While a health law is reasonable, it is a health law; but if, under color of it, enactments should be made for other purposes, such enactments might be void.

In the discussion in the New York courts, no small reliance was placed on the law of that State prohibiting the importation of slaves, as an example of a commercial regulation enacted by State authority. That law may or may not be constitutional and valid. It has been referred to generally, but its particular provisions have not been stated. When they are more clearly seen, its character may be better determined.

It might further be argued, that the power of Congress over these high branches of commerce is exclusive, from the consideration that Congress possesses an exclusive admiralty jurisdiction. That it does possess such exclusive jurisdiction will hardly be contested. No State pretends to exercise any jurisdiction of that kind. The States abolished their courts of admiralty, when the Constitution went into operation. Over these waters, therefore, or at least some of them, which are the subject of this monopoly, New York has no jurisdiction whatever. They are a part of the high seas, and not within the body of any county. The authorities of that State could not punish for a murder, committed on board one of these boats, in some places within the range of this exclusive grant. This restraining of the States from all jurisdiction out of the body of their own counties, shows plainly enough that navigation on the high seas was understood to be a matter to be regulated only by Congress. It is not unreasonable to say, that what are called the waters of New York are, for purposes of navigation and commercial regulation, the waters of the United States. There is no cession, indeed, of the waters themselves, but their use for those purposes seems to be intrusted to the exclusive power of Congress. Several States have enacted laws which would appear to imply their conviction of the power of Congress over navigable waters to a greater extent.

If there be a concurrent power of regulating commerce on the high seas, there must be a concurrent admiralty jurisdiction, and a concurrent control of the waters. It is a common principle, that arms of the sea, including navigable rivers, belong to the sovereign, so far as navigation is concerned. Their use is navigation. The United States possess the general power over navigation, and, of course, ought to control, in general, the use of navigable waters. If it be admitted that, for purposes of trade and navigation, the North River and its bay are the river and bay of New York and the Chesapeake the bay of Virginia, very great inconveniences and much confusion might be the result.

It may now be well to take a nearer view of these laws, to see more exactly what their provisions are, what consequences have followed from them, and what would and might follow from other similar laws.

The first grant to John Fitch gave him the sole and exclusive right of making, employing, and navigating all boats impelled by fire or steam, "in all creeks, rivers, bays, and waters within the territory and jurisdiction of the State." Any other person navigating such boat, was to forfeit it, and to pay a penalty of a hundred pounds. The subsequent acts repeal this, and grant similar privileges to Livingston and Fulton; and the act of 1811 provides the extraordinary and summary remedy which has been already stated. The river, the bay, and the marine league along the shore, are all within the scope of this grant. Any vessel, therefore, of this description, coming into any of those waters, without a license, whether from another State or from abroad, whether it be a public or private vessel, is instantly forfeited to the grantees of the monopoly.

Now it must be remembered that this grant is made as an exercise of sovereign political power. It is not an inspection law, nor a health law, nor passed by any derivative authority; it is professedly an act of sovereign power. Of course, there is no limit to the power, to be derived from the purpose for which it is exercised. If exercised for one purpose, it may be also for another. No one can inquire into the motives which influence sovereign authority. It is enough that such power manifests its will. The motive alleged in this case is, to remunerate the grantees for a benefit conferred by them on the public. But there is no necessary connection between that benefit and this mode of rewarding it; and if the State could grant this monopoly for that purpose, it could also grant it for any other purpose. It could make the grant for money; and so make the monopoly of navigation over those waters a direct source of revenue. When this monopoly shall expire, in 1838, the State may continue it, for any pecuniary consideration which the holders may see fit to offer, and the State to receive.

If the State may grant this monopoly, it may also grant another, for other descriptions of vessels; for instance, for all sloops.

If it can grant these exclusive privileges to a few, it may grant them to many; that is, it may grant them to all its own citizens, to the exclusion of everybody else.

But the waters of New York are no more the subject of exclusive grants by that State, than the waters of other States are subjects of such grants by those other States. Virginia may well exercise, over the entrance of the Chesapeake, all the power that New York can exercise over the bay of New York, and the waters on her shores. The Chesapeake, therefore, upon the principle of these laws, may be the subject of State monopoly; and so may the bay of Massachusetts. But this is not all. It requires no greater power to grant a monopoly of trade, than a monopoly of navigation. Of course, New York, if these acts can be maintained, may give an exclusive right of entry of vessels into her ports; and the other States may do the same. These are not extreme cases. We have only to suppose that other States should do what New York has already done, and that the power should be carried to its full extent.

To all this, no answer is to be given but one, that the concurrent power of the States, concurrent though it be, is yet subordinate to the legislation of Congress; and that therefore Congress may, whenever it pleases, annul the State legislation; but until it does so annul it, the State legislation is valid and effectual. What is there to recommend a construction which leads to a result like this? Here would be a perpetual hostility; one legislature enacting laws, till another legislature should repeal them; one sovereign power giving the rule, till another sovereign power should abrogate it; and all this under the idea of concurrent legislation!

But, further, under this concurrent power, the State does that which Congress cannot do; that is, it gives preferences to the citizens of some States over those of others. I do not mean here the advantages conferred by the grant on the grantees; but the disadvantages to which it subjects all the other citizens of New York. To impose an extraordinary tax on steam navigation visiting the ports of New York, and leaving it free everywhere else, is giving a preference to the citizens of other States over those of New York. This Congress could not do; and yet the State does it; so that this power, at first subordinate, then concurrent, now becomes paramount.

The people of New York have a right to be protected against this monopoly. It is one of the objects for which they agreed to this Constitution, that they should stand on an equality in commercial regulations; and if the government should not insure them that, the promises made to them in its behalf would not be performed.

I contend, therefore, in conclusion on this point, that the power of Congress over these high branches of commercial regulation is shown to be exclusive, by considering what was wished and intended to be done, when the convention for forming the Constitution was called; by what was understood, in the State conventions, to have been accomplished by the instrument; by the prohibitions on the States, and the express exception relative to inspection laws; by the nature of the power itself; by the terms used, as connected with the nature of the power; by the subsequent understanding and practice, both of Congress and the States; by the grant of exclusive admiralty jurisdiction to the federal government; by the manifest danger of the opposite doctrine, and the ruinous consequences to which it directly leads.

Little is now required to be said, to prove that this exclusive grant is a law regulating commerce; although, in some of the discussions elsewhere, it has been called a law of police. If it be not a regulation of commerce, then it follows, against the constant admission on the other side, that Congress, even by an express act, cannot annul or control it. For if it be not a regulation of commerce, Congress has no concern with it. But the granting of monopolies of this kind is always referred to the power over commerce. It was as arbiter of commerce that the king formerly granted such monopolies.[4] This is a law regulating commerce, inasmuch as it imposes new conditions and terms on the coasting trade, on foreign trade generally, and on foreign trade as regulated by treaties; and inasmuch as it interferes with the free navigation of navigable waters.

If, then, the power of commercial regulation possessed by Congress be, in regard to the great branches of it, exclusive; and if this grant of New York be a commercial regulation, affecting commerce in respect to these great branches, then the grant is void, whether any case of actual collision has happened or not.

But I contend, in the second place, that whether the grant were to be regarded as wholly void or not, it must, at least, be inoperative, when the rights claimed under it come in collision with other rights, enjoyed and secured under the laws of the United States; and such collision, I maintain, clearly exists in this case. It will not be denied that the law of Congress is paramount. The Constitution has expressly provided for that. So that the only question in this part of the case is, whether the two rights be inconsistent with each other. The appellant has a right to go from New Jersey to New York, in a vessel owned by himself, of the proper legal description, and enrolled and licensed according to law. This right belongs to him as a citizen of the United States. It is derived under the laws of the United States, and no act of the legislature of New York can deprive him of it, any more than such act could deprive him of the right of holding lands in that State, or of suing in its courts. It appears from the record, that the boat in question was regularly enrolled at Perth Amboy, and properly licensed for carrying on the coasting trade. Under this enrolment, and with this license, she was proceeding to New York, when she was stopped by the injunction of the Chancellor, on the application of the New York grantees. There can be no doubt that here is a collision, in fact; that which the appellant claimed as a right, the respondent resisted; and there remains nothing now but to determine whether the appellant had, as he contends, a right to navigate these waters; because, if he had such right, it must prevail.

Now, this right is expressly conferred by the laws of the United States. The first section of the act of February, 1793, ch. 8, regulating the coasting trade and fisheries, declares, that all ships and vessels, enrolled and licensed as that act provides, "and no others, shall be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels employed in the coasting trade or fisheries." The fourth section of the same act declares, "that, in order to the licensing of any ship or vessel, for carrying on the coasting trade or fisheries," bond shall be given, according to the provisions of the act. And the same section declares, that, the owner having complied with the requisites of the law, "it shall be the duty of the collector to grant a license for carrying on the coasting trade"; and the act proceeds to give the form and words of the license, which is, therefore, of course, to be received as a part of the act; and the words of the license, after the necessary recitals, are, "License is hereby granted for the said vessel to be employed in carrying on the coasting trade." Words could not make this authority more express.

The court below seems to me, with great deference, to have mistaken the object and nature of the license. It seems to have been of opinion, that the license has no other intent or effect than to ascertain the ownership and character of the vessel. But this is the peculiar office and object of the enrolment. That document ascertains that the regular proof of ownership and character has been given; and the license is given to confer the right to which the party has shown himself entitled. It is the authority which the master carries with him, to prove his right to navigate freely the waters of the United States, and to carry on the coasting trade.

In some of the discussions which have been had on this question, it has been said, that Congress has only provided for ascertaining the ownership and property of vessels, but has not prescribed to what use they may be applied. But this is an obvious error. The whole object of the act regulating the coasting trade is to declare what vessels shall enjoy the benefit of being employed in that trade. To secure this use to certain vessels, and to deny it to others, is precisely the purpose for which the act was passed. The error, or what I humbly suppose to be the error, in the judgment of the court below, consists in that court's having thought, that, although Congress might act, it had not yet acted, in such a way as to confer a right on the appellant; whereas, if a right was not given by this law, it never could be given. No law can be more express. It has been admitted, that, supposing there is a provision in the act of Congress, that all vessels duly licensed shall be at liberty to navigate, for the purpose of trade and commerce, all the navigable harbors, bays, rivers, and lakes within the several States, any law of the States creating particular privileges as to any particular class of vessels to the contrary notwithstanding, the only question that could arise, in such a case, would be, whether the law was constitutional; and that, if that was to be granted or decided, it would certainly, in all courts and places, overrule and set aside the State grant.