U.S. Supreme Court Gibbons v. Ogden, 22 U.S. 9 Wheat. 1 1
(1824) Gibbons v. Ogden 22 U.S. (9 Wheat.) 1 APPEAL FROM THE COURT FOR THE TRIAL
OF IMPEACHMENTS AND CORRECTION OF ERRORS OF THE STATE
OF NEW YORK Syllabus The laws of New York granting to Robert R. Livingston and Robert
Fulton the exclusive right of navigating the waters of that State
with steamboats are in collision with the acts of Congress
regulating the coasting trade, which, being made in pursuance of
the Constitution, are supreme, and the State laws must yield to
that supremacy, even though enacted in pursuance of powers
acknowledged to remain in the States.

															The power of regulating commerce extends to the regulation of
navigation.

															The power to regulate commerce extends to every species of
commercial intercourse between the United States and foreign
nations, and among the several States. It does not stop at the
external boundary of a State.

															But it does not extend to a commerce which is completely
internal.

															The power to regulate commerce is general, and has no
limitations but such as are prescribed in the Constitution
itself.

															The power to regulate commerce, so far as it extends, is
exclusively bested in Congress, and no part of it can be exercised
by a State.

															A license under the acts of Congress for regulating the coasting
trade gives a permission to carry on that trade.

															State inspection laws, health laws, and laws for regulating the
internal commerce of a State, and those which respect turnpike
roads, ferries, &c. are not within the power granted to
Congress.

															The license is not merely intended to confer the national
character.

															The power of regulating commerce extends to navigation carried
on by vessels exclusively employed in transporting passengers.

															The power of regulating commerce extends to vessels propelled by
steam or fire as well as to those navigated by the instrumentality
of wind and sails.

															Aaron Ogden filed his bill in the Court of Chancery of that
State, against Thomas Gibbons, setting forth the several acts of
the Legislature thereof, enacted for the purpose of securing to
Robert R. Livingston and Robert Fulton the Page 22 U. S. 2 exclusive navigation of all the waters within the jurisdiction
of that State, with boats moved by fire or steam, for a term of
years which has not yet expired, and authorizing the Chancellor to
award an injunction restraining any person whatever from navigating
those waters with boats of that description. The bill stated an
assignment from Livingston and Fulton to one John R. Livingston,
and from him to the complainant, Ogden, of the right to navigate
the waters between Elizabethtown, and other places in New Jersey,
and the City of New York, and that Gibbons, the defendant below,
was in possession of two steamboats, called the Stoudinger and the Bellona, which were actually employed in running
between New York and Elizabethtown, in violation of the exclusive
privilege conferred on the complainant, and praying an injunction
to restrain the said Gibbons from using the said boats, or any
other propelled by fire or steam, in navigating the waters within
the territory of New York. The injunction having been awarded, the
answer of Gibbons was filed, in which he stated that the boats
employed by him were duly enrolled and licensed to be employed in
carrying on the coasting trade under the Act of Congress, passed
the 18th of February, 1793, c. 3. entitled, "An act for enrolling
and licensing ships and vessels to be employed in the coasting
trade and fisheries, and for regulating the same." And the
defendant insisted on his right, in virtue of such licenses, to
navigate the waters between Elizabethtown and the City of New York,
the said acts of the Legislature of the Page 22 U. S. 3 State of New York to the contrary notwithstanding. At the
hearing, the Chancellor perpetuated the injunction, being of the
opinion that the said acts were not repugnant to the Constitution
and laws of the United States, and were valid. This decree was
affirmed in the Court for the Trial of Impeachments and Correction
of Errors, which is the highest Court of law and equity in the
State, before which the cause could be carried, and it was
thereupon brought to this Court by appeal. Page 22 U. S. 186 Mr. Chief Justice MARSHALL delivered the opinion of the Court,
and, after stating the case, proceeded as follows:

															The appellant contends that this decree is erroneous because the
laws which purport to give the exclusive privilege it sustains are
repugnant to the Constitution and laws of the United States.

															They are said to be repugnant:

															1st. To that clause in the Constitution which authorizes
Congress to regulate commerce.

															2d. To that which authorizes Congress to promote the progress of
science and useful arts.

															The State of New York maintains the Constitutionality of these
laws, and their Legislature, their Council of Revision, and their
Judges, have repeatedly concurred in this opinion. It is supported
by great names -- by names which have all the titles to
consideration that virtue, intelligence, and office can bestow. No
tribunal can approach the decision of this question without feeling
a just and real respect for that opinion which is sustained by such
authority, but it is the province of this Court, while it respects,
not to bow to it implicitly, and the Judges must exercise, in the
examination of the subject, that understanding which Providence has
bestowed upon them, with that independence which the people of the
United Page 22 U. S. 187 States expect from this department of the government.

															As preliminary to the very able discussions of the Constitution
which we have heard from the bar, and as having some influence on
its construction, reference has been made to the political
situation of these States anterior to its formation. It has been
said that they were sovereign, were completely independent, and
were connected with each other only by a league. This is true. But,
when these allied sovereigns converted their league into a
government, when they converted their Congress of Ambassadors,
deputed to deliberate on their common concerns and to recommend
measures of general utility, into a Legislature, empowered to enact
laws on the most interesting subjects, the whole character in which
the States appear underwent a change, the extent of which must be
determined by a fair consideration of the instrument by which that
change was effected.

															This instrument contains an enumeration of powers expressly
granted by the people to their government. It has been said that
these powers ought to be construed strictly. But why ought they to
be so construed? Is there one sentence in the Constitution which
gives countenance to this rule? In the last of the enumerated
powers, that which grants expressly the means for carrying all
others into execution, Congress is authorized "to make all laws
which shall be necessary and proper" for the purpose. But this
limitation on the means which may be used is not extended to the
powers which are conferred, nor is there one sentence in Page 22 U. S. 188 the Constitution which has been pointed out by the gentlemen of
the bar or which we have been able to discern that prescribes this
rule. We do not, therefore, think ourselves justified in adopting
it. What do gentlemen mean by a "strict construction?" If they
contend only against that enlarged construction, which would extend
words beyond their natural and obvious import, we might question
the application of the term, but should not controvert the
principle. If they contend for that narrow construction which, in
support or some theory not to be found in the Constitution, would
deny to the government those powers which the words of the grant,
as usually understood, import, and which are consistent with the
general views and objects of the instrument; for that narrow
construction which would cripple the government and render it
unequal to the object for which it is declared to be instituted,
and to which the powers given, as fairly understood, render it
competent; then we cannot perceive the propriety of this strict
construction, nor adopt it as the rule by which the Constitution is
to be expounded. As men whose intentions require no concealment
generally employ the words which most directly and aptly express
the ideas they intend to convey, the enlightened patriots who
framed our Constitution, and the people who adopted it, must be
understood to have employed words in their natural sense, and to
have intended what they have said. If, from the imperfection of
human language, there should be serious doubts respecting the
extent of any given power, it is a well settled rule that the
objects Page 22 U. S. 189 for which it was given, especially when those objects are
expressed in the instrument itself, should have great influence in
the construction. We know of no reason for excluding this rule from
the present case. The grant does not convey power which might be
beneficial to the grantor if retained by himself, or which can
enure solely to the benefit of the grantee, but is an investment of
power for the general advantage, in the hands of agents selected
for that purpose, which power can never be exercised by the people
themselves, but must be placed in the hands of agents or lie
dormant. We know of no rule for construing the extent of such
powers other than is given by the language of the instrument which
confers them, taken in connexion with the purposes for which they
were conferred.

															The words are, "Congress shall have power to regulate commerce
with foreign nations, and among the several States, and with the
Indian tribes."

															The subject to be regulated is commerce, and our Constitution
being, as was aptly said at the bar, one of enumeration, and not of
definition, to ascertain the extent of the power, it becomes
necessary to settle the meaning of the word. The counsel for the
appellee would limit it to traffic, to buying and selling, or the
interchange of commodities, and do not admit that it comprehends
navigation. This would restrict a general term, applicable to many
objects, to one of its significations. Commerce, undoubtedly, is
traffic, but it is something more: it is intercourse. It describes
the commercial Page 22 U. S. 190 intercourse between nations, and parts of nations, in all its
branches, and is regulated by prescribing rules for carrying on
that intercourse. The mind can scarcely conceive a system for
regulating commerce between nations which shall exclude all laws
concerning navigation, which shall be silent on the admission of
the vessels of the one nation into the ports of the other, and be
confined to prescribing rules for the conduct of individuals in the
actual employment of buying and selling or of barter.

															If commerce does not include navigation, the government of the
Union has no direct power over that subject, and can make no law
prescribing what shall constitute American vessels or requiring
that they shall be navigated by American seamen. Yet this power has
been exercised from the commencement of the government, has been
exercised with the consent of all, and has been understood by all
to be a commercial regulation. All America understands, and has
uniformly understood, the word "commerce" to comprehend navigation.
It was so understood, and must have been so understood, when the
Constitution was framed. The power over commerce, including
navigation, was one of the primary objects for which the people of
America adopted their government, and must have been contemplated
in forming it. The convention must have used the word in that
sense, because all have understood it in that sense, and the
attempt to restrict it comes too late.

															If the opinion that "commerce," as the word is used in the
Constitution, comprehends navigation Page 22 U. S. 191 also, requires any additional confirmation, that additional
confirmation is, we think, furnished by the words of the instrument
itself.

															It is a rule of construction acknowledged by all that the
exceptions from a power mark its extent, for it would be absurd, as
well as useless, to except from a granted power that which was not
granted -- that which the words of the grant could not comprehend.
If, then, there are in the Constitution plain exceptions from the
power over navigation, plain inhibitions to the exercise of that
power in a particular way, it is a proof that those who made these
exceptions, and prescribed these inhibitions, understood the power
to which they applied as being granted.

															The 9th section of the 1st article declares that "no preference
shall be given, by any regulation of commerce or revenue, to the
ports of one State over those of another." This clause cannot be
understood as applicable to those laws only which are passed for
the purposes of revenue, because it is expressly applied to
commercial regulations, and the most obvious preference which can
be given to one port over another in regulating commerce relates to
navigation. But the subsequent part of the sentence is still more
explicit. It is, "nor shall vessels bound to or from one State be
obliged to enter, clear, or pay duties, in another." These words
have a direct reference to navigation.

															The universally acknowledged power of the government to impose
embargoes must also be considered as showing that all America is
united Page 22 U. S. 192 in that construction which comprehends navigation in the word
commerce. Gentlemen have said in argument that this is a branch of
the war-making power, and that an embargo is an instrument of war,
not a regulation of trade.

															That it may be, and often is, used as an instrument of war
cannot be denied. An embargo may be imposed for the purpose of
facilitating the equipment or manning of a fleet, or for the
purpose of concealing the progress of an expedition preparing to
sail from a particular port. In these, and in similar cases, it is
a military instrument, and partakes of the nature of war. But all
embargoes are not of this description. They are sometimes resorted
to without a view to war, and with a single view to commerce. In
such case, an embargo is no more a war measure than a merchantman
is a ship of war because both are vessels which navigate the ocean
with sails and seamen.

															When Congress imposed that embargo which, for a time, engaged
the attention of every man in the United States, the avowed object
of the law was the protection of commerce, and the avoiding of war.
By its friends and its enemies, it was treated as a commercial, not
as a war, measure. The persevering earnestness and zeal with which
it was opposed in a part of our country which supposed its
interests to be vitally affected by the act, cannot be forgotten. A
want of acuteness in discovering objections to a measure to which
they felt the most deep-rooted hostility will not be imputed to
those who were arrayed in opposition Page 22 U. S. 193 to this. Yet they never suspected that navigation was no branch
of trade, and was therefore not comprehended in the power to
regulate commerce. They did, indeed, contest the constitutionality
of the act, but, on a principle which admits the construction for
which the appellant contends. They denied that the particular law
in question was made in pursuance of the Constitution not because
the power could not act directly on vessels, but because a
perpetual embargo was the annihilation, and not the regulation, of
commerce. In terms, they admitted the applicability of the words
used in the Constitution to vessels, and that in a case which
produced a degree and an extent of excitement calculated to draw
forth every principle on which legitimate resistance could be
sustained. No example could more strongly illustrate the universal
understanding of the American people on this subject.

															The word used in the Constitution, then, comprehends, and has
been always understood to comprehend, navigation within its
meaning, and a power to regulate navigation is as expressly granted
as if that term had been added to the word "commerce."

															To what commerce does this power extend? The Constitution
informs us, to commerce "with foreign nations, and among the
several States, and with the Indian tribes."

															It has, we believe, been universally admitted that these words
comprehend every species of commercial intercourse between the
United States and foreign nations. No sort of trade can be Page 22 U. S. 194 carried on between this country and any other to which this
power does not extend. It has been truly said that "commerce," as
the word is used in the Constitution, is a unit every part of which
is indicated by the term.

															If this be the admitted meaning of the word in its application
to foreign nations, it must carry the same meaning throughout the
sentence, and remain a unit, unless there be some plain
intelligible cause which alters it.

															The subject to which the power is next applied is to commerce
"among the several States." The word "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 is not intended to say that these words comprehend that
commerce which is completely internal, which is carried on between
man and man in a State, or between different parts of the same
State, and which does not extend to or affect other States. Such a
power would be inconvenient, and is certainly unnecessary.

															Comprehensive as the word "among" is, it may very properly be
restricted to that commerce which concerns more States than one.
The phrase is not one which would probably have been selected to
indicate the completely interior traffic of a State, because it is
not an apt phrase for that purpose, and the enumeration of the
particular classes of commerce to which the power was to be
extended would not have been made had the intention Page 22 U. S. 195 been to extend the power to every description. The enumeration
presupposes something not enumerated, and that something, if we
regard the language or the subject of the sentence, must be the
exclusively internal commerce of a State. The genius and character
of the whole government seem to be that its action is to be applied
to all the external concerns of the nation, and to those internal
concerns which affect the States generally, but not to those which
are completely within a particular State, which do not affect other
States, and with which it is not necessary to interfere for the
purpose of executing some of the general powers of the government.
The completely internal commerce of a State, then, may be
considered as reserved for the State itself.

															But, in regulating commerce with foreign nations, the power of
Congress does not stop at the jurisdictional lines of the several
States. It would be a very useless power if it could not pass those
lines. The commerce of the United States with foreign nations is
that of the whole United States. Every district has a right to
participate in it. The deep streams which penetrate our country in
every direction pass through the interior of almost every State in
the Union, and furnish the means of exercising this right. If
Congress has the power to regulate it, that power must be exercised
whenever the subject exists. If it exists within the States, if a
foreign voyage may commence or terminate at a port within a State,
then the power of Congress may be exercised within a State.

															This principle is, if possible, still more clear, when Page 22 U. S. 196 applied to commerce "among the several States." They either join
each other, in which case they are separated by a mathematical
line, or they are remote from each other, in which case other
States lie between them. What is commerce "among" them, and how is
it to be conducted? Can a trading expedition between two adjoining
States, commence and terminate outside of each? And if the trading
intercourse be between two States remote from each other, must it
not commence in one, terminate in the other, and probably pass
through a third? Commerce among the States must, of necessity, be
commerce with the States. In the regulation of trade with the
Indian tribes, the action of the law, especially when the
Constitution was made, was chiefly within a State. The power of
Congress, then, whatever it may be, must be exercised within the
territorial jurisdiction of the several States. The sense of the
nation on this subject is unequivocally manifested by the
provisions made in the laws for transporting goods by land between
Baltimore and Providence, between New York and Philadelphia, and
between Philadelphia and Baltimore.

															We are now arrived at the inquiry -- What is this power?

															It is the power to regulate, that is, to prescribe the rule by
which commerce is to be governed. This power, like all others
vested in Congress, is complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations other than are
prescribed in the Constitution. These are expressed in plain terms,
and do not affect the Page 22 U. S. 197 questions which arise in this case, or which have been discussed
at the bar. If, as has always been understood, the sovereignty of
Congress, though limited to specified objects, is plenary as to
those objects, the power over commerce with foreign nations, and
among the several States, is vested in Congress as absolutely as it
would be in a single government, having in its Constitution the
same restrictions on the exercise of the power as are found in the
Constitution of the United States. The wisdom and the discretion of
Congress, their identity with the people, and the influence which
their constituents possess at elections are, in this, as in many
other instances, as that, for example, of declaring war, the sole
restraints on which they have relied, to secure them from its
abuse. They are the restraints on which the people must often they
solely, in all representative governments.

															The power of Congress, then, comprehends navigation, within the
limits of every State in the Union, so far as that navigation may
be in any manner connected with "commerce with foreign nations, or
among the several States, or with the Indian tribes." It may, of
consequence, pass the jurisdictional line of New York and act upon
the very waters to which the prohibition now under consideration
applies.

															But it has been urged with great earnestness that, although the
power of Congress to regulate commerce with foreign nations and
among the several States be coextensive with the subject itself,
and have no other limits than are prescribed in the Constitution,
yet the States may severally Page 22 U. S. 198 exercise the same power, within their respective jurisdictions.
In support of this argument, it is said that they possessed it as
an inseparable attribute of sovereignty, before the formation of
the Constitution, and still retain it except so far as they have
surrendered it by that instrument; that this principle results from
the nature of the government, and is secured by the tenth
amendment; that an affirmative grant of power is not exclusive
unless in its own nature it be such that the continued exercise of
it by the former possessor is inconsistent with the grant, and that
this is not of that description.

															The appellant, conceding these postulates except the last,
contends that full power to regulate a particular subject implies
the whole power, and leaves no residuum; that a grant of the whole
is incompatible with the existence of a right in another to any
part of it.

															Both parties have appealed to the Constitution, to legislative
acts, and judicial decisions, and have drawn arguments from all
these sources to support and illustrate the propositions they
respectively maintain.

															The grant of the power to lay and collect taxes is, like the
power to regulate commerce, made in general terms, and has never
been understood to interfere with the exercise of the same power by
the State, and hence has been drawn an argument which has been
applied to the question under consideration. But the two grants are
not, it is conceived, similar in their terms or their nature.
Although many of the powers formerly Page 22 U. S. 199 exercised by the States are transferred to the government of the
Union, yet the State governments remain, and constitute a most
important part of our system. The power of taxation is
indispensable to their existence, and is a power which, in its own
nature, is capable of residing in, and being exercised by,
different authorities at the same time. We are accustomed to see it
placed, for different purposes, in different hands. Taxation is the
simple operation of taking small portions from a perpetually
accumulating mass, susceptible of almost infinite division, and a
power in one to take what is necessary for certain purposes is not,
in its nature, incompatible with a power in another to take what is
necessary for other purposes. Congress is authorized to lay and
collect taxes, &c. to pay the debts and provide for the common
defence and general welfare of the United States. This does not
interfere with the power of the States to tax for the support of
their own governments, nor is the exercise of that power by the
States an exercise of any portion of the power that is granted to
the United States. In imposing taxes for State purposes, they are
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 that is granted to Congress, Page 22 U. S. 200 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.

															In discussing the question whether this power is still in the
States, in the case under consideration, we may dismiss from it the
inquiry whether it is surrendered by the mere grant to Congress, or
is retained until Congress shall exercise the power. We may dismiss
that inquiry because it has been exercised, and the regulations
which Congress deemed it proper to make are now in full operation.
The sole question is can a State regulate commerce with foreign
nations and among the States while Congress is regulating it?

															The counsel for the respondent answer this question in the
affirmative, and rely very much on the restrictions in the 10th
section as supporting their opinion. They say very truly that
limitations of a power furnish a strong argument in favour of the
existence of that power, and that the section which prohibits the
States from laying duties on imports or exports proves that this
power might have been exercised had it not been expressly
forbidden, and consequently that any other commercial regulation,
not expressly forbidden, to which the original power of the State
was competent may still be made.

															That this restriction shows the opinion of the Convention that a
State might impose duties on exports and imports, if not expressly
forbidden, will be conceded, but that it follows as a
consequence Page 22 U. S. 201 from this concession that a State may regulate commerce with
foreign nations and among the States cannot be admitted.

															We must first determine whether the act of laying "duties or
imposts on imports or exports" is considered in the Constitution as
a branch of the taxing power, or of the power to regulate commerce.
We think it very clear that it is considered as a branch of the
taxing power. It is so treated in the first clause of the 8th
section: "Congress shall have power to lay and collect taxes,
duties, imposts, and excises;" and, before commerce is mentioned,
the rule by which the exercise of this power must be governed is
declared. It is that all duties, imposts, and excises shall be
uniform. In a separate clause of the enumeration, the power to
regulate commerce is given, as being entirely distinct from the
right to levy taxes and imposts and as being a new power, not
before conferred. The Constitution, then, considers these powers as
substantive, and distinct from each other, and so places them in
the enumeration it contains. The power of imposing duties on
imports is classed with the power to levy taxes, and that seems to
be its natural place. But the power to levy taxes could never be
considered as abridging the right of the States on that subject,
and they might, consequently, have exercised it by levying duties
on imports or exports, had the Constitution contained no
prohibition on this subject. This prohibition, then, is an
exception from the acknowledged power of the States Page 22 U. S. 202 to levy taxes, not from the questionable power to regulate
commerce.

															"A duty of tonnage" is as much a tax as a duty on imports or
exports, and the reason which induced the prohibition of those
taxes extends to this also. This tax may be imposed by a State,
with the consent of Congress, and it may be admitted that Congress
cannot give a right to a State in virtue of its own powers. But a
duty of tonnage being part of the power of imposing taxes, its
prohibition may certainly be made to depend on Congress, without
affording any implication respecting a power to regulate commerce.
It is true that duties may often be, and in fact often are, imposed
on tonnage with a view to the regulation of commerce, but they may
be also imposed with a view to revenue, and it was therefore a
prudent precaution to prohibit the States from exercising this
power. The idea that the same measure might, according to
circumstances, be arranged with different classes of power was no
novelty to the framers of our Constitution. Those illustrious
statesmen and patriots had been, many of them, deeply engaged in
the discussions which preceded the war of our revolution, and all
of them were well read in those discussions. The right to regulate
commerce, even by the imposition of duties, was not controverted,
but the right to impose a duty for the purpose of revenue produced
a war as important, perhaps, in its consequences to the human race
as any the world has ever witnessed.

															These restrictions, then, are on the taxing power, Page 22 U. S. 203 not on that to regulate commerce, and presuppose the existence
of that which they restrain, not of that which they do not purport
to restrain.

															But the inspection laws are said to be regulations of commerce,
and are certainly recognised in the Constitution as being passed in
the exercise of a power remaining with the States.

															That inspection laws may have a remote and considerable
influence on commerce will not be denied, but that a power to
regulate commerce is the source from which the right to pass them
is derived cannot be admitted. The object of inspection laws is to
improve the quality of articles produced by the labour of a
country, to fit them for exportation, or, it may be, for domestic
use. They act upon the subject before it becomes an article of
foreign commerce or of commerce among the States, and prepare it
for that purpose. They form a portion of that immense mass of
legislation which embraces everything within the territory of a
State not surrendered to the General Government; all which can be
most advantageously exercised by the States themselves. Inspection
laws, quarantine laws, health laws of every description, as well as
laws for regulating the internal commerce of a State, and those
which respect turnpike roads, ferries, &c., are component parts
of this mass.

															No direct general power over these objects is granted to
Congress, and, consequently, they remain subject to State
legislation. If the legislative power of the Union can reach them,
it must be for national purposes, it must be where the Page 22 U. S. 204 power is expressly given for a special purpose or is clearly
incidental to some power which is expressly given. It is obvious
that the government of the Union, in the exercise of its express
powers -- that, for example, of regulating commerce with foreign
nations and among the States -- may use means that may also be
employed by a State in the exercise of its acknowledged powers --
that, for example, of regulating commerce within the State. If
Congress license vessels to sail from one port to another in the
same State, the act is supposed to be necessarily incidental to the
power expressly granted to Congress, and implies no claim of a
direct power to regulate the purely internal commerce of a State or
to act directly on its system of police. So, if a State, in passing
laws on subjects acknowledged to be within its control, and with a
view to those subjects, shall adopt a measure of the same character
with one which Congress may adopt, it does not derive its authority
from the particular power which has been granted, but from some
other, which remains with the State and may be executed by the same
means. All experience shows that the same measures, or measures
scarcely distinguishable from each other, may flow from distinct
powers, but this does not prove that the powers themselves are
identical. Although the means used in their execution may sometimes
approach each other so nearly as to be confounded, there are other
situations in which they are sufficiently distinct to establish
their individuality.

															In our complex system, presenting the rare and difficult scheme
of one General Government whose Page 22 U. S. 205 action extends over the whole but which possesses only certain
enumerated powers, and of numerous State governments which retain
and exercise all powers not delegated to the Union, contests
respecting power must arise. Were it even otherwise, the measures
taken by the respective governments to execute their acknowledged
powers would often be of the same description, and might sometimes
interfere. This, however, does not prove that the one is
exercising, or has a right to exercise, the powers of the
other.

															The acts of Congress passed in 1796 and 1799, 2 U.S.L. 345, 3
U.S.L. 126, empowering and directing the officers of the General
Government to conform to and assist in the execution of the
quarantine and health laws of a State proceed, it is said, upon the
idea that these laws are constitutional. It is undoubtedly true
that they do proceed upon that idea, and the constitutionality of
such laws has never, so far as we are informed, been denied. But
they do not imply an acknowledgment that a State may rightfully
regulate commerce with foreign nations or among the States, for
they do not imply that such laws are an exercise of that power, or
enacted with a view to it. On the contrary, they are treated as
quarantine and health laws, are so denominated in the acts of
Congress, and are considered as flowing from the acknowledged power
of a State to provide for the health of its citizens. But as it was
apparent that some of the provisions made for this purpose and in
virtue of this power might Page 22 U. S. 206 interfere with and be affected by the laws of the United States
made for the regulation of commerce, Congress, in that spirit of
harmony and conciliation which ought always to characterize the
conduct of governments standing in the relation which that of the
Union and those of the States bear to each other, has directed its
officers to aid in the execution of these laws, and has, in some
measure, adapted its own legislation to this object by making
provisions in aid of those of the States. But, in making these
provisions, the opinion is unequivocally manifested that Congress
may control the State laws so far as it may be necessary to control
them for the regulation of commerce. The act passed in 1803, 3
U.S.L. 529, prohibiting the importation of slaves into any State
which shall itself prohibit their importation, implies, it is said,
an admission that the States possessed the power to exclude or
admit them, from which it is inferred that they possess the same
power with respect to other articles.

															If this inference were correct, if this power was exercised not
under any particular clause in the Constitution, but in virtue of a
general right over the subject of commerce, to exist as long as the
Constitution itself, it might now be exercised. Any State might now
import African slaves into its own territory. But it is obvious
that the power of the States over this subject, previous to the
year 1808, constitutes an exception to the power of Page 22 U. S. 207 Congress to regulate commerce, and the exception is expressed in
such words, as to manifest clearly the intention to continue the
preexisting right of the States to admit or exclude, for a limited
period. The words are

															"the migration or importation of such persons as any of the
States, now existing, shall think proper to admit shall not be
prohibited by the Congress prior to the year 1808."

															The whole object of the exception is to preserve the power to
those States which might be disposed to exercise it, and its
language seems to the Court to convey this idea unequivocally. The
possession of this particular power, then, during the time limited
in the Constitution, cannot be admitted to prove the possession of
any other similar power.

															It has been said that the act of August 7, 1789, acknowledges a
concurrent power in the States to regulate the conduct of pilots,
and hence is inferred an admission of their concurrent right with
Congress to regulate commerce with foreign nations and amongst the
States. But this inference is not, we think, justified by the
fact.

															Although Congress cannot enable a State to legislate, Congress
may adopt the provisions of a State on any subject. When the
government of the Union was brought into existence, it found a
system for the regulation of its pilots in full force in every
State. The act which has been mentioned adopts this system, and
gives it the same validity as if its provisions had been specially
made by Congress. But the act, it may be said, is prospective also,
and the adoption of laws to be made Page 22 U. S. 208 in future presupposes the right in the maker to legislate on the
subject.

															The act unquestionably manifests an intention to leave this
subject entirely to the States until Congress should think proper
to interpose, but the very enactment of such a law indicates an
opinion that it was necessary, that the existing system would not
be applicable to the new state of things unless expressly applied
to it by Congress. But this section is confined to pilots within
the "bays, inlets, rivers, harbours, and ports of the United
States," which are, of course, in whole or in part, also within the
limits of some particular state. The acknowledged power of a State
to regulate its police, its domestic trade, and to govern its own
citizens may enable it to legislate on this subject to a
considerable extent, and the adoption of its system by Congress,
and the application of it to the whole subject of commerce, does
not seem to the Court to imply a right in the States so to apply it
of their own authority. But the adoption of the State system being
temporary, being only "until further legislative provision shall be
made by Congress," shows conclusively an opinion that Congress
could control the whole subject, and might adopt the system of the
States or provide one of its own.

															A State, it is said, or even a private citizen, may construct
light houses. But gentlemen must be aware that if this proves a
power in a State to regulate commerce, it proves that the same
power is in the citizen. States or individuals who own lands may,
if not forbidden by law, Page 22 U. S. 209 erect on those lands what buildings they please, but this power
is entirely distinct from that of regulating commerce, and may, we
presume, be restrained if exercised so as to produce a public
mischief.

															These acts were cited at the bar for the purpose of showing an
opinion in Congress that the States possess, concurrently with the
Legislature of the Union, the power to regulate commerce with
foreign nations and among the States. Upon reviewing them, we think
they do not establish the proposition they were intended to prove.
They show the opinion that the States retain powers enabling them
to pass the laws to which allusion has been made, not that those
laws proceed from the particular power which has been delegated to
Congress.

															It has been contended by the counsel for the appellant that, as
the word "to regulate" implies in its nature full power over the
thing to be regulated, it excludes necessarily the action of all
others that would perform the same operation on the same thing.
That regulation is designed for 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 leave
untouched as that on which it has operated.

															There is great force in this argument, and the Court is not
satisfied that it has been refuted.

															Since, however, in exercising the power of regulating their own
purely internal affairs, whether Page 22 U. S. 210 of trading or police, the States may sometimes enact laws the
validity of which depends on their interfering with, and being
contrary to, an act of Congress passed in pursuance of the
Constitution, the Court will enter upon the inquiry whether the
laws of New York, as expounded by the highest tribunal of that
State, have, in their application to this case, come into collision
with an act of Congress and deprived a citizen of a right to which
that act entitles him. Should this collision exist, it will be
immaterial whether those laws were passed in virtue of a concurrent
power "to regulate commerce with foreign nations and among the
several States" or in virtue of a power to regulate their domestic
trade and police. In one case and the other, the acts of New York
must yield to the law of Congress, and the decision sustaining the
privilege they confer against a right given by a law of the Union
must be erroneous.

															This opinion has been frequently expressed in this Court, and is
founded as well on the nature of the government as on the words of
the Constitution. In argument, however, it has been contended that,
if a law passed by a State, in the exercise of its acknowledged
sovereignty, comes into conflict with a law passed by Congress in
pursuance of the Constitution, they affect the subject and each
other like equal opposing powers.

															But the framers of our Constitution foresaw this state of
things, and provided for it by declaring the supremacy not only of
itself, but of the laws made in pursuance of it. The nullity of any
act Page 22 U. S. 211 inconsistent with the Constitution is produced by the
declaration that the Constitution is the supreme law. The
appropriate application of that part of the clause which confers
the same supremacy on laws and treaties is to such acts of the
State Legislatures as do not transcend their powers, but, though
enacted in the execution of acknowledged State powers, interfere
with, or are contrary to, the laws of Congress made in pursuance of
the Constitution or some treaty made under the authority of the
United States. In every such case, the act of Congress or the
treaty is supreme, and the law of the State, though enacted in the
exercise of powers not controverted, must yield to it.

															In pursuing this inquiry at the bar, it has been said that the
Constitution does not confer the right of intercourse between State
and State. That right derives its source from those laws whose
authority is acknowledged by civilized man throughout the world.
This is true. The Constitution found it an existing right, and gave
to Congress the power to regulate it. In the exercise of this
power, Congress has passed "an act for enrolling or licensing ships
or vessels to be employed in the coasting trade and fisheries, and
for regulating the same." The counsel for the respondent contend
that this act does not give the right to sail from port to port,
but confines itself to regulating a preexisting right so far only
as to confer certain privileges on enrolled and licensed vessels in
its exercise.

															It will at once occur that, when a Legislature Page 22 U. S. 212 attaches certain privileges and exemptions to the exercise of a
right over which its control is absolute, the law must imply a
power to exercise the right. The privileges are gone if the right
itself be annihilated. It would be contrary to all reason, and to
the course of human affairs, to say that a State is unable to strip
a vessel of the particular privileges attendant on the exercise of
a right, and yet may annul the right itself; that the State of New
York cannot prevent an enrolled and licensed vessel, proceeding
from Elizabethtown, in New Jersey, to New York, from enjoying, in
her course, and on her entrance into port, all the privileges
conferred by the act of Congress, but can shut her up in her own
port, and prohibit altogether her entering the waters and ports of
another State. To the Court, it seems very clear that the whole act
on the subject of the coasting trade, according to those principles
which govern the construction of statutes, implies unequivocally an
authority to licensed vessels to carry on the coasting trade.

															But we will proceed briefly to notice those sections which bear
more directly on the subject.

															The first section declares that vessels enrolled by virtue of a
previous law, and certain other vessels enrolled as described in
that act, and having a license in force, as is by the act
required,

															"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."

															This section seems to the Court to contain a positive enactment
that the the vessels it describes shall Page 22 U. S. 213 be entitled to the privileges of ships or vessels employed in
the coasting trade. These privileges cannot be separated from the
trade and cannot be enjoyed unless the trade may be prosecuted. The
grant of the privilege is an idle, empty form, conveying nothing,
unless it convey the right to which the privilege is attached and
in the exercise of which its whole value consists. To construe
these words otherwise than as entitling the ships or vessels
described to carry on the coasting trade would be, we think, to
disregard the apparent intent of the act.

															The fourth section directs the proper officer to grant to a
vessel qualified to receive it, "a license for carrying on the
coasting trade," and prescribes its form. After reciting the
compliance of the applicant with the previous requisites of the
law, the operative words of the instrument are,

															"license is hereby granted for the said steamboat Bellona to be employed in carrying on the coasting trade
for one year from the date hereof, and no longer."

															These are not the words of the officer, they are the words of
the legislature, and convey as explicitly the authority the act
intended to give, and operate as effectually, as if they had been
inserted in any other part of the act, than in the license
itself.

															The word "license" means permission or authority, and a license
to do any particular thing is a permission or authority to do that
thing, and if granted by a person having power to grant it,
transfers to the grantee the right to do whatever it purports to
authorize. It certainly transfers to Page 22 U. S. 214 him all the right which the grantor can transfer, to do what is
within the terms of the license.

															Would the validity or effect of such an instrument be questioned
by the respondent, if executed by persons claiming regularly under
the laws of New York?

															The license must be understood to be what it purports to be, a
legislative authority to the steamboat Bellona "to be
employed in carrying on the coasting trade, for one year from this
date."

															It has been denied that these words authorize a voyage from New
Jersey to New York. It is true that no ports are specified, but it
is equally true that the words used are perfectly intelligible, and
do confer such authority as unquestionably as if the ports had been
mentioned. The coasting trade is a term well understood. The law
has defined it, and all know its meaning perfectly. The act
describes with great minuteness the various operations of a vessel
engaged in it, and it cannot, we think, be doubted that a voyage
from New Jersey to New York is one of those operations.

															Notwithstanding the decided language of the license, it has also
been maintained that it gives no right to trade, and that its sole
purpose is to confer the American character.

															The answer given to this argument that the American character is
conferred by the enrollment, and not by the license, is, we think,
founded too clearly in the words of the law to require the support
of any additional observations. The enrollment of vessels designed
for the coasting trade corresponds precisely with the registration
of vessels Page 22 U. S. 215 designed for the foreign trade, and requires every circumstance
which can constitute the American character. The license can be
granted only to vessels already enrolled, if they be of the burthen
of twenty tons and upwards, and requires no circumstance essential
to the American character. The object of the license, then, cannot
be to ascertain the character of the vessel, but to do what it
professes to do -- that is, to give permission to a vessel already
proved by her enrollment to be American, to carry on the coasting
trade.

															But if the license be a permit to carry on the coasting trade,
the respondent denies that these boats were engaged in that trade,
or that the decree under consideration has restrained them from
prosecuting it. The boats of the appellant were, we are told,
employed in the transportation of passengers, and this is no part
of that commerce which Congress may regulate.

															If, as our whole course of legislation on this subject shows,
the power of Congress has been universally understood in America to
comprehend navigation, it is a very persuasive, if not a
conclusive, argument to prove that the construction is correct, and
if it be correct, no clear distinction is perceived between the
power to regulate vessels employed in transporting men for hire and
property for hire. The subject is transferred to Congress, and no
exception to the grant can be admitted which is not proved by the
words or the nature of the thing. A coasting vessel employed in the
transportation of passengers is as much a portion of the American
marine as one employed Page 22 U. S. 216 in the transportation of a cargo, and no reason is perceived why
such vessel should be withdrawn from the regulating power of that
government which has been thought best fitted for the purpose
generally. The provisions of the law respecting native seamen and
respecting ownership are as applicable to vessels carrying men as
to vessels carrying manufactures, and no reason is perceived why
the power over the subject should not be placed in the same hands.
The argument urged at the bar rests on the foundation that the
power of Congress does not extend to navigation as a branch of
commerce, and can only be applied to that subject incidentally and
occasionally. But if that foundation be removed, we must show some
plain, intelligible distinction, supported by the Constitution or
by reason, for discriminating between the power of Congress over
vessels employed in navigating the same seas. We can perceive no
such distinction.

															If we refer to the Constitution, the inference to be drawn from
it is rather against the distinction. The section which restrains
Congress from prohibiting the migration or importation of such
persons as any of the States may think proper to admit until the
year 1808 has always been considered as an exception from the power
to regulate commerce, and certainly seems to class migration with
importation. Migration applies as appropriately to voluntary as
importation does to involuntary arrivals, and, so far as an
exception from a power proves its existence, this section proves
that the power to regulate commerce applies equally Page 22 U. S. 217 to the regulation of vessels employed in transporting men, who
pass from place to place voluntarily, and to those who pass
involuntarily.

															If the power reside in Congress, as a portion of the general
grant to regulate commerce, then acts applying that power to
vessels generally must be construed as comprehending all vessels.
If none appear to be excluded by the language of the act, none can
be excluded by construction. Vessels have always been employed to a
greater or less extent in the transportation of passengers, and
have never been supposed to be, on that account, withdrawn from the
control or protection of Congress. Packets which ply along the
coast, as well as those which make voyages between Europe and
America, consider the transportation of passengers as an important
part of their business. Yet it has never been suspected that the
general laws of navigation did not apply to them.

															The duty act, sections 23 and 46, contains provisions respecting
passengers, and shows that vessels which transport them have the
same rights, and must perform the same duties, with other vessels.
They are governed by the general laws of navigation.

															In the progress of things, this seems to have grown into a
particular employment, and to have attracted the particular
attention of government. Congress was no longer satisfied with
comprehending vessels engaged specially in this business, within
those provisions which were intended for vessels generally, and, on
the 2d of March, 1819, passed "an act regulating passenger ships
and Page 22 U. S. 218 vessels." This wise and humane law provides for the safety and
comfort of passengers, and for the communication of everything
concerning them which may interest the government, to the
Department of State, but makes no provision concerning the entry of
the vessel or her conduct in the waters of the United States. This,
we think, shows conclusively the sense of Congress (if, indeed, any
evidence to that point could be required) that the preexisting
regulations comprehended passenger ships among others, and, in
prescribing the same duties, the Legislature must have considered
them as possessing the same rights.

															If, then, it were even true that the Bellona and the Stoudinger were employed exclusively in the conveyance of
passengers between New York and New Jersey, it would not follow
that this occupation did not constitute a part of the coasting
trade of the United States, and was not protected by the license
annexed to the answer. But we cannot perceive how the occupation of
these vessels can be drawn into question in the case before the
Court. The laws of New York, which grant the exclusive privilege
set up by the respondent, take no notice of the employment of
vessels, and relate only to the principle by which they are
propelled. Those laws do not inquire whether vessels are engaged in
transporting men or merchandise, but whether they are moved by
steam or wind. If by the former, the waters of New York are closed
against them, though their cargoes be dutiable goods, which the
laws of the Page 22 U. S. 219 United States permit them to enter and deliver in New York. If
by the latter, those waters are free to them though they should
carry passengers only. In conformity with the law is the bill of
the plaintiff in the State Court. The bill does not complain that
the Bellona and the Stoudinger carry passengers,
but that they are moved by steam. This is the injury of which he
complains, and is the sole injury against the continuance of which
he asks relief. The bill does not even allege specially that those
vessels were employed in the transportation of passengers, but says
generally that they were employed "in the transportation of
passengers, or otherwise." The answer avers only that they were
employed in the coasting trade, and insists on the right to carry
on any trade authorized by the license. No testimony is taken, and
the writ of injunction and decree restrain these licensed vessels
not from carrying passengers, but from being moved through the
waters of New York by steam for any purpose whatever.

															The questions, then, whether the conveyance of passengers be a
part of the coasting trade and whether a vessel can be protected in
that occupation by a coasting license are not, and cannot be,
raised in this case. The real and sole question seems to be whether
a steam machine in actual use deprives a vessel of the privileges
conferred by a license.

															In considering this question, the first idea which presents
itself is that the laws of Congress for the regulation of commerce
do not look to the Page 22 U. S. 220 principle by which vessels are moved. That subject is left
entirely to individual discretion, and, in that vast and complex
system of legislative enactment concerning it, which embraces
everything that the Legislature thought it necessary to notice,
there is not, we believe, one word respecting the peculiar
principle by which vessels are propelled through the water, except
what may be found in a single act granting a particular privilege
to steamboats. With this exception, every act, either prescribing
duties or granting privileges, applies to every vessel, whether
navigated by the instrumentality of wind or fire, of sails or
machinery. The whole weight of proof, then, is thrown upon him who
would introduce a distinction to which the words of the law give no
countenance.

															If a real difference could be admitted to exist between vessels
carrying passengers and others, it has already been observed that
there is no fact in this case which can bring up that question.
And, if the occupation of steamboats be a matter of such general
notoriety that the Court may be presumed to know it, although not
specially informed by the record, then we deny that the
transportation of passengers is their exclusive occupation. It is a
matter of general history that, in our western waters, their
principal employment is the transportation of merchandise, and all
know that, in the waters of the Atlantic, they are frequently so
employed.

															But all inquiry into this subject seems to the Court to be put
completely at rest by the act already Page 22 U. S. 221 mentioned, entitled, "An act for the enrolling and licensing of
steamboats."

															This act authorizes a steamboat employed, or intended to be
employed, only in a river or bay of the United States, owned wholly
or in part by an alien, resident within the United States, to be
enrolled and licensed as if the same belonged to a citizen of the
United States.

															This act demonstrates the opinion of Congress that steamboats
may be enrolled and licensed, in common with vessels using sails.
They are, of course, entitled to the same privileges, and can no
more be restrained from navigating waters and entering ports which
are free to such vessels than if they were wafted on their voyage
by the winds, instead of being propelled by the agency of fire. The
one element may be as legitimately used as the other for every
commercial purpose authorized by the laws of the Union, and the act
of a State inhibiting the use of either to any vessel having a
license under the act of Congress comes, we think, in direct
collision with that act.

															As this decides the cause, it is unnecessary to enter in an
examination of that part of the Constitution which empowers
Congress to promote the progress of science and the useful
arts.

															The Court is aware that, in stating the train of reasoning by
which we have been conducted to this result, much time has been
consumed in the attempt to demonstrate propositions which may have
been thought axioms. It is felt that the tediousness inseparable
from the endeavour to prove that which is already clear is
imputable to Page 22 U. S. 222 a considerable part of this opinion. But it was unavoidable. The
conclusion to which we have come depends on a chain of principles
which it was necessary to preserve unbroken, and although some of
them were thought nearly self-evident, the magnitude of the
question, the weight of character belonging to those from whose
judgment we dissent, and the argument at the bar demanded that we
should assume nothing.

															Powerful and ingenious minds, taking as postulates that the
powers expressly granted to the government of the Union are to be
contracted by construction into the narrowest possible compass and
that the original powers of the States are retained if any possible
construction will retain them may, by a course of well digested but
refined and metaphysical reasoning founded on these premises,
explain away the Constitution of our country and leave it a
magnificent structure indeed to look at, but totally unfit for use.
They may so entangle and perplex the understanding as to obscure
principles which were before thought quite plain, and induce doubts
where, if the mind were to pursue its own course, none would be
perceived. In such a case, it is peculiarly necessary to recur to
safe and fundamental principles to sustain those principles, and
when sustained, to make them the tests of the arguments to be
examined.

															Mr. Justice JOHNSON.

															The judgment entered by the Court in this cause, has my entire
approbation, but, having adopted my conclusions on views Page 22 U. S. 223 of the subject materially different from those of my brethren, I
feel it incumbent on me to exhibit those views. I have also another
inducement: in questions of great importance and great delicacy, I
feel my duty to the public best discharged by an effort to maintain
my opinions in my own way.

															In attempts to construe the Constitution, I have never found
much benefit resulting from the inquiry whether the whole or any
part of it is to be construed strictly or literally. The simple,
classical, precise, yet comprehensive language in which it is
couched leaves, at most, but very little latitude for construction,
and when its intent and meaning is discovered, nothing remains but
to execute the will of those who made it in the best manner to
effect the purposes intended. The great and paramount purpose was
to unite this mass of wealth and power, for the protection of the
humblest individual, his rights, civil and political, his interests
and prosperity, are the sole end; the rest are nothing but the
means. But the principal of those means, one so essential as to
approach nearer the characteristics of an end, was the independence
and harmony of the States that they may the better subserve the
purposes of cherishing and protecting the respective families of
this great republic.

															The strong sympathies, rather than the feeble government, which
bound the States together during a common war dissolved on the
return of peace, and the very principles which gave rise to the war
of the revolution began to threaten the Page 22 U. S. 224 Confederacy with anarchy and ruin. The States had resisted a tax
imposed by the parent State, and now reluctantly submitted to, or
altogether rejected, the moderate demands of the Confederation.
Everyone recollects the painful and threatening discussions which
arose on the subject of the five percent. duty. Some States
rejected it altogether; others insisted on collecting it
themselves; scarcely any acquiesced without reservations, which
deprived it altogether of the character of a national measure; and
at length, some repealed the laws by which they had signified their
acquiescence.

															For a century, the States had submitted, with murmurs, to the
commercial restrictions imposed by the parent State; and now,
finding themselves in the unlimited possession of those powers over
their own commerce which they had so long been deprived of and so
earnestly coveted, that selfish principle which, well controlled,
is so salutary, and which, unrestricted, is so unjust and
tyrannical, guided by inexperience and jealousy, began to show
itself in iniquitous laws and impolitic measures from which grew up
a conflict of commercial regulations destructive to the harmony of
the States and fatal to their commercial interests abroad.

															This was the immediate cause that led to the forming of a
convention.

															As early as 1778, the subject had been pressed upon the
attention of Congress by a memorial from the State of New Jersey,
and in 1781, we find a resolution presented to that body by one
of Page 22 U. S. 225 the most enlightened men of his day, Dr. Witherspoon, affirming
that

															"it is indispensably necessary that the United States, in
Congress assembled, should be vested with a right of superintending
the commercial regulations of every State that none may take place
that shall be partial or contrary to the common interests."

															The resolution of Virginia, January 21, 1781, appointing her
commissioners to meet commissioners from other States, expresses
their purpose to be

															"to take into consideration the trade of the United States, to
consider how far an uniform system in their commercial regulations
may be necessary to their common interests and their permanent
harmony."

															And Mr. Madison's resolution, which led to that measure, is
introduced by a preamble entirely explicit to this point:

															"Whereas, the relative situation of the United States has been
found, on trial, to require uniformity in their commercial
regulations as the only effectual policy for obtaining, in the
ports of foreign nations, a stipulation of privileges reciprocal to
those enjoyed by the subjects of such nations in the ports of the
United States, for preventing animosities, which cannot fail to
arise among the several States, from the interference of partial
and separate regulations,"

															&c. "therefore, resolved," &c.

															The history of the times will therefore sustain the opinion that
the grant of power over commerce, if intended to be commensurate
with the evils existing and the purpose of remedying those Page 22 U. S. 226 evils, could be only commensurate with the power of the States
over the subject. And this opinion is supported by a very
remarkable evidence of the general understanding of the whole
American people when the grant was made.

															There was not a State in the Union in which there did not at
that time exist a variety of commercial regulations; concerning
which it is too much to suppose that the whole ground covered by
those regulations was immediately assumed by actual legislation
under the authority of the Union. But where was the existing
statute on this subject that a State attempted to execute? or by
what State was it ever thought necessary to repeal those statutes?
By common consent, those laws dropped lifeless from their statute
books for want of the sustaining power that had been relinquished
to Congress.

															And the plain and direct import of the words of the grant is
consistent with this general understanding.

															The words of the Constitution are, "Congress shall have power to
regulate commerce with foreign nations, and among the several
States, and with the Indian tribes."

															It is not material, in my view of the subject, to inquire
whether the article a or the should be prefixed to the word
"power." Either or neither will produce the same result: if either,
it is clear that the article "the" would be the proper one, since
the next preceding grant of power is certainly exclusive, to-wit:
"to borrow money on the credit Page 22 U. S. 227 of the United States." But mere verbal criticism I reject.

															My opinion is founded on the application of the words of the
grant to the subject of it.

															The "power to regulate commerce" here meant to be granted was
that power to regulate commerce which previously existed in the
States. But what was that power? The States were unquestionably
supreme, and each possessed that power over commerce which is
acknowledged to reside in every sovereign State. The definition and
limits of that power are to be sought among the features of
international law, and, as it was not only admitted but insisted on
by both parties in argument that, "unaffected by a state of war, by
treaties, or by municipal regulations, all commerce among
independent States was legitimate," there is no necessity to appeal
to the oracles of the jus commune for the correctness of
that doctrine. The law of nations, regarding man as a social
animal, pronounces all commerce legitimate in a state of peace
until prohibited by positive law. The power of a sovereign state
over commerce therefore amounts to nothing more than a power to
limit and restrain it at pleasure. And since the power to prescribe
the limits to its freedom necessarily implies the power to
determine what shall remain unrestrained, it follows that the power
must be exclusive; it can reside but in one potentate, and hence
the grant of this power carries with it the whole subject, leaving
nothing for the State to act upon.

															And such has been the practical construction of Page 22 U. S. 228 the act. Were every law on the subject of commerce repealed
tomorrow, all commerce would be lawful, and, in practice, merchants
never inquire what is permitted, but what is forbidden commerce. Of
all the endless variety of branches of foreign commerce now carried
on to every quarter of the world, I know of no one that is
permitted by act of Congress any otherwise than by not being
forbidden. No statute of the United States that I know of was ever
passed to permit a commerce unless in consequence of its having
been prohibited by some previous statute.

															I speak not here of the treaty-making power, for that is not
exercised under the grant now under consideration. I confine my
observation to laws properly so called. And even where freedom of
commercial intercourse is made a subject of stipulation in a
treaty, it is generally with a view to the removal of some previous
restriction, or the introduction of some new privilege, most
frequently, is identified with the return to a state of peace. But
another view of the subject leads directly to the same conclusion.
Power to regulate foreign commerce is given in the same words, and
in the same breath, as it were, with that over the commerce of the
States and with the Indian tribes. But the power to regulate
foreign commerce is necessarily exclusive. The States are unknown
to foreign nations, their sovereignty exists only with relation to
each other and the General Government. Whatever regulations foreign
commerce should be subjected to in the ports of the Union, the
General Government would be Page 22 U. S. 229 held responsible for them, and all other regulations but those
which Congress had imposed would be regarded by foreign nations as
trespasses and violations of national faith and comity.

															But the language which grants the power as to one description of
commerce grants it as to all, and, in fact, if ever the exercise of
a right or acquiescence in a construction could be inferred from
contemporaneous and continued assent, it is that of the exclusive
effect of this grant.

															A right over the subject has never been pretended to in any
instance except as incidental to the exercise of some other
unquestionable power.

															The present is an instance of the assertion of that kind, as
incidental to a municipal power; that of superintending the
internal concerns of a State, and particularly of extending
protection and patronage, in the shape of a monopoly, to genius and
enterprise.

															The grant to Livingston and Fulton interferes with the freedom
of intercourse, and on this principle, its constitutionality is
contested.

															When speaking of the power of Congress over navigation, I do not
regard it as a power incidental to that of regulating commerce; I
consider it as the thing itself, inseparable from it as vital
motion is from vital existence.

															Commerce, in its simplest signification, means an exchange of
goods, but in the advancement of society, labour, transportation,
intelligence, care, and various mediums of exchange become
commodities, and enter into commerce, the subject, Page 22 U. S. 230 the vehicle, the agent, and their various operations become the
objects of commercial regulation. Shipbuilding, the carrying trade,
and propagation of seamen are such vital agents of commercial
prosperity that the nation which could not legislate over these
subjects would not possess power to regulate commerce.

															That such was the understanding of the framers of the
Constitution is conspicuous from provisions contained in that
instrument.

															The first clause of the 9th section not only considers the right
of controlling personal ingress or migration, as implied in the
powers previously vested in Congress over commerce, but
acknowledges it as a legitimate subject of revenue. And, although
the leading object of this section undoubtedly was the importation
of slaves, yet the words are obviously calculated to comprise
persons of all descriptions, and to recognise in Congress a power
to prohibit where the States permit, although they cannot permit
when the States prohibit. The treaty-making power undoubtedly goes
further. So the fifth clause of the same section furnishes an
exposition of the sense of the Convention as to the power of
Congress over navigation: "nor shall vessels bound to or from one
State be obliged to enter, clear, or pay duties in another."

															But it is almost labouring to prove a self-evident proposition,
since the sense of mankind, the practice of the world, the
contemporaneous assumption and continued exercise of the power, and
universal acquiescence, have so clearly established Page 22 U. S. 231 the right of Congress over navigation, and the transportation of
both men and their goods, as not only incidental to, but actually
of the essence of, the power to regulate commerce. As to the
transportation of passengers, and passengers in a steamboat, I
consider it as having been solemnly recognised by the State of New
York as a subject both of commercial regulation and of revenue. She
has imposed a transit duty upon steamboat passengers arriving at
Albany, and unless this be done in the exercise of her control over
personal intercourse, as incident to internal commerce, I know not
on what principle the individual has been subjected to this tax.
The subsequent imposition upon the steamboat itself appears to be
but a commutation, and operates as an indirect, instead of a
direct, tax upon the same subject. The passenger pays it at
last.

															It is impossible, with the views which I entertain of the
principle on which the commercial privileges of the people of the
United States among themselves rests, to concur in the view which
this Court takes of the effect of the coasting license in this
cause. I do not regard it as the foundation of the right set up in
behalf of the appellant. If there was any one object riding over
every other in the adoption of the Constitution, it was to keep the
commercial intercourse among the States free from all invidious and
partial restraints. And I cannot overcome the conviction that, if
the licensing act was repealed tomorrow, the rights of the
appellant to a reversal of the decision complained of would be
as Page 22 U. S. 232 strong as it is under this license. One half the doubts in life
arise from the defects of language, and if this instrument had been
called an exemption instead of a license, it would have given a
better idea of its character. Licensing acts, in fact, in
legislation, are universally restraining acts, as, for example,
acts licensing gaming houses, retailers of spiritous liquors,
&c. The act in this instance is distinctly of that character,
and forms part of an extensive system the object of which is to
encourage American shipping and place them on an equal footing with
the shipping of other nations. Almost every commercial nation
reserves to its own subjects a monopoly of its coasting trade, and
a countervailing privilege in favour of American shipping is
contemplated in the whole legislation of the United States on this
subject. It is not to give the vessel an American character that
the license is granted; that effect has been correctly attributed
to the act of her enrollment. But it is to confer on her American
privileges, as contradistinguished from foreign, and to preserve
the government from fraud by foreigners in surreptitiously
intruding themselves into the American commercial marine, as well
as frauds upon the revenue in the trade coastwise, that this whole
system is projected. Many duties and formalities are necessarily
imposed upon the American foreign commerce which would be
burdensome in the active coasting trade of the States, and can be
dispensed with. A higher rate of tonnage also is imposed, and this
license entitles the vessels that take it to those exemptions, but
to nothing more. Page 22 U. S. 233 A common register equally entitles vessels to carry on the
coasting trade, although it does not exempt them from the forms of
foreign commerce or from compliance with the 16th and 17th sections
of the enrolling act. And even a foreign vessel may be employed
coastwise upon complying with the requisitions of the 24th section.
I consider the license therefore as nothing more than what it
purports to be, according to the first section of this act,
conferring on the licensed vessel certain privileges in that trade
not conferred on other vessels; but the abstract right of
commercial intercourse, stripped of those privileges, is common to
all.

															Yet there is one view in which the license may be allowed
considerable influence in sustaining the decision of this
Court.

															It has been contended that the grants of power to the United
States over any subject do not necessarily paralyze the arm of the
States or deprive them of the capacity to act on the same subject.
The this can be the effect only of prohibitory provisions in their
own Constitutions, or in that of the General Government. The vis vitae of power is still existing in the States, if not
extinguished by the Constitution of the United States. That,
although as to all those grants of power which may be called
aboriginal, with relation to the Government, brought into existence
by the Constitution, they, of course, are out of the reach of State
power, yet, as to all concessions of powers which previously
existed in the States, it was otherwise. The practice of our
Government certainly Page 22 U. S. 234 has been, on many subjects, to occupy so much only of the field
opened to them as they think the public interests require. Witness
the jurisdiction of the Circuit Courts, limited both as to cases
and as to amount, and various other instances that might to cited.
But the license furnishes a full answer to this objection, for,
although one grant of power over commerce, should not be deemed a
total relinquishment of power over the subject, but amounting only
to a power to assume, still the power of the States must be at an
end, so far as the United States have, by their legislative act,
taken the subject under their immediate superintendence. So far as
relates to the commerce coastwise, the act under which this license
is granted contains a full expression of Congress on this subject.
Vessels, from five tons upwards, carrying on the coasting trade are
made the subject of regulation by that act. And this license proves
that this vessel has complied with that act, and been regularly
ingrafted into one class of the commercial marine of the
country.

															It remains, to consider the objections to this opinion, as
presented by the counsel for the appellee. On those which had
relation to the particular character of this boat, whether as a
steamboat or a ferry boat, I have only to remark that, in both
those characters, she is expressly recognised as an object of the
provisions which relate to licenses.

															The 12th section of the Act of 1793 has these words: "That when
the master of any ship or vessel, ferry boats excepted, shall be
changed," &c. And the act which exempts licensed steamboats Page 22 U. S. 235 from the provisions against alien interests shows such boats to
be both objects of the licensing act and objects of that act when
employed exclusively within our bays and rivers.

															But the principal objections to these opinions arise,

															1st. From the unavoidable action of some of the municipal powers
of the States upon commercial subjects.

															2d. From passages in the Constitution which are supposed to
imply a concurrent power in the States in regulating commerce.

															It is no objection to the existence of distinct, substantive
powers that, in their application, they bear upon the same subject.
The same bale of goods, the same cask of provisions, or the same
ship that may be the subject of commercial regulation may also be
the vehicle of disease. And the health laws that require them to be
stopped and ventilated are no more intended as regulations on
commerce than the laws which permit their importation are intended
to innoculate the community with disease. Their different purposes
mark the distinction between the powers brought into action, and
while frankly exercised, they can produce no serious collision. As
to laws affecting ferries, turnpike roads, and other subjects of
the same class, so far from meriting the epithet of commercial
regulations, they are, in fact, commercial facilities for which, by
the consent of mankind, a compensation is paid upon the same
principle that the whole commercial world submit to pay light money
to the Danes. Inspection laws are of a more equivocal nature, and
it is obvious that Page 22 U. S. 236 the Constitution has viewed that subject with much solicitude.
But so far from sustaining an inference in favour of the power of
the States over commerce, I cannot but think that the guarded
provisions of the 10th section on this subject furnish a strong
argument against that inference. It was obvious that inspection
laws must combine municipal with commercial regulations, and, while
the power over the subject is yielded to the States, for obvious
reasons, an absolute control is given over State legislation on the
subject, as far as that legislation may be exercised, so as to
affect the commerce of the country. The inferences to be correctly
drawn from this whole article appear to me to be altogether in
favour of the exclusive grants to Congress of power over commerce,
and the reverse of that which the appellee contends for.

															This section contains the positive restrictions imposed by the
Constitution upon State power. The first clause of it specifies
those powers which the States are precluded from exercising, even
though the Congress were to permit them. The second, those which
the States may exercise with the consent of Congress. And here the
sedulous attention to the subject of State exclusion from
commercial power is strongly marked. Not satisfied with the express
grant to the United States of the power over commerce, this clause
negatives the exercise of that power to the States as to the only
two objects which could ever tempt them to assume the exercise of
that power, to-wit, the collection of a revenue from imposts and
duties on imports and exports, or from a tonnage duty. As Page 22 U. S. 237 to imposts on imports or exports, such a revenue might have been
aimed at directly, by express legislation, or indirectly, in the
form of inspection laws, and it became necessary to guard against
both. Hence, first, the consent of Congress to such imposts or
duties is made necessary, and, as to inspection laws, it is limited
to the minimum of expenses. Then the money so raised shall be paid
into the Treasury of the United States, or may be sued for, since
it is declared to be for their use. And lastly, all such laws may
be modified or repealed by an act of Congress. It is impossible for
a right to be more guarded. As to a tonnage duty that could be
recovered in but one way, and a sum so raised, being obviously
necessary for the execution of health laws and other unavoidable
port expenses, it was intended that it should go into the State
treasuries, and nothing more was required therefore than the
consent of Congress. But this whole clause, as to these two
subjects, appears to have been introduced ex abundanti
cautela, to remove every temptation to an attempt to interfere
with the powers of Congress over commerce, and to show how far
Congress might consent to permit the States to exercise that power.
Beyond those limits, even by the consent of Congress, they could
not exercise it. And thus we have the whole effect of the clause.
The inference which counsel would deduce from it is neither
necessary nor consistent with the general purpose of the
clause.

															But instances have been insisted on with much confidence in
argument in which, by municipal Page 22 U. S. 238 laws, particular regulations respecting their cargoes have been
imposed upon shipping in the ports of the United States, and one in
which forfeiture was made the penalty of disobedience.

															Until such laws have been tested by exceptions to their
constitutionality, the argument certainly wants much of the force
attributed to it; but, admitting their constitutionality, they
present only the familiar case of punishment inflicted by both
governments upon the same individual. He who robs the mail may also
steal the horse that carries it, and would unquestionably be
subject to punishment at the same time under the laws of the State
in which the crime is committed and under those of the United
States. And these punishments may interfere, and one render it
impossible to inflict the other, and yet the two governments would
be acting under powers that have no claim to identity.

															It would be in vain to deny the possibility of a clashing and
collision between the measures of the two governments. The line
cannot be drawn with sufficient distinctness between the municipal
powers of the one and the commercial powers of the other. In some
points, they meet and blend so as scarcely to admit of separation.
Hitherto, the only remedy has been applied which the case admits of
-- that of a frank and candid cooperation for the general good.
Witness the laws of Congress requiring its officers to respect the
inspection laws of the States and to aid in enforcing their health
laws, that which surrenders to the States the superintendence of
pilotage, and the Page 22 U. S. 239 many laws passed to permit a tonnage duty to be levied for the
use of their ports. Other instances could be cited abundantly to
prove that collision must be sought to be produced, and when it
does arise, the question must be decided how far the powers of
Congress are adequate to put it down. Wherever the powers of the
respective governments are frankly exercised, with a distinct view
to the ends of such powers, they may act upon the same object, or
use the same means, and yet the powers be kept perfectly distinct.
A resort to the same means therefore is no argument to prove the
identity of their respective powers.

															I have not touched upon the right of the States to grant patents
for inventions or improvements generally, because it does not
necessarily arise in this cause. It is enough for all the purposes
of this decision if they cannot exercise it so as to restrain a
free intercourse among the States.

															DECREE. This cause came on to be heard on the transcript of the
record of the Court for the Trial of Impeachments and Correction of
Errors of the State of New York, and was argued by counsel. On
consideration whereof, this Court is of opinion that the several
licenses to the steamboats the Stoudinger and the Bellona to carry on the coasting trade, which are set up
by the appellant Thomas Gibbons in his answer to the bill of the
respondent, Aaron Ogden, filed in the Court of Chancery for the
State of New York, which were granted under an act of Congress,
passed in pursuance of the Constitution of the Page 22 U. S. 240 United States, gave full authority to those vessels to navigate
the waters of the United States, by steam or otherwise, for the
purpose of carrying on the coasting trade, any law of the State of
New York to the contrary notwithstanding, and that so much of the
several laws of the State of New York as prohibits vessels,
licensed according to the laws of the United States, from
navigating the waters of the State of New York by means of fire or
steam is repugnant to the said Constitution, and void. This Court
is therefore of opinion that the decree of the Court of New York
for the Trial of Impeachments and the Correction of Errors
affirming the decree of the Chancellor of that State, which
perpetually enjoins the said Thomas Gibbons, the appellant, from
navigating the waters of the State of New York with the steamboats
the Stoudinger and the Bellona by steam or fire,
is erroneous, and ought to be reversed, and the same is hereby
reversed and annulled, and this Court doth further DIRECT, ORDER,
and DECREE that the bill of the said Aaron Ogden be dismissed, and
the same is hereby dismissed accordingly.