1 ELEMENTS 1 ELEMENTS

1.1 TEXT & CONTEXT 1.1 TEXT & CONTEXT

1.1.1 Articles V and VII, U.S. Constitution 1.1.1 Articles V and VII, U.S. Constitution

We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article I

Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by law Direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the expiration of the second Year, of the second Class at the expiration of the fourth Year, and of the third Class at the expiration of the sixth Year, so that one third may be chosen every second Year; and if vacancies happen by Resignation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next meeting of the Legislature, which shall then fill such Vacancies.

No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice-President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice-President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by law appoint a different Day.

Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each house may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

Each house shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that house shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section 8. The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dockyards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section 9. 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 one thousand eight hundred and eight, but a Tax or Duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States; and no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

ARTICLE II

Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a Quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next session.

Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

ARTICLE III

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States; —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

ARTICLE IV

Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.

Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labor, But shall be delivered up on Claim of the Party to whom such Service or Labor may be due.

Section 3. New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

ARTICLE V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year one thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate.

ARTICLE VI

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

ARTICLE VII

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names,

Go. WASHINGTON—
Presid. and deputy from Virginia

New Hampshire

John Langdon
Nicholas Gilman

Massachusetts

Nathaniel Gorham
Rufus King

Connecticut

Wm. Saml. Johnson
Roger Sherman

New York

Alexander Hamilton

New Jersey

Wil: Livingston
David Brearley
Wm. Paterson
Jona: Dayton

Pennsylvania

B Franklin
Thomas Mifflin
Robt Morris
Geo. Clymer
Thos FitzSimons
Jared Ingersoll
James Wilson
Gouv Morris

Delaware

Geo: Read
Gunning Bedford jun
John Dickinson
Richard Bassett
Jaco: Broom

Maryland

James Mchenry
Dan of St Thos. Jenifer
Danl Carroll

Virginia

John Blair—
James Madison Jr.

North Carolina

Wm. Blount
Rich'd Dobbs Spaight
Hu Williamson

South Carolina

J. Rutledge
Charles Cotesworth Pinckney
Charles Pinckney
Pierce Butler

Georgia

William Few
Abr Baldwin

Attest:
William Jackson, Secretary


1.1.2 Article XIII, Articles of Confederation 1.1.2 Article XIII, Articles of Confederation

Article XIII.

Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.

In Witness whereof we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsylvania the ninth day of July in the Year of our Lord One Thousand Seven Hundred and Seventy-Eight, and in the Third Year of the independence of America.

Agreed to by Congress 15 November 1777 In force after ratification by Maryland, 1 March 1781

1.2 FRAMING READINGS 1.2 FRAMING READINGS

1.2.1 Marbury v. Madison 1.2.1 Marbury v. Madison

5 U.S. 137
1 Cranch 137
2 L.Ed. 60
WILLIAM MARBURY
v.
JAMES MADISON, Secretary of State of the United States.
February Term, 1803

          AT the December term 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel

Page 138

severally moved the court for a rule to James Madison, secretary of state of the United States, to show cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the district of Columbia.

          This motion was supported by affidavits of the following facts: that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late president of the United States, nominated the applicants to the senate for their advice and consent to be appointed justices of the peace of the district of Columbia; that the senate advised and consented to the appointments; that commissions in due form were signed by the said president appointing them justices, &c. and that the seal of the United States was in due form affixed to the said commissions by the secretary of state; that the applicants have requested Mr. Madison to deliver them their said commissions, who has not complied with that request; and that their said commissions are withheld from them; that the applicants have made application to Mr. Madison as secretary of state of the United States at his office, for information whether the commissions were signed and sealed as aforesaid; that explicit and satisfactory information has not been given in answer to that inquiry, either by the secretary of state, or any officer in the department of state; that application has been made to the secretary of the senate for a certificate of the nomination of the applicants, and of the advice and consent of the senate, who has declined giving such a certificate; whereupon a rule was made to show cause on the fourth day of this term. This rule having been duly served--

Page 139

          Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court, and were required to give evidence, objected to be sworn, alleging that they were clerks in the department of state, and not bound to disclose any facts relating to the business or transactions of the office.

          The court ordered the witnesses to be sworn, and their answers taken in writing; but informed them that when the questions were asked they might state their objections to answering each particular question, if they had any.

          Mr. Lincoln, who had been the acting secretary of state, when the circumstances stated in the affidavits occurred, was called upon to give testimony. He objected to answering. The questions were put in writing.

          The court said there was nothing confidential required to be disclosed. If there had been, he was not obliged to answer it, and if he thought any thing was communicated to him confidentially he was not bound to disclose, nor was he obliged to state any thing which would criminate himself.

          The questions argued by the counsel for the relators were, 1. Whether the supreme court can award the writ of mandamus in any case. 2. Whether it will lie to a secretary of state, in any case whatever. 3. Whether in the present case the court may award a mandamus to James Madison, secretary of state.

  [Argument of Counsel from Pages 139-152 intentionally omitted]

Page 153

           Mr. Chief Justice MARSHALL delivered the opinion of the court.

          At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to show cause why a mandamus

Page 154

should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the district of Columbia.

          No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles on which the opinion to be given by the court is founded.

          These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the court, there will be some departure in form, though not in substance, from the points stated in that argument.

          In the order in which the court has viewed this subject, the following questions have been considered and decided.

          1. Has the applicant a right to the commission he demands?

          2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

          3. If they do afford him a remedy, is it a mandamus issuing from this court?

          The first object of inquiry is,

          1. Has the applicant a right to the commission he demands?

          His right originates in an act of congress passed in February 1801, concerning the district of Columbia.

          After dividing the district into two counties, the eleventh section of this law enacts, 'that there shall be appointed in and for each of the said counties, such number of discreet persons to be justices of the peace as the president of the United States shall, from time to time, think expedient, to continue in office for five years.

Page 155

          It appears from the affidavits, that in compliance with this law, a commission for William Marbury as a justice of peace for the county of Washington was signed by John Adams, then president of the United States; after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out.

          In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property.

          The second section of the second article of the constitution declares, 'the president shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for.'

          The third section declares, that 'he shall commission all the officers of the United States.'

          An act of congress directs the secretary of state to keep the seal of the United States, 'to make out and record, and affix the said seal to all civil commissions to officers of the United States to be appointed by the president, by and with the consent of the senate, or by the president alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the president of the United States.'

          These are the clauses of the constitution and laws of the United States, which affect this part of the case. They seem to contemplate three distinct operations:

          1. The nomination. This is the sole act of the president, and is completely voluntary.

          2. The appointment. This is also the act of the president, and is also a voluntary act, though it can only be performed by and with the advice and consent of the senate.

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          3. The commission. To grant a commission to a person appointed, might perhaps be deemed a duty enjoined by the constitution. 'He shall,' says that instrument, 'commission all the officers of the United States.'

          The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the constitution. The distinction between the appointment and the commission will be rendered more apparent by adverting to that provision in the second section of the second article of the constitution, which authorises congress 'to vest by law the appointment of such inferior officers as they think proper, in the president alone, in the courts of law, or in the heads of departments;' thus contemplating cases where the law may direct the president to commission an officer appointed by the courts or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which perhaps, could not legally be refused.

          Although that clause of the constitution which requires the president to commission all the officers of the United States, may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed, remains the same as if in practice the president had commissioned officers appointed by an authority other than his own.

          It follows too, from the existence of this distinction, that, if an appointment was to be evidenced by any public act other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the president, would either give him a right to his commission, or enable him to perform the duties without it.

          These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration.

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          This is an appointment made by the president, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case therefore the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission: still the commission is not necessarily the appointment; though conclusive evidence of it.

          But at what stage does it amount to this conclusive evidence?

          The answer to this question seems an obvious one. The appointment being the sole act of the president, must be completely evidenced, when it is shown that he has done every thing to be performed by him.

          Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself; still it would be made when the last act to be done by the president was performed, or, at furthest, when the commission was complete.

          The last act to be done by the president, is the signature of the commission. He has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as it respects the appointment, an inchoate and incomplete transaction.

          Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission. This idea seems to have prevailed with the legislature, when the act passed converting the department

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of foreign affairs into the department of state. By that act it is enacted, that the secretary of state shall keep the seal of the United States, 'and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the president:' 'provided that the said seal shall not be affixed to any commission, before the same shall have been signed by the president of the United States; nor to any other instrument or act, without the special warrant of the president therefor.'

          The signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument which is complete. It attests, by an act supposed to be of public notoriety, the verity of the presidential signature.

          It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made.

          The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the president. He is to affix the seal of the United States to the commission, and is to record it.

          This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the president. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.

          If it should be supposed, that the solemnity of affixing the seal, is necessary not only to the validity of the commission, but even to the completion of an appointment, still when the seal is affixed the appointment is made, and

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the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of government. All that the executive can do to invest the person with his office, is done; and unless the appointment be then made, the executive cannot make one without the co-operation of others.

          After searching anxiously for the principles on which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine.

          Such as the imagination of the court could suggest, have been very deliberately examined, and after allowing them all the weight which it appears possible to give them, they do not shake the opinion which has been formed.

          In considering this question, it has been conjectured that the commission may have been assimilated to a deed, to the validity of which, delivery is essential.

          This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the actual appointment; a supposition by no means unquestionable. But for the purpose of examining this objection fairly, let it be conceded, that the principle, claimed for its support, is established.

          The appointment being, under the constitution, to be made by the president personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the president also. It is not necessary that the livery should be made personally to the grantee of the office: it never is so made. The law would seem to contemplate that it should be made to the secretary of state, since it directs the secretary to affix the seal to the commission after it shall have been signed by the president. If then the act of livery be necessary to give validity to the commission, it has been delivered when executed and given to the secretary for the purpose of being sealed, recorded, and transmitted to the party.

          But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidences

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of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign manual of the president, and the seal of the United States, are those solemnities. This objection therefore does not touch the case.

          It has also occurred as possible, and barely possible, that the transmission of the commission, and the acceptance thereof, might be deemed necessary to complete the right of the plaintiff.

          The transmission of the commission is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment which must precede it, and which is the mere act of the president. If the executive required that every person appointed to an office, should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the president; the transmission of the commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person already appointed; not to a person to be appointed or not, as the letter enclosing the commission should happen to get into the post-office and reach him in safety, or to miscarry.

          It may have some tendency to elucidate this point, to inquire, whether the possession of the original commission be indispensably necessary to authorize a person, appointed to any office, to perform the duties of that office. If it was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft, might deprive an individual of his office. In such a case, I presume it could not be doubted, but that a copy from the record of the office of the secretary of state, would be, to every intent and purpose, equal to the original. The act of congress has expressly made it so. To give that copy validity, it would not be necessary to prove that the original had been transmitted and afterwards lost. The copy would be complete evidence that the original had existed, and that the appointment had been made, but not that the original had been transmitted. If indeed it should appear that

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the original had been mislaid in the office of state, that circumstance would not affect the operation of the copy. When all the requisites have been performed which authorize a recording officer to record any instrument whatever, and the order for that purpose has been given, the instrument is in law considered as recorded, although the manual labour of inserting it in a book kept for that purpose may not have been performed.

          In the case of commissions, the law orders the secretary of state to record them. When therefore they are signed and sealed, the order for their being recorded is given; and whether inserted in the book or not, they are in law recorded.

          A copy of this record is declared equal to the original, and the fees to be paid by a person requiring a copy are ascertained by law. Can a keeper of a public record erase therefrom a commission which has been recorded? Or can he refuse a copy thereof to a person demanding it on the terms prescribed by law?

          Such a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty, because it would, equally with the original, attest his appointment.

          If the transmission of a commission be not considered as necessary to give validity to an appointment; still less is its acceptance. The appointment is the sole act of the president; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept: but neither the one nor the other is capable of rendering the appointment a nonentity.

          That this is the understanding of the government, is apparent from the whole tenor of its conduct.

          A commission bears date, and the salary of the officer commences from his appointment; not from the transmission or acceptance of his commission. When a person, appointed to any office, refuses to accept that office, the successor is nominated in the place of the person who

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has declined to accept, and not in the place of the person who had been previously in office and had created the original vacancy.

          It is therefore decidedly the opinion of the court, that when a commission has been signed by the president, the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the secretary of state.

          Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable and cannot be annulled. It has conferred legal rights which cannot be resumed.

          The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.

          Mr. Marbury, then, since his commission was signed by the president and sealed by the secretary of state, was appointed; and as the law creating the office gave the officer a right to hold for five years independent of the executive, the appointment was not revocable; but vested in the officer legal rights which are protected by the laws of his country.

          To withhold the commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.

          This brings us to the second inquiry; which is,

          2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

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          The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

          In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law.

          'In all other cases,' he says, 'it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.'

          And afterwards, page 109 of the same volume, he says, 'I am next to consider such injuries as are cognizable by the courts of common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.'

          The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

          If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case.

          It behoves us then to inquire whether there be in its composition any ingredient which shall exempt from legal investigation, or exclude the injured party from legal redress. In pursuing this inquiry the first question which presents itself, is, whether this can be arranged

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with that class of cases which come under the description of damnum absque injuria—a loss without an injury.

          This description of cases never has been considered, and it is believed never can be considered as comprehending offices of trust, of honour or of profit. The office of justice of peace in the district of Columbia is such an office; it is therefore worthy of the attention and guardianship of the laws. It has received that attention and guardianship. It has been created by special act of congress, and has been secured, so far as the laws can give security to the person appointed to fill it, for five years. It is not then on account of the worthlessness of the thing pursued, that the injured party can be alleged to be without remedy.

          Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere political act belonging to the executive department alone, for the performance of which entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy.

          That there may be such cases is not to be questioned; but that every act of duty to be performed in any of the great departments of government constitutes such a case, is not to be admitted.

          By the act concerning invalids, passed in June 1794, the secretary at war is ordered to place on the pension list all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law in precise terms directs the performance of an act in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country?

          Whatever the practice on particular occasions may be, the theory of this principle will certainly never be main-

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tained. No act of the legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law. After stating that personal injury from the king to a subject is presumed to be impossible, Blackstone, Vol. III. p. 255, says, 'but injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers: for whom, the law, in matters of right, entertains no respect or delicacy; but furnishes various methods of detecting the errors and misconduct of those agents by whom the king has been deceived and induced to do a temporary injustice.'

          By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river, the purchaser, on paying his purchase money, becomes completely entitled to the property purchased; and on producing to the secretary of state the receipt of the treasurer upon a certificate required by the law, the president of the United States is authorized to grant him a patent. It is further enacted that all patents shall be countersigned by the secretary of state, and recorded in his office. If the secretary of state should choose to withhold this patent; or the patent being lost, should refuse a copy of it; can it be imagined that the law furnishes to the injured person no remedy?

          It is not believed that any person whatever would attempt to maintain such a proposition.

          It follows then that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act.

          If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction.

          In some instances there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much difficulty in laying down the rule.

          By the constitution of the United States, the president is invested with certain important political powers, in the

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exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

          In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.

          But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.

          The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.

          If this be the rule, let us inquire how it applies to the case under the consideration of the court.

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          The power of nominating to the senate, and the power of appointing the person nominated, are political powers, to be exercised by the president according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the president, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and consequently if the officer is by law not removable at the will of the president, the rights he has acquired are protected by the law, and are not resumable by the president. They cannot be extinguished by executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source.

          The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority, If, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defence had depended on his being a magistrate; the validity of his appointment must have been determined by judicial authority.

          So, if he conceives that by virtue of his appointment he has a legal right either to the commission which has been made out for him or to a copy of that commission, it is equally a question examinable in a court, and the decision of the court upon it must depend on the opinion entertained of his appointment.

          That question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the appointment was complete, and evidenced, was when, after the signature of the president, the seal of the United States was affixed to the commission.

          It is then the opinion of the court,

          1. That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice

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of peace for the county of Washington in the district of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years.

          2. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.

          It remains to be inquired whether,

          3. He is entitled to the remedy for which he applies. This depends on,

          1. The nature of the writ applied for. And,

          2. The power of this court.

          1. The nature of the writ.

          Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be, 'a command issuing in the king's name from the court of king's bench, and directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified which appertains to their office and duty, and which the court of king's bench has previously determined, or at least supposes, to be consonant to right and justice.'

          Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al. states with much precision and explicitness the cases in which this writ may be used.

          'Whenever,' says that very able judge, 'there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern or attended with profit), and a person is kept out of possession, or dispossessed of such right, and

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has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government.' In the same case he says, 'this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.'

          In addition to the authorities now particularly cited, many others were relied on at the bar, which show how far the practice has conformed to the general doctrines that have been just quoted.

          This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone, 'to do a particular thing therein specified, which appertains to his office and duty, and which the court has previously determined or at least supposes to be consonant to right and justice.' Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right.

          These circumstances certainly concur in this case.

          Still, to render the mandamus a proper remedy, the officer to whom it is to be directed, must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy.

          1. With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination; and it is not wonderful that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should at first view be considered

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by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive.

          It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.

          But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper, which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents; if it be no intermeddling with a subject, over which the executive can be considered as having exercised any control; what is there in the exalted station of the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the claim; or to issue a mandamus, directing the performance of a duty, not depending on executive discretion, but on particular acts of congress and the general principles of law?

          If one of the heads of departments commits any illegal act, under colour of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How then can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process?

          It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is

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again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation.

          But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the president, and the performance of which the president cannot lawfully forbid, and therefore is never presumed to have forbidden; as for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record; in such cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right to be done to an injured individual, than if the same services were to be performed by a person not the head of a department.

          This opinion seems not now for the first time to be taken up in this country.

          It must be well recollected that in 1792 an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character.

          This law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but the question whether those persons, who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list, was a legal question, properly determinable in the courts, although the act of placing such persons on the list was to be performed by the head of a department.

          That this question might be properly settled, congress passed an act in February 1793, making it the duty of the secretary of war, in conjunction with the attorney general, to take such measures as might be necessary to obtain an adjudication of the supreme court of the United

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States on the validity of any such rights, claimed under the act aforesaid.

          After the passage of this act, a mandamus was moved for, to be directed to the secretary at war, commanding him to place on the pension list a person stating himself to be on the report of the judges.

          There is, therefore, much reason to believe, that this mode of trying the legal right of the complainant, was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose.

          When the subject was brought before the court the decision was, not, that a mandamus would not lie to the head of a department, directing him to perform an act, enjoined by law, in the performance of which an individual had a vested interest; but that a mandamus ought not to issue in that case—the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right.

          The judgment in that case is understood to have decided the merits of all claims of that description; and the persons, on the report of the commissioners, found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional, in order to place themselves on the pension list.

          The doctrine, therefore, now advanced is by no means a novel one.

          It is true that the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute.

          It is to deliver a commission; on which subjects the acts of congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has, to that commission, a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not removable at the will of the executive; and being so

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appointed, he has a right to the commission which the secretary has received from the president for his use. The act of congress does not indeed order the secretary of state to send it to him, but it is placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him, than by another person.

          It was at first doubted whether the action of detinue was not a specific legal remedy for the commission which has been withheld from Mr. Marbury; in which case a mandamus would be improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold, is incapable of being ascertained; and the applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the commission, or a copy of it from the record.

          This, then, is a plain case of a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired,

          Whether it can issue from this court.

          The act to establish the judicial courts of the United States authorizes the supreme court 'to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.'

          The secretary of state, being a person, holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.

          The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present

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case; because the right claimed is given by a law of the United States.

          In the distribution of this power it is declared that 'the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.'

          It has been insisted at the bar, that as the original grant of jurisdiction to the supreme and inferior courts is general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words; the power remains to the legislature to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States.

          If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction made in the constitution, is form without substance.

          Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all.

          It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.

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          If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction.

          When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning.

          To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

          It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original.

          It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to

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appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.

          The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction, so conferred, can be exercised.

          The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

          That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

          This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

          The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts pro-

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hibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

          Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

          If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

          Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.

          This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

          If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

          It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

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          So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

          If then the courts are to regard the constitution; and he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

          Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

          This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

          That it thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution, would of itself be sufficient, in America where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

          The judicial power of the United States is extended to all cases arising under the constitution.

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          Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

          This is too extravagant to be maintained.

          In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?

          There are many other parts of the constitution which serve to illustrate this subject.

          It is declared that 'no tax or duty shall be laid on articles exported from any state.' Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law.

          The constitution declares that 'no bill of attainder or ex post facto law shall be passed.'

          If, however, such a bill should be passed and a person should be prosecuted under it, must the court condemn to death those victims whom the constitution endeavours to preserve?

          'No person,' says the constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.'

          Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

          From these and many other selections which might be made, it is apparent, that the framers of the consti-

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tution contemplated that instrument as a rule for the government of courts, as well as of the legislature.

          Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

          The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: 'I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.'

          Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him.

          If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

          It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

          Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.

          The rule must be discharged.

1.2.2 McCulloch v. Maryland 1.2.2 McCulloch v. Maryland

17 U.S. 316
4 L.Ed. 579
4 Wheat. 316
M'CULLOCH
v.
STATE OF MARYLAND et al.
February Term, 1819

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          ERROR to the Court of Appeals of the State of Maryland. This was an action of debt, brought by the defendant in error, John James, who sued as well for himself as for the state of Maryland, in the county court of Baltimore county, in the said state, against the plaintiff in error, McCulloch, to recover certain penalties, under the act of the legislature of Maryland, hereafter mentioned. Judgment being rendered against the plaintiff in error, upon the following statement of facts, agreed and submitted to the court by the parties, was affirmed by the court of appeals of the state of Maryland, the highest court of law of said state, and the cause was brought, by writ of error, to this court.

          It is admitted by the parties in this cause, by their counsel, that there was passed, on the 10th day of April 1816, by the congress of the United States, an act, entitled, 'an act to incorporate the subscribers to the Bank of the United States;' and that there was passed on the 11th day of February 1818, by the general assembly of Maryland, an act, entitled, 'an act to impose a tax on all banks, or branches thereof, in the state of Maryland, not chartered by the legislature,'

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which said acts are made part of this statement, and it is agreed, may be read from the statute books in which they are respectively printed. It is further admitted, that the president, directors and company of the Bank of the United States, incorporated by the act of congress aforesaid, did organize themselves, and go into full operation, in the city of Philadelphia, in the state of Pennsylvania, in pursuance of the said act, and that they did on the ___ day of _____ 1817, establish a branch of the said bank, or an office of discount and deposit, in the city of Baltimore, in the state of Maryland, which has, from that time, until the first day of May 1818, ever since transacted and carried on business as a bank, or office of discount and deposit, and as a branch of the said Bank of the United States, by issuing bank-notes and discounting promissory notes, and performing other operations usual and customary for banks to do and perform, under the authority and by the direction of the said president, directors and company of the Bank of the United States, established at Philadelphia as aforesaid. It is further admitted, that the said president, directors and company of the said bank, had no authority to establish the said branch, or office of discount and deposit, at the city of Baltimore, from the state of Maryland, otherwise than the said state having adopted the constitution of the United States and composing one of the states of the Union. It is further admitted, that James William McCulloch, the defendant below, being the cashier of the said branch, or office of discount and

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deposit, did, on the several days set forth in the declaration in this cause, issue the said respective bank-notes therein described, from the said branch or office, to a certain George Williams, in the city of Baltimore, in part payment of a promissory note of the said Williams, discounted by the said branch or office, which said respective bank-notes were not, nor was either of them, so issued, on stamped paper, in the manner prescribed by the act of assembly aforesaid. It is further admitted, that the said president, directors and company of the Bank of the United States, and the said branch, or office of discount and deposit, have not, nor has either of them, paid in advance, or otherwise, the sum of $15,000, to the treasurer of the Western Shore, for the use of the state of Maryland, before the issuing of the said notes, or any of them, nor since those periods. And it is further admitted, that the treasurer of the Western Shore of Mayland, under the direction of the governor and council of the said state, was ready, and offered to deliver to the said president, directors and company of the said bank, and to the said branch, or office of discount and deposit, stamped paper of the kind and denomination required and described in the said act of assembly.

          The question submitted to the court for their decision in this case, is, as to the validity of the said act of the general assembly of Maryland, on the ground of its being repugnant to the constitution of the United States, and the act of congress aforesaid, or to one of them. Upon the foregoing statement of facts, and the pleadings in this cause (all errors in

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which are hereby agreed to be mutually released), if the court should be of opinion, that the plaintifis are entitled to recover, then judgment, it is agreed, shall be entered for the plaintiffs for $2500, and costs of suit. But if the court should be of opinion, that the plaintiffs are not entitled to recover upon the statement and pleadings aforesaid, then judgment of non pros shall be entered, with costs to the defendant.

          It is agreed, that either party may appeal from the decision of the county court, to the court of appeals, and from the decision of the court of appeals to the supreme court of the United States, according to the modes and usages of law, and have the same benefit of this statement of facts, in the same manner as could be had, if a jury had been sworn and impannelled in this cause, and a special verdict had been fonnd, or these facts had appeared and been stated in an exception taken to the opinion of the court, and the court's direction to the jury thereon.

          Copy of the act of the Legislature of the State of Maryland, referred to in the preceding statement.

          An act to impose a tax on all banks or branches thereof, in the state of Maryland, not chartered by the legislature.

          Be it enacted by the general assembly of Maryland, that if any bank has established, or shall, without authority from the state first had and obtained, establish any branch, office of discount and

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deposit, or office of pay and receipt in any part of this state, it shall not be lawful for the said branch, office of discount and deposit, or office of pay and receipt, to issue notes, in any manner, of any other denomination than five, ten, twenty, fifty, one hundred, five hundred and one thousand dollars, and no note shall be issued, except upon stamped paper of the following denominations; that is to say, every five dollar note shall be upon a stamp of ten cents; every ten dollar note, upon a stamp of twenty cents; every twenty dollar note, upon a stamp of thirty cents; every fifty dollar note, upon a stamp of fifty cents; every one hundred dollar note, upon a stamp of one dollar; every five hundred dollar note, upon a stamp of ten dollars; and every thousand dollar note, upon a stamp of twenty dollars; which paper shall be furnished by the treasurer of the Western Shore, under the direction of the governor and council, to be paid for upon delivery; provided always, that any institution of the above description may relieve itself from the operation of the provisions aforesaid, by paying annually, in advance, to the treasurer of the Western Shore, for the use of state, the sum of $15,000.

          And be it enacted, that the president, cashier, each of the directors and officers of every institution established, or to be established as aforesaid, offending against the provisions aforesaid, shall forfeit a sum of $500 for each and every offence, and every person having any agency in circulating any note aforesaid, not stamped as aforesaid directed, shall forfeit a sum not exceeding $100

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every penalty aforesaid, to be recovered by indictment, or action of debt, in the county court of the county where the offence shall be committed, one-half to the informer, and the other half to the use of the state.

          And be it enacted, that this act shall be in full force and effect from and after the first day of May next.

February 22d-27th, and March 1st-3d.

          Webster, for the plaintiff in error,3 stated: 1. That the question whether congress constitutionally possesses the power to incorporate a bank, might be raised upon this record; and it was in the discretion of the defendant's counsel to agitate it. But it might have been hoped, that it was not now to be considered as an open question. It is a question of the utmost magnitude, deeply interesting to the government itself, as well as to individuals. The mere discussion of such a question may most essentially affect the value of a vast amount of private property. We are bound to suppose, that the defendant in error is well aware of these consequences, and would not have intimated an intention to agitate such a question, but with a real design to make it a topic of serious discussion, and with a view of demanding upon it the solemn judgment of this court. This

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question arose early after the adoption of the constitution, and was discussed and settled, so far as legislative decision could settle it, in the first congress. The arguments drawn from the constitution, in favor of this power, were stated and exhausted in that discussion. They were exhibited, with characteristic perspicuity and force, by the first secretary of the treasury, in his report to the president of the United States. The first congress created and incorporated a bank. Act of 5th February 1791, ch. 84. Nearly each succeeding congress, if not every one, has acted and legislated on the presumption of the legal existence of such a power in the government. Individuals, it is true, have doubted, or thought otherwise; but it cannot be shown, that either branch of the legislature has, at any time, expressed an opinion against the existence of the power. The executive government has acted upon it; and the courts of law have acted upon it. Many of those who doubted or denied the existence of the powers, when first attempted to be exercised, have yielded to the first decision, and acquiesced in it, as a settled question. When all branches of the government have thus been acting on the existence of this power, nearly thirty years, it would seem almost too late to call it in question, unless its repugnancy with the constitution were plain and manifest. Congress, by the constitution, is invested with certain powers; and as to the objects, and within the scope of these powers, it is sovereign. Even without the aid of the general clause in the constitution,

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empowering congress to pass all necessary and proper laws for carrying its powers into execution, the grant of powers itself necessarily implies the grant of all usual and suitable means for the execution of the powers granted. Congress may declare war; it may consequently carry on war, by armies and navies, and other suitable means and methods of warfare. So, it has power to raise a revenue, and to apply it in the support of the government, and defence of the country; it may, of course, use all proper and suitable means, not specially prohibited, in the raising and disbursement of the revenue. And if, in the progress of society and the arts, new means arise, either of carrying on war, or of raising revenue, these new means doubtless would be properly considered as within the grant. Steam-frigates, for example, were not in the minds of those who framed the constitution, as among the means of naval warfare; but no one doubts the power of congress to use them, as means to an authorized end. It is not enough to say, that it does not appear that a bank was not in the contemplation of the framers of the constitution. It was not their intention, in these cases, to enumerate particulars. The true view of the subject is, that if it be a fit instrument to an authorized purpose, it may be used, not being specially prohibited. Congress is authorized to pass all laws 'necessary and proper' to carry into execution the powers conferred on it. These words, 'necessary and proper,' in such an instrument, are probably to be considered as synonymous. Necessarily, powers must here intend such powers as are suitable and

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fitted to the object; such as are best and most useful in relation to the end proposed. If this be not so, and if congress could use no means but such as were absolutely indispensable to the existence of a granted power, the government would hardly exist; at least, it would be wholly inadequate to the purposes of its formation. A bank is a proper and suitable instrument to assist the operations of the government, in the collection and disbursement of the revenue; in the occasional anticipations of taxes and imposts; and in the regulation of the actual currency, as being a part of the trade and exchange between the states. It is not for this court to decide, whether a bank, or such a bank as this, be the best possible means to aid these purposes of government. Such topics must be left to that discussion which belongs to them, in the two houses of congress. Here, the only question is, whether a bank, in its known and ordinary operations, is capable of being so connected with the finances and revenues of the government, as to be fairly within the discretion of congress, when selecting means and instruments to execute its powers and perform its duties. A bank is not less the proper subject for the choice of congress, nor the less constitutional, because it requires to be executed by granting a charter of incorporation. It is not, of itself, unconstitutional in congress to create a corporation. Corporations are but means. They are not ends and objects of government. No government exists for the purpose of creating corporations as one of the ends of its being. They are institutions established to effect certain beneficial purposes;

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and, as means, take their character generally from their end and object. They are civil or eleemosynary, public or private, according to the object intended by their creation. They are common means, such as all governments use. The state governments create corporations to execute powers confided to their trust, without any specific authority in the state constitutions for that purpose. There is the same reason that congress should exercise its discretion as to the means by which it must execute the powers conferred upon it. Congress has duties to perform and powers to execute. It has a right to the means by which these duties can be properly and most usefully performed, and these powers executed. Among other means, it has established a bank; and before the act establishing it can be pronounced unconstitutional and void, it must be shown, that a bank has no fair connection with the execution of any power or duty of the national government, and that its creation is consequently a manifest usurpation.

          2. The second question is, whether, if the bank be constitutionally created, the state governments have power to tax it? The people of the United States have seen fit to divide sovereignty, and to establish a complex system. They have conferred certain powers on the state governments, and certain other powers on the national government. As it was easy to foresee that question must arise between these governments thus constituted, it became of great moment to determine, upon what principle these questions should be decided, and who should decide them. The constitution, therefore, declares, that the

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constitution itself, and the laws passed in pursuance of its provisions, shall be the supreme law of the land, and shall control all state legislation and state constitutions, which may be incompatible therewith; and it confides to this court the ultimate power of deciding all questions arising under the constitution and laws of the United States. The laws of the United States, then, made in pursuance of the constitution, are to be the supreme law of the land, anything in the laws of any state to the contrary notwithstanding. The only inquiry, therefore, in this case is, whether the law of the state of Maryland imposing this tax be consistent with the free operation of the law establishing the bank, and the full enjoyment of the privileges conferred by it? If it be not, then it is void; if it be, then it may be valid. Upon the supposition, that the bank is constitutionally created, this is the only question; and this question seems answered, as soon as it is stated. If the states may tax the bank, to what extent shall they tax it, and where shall they stop? An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation. A question of constitutional power can hardly be made to depend on a question of more or less. If the states may tax, they have no limit but their discretion; and the bank, therefore, must depend on the discretion of the state governments for its existence. This consequence is inevitable. The object in laying this tax, may have been revenue to the state. In the next case, the object may be to expel the bank from the state; but

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how is this object to be ascertained, or who is to judge of the motives of legislative acts? The government of the United States has itself a great pecuniary interest in this corporation. Can the states tax this property? Under the confederation, when the national government, not having the power of direct legislation, could not protect its own property by its own laws, it was expressly stipulated, that 'no impositions, duties or restrictions should be laid by any state on the property of the United States.' Is it supposed, that property of the United States is now subject to the power of the state governments, in a greater degree than under the confederation? If this power of taxation be admitted, what is to be its limit? The United States have, and must have, property locally existing in all the states; and may the states impose on this property, whether real or personal, such taxes as they please? Can they tax proceedings in the federal courts? If so, they can expel those judicatures from the states. As Maryland has undertaken to impose a stamp-tax on the notes of this bank, what hinders her from imposing a stamp-tax also on permits, clearances, registers and all other documents connected with imposts and navigation? If, by one, she can suspend the operations of the bank, by the other, she can equally well shut up the custom-house. The law of Maryland, in question, makes a requisition. The sum called for is not assessed on property, nor deducted from profits or income. It is a direct imposition on the power, privilege or franchise of the corporation. The act purports, also, to restrain

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the circulation of the paper of the bank to bills of certain descriptions. It narrows and abridges the powers of the bank in a manner which, it would seem, even congress could not do. This law of Maryland cannot be sustained, but upon principles and reasoning which would subject every important measure of the national government to the revision and control of the state legislatures. By the charter. the bank is authorized to issue bills of any demonination above five dollars. The act of Maryland purports to restrain and limit their powers in this respect. The charter, as well as the laws of the United States, makes it the duty of all collectors and receivers to receive the notes of the bank in payment of all debts due the government. The act of Maryland makes it penal, both on the person paying and the person receiving such bills, until stamped by the authority of Maryland. This is a direct interference with the revenue. The legislature of Maryland might, with as much propriety, tax treasurynotes. This is either an attempt to expel the bank from the state; or it is an attempt to raise a revenue for state purposes, by an imposition on property and franchises holden under the national government, and created by that government, for purposes connected with its own administration. In either view, there cannot be a clearer case of interference. The bank cannot exist, nor can any bank established by congress exist, if this right to tax it exists in the state governments. One or the other must be surrendered; and a surrender on the part of the government of the United States would be a giving

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up of those fundamental and essential powers without which the government cannot be maintained. A bank may not be, and is not, absolutely essential to the existence and preservation of the government. But it is essential to the existence and preservation of the government, that congress should be able to exercise its constitutional powers, at its own discretion, without being subject to the control of state legislation. The question is not, whether a bank be necessary or useful, but whether congress may not constitutionally judge of that necessity or utility; and whether, having so judged and decided, and having adopted measures to carry its decision into effect, the state governments may interfere with that decision, and defeat the operation of its measures. Nothing can be plainer than that, if the law of congress, establishing the bank, be a constitutional act, it must have its full and complete effects. Its operation cannot be either defeated or impeded by acts of state legislation. To hold otherwise, would be to declare, that congress can only exercise its constitutional powers, subject to the controlling discretion, and under the sufferance, of the state governments.

          Hopkinson, for the defendants in error, proposed three questions for the consideration of the court. 1. Had congress a constitutional power to incorporate the bank of the United States? 2. Granting this power to congress, has the bank, of its own authority, a right to establish its branches in the several states? 3. Can the bank, and its branches thus established, claim to be exempt from the ordinary

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and equal taxation of property, as assessed in the states in which they are placed?

          1. The first question has, for many years, divided the opinions of the first men of our country. He did not mean to controvert the arguments by which the bank was maintained, on its original establishment. The power may now be denied, in perfect consistency with those arguments. It is agreed, that no such power is expressly granted by the constitution. It has been obtained by implication; by reasoning from the 8th section of the 1st article of the constitution; and asserted to exist, not of and by itself, but as an appendage to other granted powers, as necessary to carry them into execution. If the bank be not 'necessary and proper' for this purpose, it has no foundation in our constitution, and can have no support in this court. But it strikes us, at once, that a power, growing out of a necessity which may not be permanent, may also not be permanent. It has relation to circumstances which change; in a state of things which may exist at one period, and not at another. The argument might have been perfectly good, to show the necessity of a bank, for the operations of the revenue, in 1791, and entirely fail now, when so many facilities for money transactions abound, which were wanting then. That some of the powers of the constitution are of this fluctuating character, existing, or not, according to extraneous circumstances, has been fully recognised by this court at the present term, in the case of Sturges v. Crowninshield (ante, p. 122). Necessity was the plea and justification

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of the first Bank of the United States. If the same necessity existed, when the second was established, it will afford the same justification; otherwise, it will stand without justification, as no other is pretended. We cannot, in making this inquiry, take a more fair and liberal test, than the report of General Hamilton, the father and defender of this power. The uses and advantages he states, as making up the necessity required by the constitution, are three. 1st. The augmentation of the active and productive capital of the country, by making gold and silver the basis of a paper circulation. 2d. Affording greater facility to the government, in procuring pecuniary aids; especially, in sudden emergencies; this, he says, is an indisputable advantage of public banks. 3d. The facility of the payment of taxes, in two ways; by loaning to the citizen, and enabling him to be punctual; and by increasing the quantity of circulating medium, and quickening circulation by bank-bills, easily transmitted from place to place. If we admit, that these advantages or conveniences amount to the necessity required by the constitution, for the creation and exercise of powers not expressly given; yet it is obvious, they may be derived from any public banks, and do not call for a Bank of the United States, unless there should be no other public banks, or not a sufficiency of them for these operations. In 1791, when this argument was held to be valid and effectual, there were but three banks in the United States, with limited capitals, and contracted spheres of operation. Very different is the case now, when we have a banking capital to a vast amount, vested in

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banks of good credit, and so spread over the country, as to be convenient and competent for all the purposes enumerated in the argument. General Hamilton, conscious that his reasoning must fail, if the state banks were adequate for his objects, proceeds to show they were not. Mr. Hopkinson particularly examined all the objections urged by General Hamilton, to the agency of the state banks, then in existence, in the operations required for the revenue; and endeavored to show, that they had no application to the present number, extent and situation of the state banks; relying only on those of a sound and unquestioned credit and permanency. He also contended, that the experience of five years, since the expiration of the old charter of the Bank of the United States, has fully shown the competency of the state banks, to all the purposes and uses alleged as reasons for erecting that bank, in 1791. The loans to the government by the state banks, in the emergencies spoken of; the accommodation to individuals, to enable them to pay their duties and taxes; the creation of a circulating currency; and the facility of transmitting money from place to place, have all been effected, as largely and beneficially, by the state banks, as they could have been done by a bank incorporated by congress. The change in the country, in relation to banks, and an experience that was depended upon, concur in proving, that whatever might have been the truth and force of the bank argument in 1791, they were wholly wanting in 1816.

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          2. If this Bank of the United States has been lawfully created and incorporated, we next inquire, whether it may, of its own authority, establish its branches in the several states, without the direction of congress, or the assent of the states? It is true, that the charter contains this power, but this avails nothing, if not warranted by the constitution. This power to establish branches, by the directors of the bank, must be maintained and justified, by the same necessity which supports the bank itself, or it cannot exist. The power derived from a given necessity, must be coextensive with it, and no more. We will inquire, 1st. Does this necessity exist in favor of the branches? 2d. Who should be the judge of the necessity, and direct the manner and extent of the remedy to be applied? Branches are not necessary for any of the enumerated advantages. Not for pecuniary aids to the government; since the ability to afford them must be regulated by the strength of the capital of the parent bank, and cannot be increased by scattering and spreading that capital in the branches. Nor are they necessary to create a circulating medium; for they create nothing; but issue paper on the faith and responsibility of the parent bank, who could issue the same quantity, on the same foundation; the distribution of the notes of the parent bank can as well be done, and in fact, is done, by the state banks. Where, then, is that necessity to be found for the branches, whatever may be allowed to the bank itself? It is undoubtedly true, that these branches are established with a single view to trading, and the profit of the stockholders, and not for the convenience

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or use of the government; and therefore, they are located at the will of the directors, who represent and regard the interests of the stockholders, and are such themselves. If this is the case, can it be contended, that the state rights of territory and taxation are to yield for the gains of a money-trading corporation; to be prostrated at the will of a set of men who have no concern, and no duty but to increase their profits? Is this the necessity required by the constitution for the creation of undefined powers? It is true, that, by the charter, the government may require a branch in any place it may designate, but if this power is given only for the uses or necessities of the government, then the government only should have the power to order it. In truth, the directors have exercised the power, and they hold it, without any control from the government of the United States; and, as is now contended, without any control of the state governments. A most extravagant power to be vested in a body of men, chosen annually by a very small portion of our citizens, for the purpose of loaning and trading with their money to the best advantage! A state will not suffer its own citizens to erect a bank, without its authority, but the citizens of another state may do so; for it may happen that the state thus used by the bank for one of its branches, does not hold a single share of the stock. 2d. But if these branches are to be supported, on the ground of the constitutional necessity, and they can have no other foundation, the question occurs, who should be the judge of the existence of the necessity, in any proposed case; of the when and the where the power

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shall be exercised, which the necessity requires? Assuredly, the same tribunal which judges of the original necessity on which the bank is created, should also judge of any subsequent necessity requiring the extension of the remedy. Congress is that tribunal; the only one in which it may be safely trusted; the only one in which the states to be affected by the measure, are all fairly represented. If this power belongs to congress, it cannot be delegated to the directors of a bank, any more than any other legislative power may be transferred to any other body of citizens: if this doctrine of necessity is without any known limits, but such as those who defend themselves by it, may choose, for the time, to give it; and if the powers derived from it, are assignable by the congress to the directors of a bank; and by the directors of the bank to anybody else; we have really spent a great deal of labor and learning to very little purpose, in our attempt to establish a form of government in which the powers of those who govern shall be strictly defined and controlled; and the rights of the government secured from the usurpations of unlimited or unknown powers. The establishment of a bank in a state, without its assent; without regard to its interests, its policy or institutions, is a higher exercise of authority, than the creation of the parent bank; which, if confined to the seat of the government, and to the purposes of the government, will interfere less with the rights and policy of the states, than those wide-spreading branches, planted everywhere, and influencing all the business of the community. Such an exercise of

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sovereign power, should, at least, have the sanction of the sovereign legislature, to vouch that the good of the whole requires it, that the necessity exists which justifies it. But will it be tolerated, that twenty directors of a trading corporation, having no object but profit, shall, in the pursuit of it, tread upon the sovereignity of the state; enter it, without condescending to ask its leave; disregard, perhaps, the whole system of its policy; overthrow its institutions, and sacrifice its interests?

          3. If, however, the states of this Union have surrendered themselves in this manner, by implication, to the congress of the United States, and to such corporations as the congress, from time to time, may find it 'necessary and proper' to create; if a state may no longer decide, whether a trading association, with independent powers and immunities, shall plant itself in its territory, carry on its business, make a currency and trade on its credit, raising capitals for individuals as fictitious as its own; if all this must be granted, the third and great question in this cause presents itself for consideration; that is, shall this association come there with rights of sovereignty, paramount to the sovereignty of the state, and with privileges possessed by no other persons, corporations or property in the state? in other words, can the bank and its branches, thus established, claim to be exempt from the ordinary and equal taxation of property, as assessed in the states in which they are placed? As this overwhelming invasion of state sovereignty is not warranted by any express clause or grant in the constitution, and never was

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imagined by any state that adopted and ratified that constitution, it will be conceded, that it must be found to be necessarily and indissolubly connected with the power to establish the bank, or it must be repelled. The court has always shown a just anxiety to prevent any conflict between the federal and state powers; to construe both so as to avoid an interference, if possible, and to preserve that harmony of action in both, on which the prosperity and happiness of all depend. If, therefore, the right to incorporate a national bank may exist, and be exercised consistently with the right of the state, to tax the property of such bank within its territory, the court will maintain both rights; although some inconvenience or diminution of advantage may be the consequence. It is not for the directors of the bank to say, you will lessen our profits by permitting us to be taxed; if such taxation will not deprive the government of the uses it derives from the agency and operations of the bank. The necessity of the government is the foundation of the charter; and beyond that necessity, it can claim nothing in derogation of state authority. If the power to erect this corporation were expressly given in the constitution, still, it would not be construed to be an exclusion of any state right, not absolutely incompatible and repugnant. The states need no reservation or acknowledgment of their right; all remain that are not expressly prohibited, or necessarily excluded; and this gives our opponents the broadest ground they can ask. The right now assailed by the bank, is the right of taxing property within the territory of

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This is the highest attribute of sovereignty, the right to raise revenue; in fact, the right to exist; without which no other right can be held or enjoyed. The general power to tax is not denied to the states, but the bank claims to be exempted from the operation of this power. If this claim is valid, and to be supported by the court, it must be, either, 1. From the nature of the property: 2. Because it is a bank of the United States: 3. From some express provision of the constitution: or 4. Because the exemption is indispensably necessary to the exercise of some power granted by the constitution.

          1st. There is nothing in the nature of the property of bank-stock that exonerates it from taxation. It has been taxed, in some form, by every state in which a bank has been incorporated; either annually and directly, or by a gross sum paid for the charter. The United States have not only taxed the capital or stock of the state banks, but their business also, by imposing a duty on all notes discounted by them. The bank paid a tax for its capital; and exery man who deals with the bank, by borrowing, paid another tax for the portion of the same capital he borrowed. This species of property, then, so far from having enjoyed any exemption from the calls of the revenue, has been particularly burdened; and been thought a fair subject of taxation both by the federal and state governments.

          2d. Is it then exempt, as being a bank of the United States? How is it such? In name only. Just as the Bank of Pennsylvania, or the Bank of Maryland,

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are banks of those states. The property of the bank, real or personal, does not belong to the United States only, as a stockholder, and as any other stockholders. The United States might have the same interest in any other bank, turnpike or canal company. So far as they hold stock, they have a property in the institution, and no further; so long, and no longer. Nor is the direction and management of the bank under the control of the United States. They are represented in the board by the directors appointed by them, as the other stockholders are represented by the directors they elect. A director of the government has no more power or right than any other director. As to the control the government may have over the conduct of the bank, by its patronage and deposits, it is precisely the same it might have over any other bank, to which that patronage would be equally important. Strip it of its name, and we find it to be a mere association of individuals, putting their money into a common stock, to be loaned for profit, and to divide the gains. The government is a partner in the firm, for gain also; for, except a participation of the profits of the business, the government could have every other use of the bank, without owning a dollar in it. It is not, then, a bank of the United States, if by that we mean, an institution belonging to the government, directed by it, or in which it has a permanent, indissoluble interest. The convenience it affords in the collection and distribution of the revenue, is collateral, secondary, and may be transferred at pleasure to any other bank. It forms no part of the construction

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or character of this bank; which, as to all its rights and powers, would be exactly what it now is, if the government was to seek and obtain all this convenience from some other source; if the government were to withdraw its patronage, and sell out its stock. How, then, can such an institution claim the immunities of sovereignty; nay, that sovereignty does not possess? for a sovereign who places his property in the territory of another sovereign, submits it to the demands of the revenue, which are but justly paid, in return for the protection afforded to the property. General Hamilton, in his report on this subject, so far from considering the bank a public institution, connected with, or controlled by, the government, holds it to be indispensable that it should not be so. It must be, says he, under private, not public, direction; under the guidance of individual interest, not public policy. Still, he adds, the state may be holder of part of its stock; and consequently (what? it becomes a public property? no!), a sharer of the profits. He traces no other consequenee to that circumstance. No rights are founded on it; no part of its utility or necessity arises from it. Can an institution, then, purely private, and which disclaims any public character, be clothed with the power and rights of the government, and demand subordination from the state government, in virtue of the federal authority, which it undertakes to wield at its own will and pleasure? Shall it be private, in its direction and interests; public, in its rights and privileges: a trading money-lender, in its business; an uncontrolled sovereign, in its powers? If the whole bank, with all its property and business,

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belonged to the United States, it would not, therefore, be exempted from the taxation of the states. To this purpose, the United States and the several states must be considered as sovereign and independent; and the principle is clear, that a sovereign putting his property within the territory and jurisdiction of another sovereign, and of course, under his protection, submits it to the ordinary taxation of the state, and must contribute fairly to the wants of the revenue. In other words, the jurisdiction of the state extends over all its territory, and everything within or upon it, with a few known exceptions. With a view to this principle, the constitution has provided for those cases in which it was deemed necessary and proper to give the United States jurisdiction within a state, in exclusion of the state authority; and even in these cases, it will be seen, it cannot be done, without the assent of the state. For a seat of government, for forts, arsenals, dock-yards, &c., the assent of the state to surrender its jurisdiction is required; but the bank asks no consent, and is paramount to all state authority, to all the rights of territory, and demands of the public revenue. We have not been told, whether the banking-houses of this corporation, and any other real estate it may acquire, for the accommodation of its affairs, are also of this privileged order of property. In principle, it must be the same; for the privilege, if it exists, belongs to the corporation, and must cover equally all its property. It is understood, that a case was lately decided by the supreme court of Pennsylvania, and from which no appeal has been taken, on the part of the United

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States, to this court, to show that United States property, as such, has no exemption from state taxation. A fort, belonging to the federal government, near Pittsburgh, was sold by public auction; the usual auction duty was claimed, and the payment resisted, on the ground, that none could be exacted from the United States. The court decided otherwise. In admitting Louisiana into the Union, and so, it is believed, with all the new states, it is expressly stipulated, 'that no taxes shall be imposed on lands, the property of the United States.' There can, then, be no pretence, that bank property, even belonging to the United States, is, on that account, exonerated from state taxation.4

          3d. If, then, neither the nature of the property, nor the interest the United States may have have in the bank, will warrant the exemption claimed, is there anything expressed in the constitution, to limit and control the state right of taxation, as now contended for? We find but one limitation to this essential right, of which the states were naturally and justly most jealous. In the 10th section of the 1st article, it is declared, that 'no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws;' and there is a like prohibition to laying any duty of tonnage. Here, then, is the whole restriction or limitation, attempted to be imposed by the constitution, on the power of the states to raise revenue, drecisely in the same manner, from the same subjects, and to the same extent, that any sovereign and independent

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state may do; and it never was understood by those who made, or those who received, the constitution, that any further restriction ever would, or could, be imposed. This subject did not escape either the assailants or the defenders of our form of government; and their arguments and commentaries upon the instrument ought not to be disregarded, in fixing its construction. It was foreseen, and objected by its opponents, that under the general sweeping power given to congress, 'to make all laws which shall be necessary and proper, for carrying into execution the foregoing powers,' &c., the states might be exposed to great dangers, and the most humiliating and oppressive encroachments, particularly in this very matter of taxation. By referring to the Federalist, the great champion of the constitution, the objections will be found stated, together with the answers to them. It is again and again replied, and most solemnly asserted, to the people of these United States, that the right of taxation in the states is sacred and inviolable, with 'the sole exception of duties on imports and exports;' that 'they retain the authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its constitution.' With the exception mentioned, the federal and state powers of taxation are declared to be concurrent; and if the United States are justified in taxing state banks, the same equal and concurrent authority will justify the state in taxing the Bank of the United States, or any

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other bank.5 The author begins No. 34, by saying, 'I flatter myself it has been clearly shown, in my last number, that the particular states, under the proposed constitution, would have co-equal authority with the Union, in the article of revenue, except as to duties on imports.' Under such assurances from those who made, who recommended, and carried, the constitution, and who were supposed best to understand it, was it received and adopted by the people of these United States; and now, after a lapse of nearly thirty years, they are to be informed, that all this is a mistake, all these assurances are unwarranted, and that the federal government does possess most productive and important powers of taxation, neither on imports, exports or tonnage, but strictly internal, which are prohibited to the states. The question then was, whether the United States should have any command of the internal revenue; the pretension now is, that they shall enjoy exclusively the best portion of it. The question was then quieted, by the acknowledgment of a co-equal right; it is now to be put at rest, by the prostration of the state power. The federal government is to hold a power by implication, and ingenious inference from general words in the constitution, which it can hardly be believed would have been suffered in an express grant. If, then, the people were not deceived, when they were told that, with the exceptions mentioned, the state right of taxation is sacred and inviolable; and it be also true,

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that the Bank of the United States cannot exist under the evercise of that right, the consequence ought to be, that the bank must not exist; for if it can live only by the destruction of such a right if it can live only by the exercise of a power, which this court solemnly declared to be a 'violent assumption of power, unwarranted by any clause in the constitution'—we cannot hesitate to say, let it not live.

          But, in truth, this is not the state of the controversy. No such extremes are presented for our choice. We only require, that the bank shall not violate state rights, in establishing itself, or its branches; that it shall be submitted to the jurisdiction and laws of the state, in the same manner with other corporations and other property; and all this may be done, without ruining the institution, or destroying its national uses. Its profits will be diminished, by contributing to the revenue of the state; and this is the whole effect that ought, in a fair and liberal spirit of reasoning, to be anticipated. But, at all events, we show, on the part of the state, a clear, general, absolute and unqualified right of taxation (with the exception stated); and protest against such a right being made to yield to implications and obscure constructions of indefinite clauses in the constitution. Such a right must not be defeated, by doubtful pretensions of power, or arguments of convenience or policy to the government; much less to a private corporation. It is not a little alarming, to trace the progress of this argument. 1. The power to raise the bank is founded on no provision of the constitution that has the most distant allusion to such an

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institution; there is not a word in that instrument that would suggest the idea of a bank, to the most fertile imagination; but the bank is created by implication and construction, made out by a very subtle course of reasoning; then, by another implication, raised on the former, the bank, this creature of construction, claims the right to enter the territory of a state, without its assent; to carry on its business, when it pleases, and where it pleases, against the will, and perhaps, in contravention of the policy, of the sovereign owner of the soil. Having such great success in the acquirement of implied rights, the experiment is now pushed further; and not contented with having obtained two rights in this extraordinary way, the fortunate adventurer assails the sovereignty of the state, and would strip from it its most vital and essential power. It is thus with the famous fig tree of India, whose branches shoot from the trunk to a considerable distance; then drop upon the earth, where they take root and become trees, from which also other branches shoot, and plant and propagate and extend themselves in the same way, until gradually a vast surface is covered, and everything perishes in the spreading shade.

          What have we opposed to these doctrines, so just and reasonable? Distressing inconveniences, ingeniously contrived; supposed dangers; fearful distrusts; anticipated violence and injustice from the states, and consequent ruin to the bank. A right to tax, is a right to destroy, is the whole amount of the argument, however varied by ingenuity, or embellished by eloquence. It is said, the states will abuse the power; and its exercise will

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produce infinite inconvenience and embarrassment to the bank. Now, if this were true, it cannot help our opponents; because, if the states have the power contended for, this court cannot take it from them, under the fear that they may abuse it; nor, indeed, for its actual abuse; and if they have it not, they may not use it, however moderately and discreetly. Nor is there any more force in the argument, that the bank property will be subjected to double or treble taxation. Each state will tax only the capital really employed in it; and it is always in the power of the bank, to show how its capital is distributed. But it is feared, the capital in a state may be taxed in gross; and the individual stockholders also taxed for the same stock. Is this common case of a double taxation of the same article, to be a cause of alarm now? Our revenue laws abound with similar cases; they arise out of the very nature of our double government. So says the Federalist; and it is the first time it has been the ground of complaint. Poll taxes are paid to the federal and state governments; licenses to retail spirits; land taxes; and the whole round of internal duties, over which both governments have a concurrent, and, until now, it was supposed, a co-equal right. Were not the state banks taxed by the federal, and also by the state governments; in some, by a bonus for the charter; in others, directly and annually? The circumstance, that the taxes go to different governments, in these cases, is wholly immaterial to those who pay; unless it is, that it increases the danger of excess and oppression. It is justly remarked, on this subject, by

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the Federalist, that our security from excessive burdens on any source of revenue, must be found in mutual forbearance and discretion in the use of the power; this is the only security, and the authority of this court can add nothing to it. When that fails, there is an end to the confederation, which is founded on a reasonable and honorable confidence in each other.

          It has been most impressively advanced, that the states, under pretence of taxing, may prohibit and expel the banks; ships, about to sail, and armies on power, they may tax munitions of war; to; who, in their 31st number, treat it very properly. Surely, their march; nay, the spirit of the court is to be aroused by the fear that judicial proceedings will also come under this all-destroying power. Loans may be delayed for stamps, and the country ruined for the want of the money. But whenever the states shall be in a disposition to uproot the general government, they will take more direct and speedy means; and until they have this disposition, they will not use these. What power may not be abused; and whom or what shall we trust, if we guard, ourselves with this extreme caution? The common and daily intercourse between man and man; all our relations in society, depend upon a reasonable confidence in each other. It is peculiarly the basis of our confederation, which lives not a moment, after we shall coase to trust each other. If the two governments are to regard each other as enemies, seeking opportunities of injury and distress, they will not long continue friends. This sort of timid reasoning about the powers of the government, has not escaped the authors so often alluded

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to; who, in their 31st number, treat it very properly. Surely, the argument is as strong against giving to the United States the power to incorporate a bank with branches. What may be more easily, or more extensively abused; and what more powerful engine can we imagine to be brought into operation against the revenues and rights of the states? If the federal government must have a bank for the purposes of its revenue, all collision will be avoided, by establishing the parent bank in its own district, where it holds an exclusive jurisdiction; and planting its branches in such states as shall assent to it; and using state banks, where such assent cannot be obtained. Speaking practically, and by our experience, it may be safely asserted, that all the uses of the bank to the government might be thus obtained. Nothing would be wanting but profits and large dividends to the stockholders, which are the real object in this contest. Whatever may be the right of the United States to establish a bank, it cannot be better than that of the states. Their lawful power to incorporate such institutions has never yet been questioned; whatever may be in reserve for them, when it may be found 'necessary and proper' for the interests of the national bank to crush the state institutions, and curtail the state authority. Granting, that these rights are equal in the two governments; and that the sovereignty of the state, within its territory, over this subject, is but equal to that of the United States; and that all sovereign power remains undiminished in the states, except in those cases in which it has, by the constitution, been

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expressly and exclusively transferred to the United States: the sovereign power of taxation (except on foreign commerce) being, in the language of the Federalist, co-equal to the two governments; it follows, as a direct and necessary consequence, that having equal powers to erect banks, and equal powers of taxation on property of that description, being neither imports, exports or tonnage, whatever jurisdiction the federal government may exercise in this respect, over a bank created by a state, any state may exercise over a bank created by the United States. Now, the federal government has assumed the right of taxing the state banks, precisely in the manner in which the state of Maryland has proceeded against the Bank of the United States; and as this right has never been resisted or questioned, it may be taken to be admitted by both parties; and must be equal and common to both parties, or the fundamental principles of our confederation have been strangely mistaken, or are to be violently overthrown. It has also been suggested, that the bank may claim a protection from this tax, under that clause of the constitution, which prohibits the states from passing laws, which shall impair the obligation of contracts. The charter is said to be the contract between the government and the stockholders; and the interests of the latter will be injured by the tax which reduces their profits. Many answers offer themselves to this agreement. In the first place, the United States cannot, either by a direct law, or by a contract with a third party, take away any right from the states, not granted by the constitution; they

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cannot do, collaterally and by implication, what cannot be done directly. Their contracts must conform to the constitution, and not the constitution to their contracts. If, therefore, the states have, in some other way, parted with this right of taxation, they cannot be deprived of it, by a contract between other parties. Under this doctrine, the United States might contract away every right of every state; and any attempt to resist it, would be called a violation of the obligations of a contract. Again, the United States have no more right to violate contracts than the states, and surely, they never imagined they were doing so, when they taxed so liberally the stock of the state banks. Again, it might as well be said, that a tax on real estate, imposed after a sale of it, and not then perhaps contemplated, or new duties imposed on merchandise, after it is ordered, violate the contract between the vendor and the purchaser, and diminishes the value of the property. In fact, all contracts in relation to property, subject to taxation, are presumed to have in view the probability or possibility that they will be taxed; and the happening of the event never was imagined to interfere with the contract, or its lawful obligations.

          The Attorney-General, for the plaintiff in error, argued: 1. That the power of congress to create a bank ought not now to be questioned, after its exercise ever since the establishment of the constitution, sanctioned by every department of the government: by the legislature, in the charter of the bank, and other laws connected with the incorporation; by the

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executive, in its assent to those laws; and by the judiciary, in carrying them into effect. After a lapse of time, and so many concurrent acts of the public authorities, this exercise of power must be considered as ratified by the voice of the people, and sanctioned by precedent. In the exercise of criminal judicature, the question of constitutionality could not have been overlooked by the courts, who have so often inflicted punishment for acts which would be no crimes, if these laws were repugnant to the fundamental law.

          2. The power to establish such a corporation is implied, and involved in the grant of specific powers in the constitution; because the end involves the means necessary to carry it into effect. A power without the means to use it, is a nullity. But we are not driven to seek for this power in implication: because the constitution, after enumerating certain specific powers, expressly gives to congress the power 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or or in any department or officer thereof.' If, therefore, the act of congress establishing the bank was necessary and proper to carry into execution any one or more of the enumerated powers, the authority to pass it is expressly delegated to congress by the constitution. We contend, that it was necessary and proper to carry into execution several of the enumerated powers, such as the powers of levying and collecting taxes throughout this widely-extended empire; of paying

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the public debts, both in the United States and in foreign countries; of borrowing money, at home and abroad; of regulating commerce with foreign nations, and among the several states; of raising and supporting armies and a navy; and of carrying on war. That banks, dispersed throughout the country, are appropriate means of carrying into execution all these powers, cannot be denied. Our history furnishes abundant experience of the utility of a national bank as an instrument of finance. It will be found in the aid derived to the public cause from the Bank of North America, established by congress, during the war of the revolution; in the great utility of the former Bank of the United States; and in the necessity of resorting to the instrumentality of the banks incorporated by the states, during the interval between the expiration of the former charter of the United States Bank, in 1811, and the establishment of the present bank in 1816; a period of war, the calamities of which were greatly aggravated by the want of this convenient instrument of finance. Nor is it required, that the power of establishing such a moneyed corporation should be indispensably necessary to the execution of any of the specified powers of the government. An interpretation of this clause of the constitution, so strict and literal, would render every law which could be passed by congress unconstitutional; for of no particular law can it be predicated, that it is absolutely and indispensably necessary to carry into effect any of the specified powers; since a different law might be imagined, which could be enacted, tending to the same object, though

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not equally well adapted to attain it. As the inevitable consequence of giving this very restricted sense to the word 'necessary,' would be to annihilate the very powers it professes to create; and as so gross an absurdity cannot be imputed to the framers of the constitution, this interpretation must be rejected.

          Another not less inadmissible consequence of this construction is, that it is fatal to the permanency of the constitutional powers; it makes them dependent for their being, on extrinsic circumstances, which, as these are perpetually shifting and changing, must produce correspondent changes in the essence of the powers on which they depend. But surely, the constitutionality of any act of congress cannot depend upon such circumstances. They are the subject of legislative discretion, not of judicial cognisance. Nor does this position conflict with the doctrine of the court in Sturges v. Crown-inshield (ante, p. 122). The court has not said, in that case, that the powers of congress are shifting powers, which may or may not be constitutionally exercised, according to extrinsic or temporary circumstances; but it has merely determined, that the power of the state legislatures over the subject of bankruptcies is subordinate to that of congress on the same subject, and cannot be exercised so as to conflict with the uniform laws of bankruptcy throughout the Union which congress may establish. The power, in this instance, resides permanently in congress, whether it chooses to exercise it or not; but its exercise on the part of the states

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is precarious, and dependent, in certain respects, upon its actual exercise by congress. The convention well knew that it was utterly vain and nugatory, to give to congress certain specific powers, without the means of enforcing those powers. The auxiliary means, which are necessary for this purpose, are those which are useful and appropriate to produce the particular end. 'Necessary and proper' are, then, equivalent to needful and adapted; such is the popular sense in which the word necessary is sometimes used. That use of it is confirmed by the best authorities among lexicographers; among other definitions of the word 'necessary,' Johnson gives 'needful;' and he defines 'need,' the root of the latter, by the words, 'want, occasion.' Is a law, then, wanted, is there occasion for it, in order to carry into execution any of the enumerated powers of the national government; congress has the power of passing it. To make a law constitutional, nothing more is necessary than that it should be fairly adapted to carry into effect some specific power given to congress. This is the only interpretation which can give effect to this vital clause of the constitution; and being consistent with the rules of the language, is not to be rejected, because there is another interpretation, equally consistent with the same rules, but wholly inadequate to convey what must have been the intention of the convention. Among the multitude of means to carry into execution the powers expressly given to the national government, congress is to select, from time to time, such as are most fit for the purpose. It would have been impossible

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to enumerate them all in the constitution; and a specification of some, omitting others, would have been wholly useless. The court, in inquiring whether congress had made a selection of constitutional means, is to compare the law in question with the powers it is intended to carry into execution; not in order to ascertain whether other or better means might have been selected, for that is the legislative province, but to see whether those which have been chosen have a natural connection with any specific power; whether they are adapted to give it effect; whether they are appropriate means to an end. It cannot be denied, that this is the character of the Bank of the United States. But it is said, that the government might use private bankers, or the banks incorporated by the states, to carry on their fiscal operations. This, however, presents a mere question of political expediency, which, it is repeated, is exclusively for legislative consideration; which has been determined by the legislative wisdom; and cannot be reviewed by the court.

          It is objected, that this act creates a corporation; which, being an exercise of a fundamental power of sovereignty, can only be claimed by congress, under their grant of specific powers. But to have enumerated the power of establishing corporations, among the specific powers of congress, would have been to change the whole plan of the constitution; to destroy its simplicity, and load it with all the complex details of a code of private jurisprudence. The power of establishing corporations is not one of the ends of government; it is only a class of means for accomplishing its ends. An enumeration

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of this particular class of means, omitting all others, would have been a useless anomaly in the constitution. It is admitted, that this is an act to sovereignty, and so is any other law; if the authority of establishing corporations be a sovereign power, the United States are sovereign, as to all the powers specifically given to their government, and as to all others necessary and proper to carry into effect those specified. If the power of chartering a corporation be necessary and proper for this purpose, congress has it to an extent as ample as any other sovereign legislature. Any government of limited sovereignty can create corporations only with reference to the limited powers that government possesses. The inquiry then reverts, whether the power of incorporating a banking company, be a necessary and proper means of executing the specific powers of the national government. The immense powers incontestably given, show that there was a disposition, on the part of the people, to give ample means to carry those powers into effect. A state can create a corporation, in virtue of its sovereignty, without any specific authority for that purpose, conferred in the state constitutions. The United States are sovereign as to certain specific objects, and may, therefore, erect a corporation for the purpose of effecting those objects. If the incorporating power had been expressly granted as an end, it would have conferred a power not intended; if granted as a means, it would have conferred nothing more than was before given by necessary implication.

          Nor does the rule of interpretation we contend for, sanction any usurpation, on the part of the national government; since, if the argument be, that the

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implied powers of the constitution may be assumed and exercised, for purposes not really connected with the powers specifically granted, under color of some imaginary relation between them, the answer is, that this is nothing more than arguing from the abuse of constitutional powers, which would equally apply against the use of those that are confessedly granted to the national government; that the danger of the abuse will be checked by the judicial department, which, by comparing the means with the proposed end, will decide, whether the connection is real, or assumed as the pretext for the usurpation of powers not belonging to the government; and that, whatever may be the magnitude of the danger from this quarter, it is not equal to that of annihilating the powers of the government, to which the opposite doctrine would inevitably tend.

          3. If, then, the establishment of the parent bank itself be constitutional, the right to establish the branches of that bank in the different states of the Union follows, as an incident of the principal power. The expediency of this ramification, congress is alone to determine. To confine the operation of the bank to the district of Columbia, where congress has the exclusive power of legislation, would be as absurd as to confine the courts of the United States to this district. Both institutions are wanted, wherever the administration of justice, or of the revenue, is wanted. The right, then, to establish these branches, is a necessary part of the means. This right is not delegated by congress to the parent bank. The act of congress for the establishment of offices of discount

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and deposit, leaves the time and place of their establishment to the directors, as a matter of detail. When established, they rest, not on the authority of the parent bank, but on the authority of congress.

          4. The only remaining question is, whether the act of the state of Maryland, for taxing the bank thus incorporated, be repugnant to the constitution of the United States? We insist, that any such tax, by authority of a state, would be unconstitutional, and that this act is so, from its peculiar provisions. But it is objected, that, by the 10th amendment of the constitution, all powers not expressly delegated to the United States, nor prohibited to the states, are reserved to the latter. It is said, that this being neither delegated to the one, nor prohibited to the other, must be reserved: and it is is also said, that the only prohibition on the power of state taxation, which does exist, excludes this case, and thereby leaves it to the original power of the states. The only prohibition is, as to laying any imposts, or duties on imports and exports, or tonnage duty, and this, not being a tax of that character, is said not to be within the terms of the prohibition; and consequently, it remains under the authority of the states. But we answer, that this does not contain the whole sum of constitutional restrictions on the authority of the states. There is another clause in the constitution, which has the effect of a prohibition on the exercise of their authority, in numerous cases. The 6th article of the constitution of the United States declares, that the laws made in pursuance of it, 'shall be the supreme law of the land, anything in the constitution, or laws of

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any state to the contrary notwithstanding.' By this declaration, the states are prohibited from passing any acts which shall be repugnant to a law of the United States. The court has already instructed us in the doctrine, that there are certain powers, which, from their nature, are exclusively vested in congress.6 So, we contend here, that the only ground on which the constitutionality of the bank is maintainable, excludes all interference with the exercise of the power by the states. This ground is, that the bank, as ordained by congress, is an instrument to carry into execution its specified powers; and in order to enable this instrument to operate effectually, it must be under the direction of a single head. It cannot be interfered with, or controlled in any manner, by the states, without putting at hazard the accomplishment of the end, of which it is but a means. But the asserted power to tax any of the institutions of the United States, presents directly the question of the supremacy of their laws over the state laws. If this power really exists in the states, its natural and direct tendency is to annihilate any power which belongs to congress, whether express or implied. All the powers of the national government are to be executed in the states, and throughout the states; and if the state legislatures can tax the instruments by which those powers are executed, they may entirely defeat the execution of the powers. If they may tax an institution of finance, they may tax the proceedings in the courts of the United States. If they may

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tax to one degree, they may tax to any degree; and nothing but their own discretion can impose a limit upon this exercise of their authority. They may tax both the bank and the courts, so as to expel them from the states. But, surely, the framers of the constitution did not intend, that the exercise of all the powers of the national government should depend upon the discretion of the state governments. This was the vice of the former confederation, which it was the object of the new constitution to eradicate. It is a direct collision of powers between the two governments. Congress says, there shall be a branch of the bank in the state of Maryland; that state says, there shall not. Which power is supreme? Besides, the charter, which is a contract between the United States and the corporation, is violated by this act of Maryland. A new condition is annexed by a sovereignty which was no party to the contract. The franchise, or corporate capacity, is taxed by a legislature, between whom and the object of taxation there is no political connection.

          Jones, for the defendants in error, contended: 1. That this was to be considered as an open question, inasmuch as it had never before been submitted to judicial determination. The practice of the government, however inveterate, could never be considered as sanctioning a manifest usurpation; still less, could the practice, under a constitution of a date so recent, be put in competition with the contemporaneous exposition of its illustrious authors, as recorded for our instruction, in the 'Letters of Publius,'

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or the Federalist. The interpretation of the constitution, which was contended for by the state of Maryland, would be justified from that text-book, containing a commentary, such as no other age or nation furnishes, upon its public law.

          It is insisted, that the constitution was formed and adopted, not by the people of the United States at large, but by the people of the respective states. To suppose, that the mere proposition of this fundamental law threw the American people into one aggregate mass, would be to assume what the instrument itself does not profess to establish. It is, therefore, a compact between the states, and all the powers which are not expressly relinquished by it, are reserved to the states. We admit, that the 10th amendment to the constitution is merely declaratory; that it was adopted ex abundanti cautela; and that with it, nothing more is reserved, than would have been reserved without it. But it is contended, on the other side, that not only the direct powers, but all incidental powers, partake of the supreme power, which is sovereign. This is an inherent sophism in the opposite argument, which depends on the conversion and ambiguity of terms. What is meant by sovereign power? It is modified by the terms of the grant under which it was given. They do not import sovereign power, generally, but sovereign power, limited to particular cases; and the question again recurs, whether sovereign power was given in this particular case. Is it true, that by conferring sovereign powers on a limited, delegated government, sovereign means are also granted? Is there no restriction

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as to the means of exercising a general power? Sovereignty was vested in the former confederation, as fully as in the present national government. There was nothing which forbade the old confederation from taxing the people, except that three modes of raising revenue were pointed out, and they could resort to no other. All the powers given to congress, under that system, except taxation, operated as directly on the people, as the powers given to the present government. The constitution does not profess to prescribe the ends merely for which the government was instituted, but also to detail the most important means by which they were to be accomplished. 'To levy and collect taxes,' 'to borrow money,' 'to pay the public debts,' 'to raise and support armies,' 'to provide and maintain a navy,' are not the ends for which this or any other just government is established. If a banking corporation can be said to be involved in either of these means, it must be as an instrument to collect taxes, to borrow money, and to pay the public debts. Is it such an instrument? It may, indeed, facilitate the operation of other financial institutions; but in its proper and natural character, it is a commercial institution, a partnership, incorporated for the purpose of carrying on the trade of banking. But we contend, that the government of the United States must confine themselves, in the collection and expenditure of revenue, to the means which are specifically enumerated in the constitution, or such auxiliary means as are naturally connected with the specific means. But what natural connection is there between

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the collection of taxes, and the incorporation of a company of bankers? Can it possibly be said, that because congress is invested with the power of raising and supporting armies, that it may give a charter of monopoly to a trading corporation, as a bounty for enlisting men? Or that, under its more analogous power of regulating commerce, it may establish an East or a West India company, with the exclusive privilege of trading with those parts of the world? Can it establish a corporation of farmers of the revenue, or burden the internal industry of the states with vexatious monopolies of their staple productions? There is an obvious distinction between those means which are incidental to the particular power, which follow as a corollary from it, and those which may be arbitrarily assumed as convenient to the execution of the power, or usurped under the pretext of necessity.

          For example, the power of coining money implies the power of establishing a mint. The power of laying and collecting taxes implies the power of regulating the mode of assessment and collection, and of appointing revenue officers; but it does not imply the power of establishing a great banking corporation, branching out into every district of the country, and inundating it with a flood of paper-money. To derive such a tremendous authority from implication, would be to change the subordinate into fundamental powers; to make the implied powers greater than those which are expressly granted; and to change the whole scheme and theory of the government. It is well known, that many of the powers which are expressly

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granted to the national government in the constitution, were most reluctantly conceded by the people, who were lulled into confidence, by the assurances of its advocates, that it contained no latent ambiguity, but was to be limited to the literal terms of the grant: and in order to quiet all alarm, the 10th article of amendments was added, declaring 'that the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.' It would seem, that human language could not furnish words less liable to misconstruction! But it is contended, that the powers expressly granted to the national government in the constitution, are enlarged to an indefinite extent, by the sweeping clause, authorizing congress to make all laws which shall be necessary and proper for carrying into execution the powers expressly delegated to the national government, or any of its departments or officers. Now, we insist, that this clause shows that the intention of the convention was, to define the powers of the government with the utmost precision and accuracy. The creation of a sovereign legislature, implies an authority to pass laws to execute its given powers. This clause is nothing more than a declaration of the authority of congress to make laws, to execute the powers expressly granted to it, and the other departments of the government. But the laws which they are authorized to make, are to be such as are necessary and proper for this purpose. No terms could be found in the language, more absolutely excluding a general and unlimited discretion than

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these. It is not 'necessary or proper,' but 'necessary and proper.' The means used must have both these qualities. It must be, not merely convenient—fit—adapted—proper, to the accomplishment of the end in view; it must likewise be necessary for the accomplishment of that end. Many means may be proper, which are not necessary; because the end may be attained without them. The word 'necessary,' is said to be a synonyme of 'needful.' But both these words are defined 'indispensably requisite;' and, most certainly, this is the sense in which the word 'necessary' is used in the constitution. To give it a more lax sense, would be to alter the whole character of the government as a sovereignty of limited powers. This is not a purpose for which violence should be done to the obvious and natural sense of any terms, used in an instrument drawn up with great simplicity, and with extraordinary precision. The only question, then, on this branch of the argument, will be, whether the establishment of a banking corporation be indispensably requisite to execute any of the express powers of the government? So far as the interest of the United States is concerned, as partners of this company of bankers, or so far as the corporation may be regarded as an executive officer of the government, acquiring real and personal property in trust for the use of the government, it may be asked, what right the United States have to acquire property of any kind, except that purchased by the consent of the legislature of the state in which such property may be, for the erection of forts, magazines, &c.; and ships or munitions

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of war, constructed or purchased by the United States, and the public treasure? Their right of acquiring property is absolutely limited to the subjects specified, which were the only means, of the nature of wealth or property, with which the people thought it necessary to invest them. The people never intended they should become bankers or traders of any description. They meant to leave to the states the power of regulating the trade of banking, and every other species of internal industry; subject merely to the power of congress to regulate foreign commerce, and the commerce between the different states, with which it is not pretended, that this asserted power is connected. The trade of banking, within the particular states, would then either be left to regulate itself, and carried on as a branch of private trade, as it is in many countries; or banking companies would be incorporated by the state legislatures to carry it on, as has been the usage of this country. But in either case, congress would have nothing to do with the subject. The power of creating corporations is a distinct sovereign power, applicable to a great variety of objects, and not being expressly granted to congress for this, or any other object, cannot be assumed by implication. If it might be assumed for this purpose, it might also be exercised to create corporations for the purpose of constructing roads and canals; a power to construct which has been also lately discovered among other secrets of the constitution, developed by this dangerous doctrine of implied powers. Or it might be exercised to establish great trading monopolies,

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or to lock up the property of the country in mortmain, by some strained connection between the exercise of such powers, and those expressly given to the government.

          3. Supposing the establishment of such a banking corporation, to be implied as one of the means necessary and proper to execute the powers expressly granted to the national government, it is contended by the counsel opposed to us, that its property is exempted from taxation by the state governments, because they cannot interfere with the exercise of any of the powers, express or implied, with which congress is invested. But the radical vice of this argument is, that the taxing power of the states, as it would exist, independent of the constitution, is in no respect limited or controlled by that supreme law, except in the single case of imposts and tonnage duties, which the states cannot lay, unless for the purpose of executing their inspection laws. But their power of taxation is absolutely unlimited in every other respect. Their power to tax the property of this corporation cannot be denied, without at the same time denying their right to tax any property of the United States. The property of the bank cannot be more highly privileged than that of the government. But they are not forbidden from taxing the property of the government, and therefore, cannot be constructively prohibited from taxing that of the bank. Being prohibited from taxing exports and imports, and tonnage, and left free from any other prohibition, in this respect; they may tax everything else but exports, imports and tonnage. The authority of

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'the Federalist' is express, that the taxing power of congress does not exclude that of the states over any other objects except these. If, then, the exercise of the taxing power of congress does not exclude that of the states, why should the exercise of any other power by congress, exclude the power of taxation by the states? If an express power will not exclude it, shall an inplied power have that effect? If a power of the same kind will not exclude it, shall a power of a different kind? The unlimited power of taxation results from state sovereignty. It is expressly taken away only in the particular instances mentioned. Shall others be added by implication? Will it be pretended, that there are two species of sovereignty in our government? Sovereign power is absolute, as to the objects to which it may be applied. But the sovereign power of taxation in the states may be applied to all other objects, except imposts and tonnage: its exercise cannot, therefore, be limited and controlled by the exercise of another sovereign power in congress. The right of both sovereignties are co-equal and co-extensive. The trade of banking may be taxed by the state of Maryland; the United States may incorporate a company to carry on the trade of banking, which may establish a branch in Maryland; the exercise of the one sovereign power, cannot be controlled by the exercise of the other. It can no more be controlled in this case, than if it were the power of taxation in congress, which was interfered with by the power of taxation in the state, both being exerted concurrently on the same object. In both

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cases, mutual confidence, discretion and forbearance can alone qualify the exercise of the conflicting powers, and prevent the destruction of either. This is an anomaly, and perhaps an imperfection, in our system of government. But neither congress, nor this court, can correct it. That system was established by reciprocal concessions and compromises between the state and federal governments; its harmony can only be maintained in the same spirit. Even admitting that the property of the United States (such as they have a right to hold), their forts and dock-yeards, their ships and military stores, their archives and treasures, public institutions of war, or revenue or justice, are exempt, by necessary implication, from state taxation; does it, therefore, follow, that this corporation, which is a partnership of bankers, is also exempt? They are not collectors of the revenue, any more than any state bank or foreign bankers, whose agency the government may find it convenient to employ as depositaries of its funds. They may be employed to remit those funds from one place to another, or to procure loans, or to buy and sell stock; but it is in a commercial, and not an administrative character, that they are thus employed. The corporate character with which these persons are clothed, does not emempt them from state taxation. It is the nature of their employment, as agents or officers of the government, if anything, which must create the exemption. But the same employment of the state bank or private bankers, would equally entitle them to the same exemption. Nor can the exemption of the stock of this

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corporation from state taxation, be claimed on the ground of the proprietary interest which the United States have in it as stockholders. Their interest is undistinguishably blended with the general capital stock; if they will mix their funds with those of bankers, or engage as partners in any other branch of commerce, their sovereign character and dignity are lost in the mercantile character which they have assumed; and their property thus employed becomes subject to local taxation, like other capital employed in trade.

          Martin, Attorney-General of Maryland.—1. Read several extracts from the Federalist, and the debates of the Virginia and New York conventions, to show that the contemporary exposition of the constitution, by its authors, and by those who supported its adoption, was wholly repugnant to that now contended for by the counsel for the plaintiff in error. That it was then maintained, by the enemies of the constitution, that it contained a vast variety of powers, lurking under the generality of its phraseology, which would prove highly dangerous to the liberties of the people, and the rights of the states, unless controlled by some declaratory amendment, which should negative their existence. This apprehension was treated as a dream of distempered jealousy. The danger was denied to exist; but to provide an assurance against the possibility of its occurrence, the 10th amendment was added to the constitution. This, however, could be considered as nothing more than declaratory of the sense of the people as to the extent of the powers

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conferred on the new government. We are now called upon to apply that theory of interpretation, which was then rejected by the friends of the new constitution, and we are asked to engraft upon it powers of vast extent, which were disclaimed by them, and which if they had been fairly avowed at the time, would have prevented its adoption. Before we do this, they must, at least, be proved to exist, upon a candid examination of this instrument, as if it were now, for the first time, submitted to interpretation. Although we cannot, perhaps, be allowed to say, that the states have been 'deceived in their grant;' yet we may justly claim something like a rigorous demonstration of this power, which nowhere appears upon the face of the constitution, but which is supposed to be tacitly inculcated in its general object and spirit. That the scheme of the framers of the constitution, intended to leave nothing to implication, will be evident, from the consideration, that many of the powers expressly given are only means to accomplish other powers expressly given. For example, the power to declare war involves, by necessary implication, if anything was to be implied, the powers of raising and supporting armies, and providing and maintaining a navy, to prosecute the war then declared. So also, as money is the sinew of war, the powers of laying and collecting taxes, and of borrowing money, are involved in that of declaring war. Yet all these powers are specifically enumerated. If, then, the convention has specified some powers, which being only means to accomplish the ends of government, might have been

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taken by implication; by what just rule of construction, are other sovereign powers, equally vast and important, to be assumed by implication? We insist, that the only safe rule is, the plain letter of the constitution; the rule which the constitutional legislators themselves have prescribed in the 10th amendment, which is merely declaratory; that the powers not delegated to the United States, nor prohibited to the states, are reserved to the states respectively, or to the people. The power of establishing corporations is not delegated to the United States, nor prohibited to the individual states. It is, therefore, reserved to the states, or to the people. It is not expressly delegated, either as an end, or a means, of national government. It is not to be taken by implication, as a means of executing any or all of the powers expressly granted; because other means, not more important or more sovereign in their character, are expressly enumerated. We still insist, that the authority of establishing corporations is one of the great sovereign powers of government. It may well exist in the state governments, without being expressly conferred in the state constitutions; because those governments have all the usual powers which belong to every political society, unless expressly forbidden, by the letter of the state constitutions, from exercising them. The power of establishing corporations has been constantly exercised by the state governments, and no portion of it has been ceded by them to the government of the United States.

          2. But admitting that congress has a right to incorporate a banking company, as one of the means

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necessary and proper to execute the specific powers of the national government; we insist, that the respective states have the right to tax the property of that corporation, within their territory; that the United States cannot, by such an act of incorporation, withdraw any part of the property within the state from the grasp of taxation. It is not necessary for us to contend, that any part of the public property of the United States, its munitions of war, its ships and treasure, are subject to state taxation. But if the United States hold shares in the stock of a private banking company, or any other trading company, their property is not exempt from taxation, in common with the other capital stock of the company; still less, can it communicate to the shares belonging to private stockholders, an immunity from local taxation. The right of taxation by the state, is co-extensive with all private property within the state. The interest of the United States in this bank is private property, though belonging to public persons. It is held by the government, as an undivided interest with private stockholders. It is employed in the same trade, subject to the same fluctuations of value, and liable to the same contingencies of profit and loss. The shares belonging to the United States, or of any other stockholders, are not subjected to direct taxation by the law of Maryland. The tax imposed, is a stamp tax upon the notes issued by a banking-house within the state of Maryland. Because the United States happen to be partially interested, either as dormant or active partners, in that house, is no reason why the state should refrain from laying a tax which they have, otherwise,

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a constitutional right to impose, any more than if they were to become interested in any other house of trade, which should issue its notes, or bills of exchange, liable to a stamp duty, by a law of the state. But it is said, that a right to tax, in this case, implies a right to destroy; that it is impossible to draw the line of discrimination between a tax fairly laid for the purposes of revenue, and one imposed for the purpose of prohibition. We answer, that the same objection would equally apply to the right of congress to tax the state banks; since the same difficulty of discriminating occurs in the exercise of that right. The whole of this subject of taxation is full of difficulties, which the convention found it impossible to solve, in a manner entirely satisfactory. The first attempt was to divide the subjects of taxation between the state and the national government. This being found impracticable or inconvenient, the state governments surrendered altogether their right to tax imports and exports, and tonnage; giving the authority to tax all other subjects to congress, but reserving to the states a concurrent right to tax the same subjects to an unlimited extent. This was one of the anomalies of the government, the evils of which must be endured, or mitigated by discretion and mutual forbearance. The debates in the state conventions show that the power of state taxation was understood to be absolutely unlimited, except as to imports and tonnage duties. The states would not have adopted the constitution, upon any other understanding. As to the judicial proceedings, and the custom-house papers of the United States, they are

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not property, by their very nature; they are not the subjects of taxation; they are the proper instruments of national sovereignty, essential to the exercise of its powers, and in legal contemplation altogether extra-territorial as to state authority.

          Pinkney, for the plaintiff in error, in reply, stated: 1. That the cause must first be cleared of a question which ought not to have been forced into the argument—whether the act of congress establishing the bank was consistent with the constitution? This question depended both on authority and on principle. No topics to illustrate it could be drawn from the confederation, since the present constitution was as different from that, as light from darkness. The former was a mere federative league; an alliance offensive and defensive between the states, such as there had been many examples of in the history of the world. It had no power of coercion but by arms. Its radical vice, and that which the new constitution was intended to reform, was legislation upon sovereign states in their corporate capacity. But the constitution acts directly on the people, by means of powers communicated directly from the people. No state, in its corporate capacity, ratified it; but it was proposed for adoption to popular conventions. It springs from the people, precisely as the state constitution springs from the people, and acts on them in a similar manner. It was adopted by them in the geographical sections into which the country is divided. The federal powers are just as sovereign as those of the states. The state sovereignties are not the authors

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of the constitution of the United States. They are preceding in point of time, to the national sovereignty, but they are postponed to it, in point of supremacy, by the will of the people. The means of giving efficacy to the sovereign authorities vested by the people in the national government, are those adapted to the end; fitted to promote, and having a natural relation and connection with, the objects of that government. The constitution, by which these authorities, and the means of executing them, are given, and the laws made in pursuance of it, are declared to be the supreme law of the land; and they would have been such, without the insertion of this declaratory clause; they must be supreme, or they would be nothing. The constitutionality of the establishment of the bank, as one of the means necessary to carry into effect the authorities vested in the national government, is no longer an open question. It has been long since settled by decisions of the most revered authority, legislative, executive and judicial. A legislative construction, in a doubtful case, persevered in for a course of years, ought to be binding upon the court. This, however, is not a question of construction merely, but of political necessity, on which congress must decide. It is conceded, that a manifest usurpation cannot be maintained in this mode; but, we contend, that this is such a doubtful case, that congress may expound the nature and extent of the authority under which it acts, and that this practical interpretation had become incorporated into the constitution. There are two distinguishing points which entitle it to great respect. The first is, that it was a

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contemporaneous construction; the second is, that it was made by the authors of the constitution themselves. The members of the convention who framed the constitution, passed into the first congress, by which the new government was organized; they must have understood their own work. They determined that the constitution gave to congress the power of incorporating a banking company. It was not required, that this power should be expressed in the text of the constitution; it might safely be left to implication. An express authority to erect corporations generally, would have been perilous; since it might have been constructively extended to the creation of corporations entirely unnecessary to carry into effect the other powers granted; we do not claim an authority in this respect, beyond the sphere of the specific powers. The grant of an authority to erect certain corporations, might have been equally dangerous, by omitting to provide for others, which time and experience might show to be equally, and even more necessary. It is a historical fact, of great importance in this discussion, that amendments to the constitution were actually proposed, in order to guard against the establishment of commercial monopolies. But if the general power of incorporating did not exist, why seek to qualify it, or to guard against its abuse? The legislative precedent, established in 1791, has been followed up by a series of acts of congress, all confirming the authority. Political considerations alone might have produced the refusal to renew the charter in 1811; at any rate, we know that they mingled themselves in the debate, and the determination.

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          In 1815, a bill was passed by the two houses of congress, incorporating a national bank; to which the president refused his assent, upon political considerations only, waiving the question of constitutionality, as being settled by contemporaneous exposition, and repeated subsequent recognitions. In 1816, all branches of the legislature concurred in establishing the corporation, whose chartered rights are now in judgment before the court. None of these measures ever passed sub silentio; the proposed incorporation was always discussed, and opposed, and supported, on constitutional grounds, as well as on considerations of political expediency. Congress is prim a facie a competent judge of its own constitutional powers. It is not, as in questions of privilege, the exclusive judge; but it must first decide, and that in a proper judicial character, whether a law is constitutional, before it is passed. It had an opportunity of exercising its judgment in this respect, upon the present subject, not only in the principal acts incorporating the former, and the present bank, but in the various incidental statutes subsequently enacted on the same subject; in all of which, the question of constitutionality was equally open to debate, but in none of which was it agitated.

          There are, then, in the present case, the repeated determinations of the three branches of the national legislature, confirmed by the constant acquiescence of the state sovereignties, and of the people, for a considerable length of time. Their strength is fortified by judicial authority. The decisions in the courts, affirming the constitutionality of these

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laws, passed, indeed, sub silentio; but it was the duty of the judges, especially in criminal cases, to have raised the question; and we are to conclude, from this circumstance, that no doubt was entertained respecting it. And if the question be examined on principle, it will be found not to admit of doubt. Has congress, abstractedly, the authority to erect corporations? This authority is not more a sovereign power, than many other powers which are acknowledged to exist, and which are but means to an end. All the objects of the government are national objects, and the means are, and must be, fitted to accomplish them. These objects are enumerated in the constitution, and have no limits but the constitution itself. A more perfect union is to be formed; justice to be established; domestic tranquillity insured; the common defence provided for; the general welfare promoted; the blessings of liberty secured to the present generation, and to posterity. For the attainment of these vast objects, the government is armed with powers and faculties corresponding in magnitude. Congress has power to lay and collect taxes and duties, imposts and excises; to pay the debts, and provide for the common defence and general welfare of the United States; to borrow money on the credit of the nation; to regulate commerce; to establish uniform naturalization and bankrupt laws; to coin money, and regulate the circulating medium, and the standard of weights and measures; to establish post-offices and post-roads; to promote the progress of science and the useful arts, by granting patents and copyrights; to constitute tribunals inferior to the supreme court, and to define

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and punish offences against the law of nations; to declare and carry on war; to raise and support armies, and to provide and maintain a navy; to discipline and govern the land and naval forces; to call forth the militia to execute the laws, suppress insurrections and repel invasions; to provide for organizing, arming and disciplining the militia; to exercise exclusive legislation, in all cases, over the district where the seat of government is established, and over such other portions of territory as may be ceded to the Union for the erection of forts, magazines, &c.; to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States; and to make all laws which shall be necessary and proper for carrying into execution these powers, and all other powers vested in the national government, or any of its departments or officers. The laws thus made are declared to be the supreme law of the land; and the judges in every state are bound thereby, anything in the constitution or laws of any state to the contrary nothwithstanding. Yet it is doubted, whether a government invested with such immense powers has authority to erect a corporation within the sphere of its general objects, and in order to accomplish some of those objects! The state powers are much less in point of magnitude, though greater in number; yet it is supposed, the states possess the authority of establishing corporations, whilst it is denied to the geveral government. It is conceded to the state legislatures, though not specifically granted, because it is said to be an incident of state sovereignty; but it

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is refused to congress, because it is not specifically granted, though it may be necessary and proper to execute the powers which are specifically granted. But the authority of legislation in the state government is not unlimited; there are several limitations to their legislative authority. First, from the nature of all government, especially, of republican government, in which the residuary powers of sovereignty, not granted specifically, by inevitable implication, are reserved to the people. Secondly, from the express limitations contained in the state constitutions. And thirdly, from the express prohibitions to the states contained in the United States constitution. The power of erecting corporations is nowhere expressly granted to the legislatures of the states in their constitutions; it is taken by necessary implication: but it cannot be exercised to accomplish any of the ends which are beyond the sphere of their constitutional authority. The power of erecting corporations is not an end of any government; it is a necessary means of accomplishing the ends of all governments. It is an authority inherent in, and incident to, all sovereignty.

          The history of corporations will illustrate this position. They were transplanted from the Roman law into the common law of England, and all the municipal codes of modern Europe. From England, they were derived to this country. But in the civil law, a corporation could be created by a mere voluntary association of individuals. 1 Bl. Com. 471. And in England, the authority of parliament

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is not necessary to create a corporate body. The king may do it, and may communicate his power to a subject (1 Bl. Com. 474), so little is this regarded as a transcendent power of sovereignty, in the British constitution. So also, in our constitution, it ought to be regarded as but a subordinate power to carry into effect the great objects of government. The state governments cannot establish corporations to carry into effect the national powers given to congress, nor can congress create corporations to execute the peculiar duties of the state governments. But so much of the power or faculty of incorporation as concerns national objects has passed away from the state legislatures, and is vested in the national government. An act of incorporation is but a law, and laws are but means to promote the legitimate end of all government the felicity of the people. All powers are given to the national government, as the people will. The reservation in the 10th amendment to the constitution, of 'powers not delegated to the United States,' is not confined to powers not expressly delegated. Such an amendment was indeed proposed; but it was perceived, that it would strip the government of some of its most essential powers, and it was rejected. Unless a specific means be expressly prohibited to the general government, it has it, within the sphere of its specified powers. Many particular means are, of course, involved in the general means necessary to carry into effect the powers expressly granted, and in that case, the general means become

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the end, and the smaller objects the means.

          It was impossible for the framers of the constitution to specify, prospectively, all these means, both because it would have involved an immense variety of details, and because it would have been impossible for them to foresee the infinite variety of circumstances, in such an unexampled state of political society as ours, for ever changing and for ever improving. How unwise would it have been, to legislate immutably for exigencies which had not then occurred, and which must have been foreseen but dimly and imperfectly! The security against abuse is to be found in the constitution and nature of the government, in its popular character and structure. The statute book of the United States is filled with powers derived from implication. The power to lay and collect taxes will not execute itself. Congress must designate in detail all the means of collection. So also, the power of establishing post-offices and post-roads, involves that of punishing the offence of robbing the mail. But there is no more necessary connection between the punishment of mail-robbers, and the power to establish post-roads, than there is between the institution of a bank, and the collection of the revenue and payment of the public debts and expenses. So, light-houses, beacons, buoys and public piers, have all been established, under the general power to regulate commerce. But they are not indispensably necessary to commerce. It might linger on, without these aids, though exposed to more perils and losses. So, congress has authority to coin money, and to guard the purity of the circulating medium, by providing for the punishment

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of counterfeiting the current coin; but laws are also made for punishing the offence of uttering and passing the coin thus counterfeited. It is the duty of the court to construe the constitutional powers of the national government liberally, and to mould them so as to effectuate its great objects. Whence is derived the power to punish smuggling? It does not collect the impost, but it is a means more effectually to prevent the collection from being diminished in amount, by frauds upon the revenue laws. Powers, as means, may then be implied in many cases. And if so, why not in this case as well as any other?

          The power of making all needful rules and regulations respecting the territory of the United States, is one of the specified powers of congress. Under this power, it has never been doubted, that congress had authority to establish corporations in the territorial governments. But this power is derived entirely from implication. It is assumed, as an incident to the principal power. If it may be assumed, in that case, upon the ground, that it is a necessary means of carrying into effect the power expressly granted, why may it not be assumed, in the present case, upon a similar ground? It is readily admitted, there must be a relation, in the nature and fitness of things between the means used and the end to be accomplished. But the question is, whether the necessity which will justify a resort to a certain means, must be an absolute, indispensable, inevitable necessity? The power of passing all laws necessary and proper to carry into effect the other powers specifically granted, is a political power; it

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is a matter of legislative discretion, and those who exercise it, have a wide range of choice in selecting means. In its exercise, the mind must compare means with each other. But absolute necessity excludes all choice; and therefore, it cannot be this species of necessity which is required. Congress alone has the fit means of inquiry and decision. The more or less of necessity never can enter as an ingredient into judicial decision. Even absolute necessity cannot be judged of here; still less, can practical necessity be determined in a judicial forum. The judiciary may, indeed, and must, see that what has been done is not a mere evasive pretext, under which the national legislature travels out of the prescribed bounds of its authority, and encroaches upon state sovereignty, or the rights of the people. For this purpose, it must inquire, whether the means assumed have a connection, in the nature and fitness of things, with the end to be accomplished. The vast variety of possible means, excludes the practicability of judicial determination as to the fitness of a particular means. It is sufficient, that it does not appear to be violently and unnaturally forced into the service, or fraudulently assumed, in order to usurp a new substantive power of sovereignty. A philological analysis of the terms 'necessary and proper' will illustrate the argument. Compare these terms as they are used in that part of the constitution now in question, with the qualified manner in which they are used in the 10th section of the same article. In the latter, it is provided that 'no state shall, without the consent of congress, lay any imposts or duties on imports

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or exports, except what may be absolutely necessary for executing its inspection laws.' In the clause in question, congress is invested with the power 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers,' &c. There is here then, no qualification of the necessity; it need not be absolute; it may be taken in its ordinary grammatical sense. The word necessary, standing by itself, has no inflexible meaning; it is used in a sense more or less strict, according to the subject. This, like many other words, has a primitive sense, and another figurative and more relaxed; it may be qualified by the addition of adverbs of diminution or enlargement, such as very, indispensably, more, less, or absolutely necessary; which last is the sense in which it is used in the 10th section of this article of the constitution. But that it is not always used in this strict and rigorous sense, may be proved, by tracing its definition, and etymology in every human language.

          If, then, all the powers of the national government are sovereign and supreme; if the power of incorporation is incidental, and involved in the others; if the degree of political necessity which will justify a resort to a particular means, to carry into execution the other powers of the government, can never be a criterion of judicial determination, but must be left to legislative discretion, it only remains to inquire, whether a bank has a natural and obvious connection with other express or implied powers, so as to become a necessary and proper means of carrying them into execution. A bank

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might be established as a branch of the public administration, without incorporation. The government might issue paper, upon the credit of the public faith, pledged for its redemption, or upon the credit of its property and funds. Let the office where this paper is issued be made a place of deposit for the money of individuals, and authorize its officers to discount, and a bank is created. It only wants the forms of incorporation. But, surely, it will not be pretended, that clothing it with these forms would make such an establishment unconstitutional. In the bank which is actually established and incorporated, the United States are joint stockholders, and appoint joint directors; the secretary of the secretary of the treasury has a supervising authority over its affairs; it is bound, upon his requisition, to transfer the funds of the government wherever they may be wanted; it performs all the duties of commissioners of the loan-office; it is bound to loan the government a certain amount of money, on demand; its notes are receivable in payment for public debts and duties; it is intimately connected, according to the usage of the whole world, with the power of borrowing money, and with all the financial operations of the government. It has, also, a close connection with the power of regulating foreign commerce, and that between the different states. It provides a circulating medium, by which that commerce can be more conveniently carried on, and exchanges may be facilitated. It is true, there are state banks by which a circulating medium to a certain extent is provided. But that only diminishes the quantum of necessity,

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which is no criterion by which to test the constitutionality of a measure. It is also connected with the power of making all needful regulations for the government of the territory, 'and other property of the United States.' If they may establish a corporation to regulate their territory, they may establish one to regulate their property. Their treasure is their property, and may be invested in this mode. It is put in partnership; but not for the purpose of carrying on the trade of banking as one of the ends for which the government was established; but only as an instrument or means for executing its sovereign powers. This instrument could not be rendered effectual for this purpose, but by mixing the property of individuals with that of the public. The bank could not otherwise acquire a credit for its notes. Universal experience shows, that, if, altogether a government bank, it could not acquire, or would soon lose, the confidence of the community.

          2. As to the branches, they are identical with the parent bank. The power to establish them is that species of subordinate power, wrapped up in the principal power, which congress may place at its discretion.

          3. The last and greatest, and only difficult question in the cause, is that which respects the assumed right of the states to tax this bank, and its branches, thus established by congress? This is a question, comparatively of no importance to the individual states, but of vital importance to the Union. Deny this exemption to the bank as an instrument of government, and what is the consequence? There is no express provision

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in the constitution, which exempts any of the national institutions or property erty from state taxation. It is only by implication that the army and navy, and treasure, and judicature of the Union are exempt from state taxation. Yet they are practically exempt; and they must be, or it would be in the power of any one state to destroy their use. Whatever the United States have a right to do, the individual states have no right to undo. The power of congress to establish a bank, like its other sovereign powers, is supreme, or it would be nothing. Rising out of an exertion of paramount authority, it cannot be subject to any other power. Such a power in the states, as that contended for on the other side, is manifestly repugnant to the power of congress; since a power to establish, implies a power to continue and preserve.

          There is a manifest repugnancy between the power of Maryland to tax, and the power of congress to preserve, this institution. A power to build up, what another may pull down at pleasure, is a power which may provoke a smile, but can do nothing else. This law of Maryland acts directly on the operations of the bank, and may destroy it. There is no limit or check in this respect, but in the discretion of the state legislature. That discretion cannot be controlled by the national councils. Whenever the local councils of Maryland will it, the bank must be expelled from that state. A right to tax, without limit or control, is essentially a power to destroy. If one national institution may be destroyed in this manner, all may be destroyed in the same manner. If this power to tax the national property and institutions

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exists in the state of Maryland, it is unbounded in extent. There can be no check upon it, either by congress, or the people of the other states. Is there then any intelligible, fixed, defined bonndary of this taxing power? If any, it must be found in this court. If it does not exist here, it is a nonentity. But the court cannot say what is an abuse, and what is a legitimate use of the power. The legislative intention may be so masked, as to defy the scrutinizing eye of the court. How will the court ascertain, a priori, that the given amount of tax will crush the bank? It is essentially a question of political economy, and there are always a vast variety of facts bearing upon it. The facts may be mistaken. Some important considerations belonging to the subject may be kept out of sight; they must all vary with times and circumstances. The result, then, must determine, whether the tax is destructive. But the bank may linger on for some time, and that result cannot be known, until the work of destruction is consummated. A criterion which has been proposed, is to see whether the tax has been laid, impartially, upon the state banks, as well as the Bank of the United States. Even this is an unsafe test; for the state governments may wish, and intend, to destroy their own banks. The existence of any national institution ought not to depend upon so frail a security. But this tax is levelled exclusively at the branch of the United States Bank established in Maryland. There is, in point of fact, a branch of no other bank within that state, and there can legally be no other. It is a fundamental article of the state

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constitution of Maryland, that taxes shall operate on all the citizens impartially and uniformly, in proportion to their property, with the exception, however, of taxes laid for political purposes. This is a tax laid for a political purpose; for the purpose of destroying a great institution of the national government; and if it were not imposed for that purpose, it would be repugnant to the state constitution, as not being laid uniformly on all the citizens, in proportion to their property. So that the legislature cannot disavow this to be its object, without, at the same time, confessing a manifest violation of the state constitution. Compare this act of Maryland with that of Kentucky, which is yet to come before the court, and the absolute necessity of repressing such attempts in their infancy, will be evident. Admit the constitutionality of the Maryland tax, and that of Kentucky follows inevitably. How can it be said, that the office of discount and deposit in Kentucky cannot bear a tax of $60,000 per annum, payable monthly? Probably, it could not; but judicial certainty is essential; and the court has no means of arriving at that certainty. There is, then, here, an absolute repugnancy of power to power; we are not bound to show, that the particular exercise of the power in the present case is absolutely repugnant. It is sufficient, that the same power may be thus exercised.

          There certainly may be some exceptions out of the taxing power of the states, other than those created by the taxing power of congress; because, if there were no implied exceptions, then, the navy, and other

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exclusive property of the United States, would be liable to state taxation. If some of the powers of congress, other than its taxing power, necessarily involve incompatibility with the taxing power of the states, this may be incompatible. This is incompatible; for a power to impose a tax ad libitum upon the notes of the bank, is a power to repeal the law, by which the bank was created. The bank cannot be useful, it cannot act at all, unless it issues notes. If the present tax does not disable the bank from issuing its notes, another may; and it is the authority itself which is questioned, as being entirely repugnant to the power which established and preserves the bank. Two powers thus hostile and incompatible cannot co-exist. There must be, in this case, an implied exception to the general taxing power of the states, because it is a tax upon the legislative faculty of congress, upon the national property, upon the national institutions. Because the taxing powers of the two governments are concurrent in some respects, it does not follow, that there may not be limitations on the taxing power of the states, other than those which are imposed by the taxing power of congress. Judicial proceedings are practically a subject of taxation in many countries, and in some of the states of this Union. The states are not expressly prohibited in the constitution, from taxing the judicial proceedings of the United States. Yet such a prohibition must be implied, or the administration of justice in the national courts might be obstructed by a prohibitory tax. But such a tax is no more a tax on the legislative faculty of congress than this. The branch

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bank in Maryland is as much an institution of the sovereign power of the Union, as the circuit court of Maryland. One is established in virtue of an express power; the other by an implied authority; but both are equal, and equally supreme. All the property and all the institutions of the United States are, constructively, without the local, territorial jurisdiction of the individual states, in every respect, and for every purpose, including that of taxation. This immunity must extend to this case, because the power of taxation imports the power of taxation for the purpose of prohibition and destruction. The immunity of foreign public vessels from the local jurisdiction, whether state or national, was established in the case of The Exchange, 7 Cranch 116, not upon positive municipal law, nor upon conventional law; but it was implied, from the usage of nations, and the necessity of the case. If, in favor of foreign governments, such an edifice of exemption has been built up, independent of the letter of the constitution, or of any other written law, shall not a similar edifice be raised on the same foundations, for the security of our own national government? So also, the jurisdiction of a foreign power, holding a temporary possession of a portion of national territory, is nowhere provided for in the constitution; but is derived from inevitable implication. United States v. Rice (ante, p. 246). These analogies show, that there may be exemptions from state jurisdiction, not detailed in the constitution, but arising out of general considerations. If congress has power to do a particular act,

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no state can impede, retard or burden it. Can there be a stronger ground, to infer a cessation of state jurisdiction?

          The Bank of the United States is as much an instrument of the government for fiscal purposes, as the courts are its instruments for judicial purposes. They both proceed from the supreme power, and equally claim its protection. Though every state in the Union may impose a stamp tax, yet no state can lay a stamp tax upon the judicial proceedings or custom-house papers of the United States. But there is no such express exception to the general taxing power of the states contained in the constitution. It arises from the general nature of the government, and from the principle of the supremacy of the national powers, and the laws made to execute them, over the state authorities and state laws.

          It is objected, however, that the act of congress, incorporating the bank, withdraws property from taxation by the state, which would be otherwise liable to state taxation. We answer, that it is immaterial, if it does thus withdraw certain property from the grasp of state taxation, if congress had authority to establish the bank, since the power of congress is supreme. But, in fact, it withdraws nothing from the mass of taxable property in Maryland, which that state could tax. The whole capital of the bank, belonging to private stockholders, is drawn from every state in the Union, and the stock belonging to the United States, previously constituted a part of the public treasure. Neither the stock belonging to citizens of other states, nor the privileged treasure

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of the United States, mixed up with this private property, were previously liable to taxation in Maryland; and as to the stock belonging to its own citizens, it still continues liable to state taxation, as a portion of their individual property, in common with all the other private property in the state. The establishment of the bank, so far from withdrawing anything from taxation by the state, brings something into Maryland which that state may tax. It produces revenue to the citizens of Maryland, which may be taxed equally and uniformly, with all their other private property. The materials of which the ships of war, belonging to the United States, are constructed, were previously liable to state taxation. But the instant they are eonverted into public property, for the public defence, they cease to be subject to state taxation. So, here, the treasure of the United States, and that of individuals, citizens of Maryland, and of other states, are undistinguishably confounded in the capital stock of this great national institution, which, it has been before shown, could be made useful as an instrument of finance, in no other mode than by thus blending together the property of the government and of private merchants. This partnership is, therefore, one of necessity, on the part of the United States. Either this tax operates upon the franchise of the bank, or upon its property. If upon the former, then it comes directly in conflict with the exercise of a great sovereign authority of congress; if upon the latter, then it is a tax upon the property of the United States; since the law does not, and

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cannot, in imposing a stamp tax, distinguish their interest from that of private stockholders.

          But it is said, that congress possesses and exercises the unlimited authority of taking the state banks; and therefore, the states ought to have an equal right to tax the Bank of the United States. The answer to this objection is, that, in taxing the state banks, the states in congress exercise their power of taxation. Congress exercises the power of the people; the whole acts on the whole. But the state tax is a part acting on the whole. Even if the two cases were the same, it would rather exempt the state banks from federal taxation, than subject the Bank of the United States to taxation by a particular state. But the state banks are not machines essential to execute the powers of the state sovereignties, and therefore, this is out of the question. The people of the United States, and the sovereignties of the several states, have no control over the taxing power of a particular state. But they have a control over the taxing power of the United States, in the responsibility of the members of the house of representatives to the people of the state which sends them, and of the senators, to the legislature by whom they are chosen. But there is no correspondent responsibility of the local legislature of Maryland, for example, to the people of the other states of the Union. The people of other states are not represented in the legislature of Maryland, and can have no control, directly or indirectly, over its proceedings. The legislature of Maryland is responsible only to the people of that state. The national

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government can withdraw nothing from the taxing power of the states, which is not for the purpose of national benefit and the common welfare, and within its defined powers. But the local interests of the states are in perpetual conflict with the interests of the Union; which shows the danger of adding power to the partial views and local prejudices of the states. If the tax imposed by this law be not a tax on the property of the United States, it is not a tax on any property; and it must, consequently, be a tax on the faculty or franchise. It is, then, a tax on the legislative faculty of the Union, on the charter of the bank. It imposes a stamp duty upon the notes of the bank, and thus stops the very source of its circulation and life. It is as much a direct interference with the legislative faculty of congress, as would be a tax on patents, or copyrights, or custom-house papers or judicial proceedings.

          Since, then, the constitutional government of this republican empire cannot be practically enforced, so as to secure the permanent glory, safety and felicity of this great country, but by a fair and liberal interpretation of its powers; since those powers could not all be expressed in the constitution, but many of them must be taken by implication; since the sovereign powers of the Union are supreme, and, wherever they come in direct conflict and repugnancy with those of the state governments, the latter must give way; since it has been proved, that this is the case as to the institution of the bank, and the general power of taxation by the states; since this power unlimited and unchecked, as it necessarily must be, by the

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very nature of the subject, is absolutely inconsistent with, and repugnant to, the right of the United States to establish a national bank; if the power of taxation be applied to the corporate property, or franchise, or property of the bank, and might be applied in the same manner, to destroy any other of the great institutions and establishments of the Union, and the whole machine of the national government might be arrested in its motions, by the exertion, in other cases, of the same power which is here attempted to be exerted upon the bank: no other alternative remains, but for this court to interpose its authority, and save the nation from the consequences of this dangerous attempt.

March 7th, 1819.

           MARSHALL, Ch. J., delivered the opinion of the court.

          In the case now to be determined, the defendant, a sovereign state, denies the obligation of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that state. The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked in that constitution, are to be discussed; and an opinion given, which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of

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hostile legislation, perhaps, of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the supreme court of the United States has the constitution of our country devolved this important duty.

          The first question made in the cause is—has congress power to incorporate a bank? It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognised by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation.

          It will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived, that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.

          The power now contested was exercised by the first congress elected under the present constitution.

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The bill for incorporating the Bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first, in the fair and open field of debate, and afterwards, in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law. The original act was permitted to expire; but a short experience of the embarrassments to which the refusal to revive it exposed the government, convinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law. It would require no ordinary share of intrepidity, to assert that a measure adopted under these circumstances, was a bold and plain usurpation, to which the constitution gave no countenance. These observations belong to the cause; but they are not made under the impression, that, were the question entirely new, the law would be found irreconcilable with the constitution.

          In discussing this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument, not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion.

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It would be difficult to sustain this proposition. The convention which framed the constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing congress of the United States, with a request that it might 'be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification.' This mode of proceeding was adopted; and by the convention, by congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments.

          From these conventions, the constitution derives its whole authority. The government proceeds directly from the people; is 'ordained and established,' in the name of the people; and is declared to be ordained, 'in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure

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the blessings of liberty to themselves and to their posterity.' The assent of the states, in their sovereign capacity, is implied, in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The constitution, when thus adopted, was of complete obligation, and bound the state sovereignties.

          It has been said, that the people had already surrendered all their powers to the state sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to government, does not remain to be settled in this country. Much more might the legitimacy of the general government be doubted, had it been created by the states. The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty, created by themselves. To the formation of a league, such as was the confederation, the state sovereignties were certainly competent. But when, 'in order to form a more perfect union,' it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then (whatever may be the influence of this fact on the case), is,

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emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.

          This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, so long as our system shall exist. In discussing these questions, the conflicting powers of the general and state governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled.

          If any one proposition could command the universal assent of mankind, we might expect it would be this—that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result, necessarily, from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason: the people have, in express terms, decided it, by saying,

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'this constitution, and the laws of the United States, which shall be made in pursuance thereof,' 'shall be the supreme law of the land,' and by requiring that the members of the state legislatures, and the officers of the executive and judicial departments of the states, shall take the oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, 'anything in the constitution or laws of any state to the contrary notwithstanding.'

          Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word 'expressly,' and declares only, that the powers 'not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people;' thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles

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of confederation, and probably omitted it, to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the 9th section of the 1st article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.

          Although, among the enumerated powers of government, we do not find the word 'bank' or 'incorporation,' we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. It can never be pretended,

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that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution, by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require, that the treasure raised in the north should be transported to the south, that raised in the east, conveyed to the west, or that this order should be reversed. Is that construction of the constitution to be preferred, which would render these operations difficult, hazardous and expensive? Can we adopt that construction (unless the words imperiously require it), which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise, by withholding a choice of means? If, indeed, such be the mandate of the constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation,

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if the existence of such a being be essential, to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be employed.

          It is not denied, that the powers given to the government imply the ordinary means of execution. That, for example, of raising revenue, and applying it to national purposes, is admitted to imply the power of conveying money from place to place, as the exigencies of the nation may require, and of employing the usual means of conveyance. But it is denied, that the government has its choice of means; or, that it may employ the most convenient means, if, to employ them, it be necessary to erect a corporation. On what foundation does this argument rest? On this alone: the power of creating a corporation, is one appertaining to sovereignty, and is not expressly conferred on congress. This is true. But all legislative powers appertain to sovereignty. The original power of giving the law on any subject whatever, is a sovereign power; and if the government of the Union is restrained from creating a corporation, as a means for performing its functions, on the single reason that the creation of a corporation is an act of sovereignty; if the sufficiency of this reason be acknowledged, there would be some difficulty in sustaining the authority of congress to pass other laws for the accomplishment of the same objects. The government which has a right to do an act, and has imposed on it, the duty of performing that act, must, according to the dictates of reason, be allowed

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to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception.

          The creation of a corporation, it is said, appertains to sovereignty. This is admitted. But to what portion of sovereignty does it appertain? Does it belong to one more than to another? In America, the powers of sovereignty are divided between the government of the Union, and those of the states. They are each sovereign, with respect to the objects committed to it, and neither sovereign, with respect to the objects committed to the other. We cannot comprehend that train of reasoning, which would maintain, that the extent of power granted by the people is to be ascertained, not by the nature and terms of the grant, but by its date. Some state constitutions were formed before, some since that of the United States. We cannot believe, that their relation to each other is in any degree dependent upon this circumstance. Their respective powers must, we think, be precisely the same, as if they had been formed at the same time. Had they been formed at the same time, and had the people conferred on the general government the power contained in the constitution, and on the states the whole residuum of power, would it have been asserted, that the government of the Union was not sovereign, with respect to those objects which were intrusted to it, in relation to which its laws were declared to be supreme? If this could not have been asserted, we cannot well comprehend the process of reasoning

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which maintains, that a power appertaining to sovereignty cannot be connected with that vast portion of it which is granted to the general government, so far as it is calculated to subserve the legitimate objects of that government. The power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers, or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. No contributions are made to charity, for the sake of an incorporation, but a corporation is created to administer the charity; no seminary of learning is instituted, in order to be incorporated, but the corporate character is conferred to subserve the purposes of education. No city was ever built, with the sole object of being incorporated, but is incorporated as affording the best means of being well governed. The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is, therefore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them.

          But the constitution of the United States has not left the right of congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added, that of making 'all

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laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States, or in any department thereof.' The counsel for the state of Maryland have urged various arguments, to prove that this clause, though, in terms, a grant of power, is not so, in effect; but is really restrictive of the general right, which might otherwise be implied, of selecting means for executing the enumerated powers. In support of this proposition, they have found it necessary to contend, that this clause was inserted for the purpose of conferring on congress the power of making laws. That, without it, doubts might be entertained, whether congress could exercise its powers in the form of legislation.

          But could this be the object for which it was inserted? A government is created by the people, having legislative, executive and judicial powers. Its legislative powers are vested in a congress, which is to consist of a senate and house of representatives. Each house may determine the rule of its proceedings; and it is declared, that every bill which shall have passed both houses, shall, before it becomes a law, be presented to the president of the United States. The 7th section describes the course of proceedings, by which a bill shall become a law; and, then, the 8th section enumerates the powers of congress. Could it be necessary to say, that a legislature should exercise legislative powers, in the shape of legislation? After allowing each house to prescribe

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its own course of proceeding, after describing the manner in which a bill should become a law, would it have entered into the mind of a single member of the convention, that an express power to make laws was necessary, to enable the legislature to make them? That a legislature, endowed with legislative powers, can legislate, is a proposition too self-evident to have been questioned.

          But the argument on which most reliance is placed, is drawn from that peculiar language of this clause. Congress is not empowered by it to make all laws, which may have relation to the powers confered on the government, but such only as may be 'necessary and proper' for carrying them into execution. The word 'necessary' is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means, and leaves to congress, in each case, that only which is most direct and simple.

          Is it true, that this is the sense in which the word 'necessary' is always used? Does it always import an absolute physical necessity, so strong, that one thing to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to

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produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. Almost all compositions contain words, which, taken in a their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense—in that sense which common usage justifies. The word 'necessary' is of this description. It has not a fixed character, peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed by these several phrases. The comment on the word is well illustrated by the passage cited at the bar, from the 10th section of the 1st article of the constitution. It is, we think, impossible to compare the sentence which prohibits a state from laying 'imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws,' with that which authorizes congress 'to make all laws which shall be necessary and proper for carrying into execution' the powers of the general government, without feeling a conviction, that the convention understood itself to change materially

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the meaning of the word 'necessary,' by prefixing the word 'absolutely.' This word, then, like others, is used in various senses; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view.

          Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, so far as human prudence could insure, their beneficial execution. This could not be done, by confiding the choice of means to such narrow limits as not to leave it in the power of congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared, that the best means shall not be used, but those alone, without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.

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          If we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it. The powers vested in congress may certainly be carried into execution, without prescribing an oath of office. The power to exact this security for the faithful performance of duty, is not given, nor is it indispensably necessary. The different departments may be established; taxes may be imposed and collected; armies and navies may be raised and maintained; and money may be borrowed, without requiring an oath of office. It might be argued, with as much plausibility as other incidental powers have been assailed, that the convention was not unmindful of this subject. The oath which might be exacted—that of fidelity to the constitution—is prescribed, and no other can be required. Yet, he would be charged with insanity, who should contend, that the legislature might not superadd, to the oath directed by the constitution, such other oath of office as its wisdom might suggest.

          So, with respect to the whole penal code of the United States: whence arises the power to punish, in cases not prescribed by the constitution? All admit, that the government may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of congress. The right to enforce the observance of law, by punishing its infraction, might be denied, with the more plausibility, because it is expressly given in some cases.

          Congress is empowered 'to provide for the punishment

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of counterfeiting the securities and current coin of the United States,' and 'to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.' The several powers of congress may exist, in a very imperfect state, to be sure, but they may exist and be carried into execution, although no punishment should be inflicted, in cases where the right to punish is not expressly given.

          Take, for example, the power 'to establish post-offices and post-roads.' This power is executed, by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another. And from this implied power, has again been inferred the right to punish those who steal letters from the post-office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post-office and post-road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offences, is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment.

          The baneful influence of this narrow construction on all the operations of the government, and the absolute

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impracticability of maintaining it, without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws. The good sense of the public has pronounced, without hesitation, that the power of punishment appertains to sovereignty, and may be exercised, whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise.

          If this limited construction of the word 'necessary' must be abandoned, in order to punish, whence is derived the rule which would reinstate it, when the government would carry its powers into execution, by means not vindictive in their nature? If the word 'necessary' means 'needful,' 'requisite,' 'essential,' 'conducive to,' in order to let in the power of punishment for the infraction of law; why is it not equally comprehensive, when required to authorize the use of means which facilitate the execution of the powers of government, without the infliction of punishment?

          In ascertaining the sense in which the word 'necessary' is used in this clause of the constitution, we may derive some aid from that with which it it is associated. Congress shall have power 'to make all laws which shall be necessary and proper to carry into execution' the powers of the government. If the word 'necessary' was used in that strict and rigorous sense for which the counsel for the state of

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Maryland contend, it would be an extraordinary departure from the usual course of the human mind, as exhibited in composition, to add a word, the only possible offect of which is, to qualify that strict and rigorous meaning; to present to the mind the idea of some choice of means of legislation, not strained and compressed within the narrow limits for which gentlemen contend.

          But the argument which most conclusively demonstrates the error of the construction contended for by the counsel for the state of Maryland, is founded on the intention of the convention, as manifested in the whole clause. To waste time and argument in proving that, without it, congress might carry its powers into execution, would be not much less idle, than to hold a lighted taper to the sun. As little can it be required to prove, that in the absence of this clause, congress would have some choice of means. That it might employ those which, in its judgment, would most advantageously effect the object to be accomplished. That any means adapted to the end, any means which tended directly to the execution of the constitutional powers of the government, were in themselves constitutional. This clause, as construed by the state of Maryland, would abridge, and almost annihilate, this useful and necessary right of the legislature to select its means. That this could not be intended, is, we should think, had it not been already controverted, too apparent for controversy.

          We think so for the following reasons: 1st. The clause is placed among the powers of congress, not among the limitations on those powers.

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2d. Its terms purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted. No reason has been, or can be assigned, for thus concealing an intention to narrow the discretion of the national legislature, under words which purport to enlarge it. The framers of the constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness. Had they been capable of using language which would convey to the eye one idea, and, after deep reflection, impress on the mind, another, they would rather have disguised the grant of power, than its limitation. If, then, their intention had been, by this clause, to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place, and would have been expressed in terms resembling these. 'In carrying into execution the foregoing powers, and all others,' &c., 'no laws shall be passed but such as are necessary and proper.' Had the intention been to make this clause restrictive, it would unquestionably have been so in form as well as in effect.

          The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting

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the right to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble.

          We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.7

          That a corporation must be considered as a means not less usual, not of higher dignity, not more requiring a particular specification than other means, has been sufficiently proved. If we look to the origin of corporations, to the manner in which they have been framed in that government from which we have derived most of our legal principles and ideas, or to the uses to which they have been applied, we find no reason to suppose, that a constitution, omitting, and wisely omitting, to enumerate all the means for carrying into execution the great powers vested in government, ought to have specified this. Had it been intended to grant this power, as one which should be distinct and independent, to be exercised in any case whatever, it

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would have found a place among the enumerated powers of the government. But being considered merely as a means, to be employed only for the purpose of carrying into execution the given powers, there could be no motive for particularly mentioning it.

          The propriety of this remark would seem to be generally acknowledged, by the universal acquiescence in the construction which has been uniformly put on the 3d section of the 4th article of the constitution. The power to 'make all needful rules and regulations respecting the territory or other property belonging to the United States,' is not more comprehensive, than the power 'to make all laws which shall be necessary and proper for carrying into execution' the powers of the government. Yet all admit the constitutionality of a territorial government, which is a corporate body.

          If a corporation may be employed, indiscriminately with other means, to carry into execution the powers of the government, no particular reason can be assigned for excluding the use of a bank, if required for its fiscal operations. To use one, must be within the discretion of congress, if it be an appropriate mode of executing the powers of government. That it is a convenient, a useful, and essential instrument in the prosecution of its fiscal operations, is not now a subject of controversy. All those who have been concerned in the administration of our finances, have concurred in representing its importance and necessity; and so strongly have they been felt, that statesmen of the first class, whose previous opinions

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against it had been confirmed by every circumstance which can fix the human judgment, have yielded those opinions to the exigencies of the nation. Under the confederation, congress, justifying the measure by its necessity, transcended, perhaps, its powers, to obtain the advantage of a bank; and our own legislation attests the universal conviction of the utility of this measure. The time has passed away, when it can be necessary to enter into any discussion, in order to prove the importance of this instrument, as a means to effect the legitimate objects of the government.

          But were its necessity less apparent, none can deny its being an appropriate measure; and if it is, the decree of its necessity, as has been very justly observed, is to be discsused in another place. Should congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.

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          After this declaration, it can scarcely be necessary to say, that the existence of state banks can have no possible influence on the question. No trace is to be found in the constitution, of an intention to create a dependence of the government of the Union on those of the states, for the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends. To impose on it the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution. But were it otherwise, the choice of means implies a right to choose a national bank in preference to state banks, and congress alone can make the election.

          After the most deliberate consideration, it is the unanimous and decided opinion of this court, that the act to incorporate the Bank of the United States is a law made in pursuance of the constitution, and is a part of the supreme law of the land.

          The branches, proceeding from the same stock, and being conducive to the complete accomplishment of the object, are equally constitutional. It would have been unwise, to locate them in the charter, and it would be unnecessarily inconvenient, to employ the legislative power in making those subordinate arrangements. The great duties of the bank are prescribed; those duties require branches; and the bank itself

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may, we think, be safely trusted with the selection of places where those branches shall be fixed; reserving always to the government the right to require that a branch shall be located where it may be deemed necessary.

          It being the opinion of the court, that the act incorporating the bank is constitutional; and that the power of establishing a branch in the state of Maryland might be properly exercised by the bank itself, we proceed to inquire——

          2. Whether the state of Maryland may, without violating the constitution, tax that branch? That the power of taxation is one of vital importance; that it is retained by the states; that it is not abridged by the grant of a similar power to the government of the Union; that it is to be concurrently exercised by the two governments—are truths which have never been denied. But such is the paramount character of the constitution, that its capacity to withdraw any subject from the action of even this power, is admitted. The states are expressly forbidden to lay any duties on imports or exports, except what may be absolutely necessary for executing their inspection laws. If the obligation of this prohibition must be conceded—if it may restrain a state from the exercise of its taxing power on imports and exports—the same paramount character would seem to restrain, as it certainly may restrain, a state from such other exercise of this power, as is in its nature incompatible with, and repugnant to, the constitutional laws of the Union. A law, absolutely repugnant to another, as entirely

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repeals that other as if express terms of repeal were used.

          On this ground, the counsel for the bank place its claim to be exempted from the power of a state to tax its operations. There is no express provision for the case, but the claim has been sustained on a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it, without rending it into shreds. This great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the cause has been supposed to depend. These are, 1st. That a power to create implies a power to preserve: 2d. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve: 3d. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.

          These propositions, as abstract truths, would, perhaps, never be controverted. Their application to this case, however, has been denied; and both in maintaining the affirmative and the negative, a splendor of eloquence, and strength of argument, seldom, if ever, surpassed, have been displayed.

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          The power of congress to create, and of course, to continue, the bank, was the subject of the preceding part of this opinion; and is no longer to be considered as questionable. That the power of taxing it by the states may be exercised so as to destroy it, is too obvious to be denied. But taxation is said to be an absolute power, which acknowledges no other limits than those expressly prescribed in the constitution, and like sovereign power of every other description, is intrusted to the discretion of those who use it. But the very terms of this argument admit, that the sovereignty of the state, in the article of taxation itself, is subordinate to, and may be controlled by the constitution of the United States. How far it has been controlled by that instrument, must be a question of construction. In making this construction, no principle, not declared, can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view, while construing the constitution.

          The argument on the part of the state of Maryland, is, not that the states may directly resist a law of congress, but that they may exercise their

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acknowledged powers upon it, and that the constitution leaves them this right, in the confidence that they will not abuse it. Before we proceed to examine this argument, and to subject it to test of the constitution, we must be permitted to bestow a few considerations on the nature and extent of this original right of taxation, which is acknowledged to remain with the states. It is admitted, that the power of taxing the people and their property, is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power, is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation.

          The people of a state, therefore, give to their government a right of taxing themselves and their property, and as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituent over their representative, to guard them against its abuse. But the means employed by the government of the Union have no such security, nor is the right of a state to tax them sustained by the same theory. Those means are not given by the people of a particular state, not given by the constituents of the legislature, which claim the right to tax them, but by the people of all the states. They are given by all,

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for the benefit of all—and upon theory, should be subjected to that government only which belongs to all.

          It may be objected to this definition, that the power of taxation is not confined to the people and property of a state. It may be exercised upon every object brought within its jurisdiction. This is true. But to what source do wo trace this right? It is obvious, that it is an incident of sovereignty, and is co-extensive with that to which it is an incident. All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident.

          The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable, that it does not. Those powers are not given by the people of a single state. They are given by the people of the United States, to a government whose laws, made in pursuance of the constitution, are declared to be supreme. Consequently, the people of a single state cannot confer a sovereignty which will extend over them.

          If we measure the power of taxation residing in a state, by the extent of sovereignty which the people of a single state possess, and can confer on its government, we have an intelligible standard, applicable

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to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and property of a state unimpaired; which leaves to a state the command of all its resources, and which places beyond its reach, all those powers which are conferred by the people of the United States on the government of the Union, and all those means which are given for the purpose of carrying those powers into execution. We have a principle which is safe for the states, and safe for the Union. We are relieved, as we ought to be, from clashing sovereignty; from interfering powers; from a repugnancy between a right in one government to pull down, what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy, what there is a right in another to preserve. We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amonnt to the abuse of the power. The attempt to use it on the means employed by the government of the Union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power which the people of a single state cannot give. We find, then, on just theory, a total failure of this original right to tax the means employed by the government of the Union, for the execution of its powers. The right never existed, and the question whether it has been surrendered, cannot arise.

          But, waiving this theory for the present, let us resume the inquiry, whether this power can be exercised

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by the respective states, consistently with a fair construction of the constitution? That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word confidence. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction, would be an abuse, to presume which, would banish that confidence which is essential to all government. But is this a case of confidence? Would the people of any one state trust those of another with a power to control the most insignificant operations of their state government? We know they would not. Why, then, should we suppose, that the people of any one state should be willing to trust those of another with a power to control the operations of a government to which they have confided their most important and most valuable interests? In the legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence, and we must consider it is as it really is.

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          If we apply the principle for which the state of Maryland contends, to the constitution, generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the states. The American people have declared their constitution and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the states. If the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent-rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states.

          Gentlemen say, they do not claim the right to extend state taxation to these objects. They limit their pretensions to property. But on what principle, is this distinction made? Those who make it have furnished no reason for it, and the principle for which they contend denies it. They contend, that the power of taxation has no other limit than is found in the 10th section of the 1st article of the constitution; that, with respect to everything else, the power of the states is supreme, and admits of no control. If this be true, the distinction between property and

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other subjects to which the power of taxation is applicable, is merely arbitrary, and can never be sustained. This is not all. If the controlling power of the states be established; if their supremacy as to taxation be acknowledged; what is to restrain their exercising control in any shape they may please to give it? Their sovereignty is not confined to taxation; that is not the only mode in which it might be displayed. The question is, in truth, a question of supremacy; and if the right of the states to tax the means employed by the general government be conceded, the declaration that the constitution, and the laws made in pursuance thereof, shall be the supreme law of the land, is empty and unmeaning declamation.

          In the course of the argument, the Federalist has been quoted; and the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained; and to understand the argument, we must examine the proposition it maintains, and the objections against which it is directed. The subject of those numbers, from which passages have been cited, is the unlimited power of taxation which is vested in the general government. The objection to this unlimited power, which the argument seeks to remove, is stated with fulness and clearness. It is, 'that an indefinite power of taxation in the latter (the government

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of the Union) might, and probably would, in time, deprive the former (the government of the states) of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme law of the land; as it is to have power to pass all laws that may be necessary for carrying into execution the authorities with which it is proposed to vest it; the national government might, at any time, abolish the taxes imposed for state objects, upon the pretence of an interference with its own. It might allege a necessity for doing this, in order to give efficacy to the national revenues; and thus, all the resources of taxation might, by degrees, become the subjects of federal monopoly, to the entire exclusion and destruction of the state governments.'

          The objections to the constitution which are noticed in these numbers, were to the undefined power of the government to tax, not to the incidental privilege of exempting its own measures from state taxation. The consequences apprehended from this undefined power were, that it would absorb all the objects of taxation, 'to the exclusion and destruction of the state governments.' The arguments of the Federalist are intended to prove the fallacy of these apprehensions; not to prove that the government was incapable of executing any of its powers, without exposing the means it employed to the embarrassments of state taxation. Arguments urged against these objections, and these apprehensions, are to be understood as relating to the points they

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mean to prove. Had the authors of those excellent essays been asked, whether they contended for that construction of the constitution, which would place within the reach of the states those measures which the government might adopt for the execution of its powers; no man, who has read their instructive pages, will hesitate to admit, that their answer must have been in the negative.

          It has also been insisted, that, as the power of taxation in the general and state governments is acknowledged to be concurrent, every argument which would sustain the right of the general government to tax banks chartered by the states, will equally sustain the right of the states to tax banks chartered by the general government. But the two cases are not on the same reason. The people of all the states have created the general government, and have conferred upon it the general power of taxation. The people of all the states, and the states themselves, are represented in congress, and, by their representatives, exercise this power. When they tax the chartered institutions of the states, they tax their constituents; and these taxes must be uniform. But when a state taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a government created by others as well as themselves, for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a

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part, and the action of a part on the whole—between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme.

          But if the full application of this argument could be admitted, it might bring into question the right of congress to tax the state banks, and could not prove the rights of the states to tax the Bank of the United States.

          The court has bestowed on this subject its most deliberate consideration. The result is a conviction that the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared. We are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void.

          This opinion does not deprive the states of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the state, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the state. But this is a tax on the operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the government

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of the Union to carry its powers into execution. Such a tax must be unconstitutional.

          JUDGMENT.—This cause came on to be heard, on the transcript of the record of the court of appeals of the state of Maryland, and was argued by counsel: on consideration whereof, it is the opinion of this court, that the act of the legislature of Maryland is contrary to the constitution of the United States, and void; and therefore, that the said court of appeals of the state of Maryland erred, in affirming the judgment of the Baltimore county court, in which judgment was rendered against James W. McCulloch; but that the said court of appeals of Maryland ought to have reversed the said judgment of the said Baltimore county court, and ought to have given judgment for the said appellant, McCulloch: It is, therefore, adjudged and ordered, that the said judgment of the said court of appeals of the state of Maryland in this case, be, and the same hereby is, reversed and annulled. And this court, proceeding to render such judgment as the said court of appeals should have rendered; it is further adjudged and ordered, that the judgment of the said Baltimore county court be reversed and annulled, and that judgment be entered in the said Baltimore county court for the said James W. McCulloch.

1 See Hepburn v. Griswold, 8 Wall. 603; Knox v. Lee, 12 Id. 533.

2 But it is competent for congress to confer on the state governments the power to tax the shares of the national banks, within certain limitations; the power of taxation under the constitution, is a concurrent one. Van Allen v. The Assessors, 3 Wall. 585, NELSON, J. But, says the learned judge, congress may, by reason of its paramount authority, exclude the states from the exercise of such power. Ibid. It is difficult, however, to perceive in what part of the constitution, the power is conferred on congress to erect a multitude of moneyed corporations, in the several states, absorbing $400,000,000 of the capital of the country, and to exempt it from state taxation.

3 This case involving a constitutional question of great public importance, and the sovereign rights of the United States and the state of Maryland; and the government of the United States having directed their attorney general to appear for the plaintiff in error, the court dispensed with its general rule, permitting only two counsel to argue for each party.

4 See Roach v. Philadelphia County, 2 Am. L.J. 444; United v. Weise, 3 Wall. Jr. C. C. 72, 79.

5 Letters of Publius, or The Federalist, Nos. 31-36.

6 See Sturges v. Crowninshield, ante, p. 122.

7 See Montague v. Richardson, 24 Conn. 348.

1.2.3 Gibbons v. Ogden 1.2.3 Gibbons v. Ogden

22 U.S. 1
6 L.Ed. 23
9 Wheat. 1
GIBBONS, Appellant,
v.
OGDEN, Respondent.
March 2, 1824

          The acts of the Legislature of the State of New-York, granting to Robert R. Livingston and Robert Fulton the exclusive navigation of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of years, are repugnant to that clause of the constitution of the United States, which authorizes Congress to regulate commerce, so far as the said acts prohibit vessels licensed, according to the laws of the United States, for carrying on the coasting trade, from navigating the said waters by means of fire or steam.

          APPEAL from the Court for the Trial of Impeachments and Correction of Errors of the State of New-York. 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

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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 steam boats, 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

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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.

          Principles of interpretation.

          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 foreiga nations, and among the several States. It dees 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 vested in Congress, and no part of it can be exercised by a State.

          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 laws of N. Y. granting to R.R.L. and R. F. the exclusive right of navigating the waters of that State with steam boarts, 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.

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

          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 instrument ality of wind and sails.

          Feb. 4th, 5th, and 6th.

          Mr. Webster, for the appellant, admitted, that there was a very respectable weight of authority in favour of the decision, which was sought to be reversed. The laws in question, he knew, had been deliberately re-enacted by the Legislature of New-York; and they had also received the sanction, at different times, of all her judicial tribunals, than which there were few, if any, in the country, more justly entitled to respect and deference. The disposition of the Court would be, undoubtedly, to support, if it could, laws so passed and so sanctioned. He admitted, therefore, that it was justly expected of him that he should make out a clear case; and unless he did so, he did not hope for a reversal. It should be remembered, however, that the whole of this branch of power, as exercised by this Court, was a power of revision. The question must be decided by the State Courts, and decided in a particular manner, before it could be brought here at all. Such decisions alone gave the Court jurisdiction; and therefore, while they are to be respected

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as the judgments of learned Judges, they are yet in the condition of all decisions from which the law allows an appeal.

          It would not be a waste of time to advert to the existing state of the facts connected with the subject of this litigation. The use of steam boats, on the coasts, and in the bays and rivers of the country, had become very general. The intercourse of its different parts essentially depended upon this mode of conveyance and transportation. Rivers and bays, in many cases, form the divisions between States; and thence it was obvious, that if the States should make regulations for the navigation of these waters, and such regulations should be repugnant and hostile, embarrassment would necessarily happen to the general intercourse of the community. Such events had actually occurred, and had created the existing state of things.

          By the law of New-York, no one can navigate the bay of New-York, the North River, the Sound, the lakes, or any of the waters of that State, by steam vessels, without a license from the grantees of New-York, under penalty of forfeiture of the vessel.

          By the law of the neighbouring State of Connecticut, no one can enter her waters with a steam vessel having such license.

          By the law of New-Jersey, if any citizen of that State shall be restrained, under the New-York law, from using steam boats between the ancient shores of New-Jersey and New-York, he shall be entitled to an action for damages, in

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New-Jersey, with treble costs against the party who thus restrains or impedes him under the law of New-York! This act of New-Jersey is called an act of retortion against the illegal and oppressive legislation of New-York; and seems to be defended on those grounds of public law which justify reprisals between independent States.

          It would hardly be contended, that all these acts were consistent with the laws and constitution of the United States. If there were no power in the general government, to control this extreme belligerent legislation of the States, the powers of the government were essentially deficient, in a most important and interesting particular. The present controversy respected the earliest of these State laws, those of New-York. On those, this Court was now to pronounce; and if they should be declared to be valid and operative, he hoped somebody would point out where the State right stopped, and on what grounds the acts of other States were to be held inoperative and void.

          It would be necessary to advert more particularly to the laws of New-York, as they were stated in the record. The first was passed March 19th, 1787. By this act, a sale and exclusive right was granted to John Fitch, of making and using every kind of boat or vessel impelled by steam, in all creeks, rivers, bays, and waters, within the territory and jurisdiction of New-York, for fourteen years.

          On the 27th of March, 1798, an act was passed, on the suggestion that Fitch was dead, or had withdrawn from the State, without having made

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any attempt to use his privilege, repealing the grant to him, and conferring similar privileges on Robert R. Liringston, for the term of twenty years, on a suggestion, made by him, that he was possessor of a mode of applying the steam engine to propel a boat, on new and advantageous principles. On the 5th of April, 1803, another act was passed, by which it was declared, that the rights and privileges granted to R. R. Livingston, by the last act, should be extended to him and Robert Fulton, for twenty years, from the passing of this act. Then there is the act of April 11, 1808 purporting to extend the monopoly, in point of time, five years for every additional boat, the whole duration, however, not to exceed thirty years; and forbidding any and all persons to navigate the waters of the State, with any steam boat or 11, 1808, purporting of Livingston and Fulton, under penalty of forfeiture of the boat or vessel. And, lastly, comes the act of April 9, 1811, for enforcing the provisions of the last mentioned act, and declaring, that the forfeiture of the boat or vessel, found navigating against the provisions of the previous acts, shall be deemed to accrue on the day on which such boat or vessel should navigate the waters of the State; and that Livingston and Fulton might immediately have an action for such boat or vessel, in like manner as if they themselves had been dispossessed thereof by force; and that on bringing any such suit, the defendant therein should be prohibited, by injunction, from removing the boat or vessel out of the State, or using it within the State. There were

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one or two other acts mentioned in the pleadings, which principally respected the time allowed for complying with the condition of the grant, and were not material to the discussion of the case.

          By these acts, then, an exclusive right is given to Livingston and Fulton, to use steam navigation on all the waters of New-York, for thirty years from 1808.

          It is not necessary to recite the several conveyances and agreements, stated in the record, by which Ogden, the plaintiff below, derives title under Livingston and Fulton, to the exclusive use of part of these waters.

          The appellant being owner of a steam-boat, and being found navigating the waters between New-Jersey and the city of New-York, over which waters Ogden, the plaintiff below, claimed an exclusive right, under Livingston and Fulton, this bill was filed against him by Ogden, in October, 1818, and an injunction granted, restraining him from such use of his boat. This injunction was made perpetual, on the final hearing of the cause, in the Court of Chancery; and the decree of the Chancellor has been duly affirmed in the Court of Errors. The right, therefore, which the plaintiff below asserts to have and maintain his injunction, depends obviously on the general validity of the New-York laws, and, especially, on their force and operation as against the right set up by the defendant. This right he states, in his answer, to be, that he is a citizen of New-Jersey, and owner of the steam-boat in question; that the boat was a vessel of more than twenty

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tons burden, duly enrolled and licensed for carrying on the coasting trade, and intended to be employed by him, in that trade, between Elizabethtown, in New-Jersey, and the city of New-York; and was actually employed in navigating between those places, at the time of, and until notice of the injunction from the Court of Chancery was served on him.

          On these pleadings the substantial question is raised: Are these laws such as the Legislature of New-York had a right to pass? If so, do they, secondly, in their operation, interfere with any right enjoyed under the constitution and laws of the United States, and are they, therefore, void, as far as such interference extends?

          It may be well to state again their general purport and effect, and the purport and effect of the other State laws, which have been enacted by way of retaliation.

          A steam vessel, of any description, going to New-York, is forefeited to the representatives of Livingston and Fulton, unless she have their license.

          Going from New-York, or elsewhere, to Connecticut, she is prohibited from entering the waters of the State, if she have such license.

          If the representatives of Livingston and Fulton, in New-York, carry into effect, by judicial process, the provision of the New-York laws, against any citizen of New-Jersey, they expose themselves to a statute action, in New-Jersey, for all damages, and treble costs.

          The New-York laws extend to all steam vessels;

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to steam frigates, steam ferry-boats, and all intermediate classes.

          They extend to public as well as private ships; and to vessels employed in foreign commerce, as well as to those employed in the coasting trade.

          The remedy is as summary as the grant itself is ample; for immediate confiscation, without seizure, trial, or judgment, is the penalty of infringement.

          In regard to these acts, he should contend, in the first place, that they exceeded the power of the Legislature; and, secondly, that if they could be considered valid, for any purpose, they were void, still, as against any right enjoyed under the laws of the United States, with which they came in collision; and that, in this case, they were found interfering with such rights.

          He should contend, that the power of Congress to regulate commerce, was complete and entire, and, to a certain extent, necessarily exclusive; that the acts in question were regulations of commerce, in a most important particular; and affecting it in those respects, in which it was under the exclusive authority of Congress. He stated this first proposition guardedly. He did not mean to say that all regulations which might, in their operation, affect commerce, were exclusively in the power of Congress; but that suck power as had been exercised in this case, did not remain with the States. Nothing was more complex than commerce; and in such an age as this, no words embraced a wider field than commercial regulation. Almost all the business and intercourse of

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life may be connected, incidentally, more or less, with commercial regulations. But it was only necessary to apply to this part of the constitution the well settled rules of construction. Some powers are holden to be exclusive in Congress, from the use of exclusive words in the grant; others, from the prohibitions on the States to exercise similar powers; and others, again, from the nature of the powers themselves. It has been by this mode of reasoning that the Court has adjudicated on many important questions; and the same mode is proper here. And, as some powers have been holden exclusive, and others not so, under the same form of expression, from the nature of the different powers respectively; so, where the power, on any one subject, is given in general words, like the power to regulate commerce, the true method of construction would be, to consider of what parts the grant is composed, and which of those, from the nature of the thing, ought to be considered exclusive. The right set up in this case, under the laws of New-York, is a monopoly. Now, he thought it very reasonable to say, that the constitution never intended to leave with the States the power of granting monopolies, either of trade or of navigation; and, therefore, that as to this, the commercial power was exclusive in Congress.

          It was in vain to look for a precise and exact definition of the powers of Congress, on several subjects. The constitution did not undertake the task of making such exact definitions. In confering powers, it proceeded in the way of enumeration,

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stating the powers conferred, one after another, in few words; and, where the power was general, or complex in its nature, the extent of the grant must necessarily be judged of, and limited, by its object, and by the nature of the power.

          Few things were better known, than the immediate causes which led to the adoption of the present constitution; and he thought nothing clearer, than that the prevailing motive was to regulate commerce; to rescue it from the embarrassing and destructive consequences, resulting from the legislation of so many different States, and to place it under the protection of a uniform law. The great objects were commerce and revenue; and they were objects indissolubly connected. By the confederation, divers restrictions had been imposed on the States; but these had not been found sufficient. No State, it was true, could send or receive an embassy; nor make any treaty; nor enter into any compact with another State, or with a foreign power; nor lay duties, interfering with treaties which had been entered into by Congress. But all these were found to be far short of what the actual condition of the country regulate The States could still, each for itself, regulate commerce, and the consequence was, a perpetual jarring and hostility of commercial regulation.

          In the history of the times, it was accordingly found, that the great topic, urged on all occasions, as showing the necessity of a new and different government, was the state of trade and commerce. To. benefit and improve these, was a great object in itself: and it became greater when it was regarded

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as the only means of enabling the country to pay the public debt, and to do justice to those who had most effectually laboured for its independence. The leading state papers of the time are full of this topic. The New-Jersey resolutions1 complain, that the regulation of trade was in the power of the several States, within their separate jurisdiction, in such a degree as to involve many difficulties and embarrassments; and they express an earnest opinion, that the sole and exclusive power of regulating trade with foreign States, ought to be in Congress. Mr. Witherspoon's motion in Congress, in 1781, is of the same general character; and the report of a committee of that body, in 1785, is still more emphatic. It declares that Congress ought to possess the sole and exclusive power of regulating trade, as well with foreign nations, as between the States.2 The resolutions of Virginia, in January, 1786, which were the immediate cause of the convention, put forth this same great object. Indeed, it is the only object stated in those resolutions. There is not another idea in the whole document. The entire purpose for which the delegates assembled at Annapolis, was to devise means for the uniform regulation of trade. They found no means, but in a general government; and they recommended a convention to accomplish that purpose. Over whatever other interests of the country this government may diffuse its benefits, and its blessings, it

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will always be true, as matter of historical fact, that it had its immediate origin in the necessities of commerce; and, for its immediate object, the relief of those necessities, by removing their causes, and by establishing a uniform and steady system. It would be easy to show, by reference to the discussions in the several State conventions, the prevalence of the same general topics; and if any one would look to the proceedings of several of the States, especially to those of Massachusetts and New-York, he would see, very plainly, by the recorded lists of votes, that wherever this commercial necessity was most strongly felt, there the proposed new constitution had most friends. In the New-York convention, the argument arising from this consideration was strongly pressed, by the distinguished person whose name is connected with the present question.

          We do not find, in the history of the formation and adoption of the constitution, that any man speaks of a general concurrent power, in the regulation of foreign and domestic trade, as still residing in the States. The very object intended, more than any other, was to take away such power. If it had not so provided, the constitution would not have been worth accepting.

          He contended, therefore, that the people intended, in establishing the constitution, to transfer, from the several States to a general government, those high and important powers over commerce, which, in their exercise, were to maintain an uniform and general system. From the very nature of the case, these powers must be exclusive;

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that is, the higher branches of commercial regulation must be exclusively committed to a single hand. What is it that is to be regulated? Not the commerce of the several States, respectively, but the commerce of the United States. Henceforth, the commerce of the States was to be an unit; and the system by which it was to exist and be governed, must necessarily be complete, entire, and uniform. Its character was to be described in the flag which waved over it, EPLURIBUS UNUM. Now, how could individual States assert a right of concurrent legislation, in a case of this sort, without manifest encroachment and confusion? It should be repeated, that the words used in the constitution, 'to regulate commerce,' are so very general and extensive, that they might be construed to cover a vast field of legislation, part of which has always been occupied by State laws; and, therefore, the words must have a reasonable construction, and the power should be considered as exclusively vested in Congress, so far, and so far only, as the nature of the power requires. And he insisted, that the nature of the case, and of the power, did imperiously require, that such important authority as that of granting monopolies of trade and navigation, should not be considered as still retained by the States.

          It is apparent, from the prohibitions on the power of the States, that the general concurrent power was not supposed to be left with them. And the exception, out of these prohibitions, of the inspection laws, proves this still more clearly. Which most concerns the commerce of this country,

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that New-York and Virginia should have an uncontrolled power to establish their inspection for flour and tobacco, or that they should have an uncontrolled power of granting either a monopoly of trade in their own ports, or a monopoly of navigation over all the waters leading to those ports? Yet, the argument on the other side must be, that, although the constitution has sedulously guarded and limited the first of these powers, it has left the last wholly unlimited and uncontrolled.

          But, although much had been said, in the discussion on former occasions, about this supposed concurrent power in the States, he found great difficulty in understanding what was meant by it. It was generally qualified, by saying, that it was a power, by which the States could pass laws on the 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 were these, which could not 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

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of State legislation; and, as it is clear, that Congress is to give the general rule, he contended, that this power of giving the general rule was transferred, by the constitution, from the States to Congress, to be exercised as that body might 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, were necessarily left with Congress alone. Of this character he considered monopolies of trade or navigation; embargoes; the system of navigation laws; the countervailing laws, as against foreign states; and other important enactments respecting our connexion with such states. It appeared to him 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 anything, and every thing, in regard to commerce, till Congress shall undo it, would suppose a state of of things, at least as bad as that which existed before the present constitution. It is the true wisdom of these governments

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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 favour of the new government, and of its salutary effects on commercial regulations, the time should 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 transhipment; 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

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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.

          He thought the practice under the constitution sufficiently evinced, that this portion of the commercial power was 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 recognised 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 was a singular fallacy, as he humbly ventured 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 its 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,

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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 was 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, turnpikes, bridges, &c. 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 was, he thought, that all these things were, in their general character, rather regulations of police than of commerce, in the constitutional understanding of that term. A road, indeed,

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might be a matter of great commercial concern. In many cases it is so; and when it is so, he thought there was 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 obtain that 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 colour 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

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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 was exclusive, from the consideration that Congress possessed an exclusive admiralty jurisdiction. That it did possess such exclusive jurisdiction, would hardly be contested. No State pretended to exercise any jurisdiction of that kind. The States had 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 sea, 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 bodies 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, to 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, seemed to be entrusted 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.

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          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 might now be well to take a nearer view of these laws, to see more exactly what their provisions were, 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.

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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 connexion 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

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grant them to all its own citizens, to the exclusion of every body 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 the shore. 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, there is no answer to be given except this, that the concurrent power of the States, concurrent though it be, is yet subordinate to the legislation of Congress; and that, therefore, Congress may, when 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

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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 every where 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.

          He contended, therefore, in conclusion on this point, that the power of Congress over these high branches of commercial regulation, was 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

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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.

          It required little now to be said, to prove that this exclusive grant is a law regulating commerce; although, in some of the discussions elsewhere, it had 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, could not 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.3 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, effecting commerce, in respect to these great branches, then

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the grant is void, whether any case of actual collision had happened or not.

          But, he contended, 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 came in collision with other rights, enjoyed and secured under the laws of the United States; and such collision, he maintained, clearly existed in this case. It would not be denied that the law of Congress was 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 had 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 belonged to him as a citizen of the United States. It was 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

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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 was expressly conferred by the laws of the United States. The first section of the act of February, 1793, c. 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 declares, 'that in order to the licensing of any ship or vessel, for carrying on the coasting trade or fisheries,' bond shall be given &c. 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 seemed to him, with great deference, to have mistaken the object and nature of the license. It seemed to have been of opinion that the license had no other intent or effect than to ascertain the ownership and character of the

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vessel. But this was 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 had been had on this question, it had been said, that Congress had only provided for ascertaining the ownership and property of vessels, but had not prescribed to what use they might be applied. But this he thought an obvious error; the whole object of the act regulating the coasting trade, was to declare what vessels shall enjoy the benefit of being used in the coasting trade. To secure this use to certain vessels, and to deny it to others, was precisely the purpose for which the act was passed. The error, or what he humbly supposed to be the error, in the judgment of the Court below, consisted 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 could be more express. It had been admitted, that supposing there was a provision in the act of Congress, that all vessels duly licensed should be at liberty to navigate, for the purpose of trade and commerce, over all the navigable harbours, bays, rivers and lakes, within the several States, any

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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.

          Now, he did not see that such supposed case could be distinguished from the present. We show a provision in an act of Congress, that all vessels, duly licensed, may carry on the coasting trade; nobody doubts the constitutional validity of that law; and we show that this vessel was duly licensed according to its provisions. This is all that is essential in the case supposed. The presence or absence of a non obstante clause, cannot affect the extent or operation of the act of Congress. Congress has no power of revoking State laws, as a distinct power. It legislates over subjects; and over those subjects which are within its power, its legislation is supreme, and necessarily overrules all inconsistent or repugnant State legislation. If Congress were to pass an act expressly revoking or annulling, in whole or in part, this New-York grant, such an act would be wholly useless and inoperative. If the New-York grant be opposed to, or inconsistent with, any constitutional power which Congress has exercised, then, so far as the incompatibility exists, the grant is nugatory and void, necessarily, and by reason of the supremacy of the law of Congress. But if the grant be not inconsistent with any exercise of the powers of Congress, then, certainly, Congress

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has no authority to revoke or annul it. Such an act of Congress, therefore, would be either unconstitutional or supererogatory. The laws of Congress need no non obstante clause. The constitution makes them supreme, when State laws come into opposition to them; so that in these cases there is no question except this, whether there be, or be not, a repugnancy or hostility between the law of Congress and the law of the State. Nor is it at all material, in this view, whether the law of the State be a law regulating commerce, or a law of police, or by whatever other name or character it may be designated. If its provisions be inconsistent with an act of Congress, they are void, so far as that inconsistency extends. The whole argument, therefore, is substantially and effectually given up, when it is admitted, that Congress might, by express terms, abrogate the State grant, or declare that it should not stand in the way of its own legislation; because, such express terms would add nothing to the effect and operation of an act of Congress.

          He contended, therefore, upon the whole of this point, that a case of actual collision had been made out, in this case, between the State grant and the act of Congress; and as the act of Congress was entirely unexceptionable, and clearly in pursuance of its constitutional powers, the State grant must yield.

          There were other provisions of the constitution of the United States, which had more or less bearing on this question: 'No State shall, without the consent of Congress, lay any duty of tonnage.'

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Under colour of grants like this, that prohibition might be wholly evaded. This grant authorizes Messrs. Livingston and Fulton to license navigation in the waters of New-York. They, of course, license it on their own terms. They may require a pecuniary consideration, ascertained by the tonnage of the vessel, or in any other manner. Probably, in fact, they govern themselves, in this respect, by the size or tonnage of the vessels, to which they grant licenses. Now, what is this but substantially a tonnage duty, under the law of the State? Or does it make any difference, whether the receipts go directly to her own treasury, or to the hands of those to whom she has made the grant?

          There was, lastly, that provision of the constitution which gives Congress power to promote the progress of science and the useful arts, by securing to authors and inventors, for a limited time, an exclusive right to their own writings and discoveries. Congress had exercised this power, and made all the provisions which it deemed useful or necessary. The States might, indeed, like munificent individuals, exercise their own bounty towards authors and inventors, at their own discretion. But to confer reward by exclusive grants, even if it were but a part of the use of the writing or invention, was not supposed to be a power properly to be exercised by the States. Much less could they, under the notion of conferring rewards in such cases, grant monopolies, the enjoyment of which should be essentially incompatible with the exercise of rights holden under the laws

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of the United States. He should insist, however, the less on these points, as they were open to counsel, who would come after him, on the same side, and as he had said so much upon what appeared to him the more important and interesting part of the argument.

          Mr. Oakley, for the respondent, stated, that there were some general principles applicable to this subject, which might be assumed, or which had been settled by the decisions of this Court, and which had acquired the force of maxims of political law. Among these was the principle, that the States do not derive their independence and sovereignty from the grant or concession of the British crown, but from their own act in the declaration of independence. By this act, they became 'free and independent States,' and as such, 'have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do.' The State of New-York, having thus become sovereign and independent, formed a constitution, by which the 'supreme legislative power' was vested in its Legislature: and there are no restrictions on that power, which in any manner relate to the present controversy. On the other hand, the constitution of the United States is one of limited and expressly delegated powers, which can only be exercised as granted, or in the cases enumerated.4 This principle,

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which distinguishes the national from the State governments, is derived from the nature of the constitution itself, as being a delegation of power, and not a restriction of power previously possessed; and from the express stipulation in the 10th amendment, that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The national constitution must, therefore, be construed strictly, as regards the powers expressly granted, and the objects to which those powers are to be applied. As it is a grant of power in derogation of State sovereignty, every portion of power, not granted, must remain in the State Legislature.5

          These principles are all founded on the doctrine, that a strict rule of construction must be applied, in ascertaining the extent and object of those powers which are expressly delegated. The powers delegated are of two classes: such as are expressly granted, and such as are implied, as 'necessary and proper' to carry into execution the powers expressly enumerated. As to these implied powers, the constitution must be construed liberally, as respects their nature and extent: because the constitution implies that rule, by not undertaking to enumerate these powers, and because the grant of these powers is general and unlimited. But this rule has one exception: When the means of executing any expressly granted

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power are particularly enumerated, then no other mode of executing that power can be implied or used by Congress, since the constitution itself determines what powers are 'necessary and proper' in that given case.

          These delegated powers, whether express or implied, are, (1.) those which are exclusively vested in the United States; and, (2.) those which are concurrent in the United States and the respective States.

          It is perfectly settled, that an affirmative grant of power to the United States does not, of itself, devest the States of a like power.6 The authorities cited settle this question, and it is no longer open for discussion in this Court.

          The powers vested exclusively in Congress are, (1.) Those which are granted in express terms. (2.) Those which are granted to the United States, and expressly prohibited to the States. (3.) Those which are exclusive in their nature.

          All powers, exclusive in their nature, may be included under two heads: (1.) Those which have their origin in the constitution, and where the object of them did not exist previous to the Union. These may be called strictly national powers. (2.) Those powers which, by other provisions in the constitution, have an effect and operation, when exercised by a State, without or beyond the territorial limits of the State.

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          As examples of the first class, may be mentioned, the 'power to borrow money on the credit of the United States.' Here the object of the power, (to borrow money for the use of the United States,) and the means of executing it, (by pledging their credit,) have their origin in the Union, and did not previously exist. So as to the power 'to establish tribunals inferior to the Supreme Court,' the same remark will apply.

          Of the second class, the power 'to establish an uniform rule of naturalization,' is an instance. This power was originally in the States, and was extensively exercised by them, and would now be concurrent, except for another provision in the constitution, that 'citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.'7 It is not held to be exclusive, from the use of the term 'uniform rule.' This Court has held, that the use of an analogous term, 'uniform laws,' in respect to the associated subject of bankruptcy, does not imply an exclusive power in Congress over that subject.8 The true reason why the power of establishing an uniform rule of naturalization is exclusive, must be, that a person becoming a citizen in one State, would thereby become a citizen of another, perhaps even contrary to its laws, and the power thus exercised would operate beyond the limits of the State.

          As to concurrent powers: it is highly important

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to hold all powers concurrent, where it can be done without violating the plain letter of the constitution. All these powers are essential to State sovereignty, and are constantly exercised for the good of the State. These powers can be best exercised by the State, in relation to all its internal concerns, connected with the objects of the power. All powers, therefore, not expressly exclusive, or clearly exclusive in their nature, ought to be deemed concurrent. All implied powers are, of course, concurrent. It has never yet been contended, that powers implied as necessary and proper to carry into effect an exclusive power, are themselves exclusive. Such a doctrine would deprive the States almost entirely of sovereignty, as these implied powers must inevitably be very numerous, and must embrace a wide field of legislation. So also, all enumerated powers are to be considered concurrent, unless they clearly fall under the head of exclusive: either as being granted, in terms, exclusively to the United States, or as expressly prohibited to the States, or as being exclusive in their nature, as before explained.

          A power exclusive in its nature, is said to be repugnant and contradictory to a like power in the States. This repugnancy exists only in cases where a State cannot legislate, in any manner, or under any circumstances, under a given power, without conflicting with some existing act of Congress, or with some provision of the constitution. Thus, it is laid down by the commentators on the constitution, that 'the power granted to the Union is exclusive, when the existence of a similar power

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in the States would be absolutely and totally contradictory and repugnant.'9 'Or where an authority is granted to the Union, with which a similar authority in the State would be utterly incompatible.'10 And again: 'It is not a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can, by implication, alienate and extinguish a pre-existing right of sovereignty.'11 These strong expressions show that the repugnancy of power to power must be such, as to produce actual interference and conflict, under all circumstances, and in all cases, in which the power is exercised by the two governments: or, in other words, must be such that the States can pass no law on the subject matter of the power, without contravening the express provisions of the constitution; or without actually interfering with the operation of some statute of Congress. These terms are used by the author of the papers from which they are quoted, to distinguish those cases of absolute repugnancy from others, 'where the exercise of a concurrent jurisdiction might be productive of occasional interference in the polioy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority.'12 The same principle has been adopted by this Court on several occasions.13

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          It appears, then, that the repugnancy which makes a power exclusive, must be clear, direct, positive, and entire. It cannot be a matter of speculation or theory, but must be practical: not a repugnancy that may arise in some exercise of the power by both governments; but one that must arise, in any exercise of such power, which is attempted by the States. To ascertain, then, whether any given power be concurrent, we must inquire, (1.) Whether it was possessed by the States, previous to the constitution, as appertaining to their sovereignty? (2.) Whether it is granted, in exclusive terms, to the Union? (3.) Whether it is granted to the Union, and prohibited in express terms to the States? (4.) Whether it is exclusive in its nature, either as operating, when exercised by the States, without their territorial limits, and upon other parts of the Union; or as having its origin and creation in the Union itself; or as being so entirely repugnant, that no exercise of it can take place by the States, without actual conflict with the constitution of the Union, in its practical operation and effects.

          All concurrent powers may be divided into two classes: (1.) Those where, from their nature, when Congress has acted on the subject matter, the States cannot legislate at all in any degree. (2.) Those where the States may legislate, though Congress has previously legislated on the same subject matter.

          The first class includes those instances where any act of Congress covers the whole ground of legislation, and exhausts the subjects on which it

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acts. Such is the power to fix the standard of weights and measures. Here, when the standard of any particular weight or measure is fixed by Congress, the whole power is executed as to that particular; and so far the power of the States is at an end. But, until Congress does this, it cannot be doubted that a State may act on the subject; and if the laws of Congress apply only to some weights and measures, all others are subject to State regulation. Thus, New-York has long had a law to regulate weights and measures, which establishes the English standard for that State, 'until Congress shall establish the standard for the United States.'14 So, also, the power to regulate the value of foreign coin. An act fixing the value of any species of coin, necessarily disposes of the whole power as to that species. They are both instances in which, when Congress has acted at all, there immediately arises that entire and absolute repugnancy, and that utter incompatibility, which exclude the States from all power over the subject.

          The second class of concurrent powers contains those in which, from their nature, various regulations may be made, without any actual collision in practice. These are, those where the power may be exercised on different subjects; or on the same subject, in different modes; or where the object of the power admits of various independent regulations, which may operate together. In all these cases, the State may legislate, though Congress

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has legislated under the same power. This results from the very nature of concurrent power. Each party possessing the power, may of course use it. Each being sovereign as to the power, may use it in any form, and in relation to any subject; and to guard against a conflict in practice, the law of Congress is made supreme.

          The provision, that the law of Congress shall be the supreme law in such cases, is the ground of a conclusive inference, not only that there are concurrent powers, but that those powers may be exercised by both governments at the same time. One law cannot be said to be superior to another, and to control it, unless it acts in a manner inconsistent with and repugnant to that other. The question of supremacy, therefore, can never arise, unless in cases of actual conflict or interference. If the mere exercise of a power by Congress takes away all right from the State to act under that power, then any State law, under such a power, would be void; not as conflicting with the supreme law of Congress, but as being repugnant to the provisions of the constitution itself, and as being passed by the State, in the first instance, without authority. If this doctrine were true, then the provision that the laws of Congress should be supreme, was entirely idle. It would have been sufficient to have said merely, that the constitution should be supreme.15 These positions

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are all supported by the judgments of this Court, and of other Courts whose authority deserves to be respected.

          From this mass of authority, and the reasons on which it is founded, it results, (1.) That a State may legislate in all cases of concurrent power, though Congress has acted under the same power and upon the same subject matter. (2.) That the question of supremacy cannot arise, except in the case of actual and practical collision. (3.) That such collision must be direct and positive, and the State law must operate to limit, restrict, or defeat, the effect of a statute of Congress. (4.) That in such case, the State law yields in those particulars, in which such actual collision arises, but remains valid in all other respects.

          The States have, accordingly, acted upon this construction to a great extent. Thus, the power to lay and collect taxes, is admitted on all hands to be concurrent. It is constantly exercised by the States, in every form, and both real and personal estate have frequently been taxed by the national and local governments, at the same time. So, under the power to lay and collect excises, the same article has frequently been taxed by both governments. And the power to lay imposts, or duties on exports, and imports, and tonnage, is also concurrent, except that no State can lay any duty on imports and exports, or duty of tonnage, unless such as are absolutely necessary for executing its inspection laws. So, also, the power to provide for the punishment of counterfeiting the securities and current coin of the United States, is a power

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which may be exercised by the States. A State may make it an offence to counterfeit the coin of any foreign country within its territory. Thus, New-York has provided for the punishment of counterfeiting 'any of the species of gold or silver coins, now current, or hereafter to be current in this State.'16 And Congress has provided for the punishment of counterfeiting 'any gold or silver coin of the United States,' or of any 'foreign gold or silver coins, which, by law, now are, or hereafter shall be made current, or be in actual use and circulation as money, within the United States.'17 New-York has punished the counterfeiting of 'any promissory note, for the payment of money,' including notes made by any body corporate;18 and under this the counterfeiting of the notes of the bank of the United States is punished. Congress has punished the same offence in the law incorporating the bank of the United States.19 In all these acts of Congress, relating to coins and bank notes, it is provided, 'that nothing in them contained shall be so construed as to deprive the Courts of the individual States of jurisdiction, under the laws of the several States, over any offence made punishable by these acts.' This shows that Congress considered the power to punish these offences as concurrent, and that it could be exercised by the States on the

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ground of their own inherent authority, as it is held that Congress cannot delegate any part of the criminal jurisdiction of the United States to the State tribunals.20 Again: the power to provide for organizing, arming, and disciplining the militia, is a concurrent power, according to the same principles.21 But the States have been in the constant habit of superadding to the regulations of Congress, additional provisions, suited to their own views and local circumstances.22 These instances, which might be greatly multiplied, show the practical construction put, both by Congress and the State Legislatures, upon these concurrent powers.

          The learned counsel here recapitulated the principles laid down, and proceeded to apply them to the discussion of the cause, which he divided into two branches. (1.) The supposed repugnancy of the laws of New-York to the power of Congress on the subject of patents and copy-rights. (2.) Their supposed conflict with the power of Congress to regulate commerce.

          As to the first, the words of the constitution are, 'Congress shall have power to promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.'

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          This power is concurrent, according to all the principles before laid down. It is clearly a power appertaining to sovereignty, and, as such, vested in the Legislature of New-York, before the formation of the United States' constitution. A power to promote science and the useful arts, is highly important to every civilized society. It embraces all the means of education, and all kinds of mechanical labour and improvements. It is constantly exercised by all governments, as a sovereign authority, by laws for the promotion of education in all its branches, by bounties for the encouragement of discoveries and new methods of business, and by the grant of exclusive rights and privileges for the same end. It has frequently been exercised by the State of New-York, and by other States, before the adoption of the constitution. It is not granted exclusively to Congress. No exclusive terms are used. The grant is affirmative and general, like all the other powers. There is no express prohibition upon the States against the exercise of it. Nor is it exclusive in its nature. It does not owe its existence or creation to the Union. When exercised by a State, it does not operate in any manner beyond the territorial jurisdiction of that State. From its nature, it admits of a great variety of regulations, both by local and general laws, which may exist harmoniously together. Being thus a concurrent power, it follows, according to the principles already established, that the State may exercise it at all times, and in every mode, until an actual and practical conflict arises between a right exercised

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under a statute of Congress, and the same right claimed to be exercised under the State.

          The power, as granted in the constitution, is a limited power. It is a clear principle, that when the means of executing any given power are specified in the grant, Congress cannot take, by implication, any other means, as being necessary and proper to carry that power into execution. This power, then, is limited: (1.) As to the persons and the objects in regard to which it may be exercised: these are, 'authors and inventors, writings and discoveries.' This enumeration excludes all right in Congress to legislate on the subject of any improvement, which is not an 'invention,' either domestic or foreign. It excludes also all right to legislate for the benefit of any person who is not himself the 'inventor.' (2.) As to the means of executing the power, and the time during which those means may be exercised. They are by 'securing the exclusive right for limited times.'

          The power, considered in itself, is supreme, unlimited, and plenary. No part of any sovereign power can be annihilated. Whatever portion, then, of this power, was not granted to Congress, remains in the States. Consequently, the States have exclusive authority to promote science and the arts, by all other modes than those specified in the constitution, without limitation as to time, person, or object; and the Legislature is the sole judge of the expediency of any law on the subject.

          But this power, though limited in Congress,

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is still (as has been seen) concurrent in the States. It follows, then, from all the principles before laid down relative to the exercise of concurrent powers, that a State may exercise it by the same means, and towards the same persons and objects with Congress. A State may, therefore, grant patents and copy-rights, which would secure to the inventors and authors, the benefit of their discoveries and writings, within the limits of the State. In such cases, the citizens of other States might use the invention, or publish the book at pleasure. But if a patent or copy-right should be obtained under the law of Congress, the right under the State grant would cease as against that of the United States. Suppose the author or inventor does not apply for a patent or copy-right from the United States, or is willing to secure the exclusive right within any one State only, and leave the invention common in every other part of the Union; may not that one State secure the right within its own territory? This question may be answered by seeing how far Congress has exercised the power. An examination of the different patent laws will show, that Congress has, in various particulars, omitted to exercise the entire power given to them by the constitution. Thus, by several of these laws, the right of obtaining a patent is confined to citizens, and, consequently, the power of granting patents to aliens, is left to the States. The whole power is inoperative, until Congress acts under it by legislating: and the a patent. In every case, therefore, the power is

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unexecuted until a patent is actually granted. The State may consequently act in all cases.

          But Congress has confined its statutes to cases of invention, as the constitution directs. Where then is the power to reward or encourage the introduction of useful machines or inventions from abroad? or, the establishment of any art, when invented at home, and the discoverer does not apply for a patent? or, where the invention is given to the public, and great expense must be incurred to put it into use? All these things appertain to sovereignty. Congress has no power over them. The power, being sovereign, must exist somewhere, and is, therefore, exclusively in the States. If the nature of the power which is given to Congress be examined, it will be found that it confers no authority to create or grant any right or property. It is clearly founded on the presumption, that the right or property may exist, independent of the power. Thus, one of the commentators on the constitution says, 'The copy-right of authors has been solemnly adjudged, in Great Britain, to be a right at common law. The right to useful inventions seems, with equal reason, to belong to the inventor.'23 The adjudication here referred to, is that of Millar v. Taylor,24 where it was held, that the author of any book has the sole right of first printing and publishing it, but that the right was controlled by the provisions of the stat. 8 Ann, relative to copy-rights.

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But, the common law of England was the law of New-York, at the adoption of the national constitution. There was no statute of New-York similar to that of Ann, and, of course, the right existed there, without the security for its enjoyment, provided by that statute. The right, also, was local, and confined to the territorial jurisdiction of the State. The policy and object of the constitution was, to secure the right co-extensively with the Union. Its exercise in any one State, might be affected in its operation by the pirating of books and inventions in the adjoining States, and that evil could only be corrected by the national Legislature. The right, therefore, in any one State, was imperfect only as to the security and the means of enjoyment.

          It appears, then, that the power is founded on the basis of a pre-existing right of property, from the nature and origin of the right, as before stated, and from the terms in which the power itself is granted. The word 'secure,' implies the existence of something to be secured. It does not purport to create or give any new right, but only to secure and provide remedies to enforce a preexisting right throughout the Union. This power differs essentially from the sovereign power to create and grant an exclusive right. It has been adjudged, under the English stat. 21 Jac. I. c. 3. that a grant may be made for any invention which is new in England, though known abroad.25 That statute, therefore, authorizes the creation of a right

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of property in a thing imported, in which no right of property, under the laws of England, before existed. But the patent laws of the United States merely extend to inventions actually made in the United States, and not to any imported invention. The whole extent of the sovereign power, exercised by the British Parliament, on this subject, was vested in the Legislature of New-York. A part only was given to Congress, and all the residue remains in the State exclusively.

          What then is the effect of a patent? It creates no new right. In secures the patentee, for a limited time, the exclusive right to his invention; so that he has the same exclusive right in it, that he has in any other kind of property. His right, however, is secured more extensively than any State law could secure it. But, within the limits of the State, a patent under the local law would be just as effectual. What is the situation of the right, after the expiration of a patent? The right under the common law of the State, may be considered as perpetual. It was so ruled by the Judges in Millar v. Taylor; but it was determined in the House of Lords, that the perpetuity of the right was controlled and limited by the statute of Ann. There is no such statute in New-York, and, therefore, the right remains as at common law. The act of Congress cannot destroy the perpetuity of a right held under the law of New-York, and which the act of Congress has only secured for a certain time, to a greater extent, and by means of more, effectual remedies. The right, then, remains, at the expiration of the

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patent, in the same condition as at its commencement, so far as regards the laws of New-York, and within the territorial limits of that State, but cannot be asserted in other States. Even if this were not so, and it should be considered that the right becomes common, at the expiration of the patent, then it is like all other common rights, subject to the control of the municipal laws of the State. It is of the essence of sovereignty to control and regulate all common rights. The Legislature, possessing 'supreme legislative power,' may destroy a common right, either by abolishing it, and prohibiting the use of it altogether, or by convering it into an exclusive right. Thus, a right of way may be common, either by land or water, and it may be shut up by law, and the use of it prohibited. So, a right of fishery, in navigable waters, is common, and it may be prohibited altogether, or converted into a several fishery. In the same manner, as to patent rights and literary productions: if, after a patent or copy-right has expired, the right to use or publish becomes common, it may be controlled by law, and turned into a private right. So that a State law may continue or extend a patent-right at pleasure.

          Thus, it follows, that whether the right of the patentee remains in him, after the expiration of his patent, at common law, or whether its use becomes common to all, it is subject to the State law, in the same manner, and to the same extent, as all other rights, and may, consequently, be controlled, limited, extended, or prohibited, at the pleasure of the Legislature.

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          But the State may control or prohibit the use of any patented thing, during the existence of the patent. If an inventor do not apply for a patent for the invention, no other man can. The right of the inventor, in such a case, remains as at common law. Every right or kind of property, created by the laws of the State, is subject to be controlled and regulated by the supreme legislative power of the State. It cannot then be doubted, that before a patent is obtained, the State may prohibit the use of the thing invented; either on the ground that it is mischievous in itself, or from motives of general policy, that it is inexpedient to permit it. As, if it interferes with any general interest, as a labour saving machine, which might deprive great numbers of their ordinary means of subsistence: or, if it should effect any great change in the course of business, which the Legislature might deem injurious, as it relates to the community. Of these questions of general policy, and of the expediency of any such prohibition, the Legislature must, of course, be the sole judge. Thus, in the act of New-York, to incorporate the North River Steam-boat Company, the corporation is prohibited from using any of its boats for the purpose of carrying freight. This was done to protect the great shipping interest employed in the navigation of the Hudson River. Would this exercise of power be affected by the obtaining of a patent? The object and effect of a patent is, (as we have seen,) to secure a pre-existing right, imperfect as to its means of enjoyment and its extent. The patentee obtains nothing by his grant, except an

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exclusive right, as it relates to the Union, instead of a right limited to the State, together with more complete and certain remedies to protect and enforce that right. If, therefore, he could not use the thing invented, against the State law, before it is patented, neither can he thus use it after it is patented, for his grant conveys no greater right than before existed. It is the undoubted attribute of all sovereignty, to regulate and control the use of all property. A thing patented, when made and put in use, is nothing more than property; and, like all other property, is subject to the control of the sovereign power, as to the right to use it. There can be no doubt that it may sometimes become important or necessary to the welfare of society, to regulate or prohibit the use of a thing patented. Congress cannot do this, or, at least, it has not done it. After the patent is granted, the power of Congress over the subject matter is exhausted. Patented things may be dangerous or noxious, either universally so in every part of the country, or locally; or, they may be useful at one time, and mischievous and noxious at another. Patented manufactures may be injurious to the public health, though highly useful as manufactures; or they may be nuisances to private individuals and neighbourhoods, though extremely useful to the public. Can Congress provide by its laws for the abatement of a public nuisance? or give a right of action to an individual for a private nuisance? If not, these powers must reside in the States. The right to use all property, must be subject to modification by municipal law. Sic

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utere tuo ut alienum non loedas, is a fundamental maxim. It belongs exclusively to the local State Legislatures, to determine how a man may use his own, without injuring his neighbour. Can a patent give rights, by which a patentee may infringe the vested rights of others? Can a patented boat be used on a ferry, the exclusive use of which has been granted by a State law?

          This argument may be illustrated by the power to secure to authors the exclusive right to their works. This power is founded on the same reasons with the other, and gives the author the same rights as the inventor. Can the author, by virtue of his copy-right, publish against the prohibition of State law? A book may be libellous, or blasphemous, or obscene. Cannot the author be indicted and punished for it? May not a citizen maintain an action for the libel? If so, it cannot be lawful by virtue of the copy-right. If the State can punish the act of publishing, it may entirely prohibit the publication. It may regulate and restrain the press, so far as it is not prohibited by its own constitution.

          The laws of Congress are framed on the supposition that the power to prohibit remains in the States. By the existing statute, they have not provided that any inquiry shall be made as to the utility of the supposed invention, when the patent is applied for. There is no authority to refuse a patent, on the ground of the inutility of the invention, and in practice, no inquiry is ever made, and patents issue, of course, on making the oaths and paying the fees, even for things the most

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trifling, absurd, and injurious. There is no provision for the repeal of a patent, on the ground of its noxious or useless character. The law does not purport, in its terms, to give a right to use the thing patented, against the provisions of any State law. The act provides, (s. 1.) that if any person shall present a petition, 'signifying a desire of obtaining an exclusive property,' &c. then a patent shall issue, granting to the petitioner 'the full and exclusive right and liberty of making, constructing, using, and vending to others to be used,' the thing patented. The 'exclusive property' spoken of, is only the same property that exists in any thing else, and, of itself, gives no right to use the thing against the State law, any more than in the case of any other property. The words 'using, and vending to others to be used,' are inserted to make the description of that 'exclusive property' complete. The words 'making, constructing, and vending,' would not have constituted entire property in the thing, as one might make and vend, and all the world might use. The patentee's right of property might thus be greatly invaded, and he would be left without remedy, except against the 'maker.' The word 'using,' in the act, must receive this limited construction, or the law of Congress goes beyond the power in the constitution. That was only to 'secure' a right, and meant nothing more than that a patentee should enjoy it alone, if any body was permitted to enjoy it. But it was never intended that the patentee should set the State laws at defiance. The acts relative to copy-rights, strongly

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support this position. These acts contain no provision to ascertain the character of the books or engravings to be published, and whether they be such as may be safely permitted, consistently with the good order of society and public morals. They grant the same right to the author, as the patent grants to the inventor. In both cases, they depend on the same constitutional right, and only convey a right to prevent others from using or publishing without his consent, but not to enable him to use or publish without restraint.

          If a State can thus control a right to use a thing patented, directly, it may do it indirectly. If by a positive law, then, through the agency of the Courts, by injunction or otherwise. Or, the right to prohibit the use of it may be delegated to individuals, either acting as public agents, or in their own behalf, to protect some other right vested in them; and may forbid the use of the thing patented, or the publication of the book, the copy-right of which has been secured, without their license. So that if an exclusive grant be made by a State law to an individual, with a provision that the thing granted shall not be used in the State, without license of the grantee, and there be a patent under the act of Congress for the same thing, the consequence would be, that the State grantee could not use it, because it would be a violation of the patent, and the patentee could not, without the license of the State grante, because the State law prohibited him. Thus, the State law would be inoperative, so far as it granted the exclusive right; but valid, so far as it prohibited the use of the thing patented.

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These principles may be applied to the law now in question, which gives an exclusive right, and forbids any person to use the thing which is the subject of the right, without the license of the persons in whom it is vested. It contains a granting clause, and a prohibiting clause. The injunction is founded on the prohibition, and may be enforced, though the grantees might not use their right. Let it be supposed that, from reasons of public policy, the laws of New-York had prohibited the use of steam boats entirely, and had directed the Court of Chancery to restrain them by injunction, would not the prohibition have been a valid one? and if so, may not the State determine that it is against the public interest, that steam boats should be built or navigated, unless under the direction, or with the license, of an individual, who may be thought particularly skilful in that business? It might, therefore, be contended, that this injunction is to be sustained, whatever might become of the respondent's exclusive right.

          A State may prohibit the use of a thing patented, by virtue of its power over the public domain. A patented thing cannot be used on the private property of an individual, without his consent. The power of the State over the public property, is, at least, equal to that of an individual over his own; and particularly so, as to the navigable rivers in the State, which are, emphatically, the property of the people of the State, and subject to their authority, acting through the local Legislature.

          The question has hitherto been discussed, as if

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the exclusive right claimed by the respondents, was the right to an invention, for which a patent may have been, or may yet be obtained. But in truth, his right is not to the use of any invention, or of any thing for which a patent can be granted. Livingston and Fulton do not, on the face of the acts granting or securing the right, claim to be the inventors of any thing. In the act of 1798, c. 55. s. 21. it is recited, that R. R. L. 'is the possessor of a mode of applying the steam engine to the propelling of vessels, on new and advantageous principles.' It is not alleged or pretended, that he was the discoverer of that mode, or of the principles of its application; or that the mode, or the principles, were secret or unknown to the rest of the world. His right, therefore, is to the use of an improvement, introduced (perhaps) from a foreign country, and, consequently, not the subject of a patent, and in respect to which Congress has no power to legislate at all. On the other hand, it does not appear, that the appellant has a patent for any thing connected with the subject of steam boats, or for any thing belonging to the steam engine, which can be used in navigation by steam. He can, therefore, claim no right, in this case, under the patent laws; and there is no question as to any actual conflict between the State right and a patent right. He is, consequently, compelled to rely upon the broad ground, that the State has no power to legislate at all, for the encouragement of any art or science, or for any improvement connected therewith, because Congress has legislated under a power which is partial in its extent, both as to objects and time.

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          The result of all that has been said, tends to establish, that the power in the constitution is strictly a concurrent power. That it is also a limited power in Congress to promote science and the arts, by particular means, and in regard to particular objects, and for limited times. That all the residue of the power, to promote science and the arts, by all other means, and towards all persons and objects, and for unlimited times, remains exclusively in the States. That the States may legislate, in pursuance of this concurrent power, in all cases, and can grant exclusive rights to any thing which may be the subject of a patent, which will be valid within their own territory until a patent is actually issued under the authority of the Union. That when a patent issues, the State has full power to prohibit or control the use of it within its territory, though it cannot grant the right to use the patented thing to others. That it may exercise the power of prohibition, partially or totally, by direct legislative acts, or through the medium of its Courts, and may delegate the right to prohibit to any of its citizens. That in the present case, the right of prohibition has been delegated to Livingston and Fulton; and the mode of exercising that right, is by injunction out of Chancery. That this right of prohibition may be valid, even though the grant of the exclusive right to use, &c., might be invalid. That the State laws are, therefore, valid, even on the supposition that the right granted by them, was to an invention which might be patented; and that they would be valid, as to their prohibitions, even were a patent issued for the same

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object. But that, in truth, the right in question, has no connection with any thing that can be the subject of a patent; and if it has, that no patent has, in fact, issued to the appellant, nor does he, in any mode, claim a right under a patent. That the question, therefore, on this branch of the cause, is reduced to the inquiry, whether the State may legislate under a power, confessedly concurrent, when Congress has not acted at all, or when no person sets up a right under any act of Congress.

          But the laws of New-York, now in question, are supposed to be in conflict with the constitutional power of Congress, 'to regulate commerce with foreign nations, among the several States, and with the Indian tribes.'

          That is a concurrent power, according to all the principles before laid down. It was fully possessed by the States, after the declaration of independence, and constantly exercised. It is one of the attributes of sovereignty, specially designated in that instrument, 'to establish commerce.' It is not granted, in exclusive terms, to Congress. It is not prohibited, generally, to the States. The only express restraints upon the power of the States, in this respect, are against laying any impost or duty on imports or exports, (except for the execution of their own inspection laws,) or of tonnage; against making any agreement or compact with a foreign power; and against entering into any treaty. All these prohibitions, being partial, are founded on the supposition, that the whole power resided in the States. They are, accordingly, all in restraint of State power. It is a clear

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principle of interpretation, that where a general power is given, but not in exclusive terms, and the States are restrained, in express terms, from exercising that power in particular cases, that in all other cases, the power remains in the States as a concurrent power. Thus, the commentators on the constitution, speaking of the taxing power, say, 'this restriction implies an admission that, if it were not inserted, the States would possess the power it excludes. And it implies a further admission, that, as to all other taxes, the authority of the States remains undiminished.'26 And, again: 'In all cases in which the restriction does not apply, the States would have a concurrent power with the Union.' This doctrine applies precisely to the power to regulate commerce. Laying imposts or duties of tonnage, is a part of the power to regulate commerce; and the making of a compact or agreement with other States or nations, is the only method by which a State could make any commercial regulation, which, as it regards its own citizens, would operate boyond its territorial limits. These restrictions imply, that the general power to regulate commerce, is concurrently in the States, and that it may be exercised by the States in all cases to which these prohibitions do not extend. But, the same implication is still stronger from the nature and terms of those prohibitory clauses. The State may lay duties on imports and exports, to execute its inspection laws. That class of laws

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are, or may be, essential regulations of commerce, and they derive their authority altogether from State power. The existence of a power to pass them, is, therefore, expressly recognised by the constitution. So, also, a State may lay any duty upon imports or exports, or of tonnage, with the consent of Congress. This provision implies, that the power to lay all duties remains essentially in the States; that the exercise of the power is suspended, until Congress consent; and that, when the consent is given, the State law acts of itself, and by State authority alone. The States no where derive any powers from the constitution. All its provisions are in restraint of their authority, and the consent of Congress, in this instance only removes the restraint. A State may not enter into any treaty; but, with the consent of Congress, may enter into an agreement or compact with another State, or with a foreign power. A treaty is made with a view to the public welfare, either in perpetuity, or for a considerable length of time, and binds the whole Union. A compact or agreement is generally temporary in its nature and operation, and is executed by a single act, and binds only the State that makes it. In this sense the constitution must be understood, when it speaks of trcaties as distinguished from compacts. It follows, that general and permanent commercial regulations with foreign powers, must be made by treaty, but that particular and temporary regulations of commerce may be made by an agreement of a State with another, or with a foreign power, by the consent of Congress. But,

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in this case, the compact would derive all its efficacy from the original inherent power of the State, not from the act of consent by Congress, which would merely remove an existing restraint.

          There is nothing in the nature of this power, which renders it exclusive in Congress. The power itself does not grow out of the Union, like the power 'to borrow money on the credit of the United States.' It does not operate, when exercised by a State beyond its territorial limits, like the power of naturalization. There is no necessary repugnancy between the acts of the two governments under this power, since it clearly admits of a great variety of regulations, which may operate together, without direct interference. The restraints specially imposed on the power of the State, relating to commerce, would have been unnecessary, if it were not considered as a concurrent power.

          The practice of the States shows that the power has always been considered as concurrent. Thus, the State of New-York has passed numerous laws, which are regulations of commerce with foreign nations, with other States, and with the Indian tribes.1 As to that part of the power which relates to trade with the Indian tribes, the people here referred to may be within the limits of a State. Thus, the commentators on the constitution consider it in that light, and contrast the power with that relating to the same subject in the

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old confederation, which was qualified so as 'not to infringe the legislative rights of any State within its own limits.'2 Thus, Congress has legislated on that basis. By the act to regulate trade and intercourse with the Indian tribes, it is provided, s. 19, 'that nothing contained in the act shall be so construed as to prevent any trade with Indians, on lands surrounded by settlements of citizens, and being within the ordinary jurisdiction of any of the individual States.' But the State of New-York has also legislated on the same subject, and by the 'act relative to the different tribes and nations of Indians within this State,' prohibits the purchase of land from any Indian, without the authority of the Legislature; prohibits the sale of various articles to any Indian or tribe; makes numerous other regulations, as to trade and intercourse with them, by the citizens who surround them, so as to cover the whole ground over which Congress has declared its act should not extend. An examinatien of the laws of other States, will show that many of them have legislated, under every part of this power, to the same extent, and, in some cases, to a greater extent than New-York; and will show the havoc which must be made in the State laws, if this power is not to be considered concurrent.

          This power is not only concurrent, but is limited in Congress. It does not extend to the regulation of the internal commerce of any State. This results from the terms used in the grant of power,

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'among the several States.' It results also from the effects of a contrary doctrine, on the whole mass of State power. Internal commerce must be that which is wholly carried on within the limits of a State: as where the commencement, progress, and termination of the voyage, are wholly confined to the territory of the State. This branch of power includes a vast range of State legislation, such as turnpike roads, toll bridges, exclusive rights to run stage wagons, auction licenses, licenses to retailers, and to hawkers and pedlers, ferries over navigable rivers and lakes, and all exclusive rights to carry goods and passengers, by land or water. All such laws must necessarily affect, to a great extent, the foreign trade, and that between the States, as well as the trade among the citizens of the same State. But, although these laws do thus affect trade and commerce with other States, Congress cannot interfere, as its power does not reach the regulation of internal trade, which resides exclusively in the States.

          It has thus been seen, that this power is concurrent; and as such, may be exercised by the States, subject, like all other concurrent powers, to the power of Congress, when actually exercised; and that it is limited, not extending to the internal trade of a State. We contend, that the exclusive right claimed by the respondent is valid, considered either as a regulation of intercourse and trade among the several States, or as a regulation of the internal navigation of the State.

          Considering it then, as a regulation of trade

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among the States, it becomes necessary to inquire into the foundation of the right of intercourse among the States, either for the purposes of commerce, or residence and travelling. From the declaration of independence, in 1776, until the establishment of the confederation, in 1781, the States were entirely and absolutely sovereign, and foreign to each other, as regarded their respective rights and powers are separate societies of men. During that period, the right of intercourse among them rested solely on the jus commune of nations. By the law of nations, the right of commerce has its foundation in the obligation resting upon all men, mutually to assist each other, and to contribute to the happiness of their fellow creatures. Right on one side, springs from obligation on the other. The right to purchase, springs from the obligation to sell. 'One nation has, therefore, a natural right to purchase of another the things which it wants, and which the other does not need.' The law of nations being only the application of the law of nature, as regulating the rights and obligations of individuals, to nations and sovereign States, this is the foundation of the right of buying. But the right of selling does not impose any obligation on another nation to buy, as that other may not want, and must be the sole judge of its own necessities.3 It follows, then, that any State has a natural right to purchase of any other the articles which it needs, and to open a commercial intercourse for that purpose; but that every

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State, being under no obligation to purchase of another, may, at its pleasure, prohibit the introduction of any foreign merchandise. These rights of purchasing are not perfect rights, and of course connot be enforced by one nation against another; and, being thus imperfect, it depends upon the will of each nation, whether it will carry on any commerce with another, or upon what terms and under what regulations. These imperfect rights, like all other imperfect rights between nations, can become perfect only by treaty; the effect of which, is to secure to a nation rights of commerce or intercourse, which it before enjoyed at the will of another. The right of travelling, or of entering into and residing in one nation by the citizens or subjects of another, depends on the same principles of international law. But the sovereign may forbid the entrance into his territory, either to foreigners in general, or in particular cases, and under particular circumstances, or as to particular individuals, and for particular purposes.4 And as he may prohibit the entrance altogether, he may annex what conditions he pleases to the permission to enter. In the absence of any treaty stipulation, and of any prohibitory regulations, the natural right would exist, and might be exercised and enjoyed.

          This being the relation subsisting between sovereign States, it follows, that before the confederation, each State enjoyed the right of intercourse with all the others, at the will of those others, both as respects the transit and residence of persons,

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and the introduction and sale of property. The confederation was a treaty between sovereign States, and 'the better to secure and perpetuate mutual friendship and intercourse among the people of the different States,' stipulated, that the free inhabitants of each State should have 'free ingress and egress to and from any other State,' and should enjoy in each State 'all the privileges of trade and commerce; subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively: provided, that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant.' This article, then, secured the right of passing from one State to another, but gave no new right of commerce as to the introduction of any goods, and not even the right of removing from the State any property purchased in it. The rights of commerce, therefore, as between the States, remained as before, subject to all the municipal laws of the State, except that those laws must be general and impartial in their application. Under the confederation, then, the States retained the whole power of regulating foreign commerce, and that between the States, except as stipulated in the treaty of confederation itself. Under it, all the trade and intercourse between any State and any foreign nation, was carried on by the law of nature and nations alone. All trade between any State and another State, as to the right of importation, &c., was carried on in the same manner. No State could make any freaty of commence

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with a foreign power, or with another State.

          The inconveniences resulting from these powers of the States, gave rise to the new constitution. These inconveniences consisted principally in the impositions and taxes levied on property imported and exported by one State through another. There was no inconvenience as to the right of passing from State to State, as that was secured by the articles of confederation. The constitution applied the remedy to these evils in two ways: (1.) By express prohibitions on the States, in those particulars in which the evils had been most sensibly felt, preventing them from levying any impost or duty of tonnage, without the consent of Congress. (2.) By vesting Congress with a general power to regulate commerce with foreign nations and among the States. The constitution does not profess to give, in terms, the right of ingress and regress for commercial or any other purposes, or the right of transporting articles for trade from one State to another. It only protects the personal rights of the citizens of one State, when within the jurisdiction of another, by securing to them ' all the privileges and immunities of a citizen' of that other, which they hold subject to the laws of the State as its own citizens; and it protects their property against any duty to be imposed on its introduction. The right, then, of intercourse with a State, by the subjects of a foreign power, or by the citizens of another State, still rests on the original right, as derived from the law of nations. Suppose there

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was no treaty with a foreign power, and no act of Congress regulating intercourse with that power, but barely a state of peace; that power would enjoy the right of trade and intercourse with New-York, by the law of nations alone. But that right might be restrained, or regulated, or abolished by the law of New-York alone. Such was the situation of New-York before the adoption of the constitution, both as to foreign nations and the other States. The constitution has not abridged the power of the State in this respect. It has only subjected it to the superior power of Congress when actually exercised.

          An examination of the acts of Congress on this subject will show, that, as the constitution has not given the right of intercourse and trade, so neither has Congress, in the exercise of its constitutional powers, by any law, given that right. Here the learned counsel entered into an elaborate examition of the statutes, for the purpose of establishing this position.

          It would seem to follow, from this view of the constitution and the acts of Congress, that the right of transit from State to State, by land or water, for commercial or other purposes, is founded on the jus commune of nations; that the constitution does not affect that right, except in specified cases; and as to all others, leaves the right as before, with a general power in Congress to regulate and control it, so far as it may be connected with commerce; that the State has the concurrent power also, to regulate and control it, so far as it may be connected with commerce; that the State has

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the concurrent power also, to regulate and control it, in all cases where its regulations do not actually conflict with those of Congress; that Congress has made no regulations, which alter or affect the right at all, by giving any other right than was before enjoyed; that all the regulations of the State, therefore, which operate within its own limits, are binding upon all who come within its jurisdiction; and that if Congress deems such regulations to be injurious, it may control them by express provisions, operating directly upon the case.

          The case has, heretofore, been considered as if the steam boat laws were regulations of commerce among the States, in the ordinary acceptation of those terms. But is the law in question any thing more than a regulation of the internal navigation of the waters of the State? In terms, it applies only to the waters within the State. It does not deny the right of entry into its waters to any vessel navigated by steam: it only forbids such vessel, when within its waters and jurisdiction, to be moved by steam; but that vessel may still navigate by all other means; and it leaves the people of other States, or of New-York, in the full possession of the right of navigation, by all the means known or used at the time of the passage of the law. It is, therefore, strictly a regulation of internal trade and navigation, which belongs to the State. This may, indeed, indirectly affect the right of commercial intercourse between the States. But so do all other laws regulating internal trade, or the right of transit from one part to another of the same State; such as quarantine laws, inspection

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laws, duties on auctions, licenses to sell goods, &c. All these laws are acknowledged to be valid. They are passed, not with a view or design to regulate commerce, but to promote some great object of public interest, within the acknowledged scope of State legislation: such as the public health, agriculture, revenue, or the encouragement of some public improvement. Being passed for these legitimate objects, they are valid as internal regulations, though they may incidentally restrict or regulate foreign trade, or that between the States. So of the laws now in question; they were passed to introduce and promote a great public improvement, clearly within the power of the State to encourage. They operate entirely within the limits of the State. They put no restraint on the right of entry into the State; but they exclude from the right of navigation on its waters in a particular mode, because they deem that mode injurious to the public interest, unless used by particular persons. How can they be distinguished in principle, from all the other laws which have been referred to? If steam boats had been pernicious in themselves, or had been deemed so as affecting injuriously other great public interests, could Congress have prohibited them on the waters of New-York, by any exercise of the power to regulate commerce? Could not the State have done it, by virtue of its general power, on its navigable waters? Suppose that steam boats were found to be unsafe, and destructive to property or lives, unless built or navigated by persons particularly skilful, could not the State prohibit the

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use of them, unless thus built and navigated? If, under any circumstances, the State may restrict the use of them to particular persons, it may do so in its own discretion, for reasons of which it alone is the judge.

          All this shows that the restraint imposed by these laws, on the navigation of the waters of the State, is merely an internal regulation of the right of transit, or passage from one part of the State to another; that it is a regulation which, if even indispensable to the public safety, Congress could not make; and that the power to make it must, therefore, be in the State.

          The right of a State to regulate its internal trade, applies as well to its navigable waters, as to its other territory. Its rivers are its territory and domain, as much as the land, and equally subject to its laws in all respects. The power of Congress to regulate commerce applies as well to the land as to the water. Commerce between the States, and with foreign powers, is very extensively carried on by land. Congress has accordingly adapted its revenue laws to the land, by imposing duties on goods imported in carriages, &c. When goods are brought into the State in a carriage or wagon, cannot the State prohibit the transportation of those goods from one part of the State to another, except in a particular manner, or by a particular road, or in vehicles of a particular description? Where is the difference between an exclusive right to navigate vessels by steam on the water, and an exclusive right to move carriages by steam on the land? Cannot a

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State grant an exclusive privilege to carry goods as well as passengers, in carriages or vessels, by water or by land? May it not convert all its roads leading into other States, into turnpikes, levy tolls upon them, and alter and abolish them at pleasure? All these are regulations of the internal trade of the State, but they may, and, indeed, must affect, to a great degree, the trade between the States. By virtue of the right of a State over its navigable waters, it establishes ferries, which are exclusive rights to use parts of navigable waters for particular purposes and in a particular manner; and bridges, which interrupt, and sometimes destroy the navigation of rivers: It grants the land under the water at pleasure, builds public piers, erects dams and other obstructions, and diverts the course of the waters for any purpose whatsoever. By its power over its land territory, a State establishes roads and canals, regulates the carrying of goods, and the amount of tolls upon them, grants exclusive privileges to stage wagons and others, for the carriage of goods and passengers, and performs all other acts of sovereignty in regard to these public highways.

          It appears, then, that a State may exercise the same control in these respects, over both land and water, within its own jurisdiction; that the right, as to both, rests on the same foundation, that of a sovereign over his domain; and that it has uniformly been exercised over both in the same manner. What, then, is the right under which the respondent claims? It is only an internal regulation of the use of the waters of the State. This

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is clearly the case, when it applies to the case of the conveyance of passengers or goods, on the waters of the State, where the whole journey or transit is within the State, as from New-York to Albany. Is it in truth any thing more than an exclusive right of ferry over the waters of Hudson's river? It is, in substance and effect, an exclusive right to carry pasengers in boats navigated in a particular mode, on the navigable waters of the State. These waters are a public highway, like any other public road on land, and, as such, are completely subject to the control of the State laws. There are various acts of Congress which recognise the power of the States to control their navigable waters. Thus, in the act enabling the people of Louisiana to form a constitution, there is a provision, that the State convention shall 'pass an ordinance providing that the river Mississippi, and the navigable rivers and waters leading into the same, or into the gulf of Mexico, shall be common highways, and for ever free, as well to the inhabitants of the said State, as to other citizens of the United States, without any tax, duty, impost, or toll therefor, imposed by the said State.'5 And in the act for the admission of that State, the above provisions, as to the navigation of the Mississippi, are made one of the fundamental conditions of the admission.6 Similar conditions were also imposed upon the admission of the States of Mississippi, Missouri,

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and Alabama;7 which strongly imply, that the new States would have had a right to control the navigation of their waters, if these provisions had not been inserted; that there is nothing in the constitution which could prevent them from doing so, when they should once have been admitted as equal members of the Union; and that Congress could pass no law, under the constitution, to prevent them from doing it.

          But the power of Congress is 'to regulate commerce.' The correct definition of commerce is, the transportation and sale of commodities. It is so considered in all the regulations made by the laws of Congress. They speak generally of vessels and their cargoes, and whatever rights are given by the laws of Congress, apply to commerce strictly and properly speaking. Any person claiming to navigate the waters of the State of New-York against the State laws, under any right derived from the laws of Congress relative to commerce, must show himself qualified according to these laws, and actually exercising that right under their provisions. Now, if the license here set up gives any right it is to carry on the coasting trade, which consists in transporting goods from one State to another. It is not pretended that the appellant was engaged in this trade, when stopped by the injunction. It appears by the pleadings, that his boat was employed in the transportation of persons or passengers for hire, and it is notorious that this is a distinct business.

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It is often entirely disconnected from any commercial object, though sometimes indirectly connected with trade. So it has been considered by some of the States. New-York once laid a tax upon passengers travelling in the steam boats; and Delaware taxed passengers travelling through that State in carriages. But these States could have laid no tax on property thus transported. If, then, the appellant's boat was engaged, bona fide, in the coasting trade, the question might arise as to its rights and privileges under the enrolment and license. But, when no trade is carried on, or intended to be carried on, under the license, it is clear that the license is a fraud upon the State law, if that law is in other respects valid. An examination of the provisions of the statutes relating to the coasting trade will show, that they all relate exclusively to the coasting trade as before defined, and do not contemplate the carrying of passengers as distinguished from commerce. Every vessel engaged in it, must not only have a license, but must comply with various regulations, at every departure she takes from one district to another; and, unless it is shown that such regulations have been complied with, the vessel can claim no right (in any case) to navigate under the laws of the United States. It does not appear that the appellant's boat has ever done this, or pretended to do it, or, in fact, to be engaged in trade at all.

          It has thus been attempted to be shown, that our exclusive right is valid, even if the law granting it is to be considered as a regulation or restriction

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of the right of commercial intercourse between the States, on the ground, (1.) That the power to regulate commerce is strictly a concurrent power. (2.) That the State may act in any manner, in the exercise of that power, so long as its laws do not interfere with any right exercised under the constitution or laws of the United States. (3.) That the appellant, in this case, has shown no right under that constitution or these laws, and, therefore, cannot contest the validity of the exclusive grant. (4.) That even if the enrolment and license relied on, give a right, it is not the right of intercourse for any other purpose than for the coasting trade; and the appellant does not show that he was carrying on, or intended to carry on, that trade. But that the State law, in fact, is only a regulation of the internal trade and right of navigation, within the territorial limits of the State: that the power to regulate this, is exclusively in the State; that the State has exercised it, in the same manner, both by land and water; and that the law is valid, although incidentally it may affect the right of intercourse between the States.

          To which it may be added, that the State law may be valid in part, or as enforced under particular circumstances, though it may be void under other circumstances. Thus, the law may be held void, so far as it restrains the right of navigation between State and State, either for commercial purposes, strictly speaking, or for all purposes, including the transportation of passengers. And it may, at the same time, be valid, so far as it restrains the right of internal navigation, strictly

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speaking, either in the whole extent of the right, or as a mere exclusive right to carry passengers in steam boats. Thus, the State law may be suffered to operate, in whole or in part, so far as it may, without actual conflict with the constitution or laws of the United States.

          Mr. Emmett, on the same side, stated, that the question sought to be presented, was the complete invalidity of these laws of New-York, as being repugnant to the constitution of the United States. If the invalidity be not total and absolute, (and that might well be the case with statutes, which are often void in part, and good for the residue,) the appellant must further show, that he himself stands in that situation, which entitles him to allege their partial invalidity; that his case is such, as that the part of the law which is void, is calculated, if enforced, to affect or injure his rights.

          In addition to the general prima facie presumption in favour of the constitutionality of every act of a State Legislature, this series of laws derives a peculiar claim to that presumption, from the history of the circumstances attendant on their enactment. On the 19th of March, 1787, a short time before the meeting of the federal convention, the Legislature of the State of New-York made its grant to John Fitch, for 14 years. From motives, of the correctness of which this Court can take no cognizance, the Legislature, on the 27th of March, 1798, thought fit to repeal that law, on the suggestion that Fitch was either dead, or had withdrawn

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himself, and that Robert R. Livingston was possessed of a mode of applying the steam engine to propel boats, &c. At this time, all the laws of Congress regulating commerce and patents, had been for above five years in operation, and their provisions familiarly known. The Council of Revision, consisting of Mr. Jay, as Governor, Chief Justice Lansing, Judge Lewis, and Judge Benson, notwithstanding the personal regard they might well be supposed to have entertained for Chancellor Livingston, (who was also a member, but did not sit,) thought it their duty to object to this bill, on the ground that the facts from which Fitch's forfeiture was to arise, had not been found by some due course of law. The act, however, passed the Legislature by a constitutional majority. But he would here ask, who made this objection, and what were the inferences it afforded, as to the constitutionality of the law? Mr. Jay's is a name of peculiar authority; Chief Justice Lansing had been a member of the federal convention; and both the Judges were perfectly conversant with the political proceedings of the day. They were adverse to this act on principle, and must be presumed to have presented all the objections against it which they thought well founded. They not only did not think that the adoption of the constitution, and the enacting by Congress of her revenue and patent laws, had made Fitch's privileges cease, but neither the constitution nor those laws appeared to furnish any objection against a similar grant to Robert R. Livingston. On the 29th of March, 1799, an act was passed, extending

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the former act for twenty years from its date, and giving two years for making the experiment. That passed the Council of Revision without any objection, none of the judges having dreamt that it was unconstitutional. The time for making the experiment having run out, without a boat having been made, and Mr. Fulton having associated himself to Mr. Livingston in the investigation, on the 5th of April, 1803, the Legislature made the grant anew to Messrs. Livingston and Fulton. And that law was again approved of by the Council of Revision, consisting almost entirely of new members, and differing from the first. The time granted by this law for constructing a boat, again ran out; and on the 6th of April, 1807, it was again extended for two years, and that act also approved of by the Council of Revision. In the course of that year, the experiment was successfully made; and on the 11th of April, 1808, the Legislature, by an act, which also passed the Council of Revision, made a contract with Messrs. Livingston and Fulton, by which they hoped to gain, and did gain, unequalled accommodations for persoss travelling in the State.

          The success of those gentlemen awoke the cupidity of others, and doubts of the constitutionality of those laws were, for the first time, raised. But, after these questions were first broached, and while opposition boats were actually building, on the 9th of April, 1811, the Legislature passed another act, which also received the sanction of the Council of Revision. These were not judicial decisions; but they were six consecutive and deliberative

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acts of Judges, equally bound, by their duty and oath of office, to examine, decide, and act upon this objection, if it had sufficient force; they so nearly resembled judicial decisions, that they might well be cited as authorities. They also showed, that the laws now objected to had not grown out of any temporary effervescence, or excitement, or party intrigues. The grant began in 1798, and had been universally ratified down to 1811.

          But the constitutionality of those laws had been the subject of a judicial decision of the most respectable character. The act of 1811 had a proviso, that nothing therein contained should extend to the three opposition boats actually built and launched. With regard to two of them, Livingston and Fulton filed a bill for an injunction to prevent their navigating. The then Chancellor thought the question too important to grant an injunction, in the first instance, and refused it; from that decision an appeal was made to the Court of Errors of that State; there the constitutionality of those laws was very ably disputed, but supported by the unanimous decree of that Court, and the very elaborate opinions of the Judges, which, for sound constitutional reasoning, can scarcely be surpassed.8

          New-York is not the only State which has passed such laws. Massachusetts, February 7, 1815, granted to J. L. Sullivan, a similar grant for steam tow-boats, on Connecticut river, for

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twenty-eight years, after the expiration of his patent, which, on February 11, 1819, was enlarged for two years. New-Hampshire, in June, 1816, gave him a similar privilege on the Merrimack. Pennsylvania, on the 26th of March, 1813, gave a similar right to James Barnes, from Wilksbarre to Tioga Point, the borders of our State. Georgia, on the 14th November, 1814, gave a similar right to S. Howard, for all the waters of the State, with steam tow-boats; and by another act, 19th December, 1817, granted to a company, (probably deriving under Howard,) a similar right for steam boats for twenty years. Tennessee has lately given a similar right on the Tennessee river.

          What are the provisions of the constitution alleged against the validity of those laws? They are to be found in the powers given to Congress, art. 1. s. 8. to regulate commerce with foreign nations, and among the several States, and with the Indian tribes; and, also, to promote the progress of science and of the useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.

          If the constitution had not contained either of the provisions referred to, the right of the States to grant exclusive privileges would be unquestionable. At any rate, no point could be presented to this Court, by which it could have jurisdiction to consider the validity of their grants. In free countries, which reject the pretensions of prerogative, it is (unless constitutionally forbidden) a

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part of the right of legislation; and whether wisely exercised or not, is a question between the government and the people, with which this Court have nothing to do.9 Those are the only provisions on the subject; for it is clear, that the 2d sec. of the 4th art. (which, however, has sometimes been mentioned,) would not have prevented the exercise of this right: That is only intended to secure to all citizens of the United States, when coming into any State, the same immunities and privileges that are enjoyed by the citizens of that State, and subject to the same laws and regulations; and, unquestionably, those laws do not place the citizens of other States on a different footing than the citizens of the State of New-York.

          Those provisions, before specified, cannot apply to interfere with the State laws, unless where a case is presented, the facts of which bring it within one or other of those provisions.10 Now, the case presented contains nothing to make either of the provisions of the constitution applicable to it. Certainly no patent is here presented touching the same subject matter, and with which the State grants are pretended to interfere. On this point the appellant has no right to ask for the decision of this Court, or to claim the benefit of its jurisdiction.

          Neither does the case present any ground on

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which the application of the clause respecting commerce can be made; the vessels not having been engaged in trade or commerce, but in carrying passengers for hire. But if either of those provisions can be applicable, what is the general rule for their construction, as to the extent and conclusiveness of the powers they confer? In the delegation of authority to Congress itself by the constitution, the phraseology does not imply exclusive power. It is remarkable, that even the definite article the is omitted, and it is only provided that Congress shall have power, &c. And this omission was not accidental, but studiously made. By referring to the journals of the Federal Convention,11 it will be found, that the sixth article of Mr. Charles Pinkney's draft has the words 'shall have the power,' &c. In the draft reported by the committee of five, (art. 7th,) the definite article is still preserved.12 In the draft as reported by Mr. Brearly, the word 'the' is left out, clearly by design.13 Notwithstanding that, Mr. Patrick Henry and Mr. George Mason, and, indeed, the opposers of the constitution generally, thought, that by that instrument, as originally presented to the people, all the powers given to Congress would be considered as given to them exclusively of the States.14 Mr. Henry said, 'the right interpretation of the delegation of those

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powers was, that when power was given, it was exclusively given.' And Mr. George Mason15 asks, 'will powers remain to the States, which are not expressly guarded and reserved?' This construction, which was the general foundation of the opposition to the constitution, was strenously disavowed and reasoned against in the Federalist,16 and actually produced the 10th article of the amendment. The same doctrine was, nevertheless, maintained by one of the counsel in the case of Sturges v. Crowninshield.17 He says, 'every power given to the constitution, unless limited, is entire, exclusive and supreme.' But the Court held differently; that the grant of a power to Congress does not imply a prohibition on a State to exercise the same right.18 And the doctrine is very fully enlarged upon by Mr. Justice Story, in Houston v. Moore.19 It is also very clearly laid down in the case already cited, by Thompson, J. and by Kent, Ch. J.20 But the rule is more strongly, and perhaps not less justly, laid down by Judge Tucker, in his edition of Blackstone's Commentaries;21 after alluding to the clauses restraining the powers given, he says, 'the sum of all which appears to be, that the powers delegated to the federal government are, in all cases, to receive the

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most strict construction that the instrument will bear, where the rights of a State, or of the people, either collectively or individually, may be drawn in question.' This rule of construction must be correct; for the constitution gives nothing to the States or to the people. Their rights existed before it was formed, and are derived from the nature of sovereignty and the principles of freedom. The constitution gives only to the general government, and so far as it operates on State or popular rights, it takes away a portion, which it gives to the general government. In respect to extent and range, this delegation of powers ought, perhaps, to be liberally construed; but the States or the people must not be thereby excluded from the exercise of any part of the sovereign or popular rights held by them before the adoption of the constitution, except where that instrument has given it exclusively to the general government. The 10th amendment of the constitution was adopted to secure that construction, and it is conformable to the rules of reason and law, in construing every similar instrument. The truth of this rule has, however, been sometimes controverted, by referring to the power of naturalization as exclusive, and reasoning from that to the others. Naturalization is decided by this Court to be an exclusive power; but it must be so considered, not from the grant of it in the 7th article, but from the force and necessary effect of the 2d sec. of the 4th article. It is, therefore, an exception, and does not shake the general rule.

          It is of very little importance, whether the power

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to regulate commerce be exclusive or concurrent since this State grant does not, in fact, interfere with any congressional regulation of commerce. But as the exclusive nature of that power has been always insisted on, and used as an argument against this grant, it may be right to consider the solidity of the assertion.

          The expression, concurrent powers, is objected to, as if it implied equality in the rights vested in Congress and the States. It is only a verbal criticism, that it would be more correct if the term used was co-ordinate. The term, concurrent, is adopted by the Federalist, and has constantly been used to express those powers. It is always understood, when so applied, that the exercise by the States must be subordinate, and never can be in collision with that by Congress. It has been said, commerce is an unit; the meaning of that expression does not very clearly appear, nor its force and application to the argument. If it be an unit, the constitution has broken it into fractions, and given to the States the exclusive control of one of the fractions. But further, the regulations relating to that unit, are many and various: some acting on one part, and some on another, and operating on it in different ways. It is with these regulations, that this discussion has to do; and the question still remains, whether some of those regulations may not, subordinately, emanate from the States.

          As Congress has no power to regulate the internal commerce of any State, none of its regulations can affect so much of the exclusive grant, as

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restrains vessels which are only used within the States; nor can it give to any man a permission to carry on any steam boat navigation, which, in its beginning, and ending, and course, is entirely confined within the waters of the State: for instance, between New-York and Albany; on Cayuga lake; on lake Ontario, and the St. Lawrence, from Niagara to Ogdensburg. The only questions can be, as to navigation between foreign countries, or another State and New-York; and even there, the power of Congress could only be extended to fair cases of trading, within the purview of the constitution, and not to the mere transportation of passengers; nor to any colourable pretence of trading, as a cover for carrying passengers, and defeating the grant. This distinction is, in itself, of great consequence, and peculiarly applicable to the case before the Court, in which the complainant states, and the defendant admits, the vessels to have been employed in the transportation of passengers. The power given to Congress to regulate commerce with foreign nations, and between the several States, relates to commerce, in the proper acceptation of the term; 'the exchange of one thing for another; the interchange of commodities; trade or traffic.' This is the direct subject of the power; and by force of the auxiliary power, 'to make all laws which shall be necessary for carrying into execution the foregoing powers,' Congress has passed laws for erecting ports of entry and delivery, for the collection of duties, regulation of seamen and ships employed in foreign commerce, or that between the States. Ports, duties, seamen

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and ships, afford the means of regulating commerce, and therefore, so far as they are used in such commerce, they come within the powers of Congress. It has an incidental power, indeed, to regulate navigation, but only so far as that navigation is, or may be, subservient to the commerce it has a direct power to regulate. It has no right to interfere with the navigation of the navigable waters of any State, or even where they are common to two States, except so far as that navigation is used for, or applicable to, the purposes of the commerce it has the power to regulate; and it is a proposition unequivocally false, when asserted generally, that Congress has power to interfere with or regulate the navigation of the navigable waters of any State or States. The proposition can only be made true, by adding the qualification, 'in so far as that navigation is used in foreign commerce, or commerce between the States.' It is contended, that the navigable waters belong peculiarly to the Federal government, and not to the States within which they are. This position, combined with some others, made by the appellant's counsel, leads to alarming results. We have canals of which we are proud, and from their tolls the State anticipates large profits; one is laying out from Sharon, in Connecticut, to the Hudson; and another contemplated through New-Jersey, from the Delaware to the Hudson. Those already in operation, run from navigable waters to navigable waters; from lake Erie or Champlain to the Hudson: those projected, are to be from one State to another. Their utility and profits must

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result from transporting the produce of Canada, or other States, to New-York, principally for exportation and foreign trade; and bearing back, in return, the products of foreign commerce to those places. They are, then, instruments of foreign commerce, and of that among the States; and mere channels of communication between navigable waters, or different States. Now, where a power is given to Congress, all the means which are appropriate and plainly adapted to the execution of that power, are also given.22 It is contended, that it belongs exclusively to Congress to regulate the navigation and vessels that are the medium of foreign trade, and that between the States; this commerce is an unit, and cannot be divided; the navigable waters belong to the general government, and not to the States; no State has a right to collect revenue from foreign trade, or that between the States. If these positions be considered together, what becomes of the State control over our canals, the craft on them, or the tolls from them? the pier at Black Rock, or the basin at Albany? If the power of Congress over commerce be exclusive, it must also have exclusive control over the means of carrying it on. No State, then, should be mad enough to make another canal, susceptible of being used for intercourse between the States, or foreign commerce.

          But there is no grant in the constitution giving the navigable waters peculiarly to the Federal government,

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and not to the States within which they may be; nor is it traced to any grant, but to some mystical consequence of the Union itself. The position is entirely denied, and met by another, of which the strictest examination is solicited. It is this: the Federal government can do no act on the navigable waters within the limits of the United States, which, or a corresponding act to which, it cannot do on the land, within the same limits. If it can, let the act be named. Then the navigable waters belong no more to the Federal government, and are no otherwise affected by the Union, than the land itself. Both are equally subject to the jurisdiction of the general government, for the exercise of all powers delegated to it by the constitution, and both equally subject to State jurisdiction, for the exercise of all powers connected with State sovereignty. It is said, that admiralty and maritime jurisdiction belong exclusively to the Federal government; but this Court has decided, that the grant to the United States in the constitution, of all cases of admiralty and maritime jurisdiction, does not extend to a cession of the waters in which those cases may arise, or of general jurisdiction over the same; and that the general jurisdiction over the place, subject to this grant, adheres to the territory as a portion not yet given away; and that the residuary powers of legislation still remain in the State.23 Besides, admiralty and maritime jurisdiction depends either on the place where the act is done, or the nature of

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the act itself. The place gives no jurisdiction, where the navigable waters in which the tide ebbs and flows are within the body of a county or a State, or of two States.24 Accordingly, the laws giving jurisdiction of crimes to the District and Circuit Courts, confine it to 'places out of the jurisdiction of any particular State.' If the Admiralty Court has cognisance of any matter done on navigable waters within a State, it is derived, not from the locus, but from the causa litis, which gives jurisdiction, though it should arise on land: for instance, seamen's wages, founded on shipping articles made on land, have always, and charter parties and policies of insurance, have lately, been held to be of admiralty jurisdiction.25

          But, it is further said, to prove the exclusive control of the general government over those navigable waters, that they are regarded and treated as the high seas, since this admiralty and maritime jurisdiction includes 'all seizures under laws of impost, navigation or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas.' The seizures alluded to, are for breaches of commercial laws, coming under the constitutional powers of Congress, and the authority of the United States over the place, on that account, is equal, whether the offence

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be committed on land or water; and the very next sentence gives to the same District Court 'exclusive original cognisance of all seizures on land, or other waters, than as aforesaid made.' In fact, analogous provisions for regulating foreign commerce by land, are made by the act of the 2d of March, 1821, 'further to regulate the entry of merchandise imported into the United States from any adjacent territory.' It directs every conductor of any carriage or sleigh, and every other person coming from any adjacent foreign territory into the United States, with merchandise subject to duty, immediately on arrival within the United States, to deliver a manifest, &c. at the office of the nearest Collector, or Deputy Collector, to be verified on oath; for noncompliance, the carriage or sleigh shall be forfeited. The duties to be paid or secured by bonds; and all penalties and forfeitures to be sued for and recovered in the manner prescribed by the general collection law. Clearly, then, Congress has no more power over the navigable waters, than over the land; nor over the ships, than it has over the carriages and sleights engaged in the same kind of commerce. It might register, enrol and license the latter, if it thought fit, as well as ships. Nor is there any greater control acquired by the general government, in virtue of the existence of the Union, over navigable waters or shipping, than over land and land carriages. The power it possesses as to ships or vessels, is only in so far as they are instruments of foreign commerce, or of that between the different States; but in so far

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as the employment of a ship or vessel in navigating the waters of any State or States, has no connexion with the commerce which Congress has power to regulate; neither that employment, nor its regulation or prohibition, falls within the purview of the federal constitution. It could not, I think, be seriously contended, that Congress can regulate the carrying of passengers from any part of the Union, who are travelling to Balston, Saratoga, or any other place, for health or pleasure; and even if the object of their passing were to trade, that would not legalize the interference of Congress as to the mode of their conveyance from place to place. That naturally falls within the sphere of State legislation; and we must keep in memory the rule of construction laid down by Judge Tucker, and already cited, 'that the powers delegated to the federal government are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a State or of the people, either collectively or individually, may be drawn in question.' Those who contend, that navigating by steam boats between different States, falls within the powers of Congress, must admit that it would have the power to prohibit the carrying of goods, wares or merchandise in a steam boat from any foreign place, or different State, to another. Now, would Congress have the power to prohibit the carrying of passengers in steam boats from Norfolk or Elizabethtown Point to New-York? Certainly such a power could not be contended for; and why not?

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only because the powers of Congress have nothing to say to the carrying of passengers.

          It may be urged against this train of reasoning, that Congress has actually legislated on the subject of passengers. By the act of the 2d of March, 1819, regulating passenger ships and vessels, the fact is admitted; but, though the humane motives which suggested the law; and its provisions, are laudable, its constitutionality may well be doubted. If Congress has the power to regulate the conveyance of mere passengers, coming by water from foreign countries, it has an equal power to regulate those coming by land, or passing from one State to another. If that law be constitutional, or if a steam boat, only employed in carrying passengers between New-Jersey and New-York, can come within the jurisdiction of Congress, it must necessarily follow, that Congress has a right (and, indeed, according to the doctrine of our adversaries, is exclusively authorized,) to regulate the number of passengers to be received into every ordinary stage coach, though it does not carry the mail, and the size, shape, description, and kind of diligence, and the kind and number of horses, to be employed in conveying passengers between New-Brunswick and Maine, Vermont and New-York, and through the State of New-Jersey, between New-York and Philadelphia! If this legislation falls under the power to regulate commerce, and that power is exclusive, it must be contended, that none of the States in which these diligences may travel, have a right to pass any law respecting them! Neither this Court, nor the people of the

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United States, are, probably, prepared for the assertion of that claim. The States have always legislated on a different principle, whether the conveyance of passengers was to be by land or water. Every State has, probably, made numerous provisions on this subject; but, want of time and opportunity has confined research to the statutes of New-York and Georgia.26

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          It is, however, contended, that the power of regulating commerce is concurrent. This position, indeed, is by no means universally acceded

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to. Judge Tucker, in his edition of Blackstone,27 ranks among the powers exclusively granted to the federal government, the power to regulate

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commerce, &c. the commerce between the individuals of the same State being reserved to the State governments. And he repeats the doctrine,28 on the very untenable ground, that the regulation of commerce is not susceptible of a concurrent exercise: a doctrine which a review of State laws will show to be contrary to fact and experience. The opposite doctrine is strongly supported by Kent, Ch. J. in Livingston v. Van Ingen,29 as the only safe and practicable rule of conduct, and the true constitutional rule, arising from the federal system. And it is the only safe

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and practicable rule; it is one which the extent of our territory would indicate, even if the government were despotic. In China, the Mandarins of provinces must be intrusted with some subordinate authority, to make commercial regulations adapted to local circumstances. With us, the peculiar nature and principles of our free and federative government, make the existence of such subordinate legislation more prudent and politic. There must be, even in respect to foreign commerce, local interests and details, which cannot well be presented to the view of Congress, and can be, at least, better provided for by the State Legislatures, emanating from the very people to whom they relate. This must have been perceived by the framers of the constitution, and they must have felt the difficulty of designating the limits of what ought to be permitted to State authority. They did not, therefore, attempt the limitation, except in some plain cases, which they marked by restrictions and prohibitions; but they guarded against any practical abuse of the permission, by securing to Congress the paramount and controlling power over the whole matter. This view of the subject is exceedingly strengthened, when we contemplate the probable future increase and extent of this confederacy. The thirteen original States were a band of brothers, who suffered, fought, bled, and triumphed together; they might, perhaps, have safely confided each his separate interest to the general will; but if ever the day should come, when representatives from beyond the Rocky Mountains shall sit in this capitol;

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if ever a numerous and inland delegation shall wield the exclusive power of making regulations for our foreign commerce, without community of interest or knowledge of our local circumstances, the Union will not stand; it cannot stand; it cannot be the ordinance of God or nature, that it should stand. It has been said by very high authority, that the power of Congress to regulate commerce, 'sweeps away the whole subject matter.' If so, it makes a wreck of State legislation, leaving only a few standing ruins, that mark the extent of the desolation. The position, however, is not correct. A power of regulating commerce is impliedly acknowledged to be in the States, by the 10th section of the 1st article; for that section makes specific limitations on its exercise by them, which would be unnecessary, if the power were not possessed by them; and tacitly admits (what is true as to all the State powers) that it is possessed in all other matters not expressly restrained. Congress can lay no tax or duty on any articles exported from any State. If the word exports were not in the 10th section, what would be the consequence? that the States, and they only, could lay duties on exports; and as it is, what is the construction? that, although Congress can, under no circumstances, impose a duty on exports, any State can, with the consent of Congress, to any amount; and without asking the consent of Congress, to an amount and extent necessary for executing its inspection laws; possessing, in that respect, a power of regulating external commerce, which is directly withheld from Congress. And

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from whence is derived the power to make inspection laws, but from the existing and more extensive right of making laws to regulate commerce? It seems, also, that the 9th section of the same article, paragraph 1, in like manner, admits the power to be in the States. The importation of slaves is, and has always been, considered as a branch of commerce; and it is in that point of view only, that Congress has authority to legislate on the subject. When, then, that paragraph speaks of any of the States thinking proper to allow that importation, it surely admits in them a right to permit or prohibit; and thus to legislate on what is undoubtedly a branch of commerce with foreign nations, or among the several States.

          Indeed, it seems susceptible of demonstration, that Congress did not intend to ask, nor the States to give to that body, the exclusive power of regulating foreign commerce, or that between the States. In Colvin's edition of the Laws of the United States,30 we find the proceedings, which led to the formation of the General Convention. The appellant's counsel has selected, as one of these, the representation from New-Jersey, to be found in pages 22, 23. art. 2d. But that can scarcely be said to have led to the convention. It was made in 1778, during the revolutionary war, and to meet objectionable parts of the old articles of confederation. At any rate, it appears from page 25, that the proposed alterations were rejected in Congress. In 1781,31 Mr. Witherspoon

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proposed in Congress a modified change of the power of regulating commerce, which was also negatived. None of the other States made any proposition similar to that from New-Jersey, in 1778. The following, more nearly approaching the time of the convention, better shows the extent of what Congress asked, and the States appeared willing to concede.32 'In Congress, Wednesday, July 13th, 1785. The committee, consisting of Mr. Monroe, Mr. Spaight, Mr. Houston, Mr. Johnson, and Mr. King, to whom was referred the motion of Mr. Monroe, submit the following report: 'That the 1st paragraph of the 9th of the articles of confederation, be altered, so as to read thus, viz. The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace or war, except in cases mentioned in the 6th article; of sending and receiving ambassadors; entering into treaties and alliances; of regulating the trade of the States, as well with foreign nations as with each other; and of laying such imposts and duties upon imports and exports, as may be necessary for the purpose. Provided, that the citizens of the States shall, in no instance, be subjected to pay higher imposts or duties than those imposed on the subjects of foreign powers. Provided also, that the legislature power of the several States, shall not be restrained from prohibiting the importation or exportation of any species of goods or commodities whatsoever." This is what the

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Congress itself asked for and required. The State of Virginia was among the first to meet its views; and Mr. Madison, in the Legislature of that State, proposed a resolution, which will be found in the same book,33 as follows:

          'Virginia, to wit: In the House of Delegates, Wednesday, November 30th, 1785.'

          [Mr. Madison's resolution for empowering Congress to regulate trade.]

          'Mr. Alexander White reported, according to order, a resolution agreed to by the committee of the whole house, on Monday last, respecting commerce,' &c.

          '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; and whereas such uniformity can be best concerted and carried into effect by the federal councils, which, having been instituted for the purpose of managing the interests of the States, in cases which cannot so well be provided for by measures individually pursued, ought to be invested with authority in this case, as being within the reason and policy of their institution:

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          'Resolved, That it is the opinion of this committee, that the delegates representing this Commonwealth in Congress, be instructed to propose in Congress a recommendation to the States in the Union, to authorize that assembly to regulate their trade on the following principles, and under the following qualifications: 1st. Giving power to Congress to prohibit foreign vessels from entering any port, or to impose duties on them and their cargoes; such duties to be uniform, and carried into the treasury of the State. 2d. That no State be at liberty to impose duties on any goods, wares, or merchandise imported, by land or by water, from any other State; but may altogether prohibit the importation from any State, of any particular species or description of goods, wares or merchandise, of which the importation is, at the same time, prohibited from all other places whatsoever.' In each of those proceedings, it was clearly contemplated, that the individual States should at least retain the power of absolutely prohibiting the importation of any article they thought fit, within their own respective limits. How far was this intention subsequently departed from? Where is the power of prohibiting the exportation or importation of any article taken from the States by the constitution? They are indeed qualifiedly restrained from laying imposts or duties on exports or imports, but not from entirely prohibiting their exportation or importation; and they are also restrained from laying any duty on tonnage; and it is, perhaps, the fair construction of the instrument, that even their prohibitory legislation, is

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under the control of Congress, as having the paramount authority to regulate commerce; but valid until Congress shall have made regulations inconsistent with their laws. A review of some of the laws of different States, will show that they have always exercised the power of making very material regulations respecting commerce. This review must be abridged; but it is of extreme importance, and if it were possible to spread out in detail the immense mass of State laws, regulating and affecting foreign commerce, and that among the States, it would be conclusively seen, that they have always considered themselves as possessing, and have, accordingly, exercised a concurrent power over both those branches of trade; and that the power of Congress cannot be decided to be exclusive, without declaring to be unconstitutional, an appalling body of State legislation.

          To begin with the laws respecting slaves. The appellant's counsel has questioned their constitutionality, and called them of doubtful authority. That expression showed he felt their application and important bearing, if their constitationality be admitted; and it has never before been called in question. The constitution most clearly admits the right of the States to legislate on this subject, not merely till 1808, but always, unless Congress should prohibit the trade; and yet, as has been already suggested, slaves are treated in that they paragraph itself, as an article of commerce or trade. Congress, renouncing for a time the paramount right to prohibit their importation, claims the right to lay a tax or duty on it. So also, they

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are treated as an article of commerce in the laws of Congress; for it is only under the power to regulate foreign commerce, that, before 1808, they could forbid and make penal, the trade by our citizens to foreign nations, and since 1808, prohibit it entirely. In this point of view it was also considered, and the right of the States to prohibit it asserted, in the debates of the Virginia convention. On this article Mr. George Mason observed, 'should the government be amended, still this detestable kind of commerce cannot be discontinued till after the expiration of twenty years.'34 To which Mr. Madison, in reply, says,35 'We are not in a worse situation than before. That traffic is prohibited by our laws, and we may continue the prohibition. The Union, in general, is not in a worse situation. Under the articles of the confederation, it might be continued for ever.' And again,36 'as to the restriction in the clause under consideration, it was a restraint on the exercise of a power expressly delegated to Congress, namely, that of regulating commerce with foreign nations.' Mr. George Nicholas also, alluding to both objections, says,37 'Virginia might continue the prohibition of such importation during the intermediate period.' And to obviate the objection, that the restriction of Congress was a proof that they would have power not

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given to them, he remarked, 'that they would only have had a general superintendency of trade, if the restriction had not been inserted. But the southern States insisted on this exception to that general superintendency for twenty years. It could not, therefore, have been a power by implication, as the restriction was an exception to a delegated power.' And, finally, Governor Randolph says,38 'the power respecting the importation of negroes, is an exception from the power given to Congress to regulate commerce.' The same doctrine is also maintained in the Federalist.39 Let us then see the laws that have been made by some of the different States respecting this branch of trade.40

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          Indeed, Congress itself has recognised and acted on the power of the States to prohibit this trade. The constitution restrained Congress (as

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has been already seen) from prohibiting the importation of negroes, &c., before 1808. But in 1803, it passed 'an act to prevent the importation

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of certain persons into certain States, where, by the laws thereof, their importation is prohibited.41 Proceeding upon the right of the several States to prohibit, and acting under its general power to regulate commerce, it imposes additional penalties on the importing or landing of any negro, mulatto, or person of colour, &c., in any State which, by law, has prohibited, or shall prohibit, their admission or importation. And it makes it the duty of the officers of the customs, to notice and be governed by the provisions of the laws of the several States prohibiting their importation or admission; and enjoins it on them vigilantly to carry into effect the said laws of such States, any law of the United States to the contrary notwithstanding. How could Congress do this, if the power of prohibiting the trade were not unquestionably possessed by the States, in their sovereign capacity?

          The quarantine laws further illustrate our position. The appellant's counsel says, these are to be considered merely as laws of police; they are laws of police, but they are also laws of commerce; for such is the nature of that commerce, which we are told must be regulated exclusively by Congress, that it enters into, and mixes itself with, almost all the concerns of life. But surely that furnishes an argument, showing the necessity

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that the States should have a concurrent power over it. Judge Tucker considers them as laws of commerce, when he says,42 'another consequence of the right of regulating foreign commerce, seems to be, the power of compelling vessels infected with any contagious disease, or arriving from places usually infected with them, to perform their quarantine. The laws of the respective States upon this subject, were, by some persons, supposed to have been virtually repealed by the constitution of the United States:' (and why must not that be the case, if the power of Congress regulating commerce be exclusive?) 'but Congress have manifested a different interpretation of that instrument, and have passed several acts for giving aid and effect to the execution of the laws of the several States respecting quarantine.' It will be recollected, that the first recognition by Congress of the quarantine laws, was in 1796; and that only directs the officers of the government to obey them; but does not pretend, or attempt, to legalize them. And, indeed, it could not do so, if the States had no concurrent power, and the regulation of commerce was exclusively delegated to Congress; for the power which is exclusively delegated to Congress, can only be exercised by Congress itself, and cannot be sub-delegated by it. It is, therefore, no reply to the force of the argument drawn from those laws, to say, that they have been ratified by Congress. Another answer to that observation is, that the supposed ratification by Congress

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did not take place until 1796; and that many of those laws were in active operation several years before. For instance, as few out of many: New Hampshire passed her quarantine laws first, February 3d, 1789,43 and again on the 25th of September, 1792.44Connecticut passed hers in May, 1795.45 The laws of Maryland46 show the temporary continucation of those laws in that State, from 1784 to 1785, from 1785 to 1792, from 1792 to 1799, and so down to 1810; and the 2d vol.47 contains a law passed in November, 1793, giving to the Governor the strongest powers on the subject. The State of Virginia passed, 26th of December, 1792,48 'an act reducing into one the several acts to oblige vessels coming from foreign parts, to perform quarantine;' which act was amended on the 5th of December, 1793;49 and further amended on the 19th of December, 1795.50Georgia passed her quarantine law December 17th, 1793.51 Undoubtedly those laws derive their efficacy from the sovereign authority of the States; and they expressly restrain, and indeed prohibit, the entry of vessels into part of the waters and ports of the States. They are all so similar, that one or two

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may suffice as examples. The quarantine law of Georgia, s. 1. prohibits the landing of persons or goods coming in any vessel from an infected place, without permission from the proper authority; and enacts, that the said vessels or boats, and the persons and goods coming and imported in, or going on board during the time of quarantine; and all ships, vessels, boats, and persons, receiving any persons or goods under quarantine, shall be subject to such orders, rules and directions, touching quarantine, as shall be made by the authority directing the same. The law of Delaware, passed the 24th of January, 1797,52 s. 1. provides, that 'no master of a ship bound to any part of that State, having on board any greater number of passengers than forty, or any person with an infectious disease, or coming from a sickly port, shall bring his ship, or suffer it to be brought, nearer than one mile to any port or place of landing; nor land such persons, or their goods, till he shall have obtained a permit.' The law of Massachusetts, passed June 22d, 1797, s. 6.53 enacts, that 'vessels passing the castle, in Boston harbour, may be questioned and detained; s. 12. that vessels at any other port than Boston, may be prevented from coming up, and brought to anchor where the select men shall direct; s. 4. empowers the select men of any town, bordering on either of the neighbouring States, to appoint persons to attend at ferries and other proper places, by or over which passengers

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may pass from such infected places, which persons have power to examine, stop and restrain such passengers from travelling, until licensed by a Justice of the peace, or the select men; and a fine of 100 pounds is enacted on the passenger presuming to travel onward; s. 5. gives power to seize and detain suspected goods coming from any other State,' &c. By an act of June 20th, 1799, s. 10.54 'any master, &c. who shall enter the harbour of Boston after notice of a quarantine, for all vessels coming from the same place, &c., or who shall land, or suffer to be landed, any passenger or goods, without permission of the board of health, is subject to fine and imprisonment.' These are all obviously direct regulations of trade, and so is the whole of every quarantine system.

          The regulation of pilots in sea ports, flows from the power of regulating external commerce. This power, like that of making quarantine regulations, has hitherto been exclusively exercised by the several States; Congress having only made one law on the subject, and that seems explicitly to recognise the concurrent power of the States, and to place over it the true constitutional control. By the 4th sec. of the act of August 7th, 1789, c. 9.55 it is enacted, that 'all pilots in the bays, inlets, rivers, harbours and ports of the United States, shall continue to be regulated in conformity with the existing laws of the States, respectively, wherein such pilots may be; or with such laws as the States

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may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress.' Now, it is a principle which cannot be too often brought into view or enforced, that Congress cannot delegate to State Legislatures, the exercise of powers which are given to it exclusively; and the very act of referring to those laws, is a recognition that the power to legislate on the subject is concurrent.56

          In like manner, the laws regulating light houses, buoys, &c. are all exercises of the implied powers derived from that of regulating commerce. They have hitherto been generally left to Congress; but it does not follow from thence, that they are exclusive. Can it be doubted, that any State has a right to establish a light house or buoys at its own expense, in one of its harbours? That a State has such a power cannot be questioned, if it be shown that individuals have. Some time in 1798, a number of the inhabitants of New-Bedford, Massachusetts, raised a fund by subscription, for building and maintaining a light house at Clark's Point, at the entrance of the harbour of New-Bedford. They maintained it, and kept it regularly lighted for about a year; and the act of Congress admits their right to do so. On the 29th of April, 1800, Congress enacted, that the light house lately erected at Clark's Point, &c., shall and may be supported at the expen of the United States, &c. Provided, that the property and jurisdiction of the said light house, and sufficient territory for

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the accommodation thereof, shall be fully ceded and legally vested in the United States.

          The laws of Congress on this subject, recognise, the right of the States to maintain light houses, if they please. The first act, passed August 7th, 1789,57 directs, that their expenses, after the 15th of August, 1789, shall be defrayed out of the treasury of the United States: Provided, nevertheless, that none of the said expenses shall continue to be so defrayed by the United States, after the expiration of one year, unless such light houses shall, in the mean time, be ceded, &c. Few States did make the requisite cession; and by the act of July, 1790,58 the time was extended to the 1st of July, 1791, and so, from time to time, for five or six years, till all the States came in; during which the light houses in several of the States were kept up by their authority, without the control of Congress.

          The inspection laws are very important regulations of trade. Tucker says, 'there seems to be one class of laws, which respects foreign commerce, over which the States still retain an absolute authority; those I mean which relate to the inspection of their own produce, for the execution of which, they may even lay an impost or duty, as far as may be absolutely necessary for that purpose. Of this necessity, it seems presumable, they are to be regarded as the sole judges.' The extent

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and importance of this system of regulations does not strike the mind at the first view; nor do the powerful inferences it affords, to show the concurrent right in the States to regulate commerce. Judge Tucker has very imperfectly stated their extent. They do, indeed, regulate, in almost every State, the foreign trade, so far as it is connected with our produce to be exported; but they do not confine themselves to produce to be exported, they relate to imports also. They act by restraining, and sometimes prohibiting, the exportation and importation of certain articles. Before examining those laws, it may be asked, from whence is the right of restraining derived, but from the more extended right of prohibiting? The difference between regulation or restraining and interdiction, is only a difference of degree in the exercise of the same right, and not a difference of right. The article in the constitution, art. 1. sec. 10. impliedly allows that right to be in the several States, and the right to enforce their laws by any other means than imposts and duties, and, therefore, by prohibitions of exports or imports. The right does not depend on the idea, that the thing prohibited or restrained from being exported or imported, is dangerous or noxious; even if that could, ex necessitate, create a right, and give it to the State, instead of the congressional jurisdiction; on the contrary, the rules and enactments seem arbitrary.59

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          As to trade with the Indian tribes, without stopping to enter into details, it is sufficient to say, it must stand on the same footing as foreign commerce

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and that among the States, as they are all given in the same sentence. If the power of regulating the two latter be exclusive, so must it be

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with the former. And yet every State, whose situation places it in communication or contiguity with Indian tribes, has thought fit, and, indeed,

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found it necessary, by acts of their own Legislatures, to regulate their trade with the Indians, the laws of Congress not only not exhausting, but not even adequately reaching the subject.

          It now seems incontrovertibly established, that the States have a concurrent right to legislate on matters of foreign trade, or of that between the States; and a concurrent right to prohibit the exportation or importation of articles of merchandise. If they can do that, even as to the articles themselves, to which the power of Congress expressly relates, and if the right to regulate shipping be only impliedly given to Congress, by the general power to regulate commerce, and only so far as they are instruments of that commerce, why cannot a State, that has a concurrent right, within its own sphere, (and that not by implication, but directly, and as the result of its sovereign power, unabridged and unaltered by the constitution,) over all ships or vessels within, or coming within, its jurisdiction, prohibit the entry of any particular kind of vessels within its waters, subject

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always to be controlled by the contradictory and paramount regulations of Congress, made within the sphere of its powers.

          This leads to the consideration of an argument that has been frequently urged on this subject. It is said, that if a State has a right to prohibit the navigation of its waters to steam boats, it has an equal right to prohibit the same navigation to row boats or sailing vessels; and the extravagance of this position, it is supposed, sufficiently refutes the assertion of a more limited right. First, there is an error in the statement of our claim. We do not prohibit the navigation of our waters to steam boats; we only prohibit them, while in our waters, from using steam as the means of their propulsion. Every steam boat which ventures on the ocean, carries and uses sails; and they can, without difficulty, be adapted to every steam boat. Such a vessel, therefore, may, without objection, load in a different State, or foreign port, and come, by means of steam, to the verge of our waters; there is no difficulty opposed to its coming up, with its full cargo, to our custom house, entering, discharging, reloading, and departing, provided that, for the short space of time while it may be in our waters, it employs the only things that any other vessel can employ for entering and departing, and with which it is or may be amply provided—sails and oars. That is the extent of what is very inconsiderately called our extravagant claim. Let us now examine the argument itself, and to test its soundness, let us apply it to other cases. A State has no right to prohibit the use of narrow wheeled

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wagons for the transportation of merchandise on any of its roads; for if it can do that, it can prohibit the use of any kind of wagons, and, indeed, all transportation of merchandise on any of its roads, and thus affect the commerce between different States. A State has no right to regulate the assize of bread; for if it can do that, it can prohibit all baking of bread, and thus starve the community. Is there any one act of legislation against which the same reasoning, drawn from an excessive and tyrannical exercise of legislative authority, may not be urged? And if the argument be unsound, when applied to all those instances, what makes it sound in its application to the present question? The answer to it is found in the rights of a free people, which make every act of tyranny void. But, either the right entirely to prohibit the use of row boats, sailing vessels, and steam boats, belongs to some of the constituted authorities that govern those States, or it does not. If it does not belong to any of them, then, clearly, this boasted argument falls to the ground. If it does belong to some of them, to whom does it belong? Has Congress the power to make such a prohibition of all modes of commercial intercourse, by virtue of its limited authority to regulate commerce with foreign powers, and between the different States? In answering no, the embargo laws are fully remembered, and their constitutionality admitted; but it is not derived from the power to regulate commerce. The embargo was a measure of State policy, nearly approaching to war: it may sometimes be of such a character as

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to derive a legitimate origin from the war making power; but the embargo of 1807 rests for its constitutionality on the power in Congress of providing for the common defence and general welfare of the United States. If, then, the power of entirely prohibiting trade, as a commercial measure, exists in some of the governing powers of those States, and does not exist in Congress, where does it exist? Assuredly in the State Legislatures. If its exercise should ever become void, it will not be because it is contrary to the constitution of the United States, but because it is oppressive to the people it affects to bind; not because it is unconstitutional, but because it is tyrannical.

          Congress itself seems to acknowledge that the constitution does not deprive the States of this prohibitory power; for, if it did, as it binds all the citizens of the United States, it would necessarily bind the territorial governments, and all States admitted into the Union subsequent to its adoption. Yet, in the ordinance of the 13th of July, 1787, for the government of the territory of the United States north west of the river Ohio,60 by art. 4th, for the government of the said territory, and the States which may be formed therein, it is provided, among other matters, that 'the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and for ever free, as well to the inhabitants of the said territory,

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as to the citizens of the United States, and those of any other States that may be admitted into the Confederacy, without any tax, impost, or duty thereon.' It is made a fundamental provision of the different acts erecting portions of this territory into States, that their constitutions shall not be repugnant to this ordinance. In the act also for erecting the State of Louisiana, sec. 3. it is enacted, that the convention for making the constitution, shall provide by an ordinance, irrevocable without the consent of the United States, among other things, 'that the river Mississippi, and the navigable waters leading into the same, or into the gulf of Mexico, shall be common highways, and for ever free, as well to the inhabitants of the said State, as to the other citizens of the United States, without any tax, duty, impost or toll therefor, imposed by the said State.' The same was also done with regard to the States of Mississippi and Missouri. Now, this provision, so studiously introduced into all those new compacts, which Congress had a right to make with new States, as the condition of their admittance into the Union, would be very singular, and very useless, if, by an effect of the Union itself, all navigable waters belonged exclusively to the general government; or if the federal constitution, which each State adopted, contained in itself an equivalent restraint on the States. The appellant's counsel has alluded to and denied a position, stated to have been used by counsel in arguing the case of Livingston v. Van Ingen, before the Court of Errors, that the Legislature might, if it thought fit, stop up the mouth of the

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Hudson. It is of very little importance to defend what fell, on that occasion from counsel, and has not been adopted by the Court; still, the learned counsel may be asked, by what authority the State of Rhode Island has erected a bridge over the Seakonnet branch of Taunton river, essentially impairing, if not destroying, its navigation from the sea, and far below where the tide ebbs and flows? By what authority his native State of New-Hampshire has erected a bridge from Portsmouth over the Piscataqua river? By what authority his adopted State of Massachusetts has built two bridges over Charles river, on its tide waters, one near Boston, and the other higher up? and, by what authority the State of Pennsylvania has built a dam over the Schuylkill, near Philadelphia, and three miles below where the tide used previously to ebb and flow?

          There, however, is, in fact, no regulation of commerce, made by Congress, with which this exclusive right does or can interfere. What is that degree or kind of interference, which is sufficient to invalidate a State law?

          The Federalist,61 discussing the cases where powers are exclusively delegated to the United States, makes one of the classes, (and, perhaps, unnecessarily, if not incorrectly,) where the constitution granted an authority to the Union, to which a similar authority in the States would be, absolutely and totally, contradictory and repugnant; and then goes on: 'I use these terms to distinguish this last case from another, which might appear to resemble it; but which would, in fact, he essentially different: I mean, where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy, in point of constitutional authority.' And again: 'It is not, however, a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can, by implication, alienate and extinguish a pre-existing right of sovereignty.'

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          That the third class of cases, as arranged by the Federalist, is unnecessary in its application to any of the powers, and that it is derived from an erroneous notion, as to the possibility of repugnancy and its consequences, seems to follow, from the principles laid down by Thompson, J. in Livingston v. Van Ingen.62 'There are subjects upon which the United States and the individual States must, of necessity, have concurrent jurisdiction; and all fears and apprehensions of collision in the exercise of these powers, which have been urged in argument, are unfounded. The constitution has guarded against such an event, by providing that the laws of the United States shall be the supreme law of the land, any thing in the constitution of any State of the contrary notwithstanding. In case of collision, therefore, the State laws must yield to the superior authority of the United States.' The same doctrine is very ably maintained by Kent, Ch. J.63 who gives, as a safe rule of construction

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and of action, 'that if any given power was originally vested in this State, if it has not been exclusively ceded to Congress, or if the exercise of it has not been prohibited to the States, we may then go on in the exercise of the power, until it comes practically in collision with the actual exercise of some congressional power. When that happens to be the case, the State authority will so far be controlled; but it will still be good in all those respects, in which it does not absolutely contravene the provision of the paramount law.'

          The same doctrine is very briefly, but very clearly laid down, by Mr. Ch. J. Marshall, in the case of Sturges v. Crowninshield:64 'It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the States.' In Houston v. Moore,65 Mr. J. Story, however, adopts the arrangement of the Federalist, and goes on: 'In all other cases, not falling within the classes already mentioned, it seems unquestionable, that the States retain concurrent authority with Congress, not only upon the letter and spirit of the 11th amendment of the constitution, but upon the soundest principles of general reasoning. There is this reserve, however, that in cases of concurrent authority, where the laws of the States and of the Union are in direct and manifest collision on the same subject, those of the Union, being the supreme law of the land, are of paramount authority; and the State

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laws, so far, and so far only as such incompatibility exists, must necessarily yield.'

          Although those authorities show, that nothing but a direct and absolute collision can produce such an interference as will render the State grants invalid, yet a license is relied on by our adversaries, as creating this interference. There is a leading and fundamental error growing out of the nature and form of that instrument, and one which has induced the supposition, that a license gives a right to trade, or a right to enter, or a right to navigate the waters of the United States, to any vessel possessing it. It, indeed, uses the words, 'license is hereby granted for the said vessel to be employed in carrying on the coasting trade for one year, from the date hereof, and no longer;' but those words must necessarily be understood in reference to the extent of the authority granting the permission. Equivalent words are to be found in every license to distil or to sell, or to do any act, the right to do which existed prior to and independent of the authority by which it may be regulated; and they only mean, license is granted to do the act, notwithstanding the regulations made on that subject by the licensing authority, and which, without this instrument, would restrain the act. So far as those rights to trade, to enter, or to navigate, exist unmodified, they rest on the common law, independent of any gift from or right conferred by Congress; which, in truth, has no power whereby it might be enabled to make such gift, its authority being only to regulate commerce. These rights are, all three, portions of the

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jus commune, and so far as the competent Legislatures have thought fit to let them remain, the right to them, and their efficacy, depend on that jus commune and the common law. The right to trade is regulated by the State Legislatures and laws of Congress; the right to enter is modified principally by the laws of Congress; and the right to navigate the waters, almost exclusively by the State Legislatures. The license has nothing to do with any of those rights; it only gives some privileges as to payment of tonnage duties, and less frequent entries at the custom houses; and it exempts the licensed vessel from being included within a restriction of the jus commune as to trading, by which Congress prohibits certain vessels from carrying foreign articles and distilled spirits from State to State: even there, not giving to the licensed vessel the right of doing so, but only exempting them from the prohibition. A review of the acts of Congress on the subject, will show the truth of these positions.

          By the now repealed act of July 20th, 1789,66 imposing duties on tonnage, different rates were fixed: 1st. six cents per ton on vessels built in the United States, &c., and belonging to a citizen or citizens of the United States; 2d. thirty cents on vessels built in the United States, and belonging to foreigners; 3d. forty cents on all other ships and vessels. But it was provided, that no United States built vessel, owned by a citizen, or citizens, while employed in the coasting trade, or on the fisheries, should pay tonnage more than once a year; and that every

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ship employed in transporting the produce and manutactures of the United States, unless United States built, and owned by a citizen or citizens, should, on every entry, pay 50 cents per ton. The only advantages, then, to American built and owned ships, were, a less tonnage duty; and, if on the coasting trade, paying it only once a year; but let it be well remembered, that they had no exclusive or peculiar right to trade any where. By the collection law of July 31, 1789,67 which established ports of entry and delivery, it was enacted, that no ship or vessel from a foreign port, not wholly belonging to a citizen or citizens, should be permitted to unload at any port or place, except those there specified.

          Neither this, nor any other act, GIVES the right of entering into the designated ports. It proceeds on the supposition and the truth, that by some other code, distinct from the laws of Congress, the entry into all places had been antecedently lawful, and then restrains it as to all other places but those named.

          The registering, recording, and enrolling of vessels, were enacted by the act on that subject, passed September 1st, 1789.68 They were for the purpose of describing the vessel, her built, tonnage, and ownership; and neither they, nor their certificates, give, nor purport to give, any right to trade. The enrolment, and certificate of enrolement, is to entitle unregistered vessels of twenty

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tons and upwards, American built and property, and destined from district to district, or to the fisheries, to the privileges of a ship belonging to the United States, employed in the coasting trade or fisheries. These I have already mentioned, to be a less tonnage duty, and paying it only once a year; but no exclusive or peculiar right to trade any where.69 Registered or enrolled vessels, on application to the collector where they belonged, were entitled to receive a license to trade between the different districts in the United States, or carry on the bank or whale fishery for one year.70 The meaning of that license, notwithstanding the generality of its language, was only to certify that the proper tonnage duty for that year had been paid; and that the vessel was licensed, for that year, to trade without paying any tonnage duty. That such is its object, appears from the 22d sec.71 enacting, that the master, &c. 'shall annually procure a license from the collector of the district to which such vessel belongs, who is hereby authorized to give the same, purporting that such vessel is exempt from clearing and entering for the term of one year from the date thereof.' Every vessel had a right to carry on the trade (between district and district) without a license, on paying the prescribed tonnage duties, suited to the case. That further appears, by a provision in the same section, (s. 23.) that if any vessel of twenty tons or

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upwards, not having certificate of registry, or enrolment, and a license, should be found trading between different districts, or be employed in the bank or whale fisheries, it should be subject to the same tonnage and fees as foreign ships or vessels.

          The act, already cited, for tonnage and duties, was repealed by the act of July 20th, 1790;72 but the substituted clauses do not affect this argument. A ship having a license to trade between different districts, or to carry on the fisheries, while employed therein, is only to pay the six cents per ton once a year, (i. e. on getting the license,) and 'upon every ship, &c. not of the United States, which shall be entered in one district from another, having on board goods, &c. taken in one district, to be delivered in another, there shall be paid at the rate of fifty cents per ton;'73 a duty which clearly recognises their right to carry on that trade on those terms.

          The former act for registering and clearing vessels, was repealed by that passed the 18th of February, 1793. This enacted, that none but enrolled and licensed ships, &c. (or, if under twenty tons, simply licensed,) should be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels employed in the coasting trade or fisheries. These privileges, it will be again remembered, are only the paying of a less tonnage duty, and paying it but once a year; and they do not comprehend any exclusive or peculiar

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right to trade any where. It enacts, that before getting the license, the tonnage for the year must be paid; and the effect and object of the license was to certify that the proper tonnage duty for that year had been paid, and that the vessel was, therefore, licensed for that year to trade without paying tonnage. But every other vessel had still a right to trade. By sec. 6.74 vessels of twenty tons and upwards, except registered, found trading between district and district, or different places in the same district or fishery, not enrolled and licensed, &c. If laden with domestic produce or manufacture, shall pay the same duties as foreign ships; or, if laden with foreign produce or manufacture, or distilled spirits, shall be forfeited. This shows that foreign ships had a right to carry on the coasting trade without a license, (a thing which they could not possible obtain,) on paying the extra tonnage duties, and making entry at every port. This further and most fully appears by the 24th section of the same act,75 prescribing the duties of masters of foreign ships, bound from one district to another, whether with a cargo or in ballast; and by sec. 34.76 establishing the rates of fees under that act, in which are found, 'For granting a permit for a vessel not belonging to a citizen or citizens of the United States, to proceed from district to district, and receiving the manifest, 200 cents. For receiving a manifest, and

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granting a permit to unload, for such last mentioned vessel, on her arriving in one district from another district, 200 cents.' Indeed, until the year 1817, there was no kind of prohibition on foreign vessels carrying on the coasting trade. On the 1st of March, 1817, 'an act concerning the navigation of the United States' was passed; and by sec. 4. it was enacted, 'that no goods, wares, or merchandise, shall be imported, under penalty of forfeiture thereof, from one port of the United States to another port of the United States, in a vessel belonging, wholly or in part, to a subject of any foreign power.' This, however, does not affect American ships not having a license, and they have still a right to trade coastwise, subject only to the increased tonnage duty, and the necessity of making entry at every port. How, then, can it be said, that the license gives the right to carry on the coasting trade, which exists as part of the jus commune, and existed, and was exercised, before the constitution, or any law on the subject, was formed; and when, until March, 1817, every foreign vessel had a right to carry it on; and when, to this hour, every American vessel has a right to carry it on, without a license or register, and only becomes subject to an increase of tonnage duty, and the necessity of making entry at the custom-house on every voyage? It is only a license to carry on the coasting trade, without making entry or paying tonnage duties, conformably to the laws of Congress in other cases. It gives no right to enter, nor to trade, nor to navigate the waters of the United States:

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it only enables the licensed vessel to do those things, in certain cases, on cheaper and easier terms then other vessels could, who, nevertheless, had equal rights to carry on the same trade, though with less advantages; and now, in the event of having foreign produce or manufacture, or distilled spirits, on board, a license protects from a forfeiture, which was not enacted for some years after licenses were devised and used in their present shape. It is not, then, a license to trade, to enter, or to navigate, but to be exempt from paying tonnage duty for a year. If, then, the position is correct, (and it undoubtedly is,) that a license gives no right to trade, to enter a port, or to navigate its waters, no argument can be drawn from the act of March 12, 1812, 'respecting the enrolling and licensing of steam boats.'77 The only object of that law is, to enable aliens to be part owners of such vessels, and to modify, as to them, the oath that the boat belongs to a citizen or citizens of the United States.

          But, even if the right of entry, or to trade or navigate, were given by the acts of Congress, and not by the common law, as originally existing or subsequently modified, this exclusive right does not prevent the entry of any vessels into our waters, nor their navigating or trading there; nor does it materially impede them. The only part of this exclusive grant that can come under the cognizance of this Court, in this case, is that on which the injunction is grounded. That, and the

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prohibition of the injunction, can only be fairly considered as extending to prevent the navigation of the waters by the force or agency of steam or fire; not to prevent vessels from navigating those waters, because they have a steam engine on board, and wheels at the side, if the engine and the wheels be not used on our waters for propelling the vessel, contrary to our State laws. Before the vessel comes into those waters, and after it leaves them, it is out of the State jurisdiction, and not liable to any State penalty for using the agency of steam. What, then, is the amount of the prohibition of entry? That the same vessel, with the same cargo and crew, may come up and pass through our waters, if, while in our waters, she will come up and navigate under sail, as all commercial vessels have hitherto done. In the argument of this case before the Court of Errors,78 one of the appellant's counsel couched his reasoning in the form of a remonstrance by an English ship master against those State laws. The reply can, perhaps, be best given by turning the discussion into a dialogue. An English steam vessel is boarded by a pilot, outside of Sandy-Hook. 'Captain,' says the pilot, 'you will have to stop those wheels at your sides, when you get within our waters.' 'Why so?' asks the captain. 'Because the State of New-York have granted to Livingston and Fulton an exclusive right of navigating in its waters by steam.' 'Sir,' resumes the captain, 'I care nothing for the laws

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of New-York. I know of no laws or regulations of a particular State, in regard to trade and commerce. I claim the privilege of entering the harbour of New-York, under the laws of the United States, and the treaty of amity and commerce subsisting between them and my sovereign. I insist upon my right of entering your waters as I please; and if your State authorities, or any one acting under them, should prevent me, the King, my master, will know how to enforce the rights of his subjects.' 'Patience, good captain, patience,' replies the pilot; 'let your head and your boiler cool; no one means to prevent your entering into our waters. Only stop your machinery, and hoist those sails you have carried twenty times between this and Liverpool, and, I'll answer for it, we shall be alongside the wharf as soon as you vessel, that you see bound inwards, with all her canvass spread.' This is the extent of the prohibition—the Deo dignus vindice nodus! When the case occurs of a vessel navigating across the Atlantic, without sails, the question may be discussed, whether it be a violation of the laws of Congress, that she should be required to fit herself to the harbour, by providing herself with a sail. The same may be said as to coasting vessels from more distant States. As to those from contiguous States, and whose trade can just as well be carried on by sails as by steam engines, it is ridiculous to say, that such a regulation prohibits or interferes with their commerce. Is it any part of the power intended to be delegated to Congress, to regulate as to those matters?

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The utmost that can be said is, that the passage may be a little longer, and may be somewhat retarded. The doctrine of the Federalist79 applies here, that it is not a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can, by implication, alienate and extinguish a pre-existing right of sovereignty. Regulations for a toll-bridge may delay the mail carrier, and so far interfere with the execution of the power delegated to Congress, of regulating the post office and post roads; but, could he gallop over a bridge, that a State law directed should always be crossed on a walk?

          But the clause in the constitution, authorizing Congress to make laws respecting patents, is supposed to present another argument against the constitutionality of those State laws. This point, having been but very slightly mentioned, and in some measure abandoned, by the appellant's opening counsel, would not be dwelt on now, if the Attorney General had not intimated an intention of insisting and relying on it. If the appellant had a patent of any kind, on which he could rest, it might fairly be urged by us that a patent cannot give to any unpatented thing even though connected with one that is patented, the right to violate the State law. But how does or can that question come up in this case? There is here no allegation of a patent, nor a claim of any thing entitled to be protected by the patent law, and the use or enjoyment of which has been interfered

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with by the exclusive grant. As the appellant claims no patent, if this power in Congress can furnish to him any objection against the State laws, it must be on the ground, that inasmuch as Congress is authorized to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors the exclusive right to their respective writings and discoveries, every State law, calculated or purporting to promote the progress of science and useful arts, is utterly void, merely because that is its purport and object, even though it should not relate to any invention or discovery; though the privileges it may confer should not be given on the score of invention or discovery, but of public policy and convenience; and further, although there is no discovery or invention of any other person in existence, the right to which Congress could secure, and which has any relation to the State grant. That, in short, the appellant, or any other person, has a right to treat the State law as a nullity, and, in violation of it, to use unpatented articles, and incapable of being the subject of a patent or protection; and, that no Court or process of law has authority to restrain him from the use of what never can come within the power of Congress; because, peradventure, something may hereafter be discovered, having some relation to the subject of the State grant, and some person may, hereafter, be entitled to claim the benefit of the constitutional protection, as an inventor. The extraordinary boldness of this position must surprise and astonish. If the passing of the patent law is per se competent

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to prevent a State granting this exclusive right, for a thing (so far as the pleadings show) not the subject of a patent, it is equally so to prevent a State granting every other exclusive right, and particularly if connected with science and the useful arts. If the law alone will not produce that effect, until a patent is granted, at variance with the exclusive right, the patent should appear, to let us see if it be really at variance, and have that effect.

          If the last steam boat laws, enacted since the North River boats were in operation, had, instead of using a general phraseology, forbid any person to use, on the waters of the State, steam boats constructed or made in the same manner as those then used by Livingston and Fulton, or in any manner before known or used, or in any manner invented by a non-resident alien, would there be any thing for the patent laws or power of Congress to operate on in collision thereto? If not, then those State laws are so far good; and any one, to impeach their operation, must claim and show that he has a boat constructed in a different manner, and which is patented as an invention, or, at least, is a subject for the laws of Congress to operate upon, and which he is restrained from using.

          Has it ever been disputed that each State has a right to grant exclusive privileges, where not forbidden to the Legislature by its constitution? The wisdom and the motives of the grant, are points for which it is responsible to the people of the State only; they can never be drawn into

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discussion in this Court, nor come under the control of Congress. It is a right inherent in the sovereignty of every country, not delegated to Congress, but allowed to, and constantly exercised by, the State governments. It is a legislative instrument of great power, and may, therefore, be used to evil purposes; but it may be, and often has been, as in the present instance, productive of splendid benefits. It must reside somewhere; it does not reside in Congress; where, then, does it reside?

          Whether the power delegated to Congress be exclusive or concurrent, the power of promoting science and useful arts, by the introduction of imported improvements, and encouraging the employment of things not susceptible of being patented, is exclusively in the State Legislatures. It is of great importance, and exercised by every wise government; by England, France, &c. It domesticates the sciences and useful arts, the talents and genius of the civilized world. The States, in the exercise of this their exclusive power, which has been employed in making those laws, are not to be interfered with from any apprehension of collision in the exercise of a concurrent power, only relating to another branch of the same subject, which the State has not used, and which Congress may never have an opportunity of using.

          I say, a concurrent power; for such is that delegated to Congress. One of the counsel now opposed to us, in his argument in the case of

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Sturges v. Crowninshield,80 places in his third class, that is, among the concurrent powers, that to promote the progress of science and useful arts; and says, very truly, 'from the exercise of any of these powers, the States are neither expressly, nor by any fair rule of construction, excluded.' Judge Tucker, in his Appendix D. p. 182. 265. among the cases in which the States have unquestionably concurrent, though, perhaps, subordinate powers, with the federal government, ranks the power to promote the progress of science and the useful arts, by securing to the authors and inventors the exclusive right, within the State, to their respective writings and discoveries. In the case of Livingston v. Van Ingen,81 Thompson, J. takes for granted, that it is so, and it is expressly asserted by Kent, C. J.; and in the same case, an instance is given of its exercise, by an act of the Legislature of New-York, in favour of Mr. Rumsey, passed on the 23d of February, 1789, after the adoption of the federal constitution, and shortly before the first meeting of Congress. It was entitled, 'for securing to James Rumsey the sole right and advantage of making and employing, for a limited time, the several mechanical improvements by him lately invented.'82 I do not speak from research, but I understand that he obtained a similar patent from several other States. This law is a cotemporaneous exposition of the

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constitution, and shows that the State considered itself as still retaining a concurrent right of legislation on the subject of inventions in science and the useful arts, notwithstanding the new constitution, and the recent transfer of similar powers to Congress.

          What is the power delegated to Congress, and on what principle is it founded? A confined and partial mode of promoting the progress of science and useful arts, viz. by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries. The Federalist, No. 43,83 says, 'the utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain to be a right at common law. The right to useful inventions seems, with equal reason, to belong to the inventors.' This commentary, and the words of the constitution, show that the power is only founded on the principle of literary property extended to inventions. It proceeds upon assuming a pre-existent common law right, which, however, requires to be properly secured by adequate remedies. Its principle is entirely different from that on which patents rest in England. They are exclusive rights, not merely secured, but created and granted; they are monopolies for things invented or imported, and do not suppose or act on any pre-existent right; but grant a right, the origin and efficacy of which is derived from its being a gift from the

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crown, permitted and legalized by act of Parliament. It is contended, because the English Judges have construed their statute of monopolies so as to include imported improvements, under the term inventions, that our constitution should receive the same construction; but there is no foundation for the position. The English Judges strained the words of their statute, contrary to all fair construction, because they felt the importance of a power to encourage imported improvements, and saw no other way by which it could be done; and, besides, their interpretation went to strengthen and increase the royal prerogative. But, with us, imported improvements can be perfectly encouraged by the States; and the power delegated to Congress, is founded on the common law pre-existent right of inventors to their own discoveries, which can have no application to the mere possessors of imported improvements. The constitution itself does not use the word patent, and it is to be regretted that the act of Congress does; for, the use of the word implying a resemblance to the English patent, has led to a false view of the powers of Congress.

          But, in truth, according to the English acceptation of the term, Congress has no power to grant them. It has no authority to make exclusive grants of any kind; that power remains solely in the States, as a part of their original sovereignty, which has never come within the purview of the federal constitution. A patent, in England, and every country but this, implies, the creation and gift of a right, by force of the sovereign power,

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conferring upon an individual a monopoly, in which he had no pre-existent right. This can be done by the States, and only by the States. The power delegated to Congress, does not authorize it to create any right, or to give any right; it only enables that body to secure a pre-existent common law right, and for that purpose it may create and give a remedy. Where there is no pre-existent right to be secured, the power of Congress cannot operate. To these positions, the attention of the Court is directed, as they may be found important in the sequel.

          Although the article in the constitution is expressed with accuracy, yet it also has employed a word, sometimes taken in different senses, and which has likewise contributed to a false view of the power of Congress: the expression is, 'an exclusive right.' The word 'exclusive' may well mean, as it does here, individual, sole, or separate, in which sense, every man's private property, to which no other man has any claim, is his exclusive property. In that sense, Judge Chase says, in the case of Calder et ux. v. Bull et ux.84 'If any one has a right to property, such right is a perfect and exclusive right.' But, that word, exclusive, is more frequently applied to express, that others have been excluded or shut out from the participation of what they were previously entitled, or would, but for that exclusion, be entitled to enjoy and use. In this sense, the phrase, exclusive rights or privileges, is ordinarily understood.

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But, it never was intended to give Congress any power to grant exclusive privileges; and in the article of the constitution, that meaning of the word would be inconsistent with the idea of securing a pre-existing right. All error would have been avoided, if the adjective had been entirely omitted, or the word individual substituted.

          At the time of making the State grant in question, no man had, and, indeed, no man yet has, any pre-existing right to an invention, connected with the subject matter of the grant. Suppose any man, however, now to make an invention, and seek to use it without procuring for himself a patent, or availing himself of the power delegated to Congress, surely the law of the State would be competent to prevent his using it within its waters and jurisdiction. The statute law would, in that instance, operate on the common law, and prevent the common law right, pro tanto, from ever arising, in the same way as in a fishery. The right of fishing, in a public navigable river, is a common right; but, suppose that before the birth of any given individual, a part of that navigable river had, by statute, been turned into a several fishery, surely his common right would not entitle him to fish in that part of the navigable river which a statute had, before the commencement of his common right, turned into a separate fishery. His right to fish there never had a commencement or origin—So with this supposed inventor. A statute, prior to the commencement of his common law right, so acted on that common law itself, that a right

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in him to use his invention, in the waters of the State, never had a commencement or origin. Now, suppose the inventor to procure a patent; would that enable him to use his patented invention within the jurisdiction and waters of a State, contrary to its statutes? If it did, what would be its operation? The delegated power is only to secure a pre-existent right; it can only do that, so far as there is a pre-existent right; where there is not, there is nothing to be secured. So far, then, as relates to any use or exercise of the invention within the State, there would be no right to be secured, and nothing for the power of Congress to operate upon. But further, if the inventor, before obtaining his patent, could not legally use his invention, but, after obtaining his patent, could use it in despite of the State laws, the patent would then create and give a right that did not exist before, and thus transcend the power delegated to Congress, which does not enable that body to create or give any right, but only to create and give a remedy, for the purpose of securing an existing right, which derives its origin and force from some other law or laws than those made by congress.

          So far, then, as relates to those State laws, it is impossible that their validity can be affected by the patenting of any invention or discovery made subsequent to their enactment. But it may still be advisable to pursue the same course of reasoning, and inquire how far even the existence of a patent, previous to the passing of such acts, would

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enable the patentee to use his invention in despite of them.

          The object of a patent, granted in pursuance of the delegated power, is to perfect an imperfect right, by exactly ascertaining, if I may say so, its means, and boundaries, and identity, and by affording an adequate remedy for its violation. The precise nature of the remedy is within the discretion of Congress; but the nature of the evil it purports to remedy, is entirely illustrative of the extent of the power delegated to Congress. The patent law itself shows that its object is, to turn the imperfect right into property, for it directs, that the applicant's petition shall signify a desire of obtaining an exclusive property in his improvement. And the clause giving the remedy, shows the injury against which Congress intended to guard, and against which alone it had any power, under the constitution, to provide a guard: where any person 'shall make, devise, use, or sell' the thing, whereof the exclusive right is secured to the patentee by such patent, &c.85 But, no remedy is provided against preventing the patentee from making, devising, using or selling the thing so patented. That, if any grievance at all, is one not within the purview of the act, nor within the powers of Congress, and against which, therefore, no remedy is there provided.

          The object of this power, and of the law made under it, is to give to the pre-existent but imperfect right, the security and attributes of actual

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property. When the law of Congress has done that, it is functus officio; and it leaves that right, which it has placed in the class of actual property, to be used and enjoyed like every other kind of actual property, conformably to the laws of the place where it is to be enjoyed. That which is thus the object of the power and law of Congress, is the patent-right, which it has, as it were, converted into a chattel. But the difference between the patent-right and the thing patented, is great and palpable, equal to the difference between a copy-right and a book. If a State attempted to authorize a violation of these rights, to enable another to make use of or vend the thing patented, or to print the book, or to throw open and in common, the patent-right or the copy-right, then its law would be unconstitutional. But the rights, and only the rights, are the object of the power and laws of Congress; the things themselves are personal property or chattels of the ordinary kind, to be enjoyed, like all other property, subject to laws over which Congress has no control.

          If so, why has not a State a right to prohibit the use of the thing patented within its jurisdiction? It can do so, as to all other kinds of property. It is no argument to say, that if one State can do it, every State can do it. If every State wished to do it, how could they, or why should they, be prevented? But, is not that the case with every kind of property? And if they should extend that power over any species of unpatented property, could Congress interfere? The individual States having that power over every kind of

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originally perfect property, can it be supposed, that because Congress was empowered to turn imperfect into perfect property, this newly secured species should occupy a superior class, and possess privileges and exemptions that were never attached to any other kind of property? The power of regulating and prohibiting the use of every kind of property must be somewhere; it is a necessary part of legislative sovereignty, and must be intrusted to some constituted authority. As to all other kinds of property, it is undoubtedly in the State Legislatures. Things patented may be dangerous or noxious; they may be generally useful, and locally injurious; such, for instance, might be torpedoes in a peaceful and commercial port; fire balloons and squibs in a populous city; though, in some places and on some occasions, they may well be useful and advantageous, or, at least, harmless. Among the curiosities in the patent office, there probably are some patented velocipedes. The Corporation of New-York, in 1819, by an ordinance, prohibited the use of any velocipede in the streets of that city. Had it not a right to do so; and could the owner of any of those patent velocipedes use them in the streets, in despite of that ordinance? The Legislature of New-York has, for many years, prohibited the drawing of any lotteries there, except what it has granted to certain public institutions, such as Union College, and the College of Physicians. By virtue of the prohibition to others, and the grant to those institutions, they have obtained an exclusive right of drawing lotteries. similar to

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that, the constitutionality of which is now in controversy. Joseph Vanini has patented a new mode of drawing lotteries, which is, unquestionably, a great improvement, simplifying the operation, and, by completing it in less than five minutes, preventing all insurances, and many of the evils attendant on the old mode. But, could he, because his invention is an improvement and patented, insist on a right to use it, and draw lotteries in the State of New-York, contrary to its laws, and indeed, now, to the express provisions of its constitution? No. The power to prohibit the use of patented things, either generally or locally, must reside somewhere. Can Congress prohibit the use of locally injurious, but patented, things, in the waters, or the cities, or the populous towns of New-York? If not, because it has no power of regulation or prohibition, where does that power reside? If it reside, as it must, exclusively in the State Legislatures, or subordinate authorities, who but their constituents can inquire into the motives or propriety of their exercise of that power, or the extent to which it should be carried? If the States have not that regulating and controlling power, as Congress assuredly has it not, what is the consequence? A patent can be got for any thing, and with no previous competent authority to decide upon its utility or fitness. If it once issues from the patent office, as full of evils as Pandora's box, if they be as new as those that issued from thence, it is above the restraint and control of the State Legislatures—of the Legislature of the United States—of every human authority!

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I put the case of their being noxious or dangerous; but there may be a multitude of other reasons for regulating, restraining, or even prohibiting their use; of these Congress can take no cognizance. If the State governments can take no cognizance of them, no institution can; if they can take cognizance, their power is exclusive, and their exercise of it cannot be reviewed. Could Congress (incapable as it is, of itself, prohibiting the use of patented things,) pass a law, in words, that a patentee shall have a right to use his patented machine in any State, notwithstanding any prohibitory laws of that State? Would that be within the power of Congress? How, then, can implication give to the patentee the same right? If a patent can give a right to use the thing patented, in contravention of this exclusive right, it would have the same effect in contravention of any other exclusive right granted by a State. Ferries, stage-coaches, &c. all the grants respecting them, would be broken down by some patented vehicle, for, they are all, in pari materia, exclusive grants, from motives of public policy; and, having no connexion with the principle of literary property, which is the origin and the object of patent-rights, they cannot be affected by any power given to Congress. A State has the same jurisdiction and authority over its rivers and lakes, that it has over its canals. Now, if the Legislature of New-York judged it advisable so to do, could it not prohibit any boat, using some patented machinery, from navigating its western canal? If it could, why could it not make the

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same prohibition as to its rivers and lakes; and if the act here should be an excess or abuse of legislation, would not its responsibility be exclusively to the people of the State?

          The State of New-York, from motives not examinable here, made a contract, which is the foundation of our right; it could only do so by a law. The State had a right to contract, and, so far, it stands on the same footing as if one individual contracted, for a valuable consideration, with another, to receive his supplies of any article from him only. In the case of individuals, could a man, having a patented improvement of the same article, insist on annulling that contract, as interfering with his exclusive right and patent? If not, why should not a State, capable of contracting, have the same right to make that bargain, and, consequently, exclude the use of the patented article in its jurisdiction and domain, as an individual has in his own house and farm? The waters of the State are the domain and property of the State, subject only to the commercial regulations of Congress. Why should not the contract of a State, in regard to its domain and property, be as sacred as that of an individual? Such a contract was in this, and may in many cases, be very useful and advantageous. Who is to judge of that but the State Legislatures? Could Congress have made this contract, or acquired this benefit for the State? Certainly not. If the State cannot, what power or authority can? And is it come to this, that a contract, such as every individual in the land may wisely and lawfully

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make, for his own benefit, and to be enforced in his own premises, no State, and no authority for any State, can make for its benefit, and to be enforced in its jurisdiction?

          There are circumstances connected with those laws, sufficient to make any tribunal require the strongest arguments before it adjudged them invalid. The State of New-York, by a patient and forbearing patronage of ten years, to Livingston and Fulton, by the tempting inducement of its proferred reward, and by the subsequent liberality of its contract, has called into existence the noblest and most useful improvement of the present day. Genius had contended with its inherent difficulties, for generations before; and if some had nearly reached, or some even touched, the goal, they sunk exhausted, and the result of their efforts perished in reality, and almost in name. Such would, probably, have been the end of Fulton's labours; and, neither the wealth and talents of his associate, nor the resources of his own great mind, would have saved him from the fate of others, if he had not been sustained, for years, by the wise and considerate encouragement of the State of New-York. She has brought into noonday splendour, an invaluable improvement to the intercourse and consequent happiness of man, which, without her aid, would, perhaps, have scarcely dawned upon our grandchildren. She has not only rendered this service to her own citizens, but the benefits of her policy have spread themselves over the whole Union. Where can you turn your eyes, and where can you travel,

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without having your eyes delighted, and some part of the fatigues of your journey relieved, by the presence of a steam boat? The Ohio and Mississippi, she has converted into rapid channels for communicating wealth, comforts and enjoyments, from their mouths to their head waters. And the happy and reflecting inhabitants of the States they wash, may well ask themselves, whether, next to the constitutions under which they live, there be a single blessing they enjoy from the art and labour of man, greater than what they have derived from the patronage of the State of New-York to Robert Fulton. But the mighty benefits that have resulted from those laws, are not circumscribed, even by the vast extent of our Union. New-York may raise her head, she may proudly raise her head, and cast her eyes over the whole civilized world; she there may see its countless waters bearing on their surface countless offsprings of her munificence and wisdom. She may fondly calculate on their speedy extension in every direction and through every region, from Archangel to Calcutta; and justly arrogating to herself the labours of the man she cherished, and, conscious of the value of her own good works, she may turn the mournful exclamation of AEneas into an expression of triumph, and exultingly ask,

          Quae regio in terrris, nostri non plena laboris?

          And it is, after all those advantages have beer acquired and realized to the world—after numerous individuals have embarked their fortunes, or

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the faith of those grants, and a ten years acquiescence in the decision by which they were sanctioned—after the property they have created has been diffused among a multitude of possessors after it has become the sole support of the widow and the orphan after it has received and exhausted the accumulated savings of the laborious and industrious heads of families, that a decision is required, which cannot, indeed, undo the lasting benefits already procured to the world, but would, assuredly, undo many of those who have confided their wealth and means to the stability and observance of those laws!

          The Attorney-General, for the appellant, in reply, insisted, that the laws of New-York were unconstitutional and void:

          1. Because they are in conflict with powers exclusively vested in Congress, which powers Congress has fully exercised, by laws now subsisting and in full force.

          2. Because, if the powers be concurrent, the legislation of the State is in conflict with that of Congress, and is, therefore, void.

          He stated, that the powers with which the laws of New-York conflict, are the power 'to promote the progress of science and the useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and inventions,' and the power 'to regulate commerce with foreign nations, and among the several States.' If these powers were exclusive in Congress, and it had exercised them by

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subsisting laws; and if the laws of New-York interfere with the laws of Congress, by obstructing, impeding, retarding, burdening, or in any other manner controlling their operation, the laws of New-York are void, and the judgment of the State Court, founded on the assumption of their validity, must be reversed.

          In discussing this question, the general principles assumed, as postulates, on the other side, might be, for the most part, admitted. Thus, it might be admitted, that by force of the declaration of independence, each State became sovereign; that they were, then, independent of each other, and foreign to each other; that by virtue of their separate sovereignty, they had, each, full power to levy war, to make peace, to establish and regulate commerce, to encourage the arts, and generally to perform all other acts of sovereignty. It was also conceded, that the government of the United States is one of delegated powers; and the counsel for the respondent added, that it is one of enumerated powers. Yet they admitted that there were implied powers, and had given a different rule for the construction of the two classes of powers, which was, that 'the express powers are to be construed strictly, the implied powers liberally.' But the implied powers, he presumed, were only those which are necessary and proper to carry the powers, expressly given, into effect—the means to an end. This clause had not been generally regarded as, in fact, giving any new powers. Congress would have had them without the express declaration.

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The clause was inserted only ex abundanti cautela. With this explanation, it might be conceded, that the constitution of the United States is one of delegated and enumerated powers; and that all powers, not delegated by the constitution to the national government, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The peculiar rule of construction demanded for those powers, might also be conceded: that the express powers are to be strictly construed, the implied liberally. By which was understood to be meant, that Congress can do no more than they are expressly authorized to do; though the means of doing it are left to their discretion, under no other limit than that they shall be necessary and proper to the end.

          On the other hand, the counsel for the respondent themselves admitted, that Congress, nevertheless, has some exclusive powers; and, in conformity with the decisions of the Court, they admit that those exclusive powers exist under three heads. (1.) When the power is given to Congress in express terms of exclusion. (2.) When a power is given to Congress, and a like power is expressly prhibited to the States. (3.) Where a power given to Congress, is of such a nature, that the exercise of the same power by the States would be repugnant.

          With regard to the degree of repugnancy, it was insisted, that the repugnancy must be manifest, necessary, unavoidable, total, and direct. Certainly if the powers be repugnant at all, they must be so with all these qualifications. If Congress,

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in the lawful exercise of its power, says that a thing shall be done, and the State says it shall not; or, which is the same thing, if Congress says that a thing shall be done, on certain terms, and the State says it shall not be done, except on certain other terms, the repugnancy has all the epithets which can be lavished upon it, and the State law must be void for this repugnancy.

          A new test for the application of this third head of exclusive power, had been proposed. It was said, that 'no power can be exclusive from its own nature, except where it formed no part of State authority previous to the constitution, but was first created by the constitution itself.' But why were these national powers thus created by the constitution? Because they look to the whole United States as their theatre of action. And are not all the powers given to Congress of the same character? Under the power to regulate commerce, the commerce to be regulated is that of the United States with foreign nations, among the several States, and with the Indian tribes. No State had any previous power of regulating these. The same thing might be affirmed of all the other powers enumerated in the constitution. They were all created by the constitution, because they are to be wielded by the whole Union over the whole Union, which no State could previously do. If any one power, created by the constitution, may be exclusive for that reason, then all may be exclusive, because all are originally created. If, on the other hand, we are to consider the powers enumerated in the constitution, not with reference

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to the greater arm that wields them, and the more extended territory over which they operate, but merely in reference to the nature of the particular power in itself considered; then, according to this new test, all the powers given to Congress are concurrent; because there is no one power given to it, which, considered in this light, might not have been previously exercised by the States within their respective sovereignties. But this argument proved too much: for, it has been conceded, that some of the powers are exclusive from their nature; whereas, if the argument were true, none of them could be exclusive. On this argument, the entire class or head of exclusive powers, arising from the nature of the power, must be abolished. But this Court had repeatedly determined, that there is such a class of exclusive powers. The power of establishing a uniform rule of naturalization, is one of the instances. Its exclusive character is rested on the constitutional requisition, that the rule established under it should be uniform.86

          It had been objected, that this would have been a concurrent power, but for the auxiliary provision in the constitution, that a citizen of one State shall be entitled to all the privileges of a citizen in every other State. The answer was, that it is not so determined by the Court in the case cited, and that the commentators on the constitution place it exclusively on the nature of the power as described in the grant.87

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          So also, the power of establishing uniform laws on the subject of bankruptcies, is clearly an exclusive power from its nature. The Court has, indeed, determined, that until Congress thought fit to exercise the power, the States might pass local bankrupt laws, provided they did not impair the obligation of contracts; but, that as soon as Congress legislate on the subject, the power of the States is at an end.88

          But it had been said, that this doctrine takes away State power, by implication, which is contrary to the principles of interpretation laid down by the commentators on the constitution. It was not the opinion of the authors of the Federalist, that a State power could not be alienated by implication. Their doctrine was, that it might be alienated by implication, provided the implication be inevitable; and that it is inevitable wherever a direct and palpable repugnancy exists. The distinction between repugnancy and occasional interference, is manifest. The occasional interference, alluded to in the Federalist, and admitted by this Court, in its adjudications, is not a repugnancy between the powers themselves: it is a mere incidental interference in the operation of powers harmonious in themselves. The case put, was of a tax laid by Congress, and a tax laid by the State, upon the same subject, e. g. on a tract of land. The taxes operate upon, and are to be satisfied out of the same subject. It might be inconvenient to the proprietor to pay both taxes. In an

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extreme case, the subject might be inadequate to the satisfaction of both. Then the tax laid by the paramount authority must be first satisfied. Still, this incidental interference in their operation, is not an inherent repugnance in the nature of the powers themselves.

          It was also said, that to constitute the power an exclusive one in Congress; the repugnance must be such, that the State can pass no law on the subject, which will not be repugnant to the power given to Congress.

          This required qualification before it could be admitted. Some subjects are, in their nature, extremely multifarious and complex. The same subject may consist of a great variety of branches, each extending itself into remote, minute, and infinite ramifications. One branch alone, of such a subject, might be given exclusively to Congress, (and the power is exclusive only so far as it is granted,) yet, on other branches of the same subject, the States might act, without interfering with the power exclusively granted to Congress. Commerce is such a subject. It is so complex, multifarious and indefinite, that it would be extremely difficult, if not impracticable, to make a digest of all the operations which belong to it. One or more branches of this subject might be given exclusively to Congress; the others may be left open to the States. They may, therefore, legislate on commerce, though they cannot touch that branch which is given exclusively to Congress.

          So Congress has the power to promote the progress of science and the useful arts; but only in

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one mode, viz. by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries. This might be an exclusive power, and was contended to be so. Yet, there are a thousand other modes in which the progress of science and the useful arts may be promoted, as, by establishing and endowing literary and philosophical societies, and many others which might be mentioned. Hence, notwithstanding this particular exclusive grant to Congress, of one mode of promoting the progress of science and the useful arts, the States may rightfully make many enactments on the general subject, without any repugnance with the peculiar grant to Congress.

          But, to come now to the question, whether these State laws be repugnant to this grant of power, we must first inquire, why it was conferred on Congress? Why was it thought a matter of sufficient importance to confer this power upon the national government? The answer to this question would be found in the history of the country, in the nature of our institutions, and the great national objects which the constitution had in view. The country was in its infancy; its population was small; its territory immense: it had recently thrown off its bondage by the war of the revolution, and was left exhausted and poor—poor in every thing but virtue and the love of country. It was still dependent on the arts of Europe, for all the comforts, and almost all the necessaries of life. We had hardly any manufactures, science, or literature of our own. Our statesmen saw the

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great destiny which was before the nation, but they saw also the necessity of exciting the energies of the people, of invoking the genius of invention, and of creating and diffusing the lights of science. These were objects, in which the whole nation was concerned, and were, therefore, naturally and properly confided to the national government. The States, indeed, might have exercised their inherent power of legislating on this subject; but their sphere of action was comparatively small; their regulations would naturally have been various and conflicting. Discouragement and discontent would have arisen in some States, from the superior privileges conferred on the works of genius in others; contests would have ensued among them on the point of the originality of inventions; and laws of retortion and reprisal would have followed. All these difficulties would be avoided by giving the power to Congress, and giving it exclusively of the States. If it were wisely exerted by Congress, there could be no necessity for a concurrent exercise of the power by the States.

          The terms of the grant are, 'Congress shall have power to promote the progress of science and the useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.' This exclusive right is to be co-extensive with the territory of the Union. The laws to be made for securing it, must be uniform, and must extend throughout the country. The exclusive nature of every power is to be tested by the character of the

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acts which Congress is to pass. This is the case with the naturalization laws. The exclusiveness of the power to establish them, resulted from their character of uniformity. So here, the exclusiveness results from the character of the right which they are to confer. It is to be exclusive. It is not, indeed, said, that Congress shall have the exclusive power, but it is said that they shall have power to do a certain act, which, when done, shall be exclusive in its operation. The power to do such an act, must be an exclusive power. It can, in the nature of things, be performed only by a single hand. Is not the power of one sovereign to confer exclusive rights, on a given subject, within a certain territory, inconsistent with a power in another independent sovereign, to confer exclusive rights on the same subject, in the same territory? Do not the powers clash? The right to be conferred by Congress, is to exclude all other rights on the subject in the United States; New-York being one of those States. The right to be conferred by New-York, is to exclude all other rights on the subject within the State of New-York. That one right may exclude another, is perfectly intelligible; but that two rights should reciprocally exclude each other, and yet both continue to subsist in perfect harmony, is inconceivable. Can a concurrent power exist, if, from the very nature of its action, it must take away, or render nugatory, the power given to Congress? Supposing the power to be concurrent, Congress may secure the right for one period of time, and the respective States for another. Congress may

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secure it for the whole Union, and each State may secure it to a different claimant, for its own territory. Congress possesses the power of granting an exclusive right to authors and inventors, within the United States. New-York claims the power to grant such exclusive right within that State. An author or inventor in that State, may take a grant for a period of time far longer than that allowed by the act of Congress. He may take a similar grant from every other State in the Union; and thus this pretended concurrent power supersedes, abrogates, and annuls the power of Congress. What would become of the power of Congress after the whole sphere of its action was taken away by this concurrent power of the States? Who would apply to the power of Congress for a patent or a copy-right, while the States held up higher privileges? This concurrent legislation would degenerate into advertisements for custom. These powers would be in the market, and the highest bidder would take all. Are not powers repugnant, when one may take from the other the whole territory on which alone it can act? Is not the repugnance such as to annihilate the power of Congress, as completely as if the whole Union was itself annihilated?

          Something had been said of Congress repealing the laws of the State, wherever they should conflict with those of the Union. But where is this power of repeal? There is no such head of power in the constitution. Congress can act only by positive legislation on any subject, and this it has done in the present instance. But this action

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would be in vain, if another authority can act on the same subject. If this concurrent power would defeat the power of Congress, by withdrawing from it the whole territory on which it is to act, it would also defeat it by giving a monopoly of all the elements with which invention is to work. This has been done by these laws, as to fire and steam. Why should it not be done equally with all the other elements, such as gravitation, magnetism, galvanism, electricity, and others? What is to consecrate these agents of nature, and secure them from State monopoly, more than fire or steam? If not, then is the power of Congress subject to be defeated by this concurrent power, first by a monopoly of all the territory on which it can act, and then by a monopoly of all the elements and natural agents on which invention can be exerted. Still it would be said, that there is no direct repugnance between these powers, and that the power of Congress may still act. But on what can it act? The territory is gone, and all the powers of invention are appropriated. There is no difference whatever between a direct enactment, that the law of Congress shall have no operation in New-York, and enactments which render that operation impossible. If, then, this process of reasoning be correct, the inevitable conclusion from it is, that a power in the States to grant exclusive patents, is utterly inconsistent with the power given to the national government to grant such exclusive patents: and hence, that the power given to Congress is one which is exclusive from its nature.

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          But suppose, for the sake of the argument, that the States have this concurrent power, yet it cannot be denied, that if the legislation of the State be repugnant to the laws of Congress, that of the State is void, so far as the repugnance exists. In the present case the repugnance is manifest. The law of Congress declares, that all inventors of useful improvements throughout the United States, shall be entitled to the exclusive right in their discoveries for fourteen years only. The law of New-York declares, that this inventor shall be entitled to the exclusive use of his discovery for thirty years, and as much longer as the State shall permit. The law of Congress, by limiting the exclusive right to fourteen years, in effect declares, that after the expiration of that time, the discovery shall be the common right of the whole people of the United States. The law of New-York declares that it shall not, after fourteen years, be the exclusive right of the people of the United States, but that it shall be the exclusive right of this inventor for thirty years, and for so much longer as she, in her sovereign will and pleasure, may permit. If this be not repugnance, direct and palpable, we must have a new vocabulary for the definition of the word.

          But it was said, that the appellant had no patent under the United States, and therefore, could not raise the question. To this it was answered, that it was not necessary that he should have a patent. The question as to the validity of the law of New-York, is raised, whenever a right is asserted under that law, and is resisted by the

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party against whom it is asserted; and that validity is to be tested, not by comparing the law of New-York with a patent, but by comparing it with the constitution and laws of the United States.

          It was also said, that there could be no repugnance, because it was admitted, that wherever a patent from the United States appears, the patent obtained under the State law must yield to it; that the patent under the State is valid only until the patent from the paramount power appears; and that the rights derived from the different sovereigns must be found practically to clash, before the law of New-York was to give way for repugnancy. This is an insidious argument, and fraught with all the dangers which have been enumerated. For if the New-York patentee be the inventor, the law of New-York is absolute, and however unconstitutional it may be, there is no power of resistance. Besides, the argument is incorrect. To illustrate this, suppose a grant from Virginia, within the military reservation in Ohio, after she had ceded the whole territory to the United States; would the party in possession, even if a mere intruder, be bound to show a grant from the United States, before he could resist the unlawful grant of Virginia? But there the plaintiff would be claiming under a State which had previously ceded away the power to make such grants, which is precisely the case here, so that there need be no repugnance arising from patents. If a repugnance exist between the laws of New-York and the constitution and laws of the United States, any citizen of the United States has a right to act

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as if the law of New-York were a nullity; and the question of its nullity and validity arises, wherever an attempt is made to enforce it.

          But it was argued that the power of Congress is limited to inventors, and that the power to encourage by patents the introduction of foreign discoveries, stands clear of this constitutional grant. If it were necessary, this doctrine might be questioned. The statute of the 21st James I. c. 3. uses the same word with the constitution, 'inventors;' and the decisions upon the construction of this statute might be referred to, in order to show that it has been considered as embracing discoveries imported from abroad.89 But, even acceding to this doctrine, it might be asked whether the question now before the Court had any thing to do with an art, machine, or improvement, imported from abroad? The privilege here granted by the State, is to an American citizen, who claims to be the inventor. The privilege is the reward of invention, not of importation, and this it is which brings it in conflict with the act of Congress. It is true, the law does not call him the inventor; it calls him merely the 'possessor.' But, can the constitution and laws of the United States be evaded in this manner? If he was not the inventor, why this unjust tax which has been levied upon our admiration and gratitude? When the validity of a law is challenged for a fraudulent evasion of the rights of others, you are not bound by its own averments, but may resort to proof

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aliunde to establish the facts. The word possessor is a new and unusual word to apply to such a case, and marks a studious effort to conceal the truth. He was, of necessity, either the inventor or the importer. If he was the importer, there is no conceivable reason why he should be called by any other than that name. The Legislature of New-York, in its act in behalf of Fitch, passed before the adoption of the constitution, had no difficulty in applying the natural and appropriate name to him. But when the final law was passed in favour of Livingston and Fulton, in 1798, the constitution of the United States, which cedes this power to Congress, had been adopted, and the laws by which that power is executed had been passed. This constitution and these laws used the term inventors. But the privilege was too short. The State of New-York offered better terms. The only difficulty was, to give them effect without encroaching upon that power which had been constitutionally exercised by Congress. It would not do to call them inventors, and the device was adopted of calling him merely the possessor, which was a manifest evasion of the law of Congress.

          But it was contended, that the patent laws of the United States give no right; they only secure a pre-existing right at common law. What then do these statutes accomplish? If they do nothing more than give the inventor a chattel interest in his invention, and a remedy for its violation, he had these at common law. And if they only give him a mere right to use his invention in the States,

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with their permission, he had that before. The case of Millar v. Taylor proves the right to have been perfect at common law. The time of enjoyment was far greater. Thompson's Seasons had been published forty years when that action was brought. If the patent and copy-right laws were merely intended to secure an exclusive right throughout the United States, and are, in fact, a limitation on the common law right, (as was contended by the respondent's counsel,) when this right has been thus secured throughout the United States, and a limitation constitutionally put upon it by Congress, can a State interfere with this regulation? The limitation is not for the advantage of the inventor, but of society at large, which is to take the benefit of the invention after the period of limitation has expired. The patentee pays a duty on his patent, which is an effective source of revenue to the United States. It is virtually a contract between each patentee and the people of the United States, by which the time of exclusive and secure enjoyment is limited, and then the benefit of the discovery results to the public. A State cannot, by its local laws, dereat this resulting interest of the whole Union.

          But it was said that a State might prohibit the use of a patented machine, if it be noxious to the health of its citizens, or of an immoral or impious book, the copy-right of which had been secured. The answer to all such arguments was, that it would be time enough to consider such questions when they arise. The constitutional power of Congress is to patent useful discoveries. The

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patent authorizes the patentee to use his invention, and it is the use which is secured. When a discovery is deemed useful by the national government, and a patent shall issue authorizing the patentee to use it throughout the United States, and the patentee shall be obstructed by a State in the exercise of this right, on the ground that the discovery is useless and dangerous, it will be time enough to consider the power of the States to defeat the exercise of the right on this ground. But this is not the question before the Court. It might be admitted, that the State had authority to prohibit the use of a patented machine on that ground, or of a book, the copy-right of which had been secured, on the ground of its impiety or immorality. But the laws which are now in judgment were not passed upon any such ground. The question raised by them is, can the States obstruct the operation of an act of Congress, by taking the power from the National Legislature into their own hands? Can they prohibit the publication of an immoral book, licensed by Congress, on the pretext of its immorality, and then give an exclusive right to publish the same book themselves? Can they prohibit the use of an invention on the ground of its noxiousness, and then authorize the exclusive use of the same invention by their own law?

          But there is no pretext of noxiousness here. The authority to enact these laws is taken up under a totally distinct head of State power. It is the sovereign power to grant exclusive privileges and create monopolies, the constitution and laws

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of the United States to the contrary notwithstanding. This is the real power under which these laws are defended; and it may perplex, although it cannot enlighten the discussion, to confound it with another and a distinct head of State power. If then the power of securing to authors and inventors the use of their writings and discoveries, be exclusively vested in Congress, the acts of New-York are void, because they are founded on the exercise of the same power by the State. And if the power be concurrent, these acts are still void, because they interfere with the legislation of Congress on the same subject.

          These laws were also void, because they interfere with the power given to Congress, to regulate commerce with foreign nations and among the several States. This nullity of the State laws would be supported, first, upon the ground of the power being exclusive in Congress; and, secondly, that if concurrent, these laws directly interfered with those of Congress on the same subject.

          That this power was exclusive, would be manifest from the fact, that the commerce to be regulated, was that of the United States; that the government by which it was to be regulated, was also that of the United States; and that the subject itself was one undivided subject. It was an entire, regular, and uniform system, which was to be carried into effect, and would not admit of the participation and interference of another hand. Does not regulation, ex vi termini, imply harmony and uniformity of action? If this must be admitted to be the natural and proper force of the

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term, let us suppose that the additional term, uniform, had been introduced into the constitution, so as to provide that Congress should have power to make uniform regulations of commerce throughout the United States. Then, according to the adjudications on the power of establishing a uniform rule of naturalization, and uniform laws of bankruptcy, throughout the United States, this power would unquestionably have been exclusive in Congress. But regulation of that commerce which pervades the Union, necessarily implies uniformity, and the same result, therefore, follows as if the word had been inserted.

          With regard to the quarantine laws, and other regulations of police, respecting the public health in the several States, they do not partake of the character of regulations of the commerce of the United States. It had been said, that these local regulations were recognised by Congress, which had made them a part of its own system of commerce. But this recognition would have been superfluous, if they could have stood without it on the basis of State sovereignty; and so far as their adoption by Congress could be considered as affeeting the question, the manner and purpose of the recognition operated the other way. It would be found that, by the commercial regulations which Congress had made, a general system was adopted, which, if executed in every instance, would have carried ships and vessels into all the ports of the several States, their local quarantine laws to the contrary notwithstanding. An express regulation is, therefore, introduced, requiring the collectors

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of the customs to conform the execution of their official duties, under the navigation and revenue laws, with the quarantine laws of the respective States. Without such a provision, the local health laws must have given way to the supremacy of the navigation and revenue laws of the Union.

          A serious objection to the exclusive nature of this power of regulating commerce, was supposed to arise from the express prohibitions on the States, contained in the 10th sec. of the 1st art. of the constitution. It has been considered, that these prohibitions imply that, as to every thing not prohibited, the power of the State was meant to be reserved; and the authority of the authors of the Fedcralist, was cited in support of this interpretation. But another commentator, of hardly less imposing authority, and writing, not as a polemic, for the purpose of vindicating the constitution against popular objections, but for the mere purpose of didactic instruction as a professor, with this section before him, and with a strong leaning towards State pretensions, considers the power to regulate commerce as an exclusive power.90 But the difference between them is rather in appearance, than in reality. It does not appear that the author of that number of the Federalist, did himself consider these police regulations as, properly speaking, regulations of the commerce of the Union. But the objectors to the constitution had presented them as such, and his argument in substance is, that if

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they are, the constitution does not affect them. The other commentator did not consider them as regulations of the commerce of the United States; for if he did, he could not admit them, as he did, to be left in the States, and yet hold the opinion that the power to regulate commerce was exclusively vested in Congress. But might not a reason for these prohibitions be found, in the recent experience of the country, very different from that which had heretofore been assigned for them. The acts prohibited, were precisely those which the States had been passing, and which mainly led to the adoption of the constitution. The section might have been inserted ex abundanti cautela. Or the convention might have regarded the previous clause, which grants the power to regulate commerce, as exclusive throughout the whole subject; and this section might have been inserted to qualify its exclusive character, so far as to permit the States to do the things mentioned, under the superintendance and with the consent of Congress. If either or both of these motives combined for inserting the clause, the inference which had been drawn from it against the exclusive power of Congress to regulate commerce, would appear to be wholly unwarranted.

          But if these police regulations of the States are to be considered as a part of the immense mass of commercial powers, is not the subject susceptible of division, and may not some portions of it be exclusively vested in Congress? It was viewing the subject in this light, that induced his learned associate91

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to assume the position which had been misconceived on the other side. This proposition was, not that all the commercial powers are exclusive, but that those powers being separated, there are some which are exclusive in their nature; and among them, is that power which concerns navigation, and which prescribes the vehicles in which commerce shall be carried on. It was, however, immaterial, so far as this case was concerned, whether the power of Congress to regulate commerce be exclusive or concurrent. Supposing it to be concurrent, it could not be denied, that where Congress has legislated concerning a subject, on which it is authorized to act, all State legislation which interferes with it, is absolutely void. It was not denied, that Congress has power to regulate the coasting trade. It was not denied that Congress had regulated it. If the vessel now in question, was sailing under the authority of these regulations, and has been arrested by a law of New-York forbidding her sailing, the State law must, of necessity, be void. The coasting trade did, indeed, exist before the constitution was adopted; it might safely be admitted, that it existed by the jus commune of nations; that it existed by an imperfect right; and that the States might prohibit or permit it at their pleasure, imposing upon it any regulations they thought fit, within the limits of their respective territorial jurisdictions. But those regulations were as various as the States; continually conflicting, and the source of perpetual discord

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and confusion. In this condition, the constitution found the coasting trade. It was not a thing which required to be created, for it already existed. But it was a thing which demanded regulation, and the power of regulating it was given to Congress. They acted upon it as an existing subject, and regulated it in a uniform manner throughout the Union. After this regulation, it was no longer an imperfect right, subject to the future control of the States. It became a perfect right, protected by the laws of Congress, with which the States had no authority to interfere. It was for the very purpose of putting an end to this interference, that the power was given to Congress; and if they still have a right to act upon the subject, the power was given in vain. To say that Congress shall regulate it, and et to say that the States shall alter these regulations at pleasure, or disregard them altogether, would be to say, in the same breath, that Congress shall regulate it, and shall not regulate it; to give the power with one hand, and to take it back with the other. By the acts for regulating the coasting trade, Congress had defined what should be required to authorize a vessel to trade from port to port; and in this definition, not one word is said as to whether it is moved by sails or by fire; whether it carries passengers or merchandise. The license gives the authority to sail, without any of those qualifications. That the regulation of commerce and navigation, includes the authority of regulating passenger vessels as well as others, would appear from the most approved definitions of the term commerce. It always

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implies intercommunication and intercourse. This is the sense in which the constitution uses it; and the great national object was, to regulate the terms on which intercourse between foreigners and this country, and between the different States of the Union, should be carried on. If freight be the test of commerce, this vessel was earning freight; for what is freight, but the compensation paid for the use of a ship? The compensation for the carrying of passengers may be insured as freight. The whole subject is regulated by the general commercial law; and Congress has superadded special regulations applicable to vessels employed in transporting passengers from Europe. In none of the acts regulating the navigation of the country, whether employed in the foreign or coasting trade, had any allusion been made to the kind of vehicles employed, further than the general description of ships or vessels, nor to the means or agents by which they were propelled.

          In conclusion, the Attorney-General obscrved, that his learned friend (Mr. Emmett) had eloquently personified the State of New-York, casting her eyes over the ocean, witnessing every where this triumph of her genius, and exclaiming, in the language of AEneas,

          'Quae regio in terris, nostri non plena laboris?'

          Sir, it was not in the moment of triumph, nor with feelings of triumph, that AEneas uttered that exclamation. It was when, with his faithful Achates by his side, he was surveying the works of art

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with which the palace of Carthage was adorned, and his attention had been caught by a representation of the battles of Troy. There he saw the sons of Atreus and Priam, and the fierce Achilles. The whole extent of his misfortunes—the loss and desolation of his friends—the fall of his beloved country, rush upon his recollection.

          'Constitit, et lachrymans; Quis jam locus, inquit, Achate, Quae regio in terris nostri non plena laboris?'

          Sir, the passage may, hereafter, have a closer application to the cause than my eloquent and classical friend intended. For, if the state of things which has already commenced is to go on; if the spirit of hostility, which already exists in three of our States, is to catch by contagion, and spread among the rest, as, from the progress of the human passions, and the unavoidable conflict of interests, it will too surely do, what are we to expect? Civil wars have often arisen from far inferior causes, and have desolated some of the fairest provinces of the earth. History is full of the afflicting narratives of such wars, from causes far inferior; and it will continue to be her mournful office to record them, till time shall be no more. It is a momentous decision which this Court is called on to make. Here are three States almost on the eve of war. It is the high province of this Court to interpose its benign and mediatorial influence. The framers of our admirable constitution would have deserved the wreath of immortality

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which they have acquired, had they done nothing else than to establish this guardian tribunal, to harmonize the jarring elements in our system. But, sir, if you do not interpose your friendly hand, and extirpate the seeds of anarchy which New-York has sown, you will have civil war. The war of legislation, which has already commenced, will, according to its usual course, become a war of blows. Your country will be shaken with civil strife. Your republican institutions will perish in the conflict. Your constitution will fall. The last hope of nations will be gone. And, what will be the effect upon the rest of the world? Look abroad at the scenes which are now passing on our globe, and judge of that effect. The friends of free government throughout the earth, who have been heretofore animated by our example, and have held it up before them as their polar star, to guide them through the stormy seas of revolution, will witness our fall with dismay and despair. The arm that is every where lifted in the cause of liberty, will drop, unnerved, by the warrior's side. Despotism will have its day of triumph, and will accomplish the purpose at which it too certainly aims. It will cover the earth with the mantle of mourning. Then, sir, when New-York shall look upon this scene of ruin, if she have the generous feelings which I believe her to have, it will not be with her head aloft, in the pride of conscious triumph—'her rapt soul sitting in her eyes;' no, sir, no: dejected, with shame and confusion—drooping under the weight of her

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sorrow, with a voice suffocated with despair, well may she then exclaim,

          'Quis jam locus, Quae regio in terris nostri non plena laboris!'

March 2.

           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

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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

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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

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for which it was given, especially when those ob jects 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

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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

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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 exphicit. 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

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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

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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

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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

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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

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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

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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 co-extensive with the subject itself, and have no other limits than are prescribed in the constitution, yet the States may severally

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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

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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,

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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,

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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

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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,

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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 every thing 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

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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

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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 1799,92 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

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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 concilitation, 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 1803,93 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

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Congress to regulate commerce, and the exception is expressed in such words, as to manifest clearly the intention to continue the pre-existing 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

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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,

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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

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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, law. The appropriate

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inconsistent with the constitution, is produced by the declaration, that the constitution is the supreme preme 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 agve 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 pre-existing 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

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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 alicense 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, the the vessels it describes shall

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be entitled to the privileges of ships or vessels employed in the coasting trade. Thes e 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 steam-boat, 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

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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 enrolment, 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 enrolment of vessels designed for the coasting trade, corresponds precisely with the registration of vessels

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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 enrolment 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

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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 distinetion.

          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

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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 transporation 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

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vessels.' This wise and humane law provides for the safety and comfort of passengers, and for the communication of every thing 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 pre-existing 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

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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

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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 every thing 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 steam boats. With this exception, every act, either prescribing duties, or granting privileges, applies to every vessel, whether nayigated 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 steam boats 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

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mentioned, entitled, 'An act for the enrolling and licensing of steam boats.'

          This act authorizes a steam boat 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 steam boats 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

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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 selfevident, 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

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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

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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. Every one recollects the painful and threatening discussions, which arose on the subject of the five per cent. 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

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the most enlightened men of his day,94 affirming, that 'it is indispensably necessary, that the United States, in Congress assembled, should bevested 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,95 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

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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

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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

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the act. Were every law on the subject of commerce repealed to-morrow, 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

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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,

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the vehicle, the agent, and their various operations, become the objects of commercial regulation. Ship building, 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

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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 steam boat, 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 steam boat 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 steam boat 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 of 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 to-morrow, the rights of the appellant to a reversal of the decision complained of, would be as

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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 enrolment. 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.

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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 1st 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

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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 steam boat 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 steam boats

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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

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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

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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 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 co-operation 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 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 steam boats 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 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 steam boats 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.

1 1 Laws U. S. p. 28.

2Id. 50.

3 1 Bl. Com. 273. 4 Bl. Com. 160.

4 M'Culloch v. Maryland, 4 Wheat. Rep. 405. Per Marshall, C.J. Houston v. Moore, 5 Wheat. Rep. 48. Per Story, J.

5The Federalist, No. 82. Houston v. Moore, 5 Wheat. Rep. 48. Per Story, J.

6 Sturges v. Crowninshield, 4 Wheat. Rep. 193. Per Marshall, C. J. Houston v. Moore, 5 Wheat. Rep. 15. 17. Per Washington, J. Id. 45. Per Johnson, J. Id. 48. Per Story, J.

7 Chirac v. Chirac, 2 Wheat. Rep. 268, 269.

8 Sturges v. Crowninshield, 4 Wheat. Rep. 193.

9The Federalist, No. 32.

10Id. No. 82.

11Id. No. 32.

12Id. No. 32.

13 M'Culloch v. Maryland, 4 Wheat. Rep. 425. Per Marshall, C.J. Huston v. Moore, 5 Wheat. Rep. 49. Per Story, J.

14 1 R. L. c. 30. s. 36.

15 Sturges v. Crowninshield, 4 Wheat. Rep. 195, 196. Per Marshall, C. J. Houston v. Moore, 5 Wheat. Rep. 34. 45. Per Johnson, J. Id. 49, 50. 55. Per Story, J. Livingston v. Van Ingen, 9 Johns. Rep. 575, 576. Per Thompson, J.

16 1 R. L. p. 406. s. 5. 6.

17 4L. U. S. 67.

18 1 R. L. 404.

19 4 L. U. S. 91. 6 Id. 47.

20 Houston v. Moore, 5 Wheat. Rep. 69. Per Story, J.

21Id. 51.

22 1 R. L. of N. Y. 216. Laws of Georgia, 468. 6 Laws of Pennsylvania, 320.

23The Federalist, No. 43.

24 4 Burr. 2408.

25 3 Wheat. Rep. App. p. 15.

26The Federalist, No. 32.

1 These laws will be found specifically enumerated and stated in a note to Mr. Emmett's argument.

2The Federalist, No. 12.

3Vattel, Droit des Gens, liv. 1, c. 8. 1. 2. c. 2.

4Vattel, 1. 2. c. 8. s. 180.

5Ingersoll's Dig. 586.

6Id. 583.

7Ingersoll's Dig. 506. 612. 617.

8 Livingston v. Van Ingen, 9 Johns. Rep. 507.

9 6 Johns. Rep. 559, 560. Per Yates, J. 563. Per Thompson, J. 573, 574. Per Kent, Ch. J.

10 Houston v. Moore, 5 Wheat. Rep. 1. Per Johnson, J. p. 33.

11p. 75.

12p. 222.

13p. 323, 324.

14Virginia Debates, 300.

15Virginia Debates, 313.

16 Nos. 32. 82.

17 4 Wheat. Rep. 124.

18Id. 193.

19 5 Wheat. Rep. 48. 54.

20 Livingston v. Van Ingen, 9 Johns. Rep. 565, 571.

21Tucker's Bl. Comm. Part 1. App. D. p. 154.

22 United States v. Fisher, 2 Cranch, 358. M'Culloch v. Maryland, 4 Wheat. Rep. 316.

23 United States v. Bevans, 3 Wheat. Rep. 336.

24 4 Inst. 137, 138, 139, 140. 12 Co. 129. Moor, 122. 891, 892.

25 De Lorio v. Boit, 2 Gallis. Ren. 308.

26 In those States, 1st, as to ferries and bridges: In the laws of New-York, (3d vol. Webster's ed. p. 321.) an act passed 19th March, 1803, grants to John Ransom the exclusive right, for ten years, to keep a ferry across Lake Champlain, from his landing, at Cumberland Head, to Grand Isle, in Vermont, with a prohibition and penalty against any other person's keeping a ferry, or transporting any persons, goods or chattels, for hire or pay, across the lake, between the point of Cumberland Head and the north point, called Gravelly, Point, on said Cumberland Head. An act passed May 16th, 1810, (6th vol. Websters & Skinner's ed. p. 16.) makes the same grant for ten years more, with the same prohibition and penalties, to Russel Ransom. An act passed May 26th, 1812, (Id. 394.) grants, in the same way, to Peter Deall, and his assigns, to keep a ferry across Lake Champlain, from Ticonderoga to the town of Shoreham, in Vermont, for sixteen years, with a like prohibition and penalties for carrying, &c. from any place on the west shore, within half a mile north or south of Deall's dwelling house. An act, passed March 28, 1805, (4th vol. same ed. 66.) gives to David Mayo the same right, from his landing, in the said town of Champlain, to Windmill Point, in Vermont, for ten years, with a like prohibition and penalty. An act, passed February 20, 1807, (5th vol. same ed. p. 11.) gives to Peter Steenberg the same right to keep, &c. a ferry between the south west point of Carlton Island and the outlet of Lake Ontario, (the high road to Canada,) with the same prohibition and penalty.

In Georgia, by an act of the 14th December, 1809, an exclusive right is given to Joseph Hill, &c. for one hundred years, to erect three toll bridges across the Savannah and its branches, (dividing South Carolina and Georgia,) a little above the city of Savannah, on the road between it and Charleston; and it prohibits any person's erecting a toll bridge across the said river Savannah, up or down it, within five miles of the city. An act of December 6, 1813, authorized John Hill to establish a ferry from Savannah to Proctor's Point, till he has built his bridges. An act of 15th of December, 1809, gives to William Garritt and Le Roy Hammond a right to make a toll bridge, and exact toll, across the Savannah river, from a place on the Georgia side, opposite Campbletown; and to Walter Leigh and Edward Rowell a similar bridge, &c. over the Savannah river, at Augusta. An act of December 5, 1800, gives to commissioners the right to establish a ferry over the river Savannah, at Augusta; the tolls to be for the benefit of the academy of Richmond county; which, perhaps, the appellant's counsel may think at variance with his position, that no State has a right to derive revenue by tolls on the trade or intercourse between two States. The same law prohibits any other ferry or bridge between Williams' ferry, opposite Fort Moore's bluff, and Ray's ferry, opposite Campbletown. An act of 6th of December, 1813, gives a ferry across the Savannah, to Ezekiel Dubze; and another is given to Zachariah Bowman and Daniel Tucker. An act, passed 9th of November, 1814, on the express ground of facilitating intercourse with South Carolina, gives to John M'Kinne and Henry Shultz, for twenty years, an exclusive right to a toll bridge over the Savannah, from Augusta, or within four miles thereof; and prohibits the establishing of any other toll bridge over the Savannah, from Augusta, or within four miles above or below the city.

2. As to stages. In the laws of New-York, an act, passed March 30, 1798, (4th vol. Loring & Andrews' ed. p. 399.) grants to Alexander J. Turner and Adonijah Skinner, an exclusive right for five years, of running stages between Lansingburgh and the town of Hampton, in the county of Washington, (i. e. to Vermont, or the road through it to Canada.) An act, passed February 26, 1803, (3d vol. Webster's ed. p. 322.) grants to T. Donally and others, the exclusive right, for seven years, of the same kind, from the city of Albany to the north boundary line of the State of New-Jersey. An act, passed April 6, 1807, (5th vol. Websters & Skinner's ed. p. 186.) grants to John Metcalf the exclusive right, for seven years, of running stage wagons between the village of Canandaigua and the village of Buffalo, (i. e. the road by lake Erie to Pennsylvania, Ohio and Michigan.) (continued on p. 99)

In Georgia, an act of November 25, 1802, gives to Nathaniel Twining, &c. for ten years, the sole and exclusive right of running a line of stage carriages between the city of Savannah and town of St. Marys, (on the borders of Florida.) Sec. 2, gives to him an exclusive right of conveying passengers and their baggage, by water, between Darien and St. Marys, (a coasting trade between two ports of entry, if carrying passengers be a branch of trade,) till a post road is established. An act of December 7th, 1812, gives to William Dunham the right of running stage carriages as above. Add to these, the decision of Perrins v. Sikes, in 1802, (Day's Connect. Rep. in Err. p. 19.) that a grant by the General Assembly, of an exclusive privilege to carry passengers by the stage, on the post road leading to Boston, as far as the Massachusetts line, was valid, which may be added as another legal decision on the constitutionality of those laws. Indeed, as to the regulation of passengers arriving in ships from foreign parts, some of the States have exercised, at least, a concurrent power. Of that kind is the act of the State of New-York, (2 N. R. L. 440.) and New-Jersey has passed a similar law on 10th of February, 1819. (Justice's ed. N. J. Laws, 655.) So also in Massachusetts, (2 Mass. Laws, 629.) by an act of February, 1794, masters of vessels coming from abroad, are required to report passengers, &c. And in Delaware, (2 Laws of Del. ed. 1797, by S. & J. Adams, c. 134. p. 1354.) an act to prevent infectious diseases, passed 24th of January, 1797, (sec. 5.) enacts, that no master, &c. of any ship bound to any port of that State, shall bring or import any greater number of passengers and servants than shall be well provided and supplied with good and wholesome meat, drink, and other necessaries, particularly vinegar, as well to wash and cleanse the vessel, as for the use of the persons on board, during the voyage; and it directs the size of each birth, &c.; and that if any master shall offend, &c. he shall forfeit 600 dollars for every such offence. Sec. 7, enacts, that every master, &c. shall pay to the physician who boards his ship, six cents for every person he shall import or land in that State, which he is thereby authorized to recover from such passengers and servants respectively; and the physician shall pay over the moneys so received, to the treasurer of the trustees of the poor in his county. Here is another instance inconsistent with the position of the appellant's counsel, (if carrying passengers be trading,) that a State has no right to raise a tax or revenue by foreign trade. By another act of that State, passed February 3, 1802, the master or owner is required to give bond, that the person so imported and landed, shall not become chargeable. If the regulation of passengers belong to commerce, and that exclusively, (as it must, if the power to regulate commerce be exclusive,) by what authority can a State Court issue a ne exeat against a trader or merchant about to leave the State?

27 Vol. 1. Part 1. App. D. p. 180.

28p. 309.

29 9 Johns. Rep. 577, 578.

30 1st vol.

31Ib. p. 28.

32 1 L. U. S. p. 49, 50.

33p. 53.

34 p. 321.

35 p. 322.

36 p. 323.

37 p. 324.

34p. 321.

38p. 330.

39 No. 42.

40New-York, as well as many other States, prohibited the importation and exporation of slaves before the adoption of the constitution. The first law was passed in February, 1788; (2 Greenleaf, 85.) it prohibits the selling of an imported slave, and the buying of a slave with intent to export him: and subsequent laws have confirmed and increased the prohibition of exporting and importing slaves. It may be proper here to observe, as applicable to this, as well as to many other laws of the States respecting commerce, that if, after the adoption of the constitution, the individual States have not a right to make them, they, and all other previously made similar laws, would, by force of that disqualification, have become inoperative.

In 1792, the State of Virginia passed a law prohibiting the importation or selling of imported slaves. (1 Pleasants & Pace's ed. p. 186, sec. 13.) In Delaware, (Laws of Del. ed. of 1797, by S. & J. Adams, p. 942.) an act passed February 3, 1789, enacts, that if any owner, master, &c. shall fit out, equip, man, or otherwise prepare any ship or vessel, within any port or place in that State, or shall cause any vessel to sail from any port or place in that State, for the purpose of carrying on a trade or traffic in slaves, to, or from, or between Europe, Asia, Africa, or America, or any places or countries whatsoever, or of transporting slaves to or from one port or place to another, in any part of the world, such ship, &c. her tackle, &c. shall be forefeited to the State, and shall be liable to be seized and prosecuted by any afficer of the customs, by information, &c. And, moreover, every person so fitting out, &c. shall severally forfeit and pay the sum of 500 pounds, one half to the use of the State, the other half to the informer.

It further enacts, that if any person shall export, or sell, with intention to export or carry out for sale, any negro or mulatto slave, from that State to Marland, Virginia, either of the Carolinas, Georgia, or the West Indies, without license or permit of five Justices, & c. he shall pay, for every slave so exported, 100 pounds, and for every attempt so to do, 20 pounds, one half to the use of the State, and one half to the informer. Here is a State law minutely controlling a branch of foreign trade, and of that between the States, and operating explicitly by the officers of the customs. It was passed, indeed, a few weeks before the present constitution went into operation, but long after it had been accepted by Delaware; at all events, it is referred to, and confirmed, by an act, passed June 24, 1793, (c. 22. p. 1094.) requiring bail as to those offences.

In Pennsylvania, (Bioren's ed. vol. 2. p. 443.) an act was passed, March, 1788, also prohibiting the trade; but, before examining it, let it be remembered, that the first law Congress passed on that subject, was in 1794, and that Pennsylvania had accepted the constitution in December, 1787, which, at the time of passing this act, she had recently studied and discussed. Her legislation, then, was not founded on, and did not rely on, any law of Congress in pari materid. She not only prohibited the exportation and importation of slaves, but, by sec. 5. of that act, prohibits the building, fitting out, &c. of any vessel for the slave trade, or to sail from the port for that trade, under the penalty of forfeiture of the vessel, &c. and 1000 pounds by qui tam. At that time, Congress absolutely permitted the slave trade; but, would not that law have been valid to prohibit it from that port?

New-Jersey passed a law to the same purport, in March, 1798, (Patterson's ed. p. 307. Justice's ed. p. 371, 372, 373.) when Congress had only prohibited, and could only prohibit, the trade as a foreign trade. Sec. 12, 13. prohibit the importation of slaves for sale. Sec. 17, 18, 19. prohibit the slave trade, and the fitting out of vessels, for the purpose of transporting slaves from one place to another, clearly including from one State to another, which Congress then could not do.

Connecticut, in October, 1788, after she and nine States had ratified the constitution, (Hudson & Goodwin's ed. p. 626.) forbade any citizen or inhabitant of that State, either as master, factor, supercargo, owner, or hirer of any vessel, directly or indirectly, to transport, or buy, or sell, or receive on board his vessel, with intent to cause to be transported or imported, any of the inhabitants of Africa, as slaves, with qui tam penalties; and made all insurances on them void. And, in 1792, (p. 628.) let it be still remembered, when Congress had no such power, she enacted, that no citizen or inhabitant of that State should transport out of the State, for the purpose of selling into any other State, country or kingdom, or buy or sell, with intent to transport out of that State, or should sell, if transported, &c. In Massachusetts, (1 Laws of Mass. 407, 408.) an act, passed March 26, 1788, reciting the evils of the African, trade, enacts, that no citizens of that Commonwealth, or other person residing within the same, shall, for himself or any other person, as master, factor, supercargo, owner or hirer, in whole or in part, of any vessel, directly or indirectly, import or transport, or buy, or sell, or receive on board his or their vessels, with intent to cause to be imported or transported, any of the inhabitants of any state or kingdom, in that part of the world called Africa, as slaves, &c. under a penalty for every vessel fitted out with such intent, and actually employed, &c. Doubtless, the laws of other States might be produced to the same purpose, if the means of examination had been convenient; those already cited, however, are sufficient to show, that the individual States regulated the slave trade, as a trade, both with foreign nations, and between the States, by virtue of their own sovereign authority, after the adoption of the constitution; but before Congress did, and before they could do it:

41 3 U. S. L. p. 520.

42Tuck. Black. part 1st. Appen. D. p. 251.

43Melcher's ed. p. 302.

44p. 304.

45p. 611.

46 1 vol. p. 270.

47p. 200.

48 1 vol. p. 244.

49p. 313.

50p. 349.

51Marbury & Crawford's Dig. p. 393.

52 2 Del. Laws, ed. 1797, cap. 134, p. 1354.

53 2 Mass. Laws, p. 788.

54p. 872.

55 2 U. S. L. p. 34.

56 3 U. S. L. p. 366, c. 193, s. 3.

57 2 U. S. L. p. 34.

58 2 U. S. L. p. 121.

59 For instance, as to the number of hoops on, and size of barrels or casks, (2 N. R. L. of N. Y. p. 321. s. 5. p. 325. s. 3. p. 330. s. 3, 4. 1 Laws of Maryland, Maxey's ed. 218. 1 Vir. Laws, Pace & Pleasant's ed. p. 352. s. 3. p. 350. s. 3. Laws of Conn. Hudson & Goodwin's ed. p. 394. s. 1, 2. 5, 6. 8, 9.) as to quantity as well as quality or kind, of their contents. What pieces of beef or pork, (2 N. R. L. of N. Y. p. 326. s. 4. p. 326. s. 5. 9. p. 327. s. 11.) or quantity and size of nails should be in one cask, (Laws of N. H. Melcher's ed. 386. Laws of Conn. p. 394. s. 2. p. 256. s. 2.) or the length, breadth, and thickness of staves and heading, lumber, boards, shingles, &c. (2 N. R. L. of N. Y. p. 336. s. 1. 1 Laws of Vir. 237. Laws of Conn. p. 397. s. 21.) These regulations have no object but to improve our foreign trade, and raise the character and reputation of the articles in a foreign market; and if the States have no right to pass laws prohibiting exportation, what can prevent a person having an inferior article, from exporting it, in its uninspected state, and taking his chance for the price it might bring in a foreign market?

These laws are much too numerous and complicated to be detailed; but a very slight examination of some of them will show the very extensive powers for regulating commerce, possessed by the Legislatures from which they emanate. Some operate by the forfeiture of the uninspected article, as in the New-York act for inspecting pot and pearl ashes. (2 N. R. L. p. 335. s. 8.) It gives the liberty of entering on board of any ship, &c. to search for any pot or pearl ashes, shipped or shipping for exportation; and, if any unbranded be discovered, it is forfeited, and the captain subject to a pecuniary fine. A similar forfeiture is given in the same State, (p. 339. s. 8.) and a penalty on the master. (p. 339, 340. s. 10.) In Kentucky, a similar forfeiture is given, for attempting to export unbranded flour. (Ky. Laws, Toulman's ed. 440.) In New-Hampshire, a like forfeiture is given of unpacked beef or pork shipped fro exportation. (Naws of N. H. p. 387, 388.) And in Connecticut, a forfeiture is given of unbranded nails. (Laws of Conn. p. 527. s. 5.) Virginia has enacted a forfeiture of unbranded fish, and a penalty on the master. (1 Laws of Va. p. 353. s. 6.) She has not only done the same in respect to lumber, but she has gone much farther, and acted on the collector and officers of the customs. (1 Laws of Va. p. 238. s. 4.) The collector, or other proper officer of the customs, is thereby charged and directed not to suffer any vessel to clear from his office, unless the master, &c. shall produce inspection notes or certificates, &c. and make oath that he has no lumber on board, but what is entered on his manifest. To this exercise of power, equal to that of Congress itself, I probably shall be told, that Congress has, in the collection laws, directed the collectors to pay regard to the inspection laws of the respective States. That is at least an admission that they are rightfully made; but the answer is entirely insufficient; for the first act of the United States, directing this, was passed the 2d of March, 1799, and the act of Virginia, that I have last referred to, was passed the 26th of December, 1792. In like manner, the laws of the same State give a forfeiture of uninspected tobacco, about to be exported, and similar duties are imposed on the master and collector. (1 Laws of Va. p. 263. s. 27. p. 269. s. 45. p. 271. s. 49.) This law was also passed in November, 1792. Connecticut, too, gives a forfeiture of unsurveyed tobacco; (1 Laws of Conn. p. 395. s. 13.) and, as to provisions, it also enacts a penalty against the master, and imposes a duty on the collector. (p. 397. s. 20. p. 303. s. 11. p. 407. s. 3.)

Several of those inspection acts regulate as to the importation of articles, equally with their exportation. The New-York act, relative to the inspection of sole leather, expressly says, 'Whether such leather be manufactured within the same, or imported or brought into it from any place whatsoever.' (2 N. R. L. p. 340. s. 2.) In Maryland, the act for the inspection of salted provisions, exported and imported from and to Baltimore, relates to beef, pork and fish 'imported into the said town, from any part of this State, or any one of the United States, or from any foreign port whatever.' (2 Laws of Maryland, p. 3. s. 5.) Sec. 6 relates to the size, quality, and make of all imported beef and pork barrels. This act, it is true, was passed in 1786, before the adoption of the constitution. If the power of Congress, however, was exclusive, it should then have ceased to operate. But the argument does not stop there. In 1796, it was extended to Havre de Grace, (p. 335. s. 9.) and in 1797 to Chester. (p. 369. s. 9.) The act of the same State, for the gauge of barrels for pork, beef, pitch, tar and turpentine, and tare of barrels for flour and bread, continued by several statutes down to 1810, and probably to the present time, prohibits the importation, by land or water, of those articles, except in barrels of certain dimensions and contents. In Virginia, the act for the inspection of fish, passed in December, 1795, sec. 6. provides for the inspection of imported fish, as well as of that packed for exportation; and it also enacts a forfeiture of the article, and a penalty on the master. (1 Laws of Va. p. 352. s. 3.) In Pennsylvania, the act providing for the inspection of gunpowder, relates to the inspection of imported as well as manufactured; and gives a forfeiture of the article for selling imported gunpowder without inspection. (3 Laws of Penn. p. 240.) And an antecedent law of March, 1787, directs the captain of every vessel, importing gunpowder into the port of Philadelphia, under a penalty and forfeiture of the article, if it be his own property, to deliver it at a magazine, and directs the health officer to give strangers notice of the act, and also enjoins the custom-house and naval officers, and their deputies, to do the same.' (2 Laws of Penn. p. 402. s. 3.) In New-Hampshire, (Laws of N. H. ed. of 1815. p. 460.) by the act relating to gunpowder, sec. 2. it is enacted, that every master of any merchant vessel bringing gunpowder into Portsmouth, shall, within forty-eight hours, deposit it in a magazine, and, on neglect, shall pay a fine of 30 pounds to the poor of Portsmouth. Sec. 13. directs a keeper of the magazine to be chosen, who shall be entitled to a fee on all he shall receive and deliver out; another instance of what the appellant's counsel has declared to be unconstitutional, the raising of revenue by a State law from foreign commerce. In dassachusetts, (2 Mass. Laws, p. 37.) the act of June 19, 1801, sec. 1. directs imported gunpowder, landed at the port of Boston, to be deposited in a magazine. And by sec. 3. no gunpowder shall be kept on board any ship or other vessel, lying to or grounded at any wharf in Boston, under pain of confiscation and pecuniary penalty.

More extensive examinations would produce a much greater variety of regulations of foreign commerce, and that between the States, made by State Legislatures; but only one more instance need be added, not indeed coming under any of the preceding heads. In Virginia, the act laying taxes for the support of government, passed in January, 1799, prohibits unlicensed merchants from selling, by wholesale or retail, goods of foreign growth or manufacture, on land, or on board of any vessel. (1 Laws of Va. p. 386. s. 2.) The same law has been renewed, from time to time, and it probably exists at this day.

60 1 L. U. S. p. 475. ed. 1815.

61The Federalist, No. 32.

62 9 Johns. Rep. p. 568.

63 9 Johns. Rep. p. 575, 576.

64 4 Wheat. Rep. 196.

65 5 Wheat. Rep. 49.

66 2 U. S. L. p. 6.

67 2 U. S. L. p. 7.

68Ib. p. 35. 42.

69 2 U. S. L. p. 6.

70Ib. p. 43. s. 23.

71Ib. p. 42, 43.

72 2 U. S. L. p. 119, 120.

73Ib. p. 332.

74 2 U. S. L. p. 335.

75Id. p. 343.

76Id. p. 346.

77 4 U. S. L. p. 393.

78 17 Johns. Rep. p. 488.

79The Federalist, No. 32.

80 4 Wheat. Rep. 168.

81 9 Johns. Rep. 567, 568.

82 2 Greenleaf's ed. of the Laws, p. 271.

83 p. 269.

84 3 Dallas' Rep. 394.

85Act of Feb. 21, 1793, s. 1.

86 Chirac v. Chirac, 2 Wheat. Rep. 269.

87The Federalist, No. 42.

88 Sturges v. Crowninshield, 4 Wheat. Rep. 122.

89 17 Vin. 211.

90Tucker's Bl. Com. part 1. Appx. 180.

91Mr. Webster.

92 2 U. S. L. p. 545. 3 U. S. L. p. 126.

93 3 U. S. L. p. 529.

94Dr. Witherspoon.

95January 21, 1786.

1.3 TRANSLATION 1.3 TRANSLATION

1.3.1 U.S. v. Classic 1.3.1 U.S. v. Classic

313 U.S. 299 (1941)

UNITED STATES
v.
CLASSIC ET AL.

No. 618

Supreme Court of United States.

Argued April 7, 1941.
Decided May 26, 1941.
Rehearing Denied Oct. 13, 1941

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

Mr. Herbert Wechsler, with whom Solicitor General Biddle, Assistant Attorney General Berge, and Messrs. Warner W. Gardner, Alfred B. Teton, Rene A. Viosca,and Robert Weinstein were on the brief, for the United States.

Mr. Warren O. Coleman, with whom Mr. Charles W. Kehl was on the brief, for appellees.

MR. JUSTICE STONE delivered the opinion of the Court.

Two counts of an indictment found in a federal district court charged that appellees, Commissioners of Elections, conducting a primary election under Louisiana law, to nominate a candidate of the Democratic Party for representative in Congress, willfully altered and falsely counted and certified the ballots of voters cast in the primary election. The questions for decision are whether the right of qualified voters to vote in the Louisiana primary and to have their ballots counted is a right "secured by the Constitution" within the meaning of §§ 19 and 20 of the Criminal Code, and whether the acts of appellees charged in the indictment violate those sections.

On September 25, 1940, appellees were indicted in the District Court for Eastern Louisiana for violations of §§ 19 and 20 of the Criminal Code, 18 U.S.C. §§ 51, 52. The first count of the indictment alleged that a primary election was held on September 10, 1940, for the purpose of nominating a candidate of the Democratic Party for the office of Representative in Congress for the Second Congressional District of Louisiana, to be chosen at an election to be held on November 10th; that in that district nomination as a candidate of the Democratic Party is and always has been equivalent to an election; that appellees were Commissioners of Election, selected in accordance with the Louisiana law to conduct the primary in the Second Precinct of the Tenth Ward of New Orleans, in which there were five hundred and thirty-seven citizens and qualified voters.

The charge, based on these allegations, was that the appellees conspired with each other, and with others unknown, to injure and oppress citizens in the free exercise and enjoyment of rights and privileges secured to them by the Constitution and Laws of the United States, namely, (1) the right of qualified voters who cast their ballots in the primary election to have their ballots counted as cast for the candidate of their choice, and (2) the right of the candidates to run for the office of Congressman and to have the votes in favor of their nomination counted as cast. The overt acts alleged were that the appellees altered eighty-three ballots cast for one candidate and fourteen cast for another, marking and counting them as votes for a third candidate, and that they falsely certified the number of votes cast for the respective candidates to the chairman of the Second Congressional District Committee.

The second count, repeating the allegations of fact already detailed, charged that the appellees, as Commissioners of Election, willfully and under color of law subjected registered voters at the primary who were inhabitants of Louisiana to the deprivation of rights, privileges and immunities secured and protected by the Constitution and Laws of the United States, namely their right to cast their votes for the candidates of their choice and to have their votes counted as cast. It further charged that this deprivation was effected by the willful failure and refusal of defendants to count the votes as cast, by their alteration of the ballots, and by their false certification of the number of votes cast for the respective candidates in the manner already indicated.

The District Court sustained a demurrer to counts 1 and 2 on the ground that §§ 19 and 20 of the Criminal Code, under which the indictment was drawn, do not apply to the state of facts disclosed by the indictment, and that, if applied to those facts, §§ 19 and 20 are without constitutional sanction, citing United States v. Gradwell, 243 U.S. 476, 488, 489; Newberry v. United States, 256 U.S. 232. The case comes here on direct appeal from the District Court under the provisions of the Criminal Appeals Act, Judicial Code, § 238, 18 U.S.C. § 682; 28 U.S.C. § 345, which authorize an appeal by the United States from a decision or judgment sustaining a demurrer to an indictment where the decision or judgment is "based upon the invalidity or construction of the statute upon which the indictment is founded."

Upon such an appeal our review is confined to the questions of statutory construction and validity decided by the District Court. United States v. Patten, 226 U.S. 525; United States v. Birdsall, 233 U.S. 223, 230; United States v. Borden Co., 308 U.S. 188, 192-193. Hence, we do not pass upon various arguments advanced by appellees as to the sufficiency and construction of the indictment.

Section 19 of the Criminal Code condemns as a criminal offense any conspiracy to injure a citizen in the exercise "of any right or privilege secured to him by the Constitution or laws of the United States." Section 20 makes it a penal offense for anyone who, acting "under color of any law," "willfully subjects, or causes to be subjected, any inhabitant of any State . . . to the deprivation of any rights, privileges, and immunities secured and protected by the Constitution and laws of the United States." The Government argues that the right of a qualified voter in a Louisiana congressional primary election to have his vote counted as cast is a right secured by Article I, §§ 2 and 4 of the Constitution, and that a conspiracy to deprive the citizen of that right is a violation of § 19, and also that the willful action of appellees as state officials, in falsely counting the ballots at the primary election and in falsely certifying the count, deprived qualified voters of that right and of the equal protection of the laws guaranteed by the Fourteenth Amendment, all in violation of § 20 of the Criminal Code.

Article I, § 2 of the Constitution, commands that "The House of Representatives shall be composed of members chosen every second Year by the People of the several States and the Electors in each State shall have the qualifications requisite for electors of the most numerous Branch of the State Legislature." By § 4 of the same article "The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." Such right as is secured by the Constitution to qualified voters to choose members of the House of Representatives is thus to be exercised in conformity to the requirements of state law subject to the restrictions prescribed by § 2 and to the authority conferred on Congress by § 4, to regulate the times, places and manner of holding elections for representatives.

We look then to the statutes of Louisiana here involved to ascertain the nature of the right which under the constitutional mandate they define and confer on the voter, and the effect upon its exercise of the acts with which appellees are charged, all with the view to determining, first, whether the right or privilege is one secured by the Constitution of the United States, second, whether the effect under the state statute of appellees' alleged acts is such that they operate to injure or oppress citizens in the exercise of that right within the meaning of § 19 and to deprive inhabitants of the state of that right within the meaning of § 20, and finally, whether §§ 19 and 20 respectively are in other respects applicable to the alleged acts of appellees.

Pursuant to the authority given by § 2 of Article I of the Constitution, and subject to the legislative power of Congress under § 4 of Article I, and other pertinent provisions of the Constitution, the states are given, and in fact exercise, a wide discretion in the formulation of a system for the choice by the people of representatives in Congress. In common with many other states, Louisiana has exercised that discretion by setting up machinery for the effective choice of party candidates for representative in Congress by primary elections, and by its laws it eliminates or seriously restricts the candidacy at the general election of all those who are defeated at the primary. All political parties, which are defined as those that have cast at least 5 per cent of the total vote at specified preceding elections, are required to nominate their candidates for representative by direct primary elections. Louisiana Act No. 46, Regular Session, 1940, §§ 1 and 3.

The primary is conducted by the state at public expense. Act No. 46, supra, § 35. The primary, as is the general election, is subject to numerous statutory regulations as to the time, place and manner of conducting the election, including provisions to insure that the ballots cast at the primary are correctly counted, and the results of the count correctly recorded and certified to the Secretary of State, whose duty it is to place the names of the successful candidates of each party on the official ballot.[1] The Secretary of State is prohibited from placing on the official ballot the name of any person as a candidate for any political party not nominated in accordance with the provisions of the Act. Act 46, § 1.

One whose name does not appear on the primary ballot, if otherwise eligible to become a candidate at the general election, may do so in either of two ways: by filing nomination papers with the requisite number of signatures or by having his name "written in" on the ballot on the final election. Louisiana Act No. 224, Regular Session 1940, §§ 50, 73. Section 87 of Act No. 46 provides "No one who participates in the primary election of any political party shall have the right to participate in a primary election of any other political party, with the view of nominating opposing candidates, nor shall he be permitted to sign any nomination for any opposing candidate or candidates; nor shall he be permitted to be himself a candidate in opposition to anyone nominated at or through a primary election in which he took part."

Section 15 of Article VIII of the Constitution of Louisiana as amended by Act 80 of 1934, provides that "no person whose name is not authorized to be printed on the official ballot, as the nominee of a political party or as an independent candidate, shall be considered a candidate" unless he shall file in the appropriate office at least ten days before the general election a statement containing the correct name under which he is to be voted for, and containing the further statement that he is willing and consents to be voted for for that office. The article also provides that "no commissioners of election shall count a ballot as cast for any person whose name is not printed on the ballot or who does not become a candidate in the foregoing manner." Applying these provisions, the Louisiana Court of Appeals for the Parish of Orleans has held, in Serpas v. Trebucq, decided April 7, 1941, 1 So.2d 346, rehearing denied with opinion April 21, 1941, 1 So.2d 705, that an unsuccessful candidate at the primary may not offer himself as a candidate at a general election, and that votes for him may not lawfully be written into the ballot or counted at such an election.

The right to vote for a representative in Congress at the general election is, as a matter of law, thus restricted to the successful party candidate at the primary, to those not candidates at the primary who file nomination papers, and those whose names may be lawfully written into the ballot by the electors. Even if, as appellees argue, contrary to the decision in Serpas v. Trebucq, supra, voters may lawfully write into their ballots, cast at the general election, the name of a candidate rejected at the primary and have their ballots counted, the practical operation of the primary law in otherwise excluding from the ballot on the general election the names of candidates rejected at the primary is such as to impose serious restrictions upon the choice of candidates by the voters save by voting at the primary election. In fact, as alleged in the indictment, the practical operation of the primary in Louisiana is, and has been since the primary election was established in 1900, to secure the election of the Democratic primary nominee for the Second Congressional District of Louisiana.[2]

Interference with the right to vote in the Congressional primary in the Second Congressional District for the choice of Democratic candidate for Congress is thus, as a matter of law and in fact, an interference with the effective choice of the voters at the only stage of the election procedure when their choice is of significance, since it is at the only stage when such interference could have any practical effect on the ultimate result, the choice of the Congressman to represent the district. The primary in Louisiana is an integral part of the procedure for the popular choice of Congressman. The right of qualified voters to vote at the Congressional primary in Louisiana and to have their ballots counted is thus the right to participate in that choice.

We come then to the question whether that right is one secured by the Constitution. Section 2 of Article I commands that Congressmen shall be chosen by the people of the several states by electors, the qualifications of which it prescribes. The right of the people to choose, whatever its appropriate constitutional limitations, where in other respects it is defined, and the mode of its exercise is prescribed by state action in conformity to the Constitution, is a right established and guaranteed by the Constitution and hence is one secured by it to those citizens and inhabitants of the state entitled to exercise the right. Ex parte Yarbrough, 110 U.S. 651; United States v. Mosley, 238 U.S. 383. And see Hague v. C.I.O., 307 U.S. 496, 508, 513, 526, 527, 529, giving the same interpretation to the like phrase "rights" "secured by the 315*315 Constitution" appearing in § 1 of the Civil Rights Act of 1871, 17 Stat. 13. While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, see Minor v. Happersett, 21 Wall. 162, 170; United States v. Reese, 92 U.S. 214, 217-218; McPherson v. Blacker, 146 U.S. 1, 38-39; Breedlove v. Suttles,302 U.S. 277, 283, this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by § 2 of Art. I, to the extent that Congress has not restricted state action by the exercise of its powers to regulate elections under § 4 and its more general power under Article I, § 8, clause 18 of the Constitution "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." See Ex parte Siebold,100 U.S. 371; Ex parte Yarbrough, supra, 663, 664; Swafford v. Templeton, 185 U.S. 487; Wiley v. Sinkler, 179 U.S. 58, 64.

Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted at Congressional elections. This Court has consistently held that this is a right secured by the Constitution. Ex parte Yarbrough, supra; Wiley v. Sinkler, supra; Swafford v. Templeton, supra; United States v. Mosley, supra; see Ex parte Siebold, supra; In re Coy, 127 U.S. 731; Logan v. United States, 144 U.S. 263. And since the constitutional command is without restriction or limitation, the right, unlike those guaranteed by the Fourteenth and Fifteenth Amendments, is secured against the action of individuals as well as of states. Ex parte Yarbrough, supra; Logan v. United States, supra.

But we are now concerned with the question whether the right to choose at a primary election, a candidate for election as representative, is embraced in the right to choose representatives secured by Article I, § 2. We may assume that the framers of the Constitution in adopting that section, did not have specifically in mind the selection and elimination of candidates for Congress by the direct primary any more than they contemplated the application of the commerce clause to interstate telephone, telegraph and wireless communication, which are concededly within it. But in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government. Cf. Davidson v. New Orleans, 96 U.S. 97; Brown v. Walker, 161 U.S. 591, 595; Robertson v. Baldwin,165 U.S. 275, 281, 282. If we remember that "it is a Constitution we are expounding," we cannot rightly prefer, of the possible meanings of its words, that which will defeat rather than effectuate the constitutional purpose.

That the free choice by the people of representatives in Congress, subject only to the restrictions to be found in §§ 2 and 4 of Article I and elsewhere in the Constitution, was one of the great purposes of our constitutional scheme of government cannot be doubted. We cannot regard it as any the less the constitutional purpose, or its words as any the less guarantying the integrity of that choice, when a state, exercising its privilege in the absence of Congressional action, changes the mode of choice from a single step, a general election, to two, of which the first is the choice at a primary of those candidates from whom, as a second step, the representative in Congress is to be chosen at the election.

Nor can we say that that choice which the Constitution protects is restricted to the second step because § 4 of Article I, as a means of securing a free choice of representatives by the people, has authorized Congress to regulate the manner of elections, without making any mention of primary elections. For we think that the authority of Congress, given by § 4, includes the authority to regulate primary elections when, as in this case, they are a step in the exercise by the people of their choice of representatives in Congress. The point whether the power conferred by § 4 includes in any circumstances the power to regulate primary elections was reserved in United States v. Gradwell, supra, 487. In Newberry v. United States, supra, four Justices of this Court were of opinion that the term "elections" in § 4 of Article I did not embrace a primary election, since that procedure was unknown to the framers. A fifth Justice, who with them pronounced the judgment of the Court, was of opinion that a primary, held under a law enacted before the adoption of the Seventeenth Amendment, for the nomination of candidates for Senator, was not an election within the meaning of § 4 of Article I of the Constitution, presumably because the choice of the primary imposed no legal restrictions on the election of Senators by the state legislatures to which their election had been committed by Article I, § 3. The remaining four Justices were of the opinion that a primary election for the choice of candidates for Senator or Representative were elections subject to regulation by Congress within the meaning of § 4 of Article I. The question then has not been prejudged by any decision of this Court.

To decide it we turn to the words of the Constitution read in their historical setting as revealing the purpose of its framers, and search for admissible meanings of its words which, in the circumstances of their application, will effectuate those purposes. As we have said, a dominant purpose of § 2, so far as the selection of representatives in Congress is concerned, was to secure to the people the right to choose representatives by the designated electors, that is to say, by some form of election. Cf. the Seventeenth Amendment as to popular "election" of Senators. From time immemorial an election to public office has been in point of substance no more and no less than the expression by qualified electors of their choice of candidates.

Long before the adoption of the Constitution the form and mode of that expression had changed from time to time. There is no historical warrant for supposing that the framers were under the illusion that the method of effecting the choice of the electors would never change or that, if it did, the change was for that reason to be permitted to defeat the right of the people to choose representatives for Congress which the Constitution had guaranteed. The right to participate in the choice of representatives for Congress includes, as we have said, the right to cast a ballot and to have it counted at the general election, whether for the successful candidate or not. Where the state law has made the primary an integral part of the procedure of choice, or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary is likewise included in the right protected by Article I, § 2. And this right of participation is protected just as is the right to vote at the election, where the primary is by law made an integral part of the election machinery, whether the voter exercises his right in a party primary which invariably, sometimes or never determines the ultimate choice of the representative. Here, even apart from the circumstance that the Louisiana primary is made by law an integral part of the procedure of choice, the right to choose a representative is in fact controlled by the primary because, as is alleged in the indictment, the choice of candidates at the Democratic primary determines the choice of the elected representative. Moreover, we cannot close our eyes to the fact, already mentioned, that the practical influence of the choice of candidates at the primary may be so great as to affect profoundly the choice at the general election, even though there is no effective legal prohibition upon the rejection at the election of the choice made at the primary, and may thus operate to deprive the voter of his constitutional right of choice. This was noted and extensively commented upon by the concurring Justices in Newberry v. United States, supra,263-269, 285, 287.

Unless the constitutional protection of the integrity of "elections" extends to primary elections, Congress is left powerless to effect the constitutional purpose, and the popular choice of representatives is stripped of its constitutional protection save only as Congress, by taking over the control of state elections, may exclude from them the influence of the state primaries.[3] Such an expedient would end that state autonomy with respect to elections which the Constitution contemplated that Congress should be free to leave undisturbed, subject only to such minimum regulation as it should find necessary to insure the freedom and integrity of the choice. Words, especially those of a constitution, are not to be read with such stultifying narrowness. The words of §§ 2 and 4 of Article I, read in the sense which is plainly permissible and in the light of the constitutional purpose, require us to hold that a primary election which involves a necessary step in the choice of candidates for election as representatives in Congress, and which in the circumstances of this case controls that choice, is an election within the meaning of the constitutional provision and is subject to congressional regulation as to the manner of holding it.

Not only does § 4 of Article I authorize Congress to regulate the manner of holding elections, but by Article I, § 8, Clause 18, Congress is given authority "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof." This provision leaves to the Congress the choice of means by which its constitutional powers are to be carried into execution. "Let the end be legitimate; let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." McCulloch v. Maryland, 4 Wheat. 316, 421. That principle has been consistently adhered to and liberally applied. and extends to the congressional power by appropriate legislation to safeguard the right of choice by the people of representatives in Congress, secured by § 2 of Article I. Ex parte Yarbrough, supra, 657, 658; cf. Second Employers Liability Cases, 223 U.S. 1, 49; Houston & Texas Ry. Co. v. United States, 234 U.S. 342, 350, 355; Wilson v. New,243 U.S. 332, 346, 347; First National Bank v. Union Trust Co., 244 U.S. 416, 419; Selective Draft Law Cases, 245 U.S. 366, 381; United States v. Ferger, 250 U.S. 199, 205; Hamilton v. 321*321 Kentucky Distilleries Co., 251 U.S. 146, 155, 163; Jacob Ruppert v. Caffey, 251 U.S. 264; Smith v. Kansas City Title & Trust Co., 255 U.S. 180; United States v. Darby, 312 U.S. 100, and cases cited.

There remains the question whether §§ 19 and 20 are an exercise of the congressional authority applicable to the acts with which appellees are charged in the indictment. Section 19 makes it a crime to conspire to "injure" or "oppress" any citizen "in the free exercise or enjoyment of any right or privilege secured to him by the Constitution."[4] In Ex parte Yarbrough, supra, and in United States v. Mosley, supra, as we have seen, it was held that the right to vote in a congressional election is a right secured by the Constitution, and that a conspiracy to prevent the citizen from voting, or to prevent the official count of his ballot when cast, is a conspiracy to injure and oppress the citizen in the free exercise of a right secured by the Constitution within the meaning of § 19. In reaching this conclusion the Court found no uncertainty or ambiguity in the statutory language, obviously devised to protect the citizen "in the free exercise or enjoyment of any right or privilege secured to him by the Constitution," and concerned itself with the question whether the right to participate in choosing a representative is so secured.[5] Such is our function here. Conspiracy to prevent the official count of a citizen's ballot, held in United States v. Mosley, supra, to be a violation of § 19 in the case of a congressional election, is equally a conspiracy to injure and oppress the citizen when the ballots are cast in a primary election prerequisite to the choice of party candidates for a congressional election. In both cases the right infringed is one secured by the Constitution. The injury suffered by the citizen in the exercise of the right is an injury which the statute describes and to which it applies in the one case as in the other.

The suggestion that § 19, concededly applicable to conspiracies to deprive electors of their votes at congressional elections, is not sufficiently specific to be deemed applicable to primary elections, will hardly bear examination. Section 19 speaks neither of elections nor of primaries. In unambiguous language it protects "any right or privilege secured by the Constitution," a phrase which, as we have seen, extends to the right of the voter to have his vote counted in both the general election and in the primary election, where the latter is a part of the election machinery, as well as to numerous other constitutional rights which are wholly unrelated to the choice of a representative in Congress. United States v. Waddell,112 U.S. 76; Logan v. United States, 144 U.S. 263; In re Quarles, 158 U.S. 532; Motes v. United States, 178 U.S. 458; Guinn v. United States, 238 U.S. 347.

In the face of the broad language of the statute, we are pointed to no principle of statutory constructionand to no significant legislative history which could be thought to sanction our saying that the statute applies any the less to primaries than to elections, where in one as in the other it is the same constitutional right which is infringed. It does not avail to attempt to distinguish the protection afforded by § 1 of the Civil Rights Act of 1871,[6] to the right to participate in primary as well as general elections secured to all citizens by the Constitution, see Guinn v. United States, 238 U.S. 347; Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; Lane v. Wilson, 307 U.S. 268, on the ground that in those cases the injured citizens were Negroes whose rights were clearly protected by the Fourteenth Amendment. At least since Ex parte Yarbrough, supra, and no member of the Court seems ever to have questioned it, the right to participate in the choice of representatives in Congress has been recognized as a right protected by Art. I, §§ 2 and 4 of the Constitution.[7] Differences of opinion have arisen as to the effect of the primary in particular cases on the choice of representatives. But we are troubled by no such doubt here. Hence, the right to participate through the primary in the choice of representatives in Congress — a right clearly secured by the Constitution — is within the words and purpose of § 19 in the same manner and to the same extent as the right to vote at the general election. United States v. Mosley, supra. It is no extension of the criminal statute, as it was not of the civil statute in Nixon v. Herndon, supra, to find a violation of it in a new method of interference with the right which its words protect. For it is the constitutional right, regardless of the method of interference, which is the subject of the statute and which in precise terms it protects from injury and oppression.

It is hardly the performance of the judicial function to construe a statute, which in terms protects a right secured by the Constitution, here the right to choose a representative in Congress, as applying to an election whose only function is to ratify a choice already made at the primary, but as having no application to the primary which is the only effective means of choice. To withdraw from the scope of the statute an effective interference with the constitutional right of choice, because other wholly different situations not now before us may not be found to involve such an interference, cf. United States v. Bathgate, 246 U.S. 220; United States v. Gradwell, 243 U.S. 476, is to say that acts plainly within the statute should be deemed to be without it because other hypothetical cases may later be found not to infringe the constitutional right with which alone the statute is concerned.

If a right secured by the Constitution may be infringed by the corrupt failure to include the vote at a primary in the official count, it is not significant that the primary, like the voting machine, was unknown when § 19 was adopted.[8] Abuse of either may infringe the right and therefore violate § 19. See United States v. Pleva, 66 F.2d 529, 530; cf. Browder v. United States, 312 U.S. 335. Nor does the fact that in circumstances not here present there may be difficulty in determining whether the primary so affects the right of the choice as to bring it within the constitutional protection, afford any ground for doubting the construction and application of the statute once the constitutional question is resolved. That difficulty is inherent in the judicial administration of every federal criminal statute, for none, whatever its terms, can be applied beyond the reach of the congressional power which the Constitution confers. Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20; Hoke v. United States, 227 U.S. 308; Nash v. United States, 229 U.S. 373; United States v. Freeman, 239 U.S. 117; United States v. Darby, 312 U.S. 100.

The right of the voters at the primary to have their votes counted is, as we have stated, a right or privilege secured by the Constitution, and to this § 20 also gives protection.[9] The alleged acts of appellees were committed in the course of their performance of duties under the Louisiana statute requiring them to count the ballots, to record the result of the count, and to certify the result of the election. Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken "under color of" state law. Ex parte Virginia, 100 U.S. 339, 346; Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278, 287, et seq.; Hague v. C.I.O., 307 U.S. 496, 507, 519; cf. 101 F.2d 774, 790. Here the acts of appellees infringed the constitutional right and deprived the voters of the benefit of it within the meaning of § 20, unless by its terms its application is restricted to deprivations "on account of such inhabitant being an alien or by reason of his color, or race."

The last clause of § 20 protects inhabitants of a state from being subjected to different punishments, pains or penalties, by reason of alienage, color or race, than are prescribed for the punishment of citizens. That the qualification with respect to alienage, color and race, refers only to differences in punishment and not to deprivations of any rights or privileges secured by the Constitution, is evidenced by the structure of the section and the necessities of the practical application of its provisions. The qualification as to alienage, color and race, is a parenthetical phrase in the clause penalizing different punishments "than are prescribed for citizens," and in the common use of language could refer only to the subject-matter of the clause and not to that of the earlier one relating to the deprivation of rights to which it makes no reference in terms.

Moreover, the prohibited differences of punishment on account of alienage, color or race, are those referable to prescribed punishments which are to be compared with those prescribed for citizens. A standard is thus set up applicable to differences in prescribed punishments on account of alienage, color or race, which it would be difficult, if not impossible, to apply to the willful deprivations of constitutional rights or privileges, in order to determine whether they are on account of alienage, color or race. We think that § 20 authorizes the punishment of two different offenses. The one is willfully subjecting any inhabitant to the deprivation of rights secured by the Constitution; the other is willfully subjecting any inhabitant to different punishments on account of his alienage, color or race, than are prescribed for the punishment of citizens. The meager legislative history of the section supports this conclusion.[10]

So interpreted, § 20 applies to deprivation of the constitutional rights of qualified voters to choose representatives in Congress. The generality of the section, made applicable as it is to deprivations of any constitutional right, does not obscure its meaning or impair its force within the scope of its application, which is restricted by its terms to deprivations which are willfully inflicted by those acting under color of any law, statute and the like.

We do not discuss the application of § 20 to deprivations of the right to equal protection of the laws guaranteed by the Fourteenth Amendment, a point apparently raised and discussed for the first time in the Government's brief in this Court. The point was not specially considered or decided by the court below, and has not been assigned as error by the Government. Since the indictment on its face does not purport to charge a deprivation of equal protection to voters or candidates, we are not called upon to construe the indictment in order to raise a question of statutory validity or construction which we are alone authorized to review upon this appeal.

Reversed.

The CHIEF JUSTICE took no part in the consideration or decision of this case.

MR. JUSTICE DOUGLAS, dissenting.

Free and honest elections are the very foundation of our republican form of government. Hence any attempt to defile the sanctity of the ballot cannot be viewed with equanimity. As stated by Mr. Justice Miller in Ex parte Yarbrough, 110 U.S. 651, 666, "the temptations to control these elections by violence and corruption" have been a constant source of danger in the history of all republics. The acts here charged, if proven, are of a kind which carries that threat and are highly offensive. Since they corrupt the process of Congressional elections, they transcend mere local concern and extend a contaminating influence into the national domain.

I think Congress has ample power to deal with them. That is to say, I disagree with Newberry v. United States, 256 U.S. 232, to the extent that it holds that Congress has no power to control primary elections. Art. I, § 2 of the Constitution provides that "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." Art. I, § 4 provides that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." And Art. I, § 8, clause 18 gives Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Those sections are an arsenal of power ample to protect Congressional elections from any and all forms of pollution. The fact that a particular form of pollution has only an indirect effect on the final election is immaterial. The fact that it occurs in a primary election or nominating convention is likewise irrelevant. The important consideration is that the Constitution should be interpreted broadly so as to give to the representatives of a free people abundant power to deal with all the exigencies of the electoral process. It means that the Constitution should be read so as to give Congress an expansive implied power to place beyond the pale acts which, in their direct or indirect effect, impair the integrity of Congressional elections. For when corruption enters, the election is no longer free, the choice of the people is affected. To hold that Congress is powerless to control these primaries would indeed be a narrow construction of the Constitution, inconsistent with the view that that instrument of government was designed not only for contemporary needs but for the vicissitudes of time.

So I agree with most of the views expressed in the opinion of the Court. And it is with diffidence that I dissent from the result there reached.

The disagreement centers on the meaning of § 19 of the Criminal Code, which protects every right secured by the Constitution. The right to vote at a final Congressional election and the right to have one's vote counted in such an election have been held to be protected by § 19. Ex parte Yarbrough, supra; United States v. Mosley, 238 U.S. 383. Yet I do not think that the principles of those cases should be, or properly can be, extended to primary elections. To sustain this indictment we must so extend them. But when we do, we enter perilous territory.

We enter perilous territory because, as stated in United States v. Gradwell, 243 U.S. 476, 485, there is no common law offense against the United States; "the legislative authority of the Union must make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence." United States v.Hudson, 7 Cranch 32, 34. If a person is to be convicted of a crime, the offense must be clearly and plainly embraced within the statute. As stated by Chief Justice Marshall in United States v. Wiltberger, 5 Wheat. 76, 105, "probability is not a guide which a court, in construing a penal statute, can safely take." It is one thing to allow wide and generous scope to the express and implied powers of Congress; it is distinctly another to read into the vague and general language of an act of Congress specifications of crimes. We should ever be mindful that "before a man can be punished, his case must be plainly and unmistakably within the statute." United States v. Lacher, 134 U.S. 624, 628. That admonition is reemphasized here by the fact that § 19 imposes not only a fine of $5,000 and ten years in prison, but also makes him who is convicted "ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States." It is not enough for us to find in the vague penumbra of a statute some offense about which Congress could have legislated, and then to particularize it as a crime because it is highly offensive. Cf. James v. Bowman, 190 U.S. 127. Civil liberties are too dear to permit conviction for crimes which are only implied and which can be spelled out only by adding inference to inference.

Sec. 19 does not purport to be an exercise by Congress of its power to regulate primaries. It merely penalizes conspiracies "to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States." Thus, it does no more than refer us to the Constitution[1] for the purpose of determining whether or not the right to vote in a primary is there secured. Hence we must do more than find in the Constitution the power of Congress to afford that protection. We must find that protection on the face of the Constitution itself. That is to say, we must in view of the wording of § 19 read the relevant provisions of the Constitution for the purposes of this case through the window of a criminal statute.

There can be put to one side cases where state election officials deprive negro citizens of their right to vote at a general election (Guinn v. United States, 238 U.S. 347), or at a primary. Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73. Discrimination on the basis of race or color is plainly outlawed by the Fourteenth Amendment. Since the constitutional mandate is plain, there is no reason why § 19 or § 20 should not be applicable. But the situation here is quite different. When we turn to the constitutional provisions relevant to this case we find no such unambiguous mandate.

Art. I, § 4 specifies the machinery whereby the times, places and manner of holding elections shall be established and controlled. Art. I, § 2 provides that representatives shall be "chosen" by the people. But for purposes of the criminal law as contrasted to the interpretation of the Constitution as the source of the implied power of Congress, I do not think that those provisions in absence of specific legislation by Congress protect the primary election or the nominating convention. While they protect the right to vote, and the right to have one's vote counted, at the final election, as held in the Yarbrough and Mosley cases, they certainly do not per se extend to all acts which in their indirect or incidental effect restrain, restrict, or interfere with that choice. Bribery of voters at a general election certainly is an interference with that freedom of choice. It is a corruptive influence which for its impact on the election process is as intimate and direct as the acts charged in this indictment. And Congress has ample power to deal with it. But this Court in United States v. Bathgate, 246 U.S. 220, by a unanimous vote, held that conspiracies to bribe voters at a general election were not covered by § 19. While the conclusion in that case may be reconciled with the results in the Yarbroughand Mosley cases on the ground that the right to vote at a general election is personal while the bribery of voters only indirectly affects that personal right, that distinction is not of aid here. For the failure to count votes cast at a primary has by the same token only an indirect effect on the voting at the general election. In terms of causal effect, tampering with the primary vote may be as important on the outcome of the general election as bribery of voters at the general election itself. Certainly from the viewpoint of the individual voter there is as much a dilution of his vote in the one case as in the other. So, in light of the Mosley and Bathgate cases, the test under § 19 is not whether the acts in question constitute an interference with the effective choice of the voters. It is whether the voters are deprived of their votes in the general election. Such a test comports with the standards for construction of a criminal law, since it restricts § 19 to protection of the rights plainly and directly guaranteed by the Constitution. Any other test entails an inquiry into the indirect or incidental effect on the general election of the acts done. But in view of the generality of the words employed, such a test would be incompatible with the criteria appropriate for a criminal case.

The Mosley case, in my view, went to the verge when it held that § 19 and the relevant constitutional provisions made it a crime to fail to count votes cast at a general election. That Congress intended § 19 to have that effect was none too clear. The dissenting opinion of Mr. Justice Lamar in that case points out that § 19 was originally part of the Enforcement Act of May 31, 1870, c. 114, § 6, 16 Stat. 140. Under another section of that act (§ 4), which was repealed by the Act of February 8, 1894 (28 Stat. 36), the crime charged in the Mosley case would have been punishable by a fine of not less than $500 and imprisonment for 12 months.[2] Under § 19 it carried, as it still does, a penalty of $5000 and ten years in prison. The Committee Report (H. Rep. No. 18, 53d Cong., 1st Sess.), which recommended the repeal of other sections, clearly indicated an intent to remove the hand of the Federal Government from such elections and to restore their conduct and policing to the states. As the Report stated (p. 7): "Let every trace of the reconstruction measures be wiped from the statute books; let the States of this great Union understand that the elections are in their own hands, and if there be fraud, coercion, or force used they will be the first to feel it. Responding to a universal sentiment throughout the country for greater purity in elections many of our States have enacted laws to protect the voter and to purify the ballot. These, under the guidance of State officers, have worked efficiently, satisfactorily, and beneficently; and if these Federal statutes are repealed that sentiment will receive an impetus which, if the cause still exists, will carry such enactments in every State in the Union." In view of this broad, comprehensive program of repeal, it is not easy to conclude that the general language of § 19, which was not repealed, not only continued in effect much which had been repealed but also upped the penalties for certain offenses which had been explicitly covered by one of the repealed sections. Mr. Justice Holmes, writing for the majority in the Mosley case, found in the legislative and historical setting of § 19 and in its revised form a Congressional interpretation which, if § 19 were taken at its face value, was thought to afford voters in final Congressional elections general protection. And that view is a tenable one, since § 19 originally was part of an Act regulating general elections, and since the acts charged had a direct rather than an indirect effect on the right to vote at a general election.

But as stated by a unanimous court in United States v. Gradwell, supra, p. 486, the Mosley case "falls far short" of making § 19 "applicable to the conduct of a state nominating primary." Indeed, Mr. Justice Holmes, the author of the Mosley opinion, joined with Mr. Justice McReynolds in the Newberry case in his view that Congress had no authority under Art. I, § 4 of the Constitution to legislate on primaries. When § 19 was part of the Act of May 31, 1870, it certainly would never have been contended that it embraced primaries, for they were hardly known at that time.[3] It is true that "even a criminal statute embraces everything which subsequently falls within its scope." Browder v. United States, 312 U.S. 335, 340. Yet the attempt to bring under § 19 offenses "committed in the conduct of primary elections or nominating caucuses or conventions" was rejected in the Gradwellcase, where this Court said that in absence of legislation by Congress on the subject of primaries it is not for the courts "to attempt to supply it by stretching old statutes to new uses, to which they are not adapted and for which they were not intended. . . . the section of the Criminal Code relied upon, originally enacted for the protection of the civil rights of the then lately enfranchised negro, cannot be extended so as to make it an agency for enforcing a state primary law." 243 U.S. pp. . The fact that primaries were hardly known when § 19 was enacted, the fact that it was part of a legislative program governing general elections, not primary elections, the fact that it has been in nowise implemented by legislation directed at primaries, give credence to the unanimous view in the Gradwell case that § 19 has not by the mere passage of time taken on a new and broadened meaning. At least it seems plain that the difficulties of applying the historical reason adduced by Mr. Justice Holmes in the Mosley case to bring general elections within § 19 are so great in case of primaries that we have left the safety zone of interpretation of criminal statutes when we sustain this indictment. It is one thing to say, as in the Mosley case, that Congress was legislating as respects general elections when it passed § 19. That was the fact. It is quite another thing to say that Congress by leaving § 19 unmolested for some seventy years has legislated unwittingly on primaries. Sec. 19 was never part of an act of Congress directed towards primaries. That was not its original frame of reference. Therefore, unlike the Mosley case, it cannot be said here that § 19 still covers primaries because it was once an integral part of primary legislation.

Furthermore, the fact that Congress has legislated only sparingly and at infrequent intervals even on the subject of general elections (United States v. Gradwell, supra) should make us hesitate to conclude that by mere inaction Congress has taken the greater step, entered the field of primaries, and gone further than any announced legislative program has indicated. The acts here charged constitute crimes under the Louisiana statute. La. Act No. 46, Reg. Sess. 1940, § 89. In absence of specific Congressional action we should assume that Congress has left the control of primaries and nominating conventions to the states — an assumption plainly in line with the Committee Report, quoted above, recommending the repeal of portions of the Enforcement Act of May 31, 1870 so as to place the details of elections in state hands. There is no ground for inference in subsequent legislative history that Congress has departed from that policy by superimposing its own primary penal law on the primary penal laws of the states. Rather, Congress has been fairly consistent in recognizing state autonomy in the field of elections. To be sure, it has occasionally legislated on primaries.[4] But even when dealing specifically with the nominating process, it has never made acts of the kind here in question a crime. In this connection it should be noted that the bill which became the Hatch Act (53 Stat. 1147; 18 U.S.C. § 61) contained a section which made it unlawful "for any person to intimidate, threaten, or coerce, or to attempt to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the nomination of any party as its candidate" for various federal offices, including representatives, "at any primary or nominating convention held solely or in part" for that purpose. This was stricken in the Senate. 84 Cong. Rec., pt. 4, 76th Cong., 1st Sess., p. 4191. That section would have extended the same protection to the primary and nominating convention as § 1 of the Hatch Act[5] extends to the general election. The Senate, however, refused to do so. Yet this Court now holds that § 19 has protected the primary vote all along and that it covers conspiracies to do the precise thing on which Congress refused to legislate in 1939. The hesitation on the part of Congress through the years to enter the primary field, its refusal to do so[6] in 1939, and the restricted scope of such primary laws as it has passed should be ample evidence that this Court is legislating when it takes the initiative in extending § 19 to primaries.

We should adhere to the strict construction given to § 19 by a unanimous court in United States v. Bathgate, 246 U.S. 220, 226, where it was said: "Section 19, Criminal Code, of course, now has the same meaning as when first enacted . . . and considering the policy of Congress not to interfere with elections within a State except by clear and specific provisions, together with the rule respecting construction of criminal statutes, we cannot think it was intended to apply to conspiracies to bribe voters." That leads to the conclusion that § 19 and the relevant constitutional provisions should be read so as to exclude all acts which do not have the direct effect of depriving voters of their right to vote at general elections. That view has received tacit recognition by Congress. For the history of legislation governing Federal elections shows that the occasional Acts of Congress[7] on the subject have been primarily directed towards supplying detailed regulations designed to protect the individual's constitutional right to vote against pollution and corruption. Those laws, the latest of which is § 1 of the Hatch Act, are ample recognition by Congress itself that specific legislation is necessary in order to protect the electoral process against the wide variety of acts which in their indirect or incidental effect interfere with the voter's freedom of choice and corrupt the electoral process. They are evidence that detailed regulations are essential in order to reach acts which do not directly interfere with the voting privilege. They are inconsistent with the notions in the opinion of the Court that the Constitution, unaided by definite supplementary legislation, protects the methods by which party candidates are nominated.

That § 19 lacks the requisite specificity necessary for inclusion of acts which interfere with the nomination of party candidates is reemphasized by the test here employed. The opinion of the Court stresses, as does the indictment, that the winner of the Democratic primary in Louisiana invariably carries the general election. It is also emphasized that a candidate defeated in the Louisiana primaries cannot be a candidate at the general election. Hence, it is argued that interference with the right to vote in such a primary is "as a matter of law and in fact an interference with the effective choice of the voters at the only stage of the election procedure when their choice is of significance," and that the "primary in Louisiana is an integral part of the procedure for the popular choice" of representatives. By that means, the Gradwell case is apparently distinguished. But I do not think it is a valid distinction for the purposes of this case.

One of the indictments in the Gradwell case charged that the defendants conspired to procure one thousand unqualified persons to vote in a West Virginia primary for the nomination of a United States Senator. This Court, by a unanimous vote, affirmed the judgment which sustained a demurrer to that indictment. The Court specifically reserved the question as to whether a "primary should be treated as an election within the meaning of the Constitution." But it went on to say that, even assuming it were, certain "strikingly unusual features" of the particular primary precluded such a holding in that case. It noted that candidates of certain parties were excluded from the primary, and that even candidates who were defeated at the primary could on certain conditions be nominated for the general election. It therefore concluded that whatever power Congress might have to control such primaries, it had not done so by § 19.

If the Gradwell case is to survive, as I think it should, we have therefore this rather curious situation. Primaries in states where the winner invariably carries the general election are protected by § 19 and the Constitution, even though such primaries are not by law an integral part of the election process. Primaries in states where the successful candidate never wins, seldom wins, or may not win in the general election are not so protected, unless perchance state law makes such primaries an integral part of the election process. Congress, having a broad control over primaries, might conceivably draw such distinctions in a penal code. But for us to draw them under § 19 is quite another matter. For we must go outside the statute, examine local law and local customs, and then, on the basis of the legal or practical importance of a particular primary, interpret the vague language of § 19 in the light of the significance of the acts done. The result is to make refined and nice distinctions which Congress certainly has not made, to create unevenness in the application of § 19 among the various states, and to make the existence of a crime depend, not on the plain meaning of words employed interpreted in light of the legislative history of the statute, but on the result of research into local law or local practices. Unless Congress has explicitly made a crime dependent on such facts, we should not undertake to do so. Such procedure does not comport with the strict standards essential for the interpretation of a criminal law. The necessity of resorting to such a circuitous route is sufficient evidence to me that we are performing a legislative function in finding here a definition of a crime which will sustain this indictment. A crime, no matter how offensive, should not be spelled out from such vague inferences.

MR. JUSTICE BLACK and MR. JUSTICE MURPHY join in this dissent.

[1] The ballots are printed at public expense, § 35 of Act No. 46, Regular Session, 1940, are furnished by the Secretary of State, § 36 in a form prescribed by statute, § 37. Close supervision of the delivery of the ballots to the election commissioners is prescribed, §§ 43-46. The polling places are required to be equipped to secure secrecy, §§ 48-50; §§ 54-57. The selection of election commissioners is prescribed, § 61 and their duties detailed. The commissioners must swear to conduct the election impartially, § 64 and are subject to punishment for deliberately falsifying the returns or destroying the lists and ballots, §§ 98, 99. They must identify by certificate the ballot boxes used, § 67, keep a triplicate list of voters, § 68, publicly canvass the return, § 74 and certify the same to the Secretary of State, § 75.

[2] For a discussion of the practical effect of the primary in controlling or restricting election of candidates at general elections, see, Hasbrouck, Party Government in the House of Representatives (1927) 172, 176, 177; Merriam and Overacker, Primary Elections (1928) 267-269; Stoney, Suffrage in the South; 29 Survey Graphic, 163, 164.

[3] Congress has recognized the effect of primaries on the free exercise of the right to choose the representatives, for it has inquired into frauds at primaries as well as at the general elections in judging the "Elections Returns and Qualifications of its Own Members," Art. I, § 5. See Grace v. Whaley, H. Rept. No. 158, 63d Cong., 2d Sess.; Peddy v. Mayfield, S. Rept. No. 973, 68th Cong., 2d Sess.; Wilson v. Vare, S. Rept. No. 1858, 70th Cong., 2d Sess., S. Rept. No. 47, 71st Cong., 2d Sess., and S. Res. 111, 71st Cong., 2d Sess.

See also Investigation of Campaign Expenditures in the 1940 Campaign, S. Rept. No. 47, 77th Cong., 1st Sess., p. 48 et seq.

[4] Section 19 of the Criminal Code (U.S.C., Title 18, § 51):

"If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States." (R.S. § 5508; Mar. 4, 1909, c. 321, § 19, 35 Stat. 1092.)

[5] In United States v. Mosley, 238 U.S. 383, 386, the Court thought that "Manifestly the words are broad enough to cover the case," it canvassed at length the objections that § 19 was never intended to apply to crimes against the franchise, and the other contention, which it also rejected, that § 19 had been repealed or so restricted as not to apply to offenses of that class. It is unnecessary to repeat that discussion here.

[6] Section 1 now reads, 8 U.S.C. § 43: "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

[7] See e.g. Guinn v. United States, 238 U.S. 347; United States v. O'Toole, 236 F. 993, aff'd United States v. Gradwell, 243 U.S. 476; Aczel v. United States, 232 F. 652; Felix v. United States, 186 F. 685; Karem v. United States, 121 F. 250; Walker v. United States, 93 F.2d 383; Luteran v. United States, 93 F.2d 395.

[8] No conclusion is to be drawn from the failure of the Hatch Act, 53 Stat. 1147, 18 U.S.C. § 61, to enlarge § 19 by provisions specifically applicable to primaries. Its failure to deal with the subject seems to be attributable to constitutional doubts, stimulated by Newberry v. United States, 256 U.S. 232, which are here resolved. See 84 Cong. Rec., 76th Cong., 1st Sess., p. 4191; cf. Investigation of Campaign Expenditures in the 1940 Campaign, S. Rept. No. 47, 77th Cong., 1st Sess., p. 48.

[9] Section 20 of the Criminal Code (U.S.C., Title 18 § 52):

"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both." (R.S. § 5510; Mar. 4, 1909, c. 321, § 20, 35 Stat. 1092.)

[10] The precursor of § 20 was § 2 of the Civil Rights Act of April 9, 1866, 14 Stat. 27, which reads:

"That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction shall be punished by fine. . . ."

This section, so far as now material, was in substance the same as § 20 except that the qualifying reference to differences in punishment made no mention of alienage, the reference being to "different punishment . . . on account of such person having at any time been held in a condition of slavery or involuntary servitude."

Senator Trumbull, the putative author of S. 61, 39th Cong., 1st Sess., the Civil Rights Bill of 1866, and Chairman of the Senate Judiciary Committee which reported the bill, in explaining it stated that the bill was "to protect all persons in the United States in their civil rights, and furnish the means of their vindication. . . ." Cong. Globe, 39th Cong., 1st Sess., p. 211. He also declared, "The bill applies to white men as well as black men." Cong. Globe, 39th Cong., 1st Sess., p. 599. Opponents of the bill agreed with this construction of the first clause of the section, declaring that it referred to the deprivation of constitutional rights of all inhabitants of the states of every race and color. Pp. 598, 601.

On February 24, 1870, Senator Stewart of Nevada, introduced S. 365, 41st Cong., 2d Sess., § 2 of which read:

"That any person who, under color of any law, statute, ordinance, regulation, or custom shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor. . . ."

In explaining the bill he declared, Cong. Globe, 41st Cong., 2d Sess., p. 1536, that the purpose of the bill was to extend its benefits to aliens, saying, "It extends the operation of the Civil Rights Bill, which is well known in the Senate and to the country, to all persons within the jurisdiction of the United States." The Committee reported out a substitute bill to H.R. 1293, to which S. 365 was added as an amendment. As so amended the bill when adopted became the present § 20 of the Criminal Code which read exactly as did § 2 of the Civil Rights Act, except that the word "aliens" was added and the word "citizens" was substituted for the phrase "white persons."

While the legislative history indicates that the immediate occasion for the adoption of § 20, like the Fourteenth Amendment itself, was the more adequate protection of the colored race and their civil rights, it shows that neither was restricted to the purpose and that the first clause of § 20 was intended to protect the constitutional rights of all inhabitants of the states. H.R. 1293, 41st Cong., 2d Sess., which was later amended in the Senate to include § 2 of S. 365 as § 17 of the bill as it passed, now § 20 of the Criminal Code, was originally entitled "A bill to enforce the right of citizens of the United States to vote in the several States of this Union, who have hitherto been denied that right on account of race, color, or previous condition of servitude." When the bill came to the Senate its title was amended and adopted to read, "A bill to enforce the right of citizens of the United States to vote in the several States of this Union and for other purposes."

[1] While § 19 also refers to "laws of the United States," § 19 and § 20 are the only statutes directly in point.

[2] Sec. 5506, Rev. Stat.: "Every person who, by any unlawful means, hinders, delays, prevents, or obstructs, or combines and confederates with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote, or from voting at any election . . . shall be fined not less than five hundred dollars, or be imprisoned not less than one month nor more than one year, or be punished by both such fine and imprisonment." Sec. 5511 provided: "If, at any election for Representative or Delegate in Congress, any person . . . knowingly receives the vote of any person not entitled to vote, or refuses to receive the vote of any person entitled to vote . .. he shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than three years, or by both. . ."

[3] Merriam & Overacker, Primary Elections (1928) chs. I-III, V; Sait, American Parties & Elections (1927) ch. X; Brooks, Political Parties & Electoral Problems (1933) ch. X.

[4] Act of June 25, 1910, c. 392, 36 Stat. 822, as amended by the Act of August 19, 1911, c. 33, 37 Stat. 25; Act of October 16, 1918, c. 187, 40 Stat. 1013.

[5] "That it shall be unlawful for any person to intimidate, threaten, or coerce, or to attempt to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, or Member of the House of Representatives at any election held solely or in part for the purpose of selecting a President, a Vice President, a Presidential elector, or any Member of the Senate or any Member of the House of Representatives, Delegates or Commissioners from the Territories and insular possessions."

[6] Sec. 2 of the Hatch Act, however, does make unlawful certain acts of administrative employees even in connection with the nominations for certain federal offices. And see 54 Stat. 767, No. 753, ch. 640, 76th Cong., 3d Sess. As to the power of Congress ever employees or officers of the government, see United States v. Wurzbach, 280 U.S. 396.

[7] See for example, Act of May 31, 1870, 16 Stat. 140; Act of July 14, 1870, 16 Stat. 254, 255-256; Act of Feb. 28, 1871, 16 Stat. 433; Act of June 25, 1910, 36 Stat. 822; Act of August 19, 1911, 37 Stat. 25; Act of August 23, 1912, 37 Stat. 360; Act of October 16, 1918, 40 Stat. 1013; Federal Corrupt Practices Act, 1925, 43 Stat. 1070; Hatch Act, August 2, 1939, 53 Stat. 1147.

1.3.2 OLMSTEAD ET AL. v. UNITED STATES 1.3.2 OLMSTEAD ET AL. v. UNITED STATES

277 U.S. 438 (1928)

OLMSTEAD ET AL.
v.
UNITED STATES.


GREEN ET AL.
v.
SAME.


McINNIS
v.
SAME.

Nos. 493, 532 and 533.

Supreme Court of United States.

Argued February 20, 21, 1928.
Decided June 4, 1928.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

[439] Mr. John F. Dore, with whom Messrs. F.C. Reagan and J.L. Finch were on the brief, for petitioners in No. 493.

Mr. Frank R. Jeffery, for petitioner in No. 533, and some of the petitioners in No. 532.

Messrs. Arthur E. Griffin, George F. Vanderveer, and Samuel B. Bassett, on a brief for petitioners in No. 532.

Mr. Michael J. Doherty, Special Assistant to the Attorney General, with whom Solicitor General Mitchell was on the brief, for the United States.

Messrs. Otto B. Rupp, Charles M. Bracelen, Robert H. Strahan, and Clarence B. Randall on behalf of The Pacific Telephone and Telegraph Company, American Telephone and Telegraph Company, United States Independent Telephone Association, and the Tri-State Telephone and Telegraph Company, as amici curiae, filed a brief by special leave of Court.

[455] MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

These cases are here by certiorari from the Circuit Court of Appeals for the Ninth Circuit. 19 F. (2d) 842 and 850. The petition in No. 493 was filed August 30, 1927; in Nos. 532 and 533, September 9, 1927. They were granted with the distinct limitation that the hearing should be confined to the single question whether the use of evidence of private telephone conversations between the defendants and others, intercepted by means of wire tapping, amounted to a violation of the Fourth and Fifth Amendments.

The petitioners were convicted in the District Court for the Western District of Washington of a conspiracy to violate the National Prohibition Act by unlawfully possessing, transporting and importing intoxicating liquors and maintaining nuisances, and by selling intoxicating liquors. Seventy-two others in addition to the petitioners were indicted. Some were not apprehended, some were acquitted and others pleaded guilty.

The evidence in the records discloses a conspiracy of amazing magnitude to import, possess and sell liquor unlawfully. [456] It involved the employment of not less than fifty persons, of two seagoing vessels for the transportation of liquor to British Columbia, of smaller vessels for coastwise transportation to the State of Washington, the purchase and use of a ranch beyond the suburban limits of Seattle, with a large underground cache for storage and a number of smaller caches in that city, the maintenance of a central office manned with operators, the employment of executives, salesmen, deliverymen, dispatchers, scouts, bookkeepers, collectors and an attorney. In a bad month sales amounted to $176,000; the aggregate for a year must have exceeded two millions of dollars.

Olmstead was the leading conspirator and the general manager of the business. He made a contribution of $10,000 to the capital; eleven others contributed $1,000 each. The profits were divided one-half to Olmstead and the remainder to the other eleven. Of the several offices in Seattle the chief one was in a large office building. In this there were three telephones on three different lines. There were telephones in an office of the manager in his own home, at the homes of his associates, and at other places in the city. Communication was had frequently with Vancouver, British Columbia. Times were fixed for the deliveries of the "stuff," to places along Puget Sound near Seattle and from there the liquor was removed and deposited in the caches already referred to. One of the chief men was always on duty at the main office to receive orders by telephones and to direct their filling by a corps of men stationed in another room — the "bull pen." The call numbers of the telephones were given to those known to be likely customers. At times the sales amounted to 200 cases of liquor per day.

The information which led to the discovery of the conspiracy and its nature and extent was largely obtained by intercepting messages on the telephones of the conspirators by four federal prohibition officers. Small [457] wires were inserted along the ordinary telephone wires from the residences of four of the petitioners and those leading from the chief office. The insertions were made without trespass upon any property of the defendants. They were made in the basement of the large office building. The taps from house lines were made in the streets near the houses.

The gathering of evidence continued for many months. Conversations of the conspirators of which refreshing stenographic notes were currently made, were testified to by the government witnesses. They revealed the large business transactions of the partners and their subordinates. Men at the wires heard the orders given for liquor by customers and the acceptances; they became auditors of the conversations between the partners. All this disclosed the conspiracy charged in the indictment. Many of the intercepted conversations were not merely reports but parts of the criminal acts. The evidence also disclosed the difficulties to which the conspirators were subjected, the reported news of the capture of vessels, the arrest of their men and the seizure of cases of liquor in garages and other places. It showed the dealing by Olmstead, the chief conspirator, with members of the Seattle police, the messages to them which secured the release of arrested members of the conspiracy, and also direct promises to officers of payments as soon as opportunity offered.

The Fourth Amendment provides — "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized." And the Fifth: "No person . . . shall be compelled, in any criminal case, to be a witness against himself."

[458] It will be helpful to consider the chief cases in this Court which bear upon the construction of these Amendments.

Boyd v. United States, 116 U.S. 616, was an information filed by the District Attorney in the federal court in a cause of seizure and forfeiture against thirty-five cases of plate glass, which charged that the owner and importer, with intent to defraud the revenue, made an entry of the imported merchandise by means of a fraudulent or false invoice. It became important to show the quantity and value of glass contained in twenty-nine cases previously imported. The fifth section of the Act of June 22, 1874, provided that in cases not criminal under the revenue laws, the United States Attorney, whenever he thought an invoice, belonging to the defendant, would tend to prove any allegation made by the United States, might by a written motion describing the invoice and setting forth the allegation which he expected to prove, secure a notice from the court to the defendant to produce the invoice, and if the defendant refused to produce it, the allegations stated in the motion should be taken as confessed, but if produced, the United States Attorney should be permitted, under the direction of the court, to make an examination of the invoice, and might offer the same in evidence. This Act had succeeded the Act of 1867, which provided that in such cases the District Judge, on affidavit of any person interested, might issue a warrant to the marshal to enter the premises where the invoice was and take possession of it and hold it subject to the order of the judge. This had been preceded by the Act of 1863 of a similar tenor, except that it directed the warrant to the collector instead of the marshal. The United States Attorney followed the Act of 1874 and compelled the production of the invoice.

The court held the Act of 1874 repugnant to the Fourth and Fifth Amendments. As to the Fourth Amendment, Justice Bradley said (page 621):

[459] "But, in regard to the Fourth Amendment, it is contended that, whatever might have been alleged against the constitutionality of the acts of 1863 and 1867, that of 1874, under which the order in the present case was made, is free from constitutional objection because it does not authorize the search and seizure of books and papers, but only requires the defendant or claimant to produce them. That is so; but it declares that if he does not produce them, the allegations which it is affirmed they will prove shall be taken as confessed. This is tantamount to compelling their production; for the prosecuting attorney will always be sure to state the evidence expected to be derived from them as strongly as the case will admit of. It is true that certain aggravating incidents of actual search and seizure, such as forcible entry into a man's house and searching amongst his papers, are wanting, and to this extent the proceeding under the Act of 1874 is a mitigation of that which was authorized by the former acts; but it accomplishes the substantial object of those acts in forcing from a party evidence against himself. It is our opinion, therefore, that a compulsory production of a man's private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the Fourth Amendment to the Constitution, in all cases in which a search and seizure would be; because it is a material ingredient, and effects the sole object and purpose of search and seizure."

Concurring, Mr. Justice Miller and Chief Justice Waite said that they did not think the machinery used to get this evidence amounted to a search and seizure, but they agreed that the Fifth Amendment had been violated.

The statute provided an official demand for the production of a paper or document by the defendant for official search and use as evidence on penalty that by refusal he should be conclusively held to admit the incriminating [460] character of the document as charged. It was certainly no straining of the language to construe the search and seizure under the Fourth Amendment to include such official procedure.

The next case, and perhaps the most important, is Weeks v. United States, 232 U.S. 383, — a conviction for using the mails to transmit coupons or tickets in a lottery enterprise. The defendant was arrested by a police officer without a warrant. After his arrest other police officers and the United States marshal went to his house, got the key from a neighbor, entered the defendant's room and searched it, and took possession of various papers and articles. Neither the marshal nor the police officers had a search warrant. The defendant filed a petition in court asking the return of all his property. The court ordered the return of everything not pertinent to the charge, but denied return of relevant evidence. After the jury was sworn, the defendant again made objection, and on introduction of the papers contended that the search without warrant was a violation of the Fourth and Fifth Amendments and they were therefore inadmissible. This court held that such taking of papers by an official of the United States, acting under color of his office, was in violation of the constitutional rights of the defendant, and upon making seasonable application he was entitled to have them restored, and that by permitting their use upon the trial, the trial court erred.

The opinion cited with approval language of Mr. Justice Field in Ex parte Jackson, 96 U.S. 727, 733, saying that the Fourth Amendment as a principle of protection was applicable to sealed letters and packages in the mail and that, consistently with it, such matter could only be opened and examined upon warrants issued on oath or affirmation particularly describing the thing to be seized.

In Silverthorne Lumber Company v. United States, 251 U.S. 385, the defendants were arrested at their homes and [461] detained in custody. While so detained, representatives of the Government without authority went to the office of their company and seized all the books, papers and documents found there. An application for return of the things was opposed by the District Attorney, who produced a subpoena for certain documents relating to the charge in the indictment then on file. The court said:

"Thus the case is not that of knowledge acquired through the wrongful act of a stranger, but it must be assumed that the Government planned or at all events ratified the whole performance."

And it held that the illegal character of the original seizure characterized the entire proceeding and under the Weeks case the seized papers must be restored.

In Amos v. United States, 255 U.S. 313, the defendant was convicted of concealing whiskey on which the tax had not been paid. At the trial he presented a petition asking that private property seized in a search of his house and store "within his curtilage," without warrant should be returned. This was denied. A woman, who claimed to be his wife, was told by the revenue officers that they had come to search the premises for violation of the revenue law. She opened the door; they entered and found whiskey. Further searches in the house disclosed more. It was held that this action constituted a violation of the Fourth Amendment, and that the denial of the motion to restore the whiskey and to exclude the testimony was error.

In Gouled v. The United States, 255 U.S. 298, the facts were these: Gouled and two others were charged with conspiracy to defraud the United States. One pleaded guilty and another was acquitted. Gouled prosecuted error. The matter was presented here on questions propounded by the lower court. The first related to the admission in evidence of a paper surreptitiously taken from the office of the defendant by one acting under the direction [462] of an officer of the Intelligence Department of the Army of the United States. Gouled was suspected of the crime. A private in the U.S. Army, pretending to make a friendly call on him, gained admission to his office and in his absence, without warrant of any character, seized and carried away several documents. One of these belonging to Gouled, was delivered to the United States Attorney and by him introduced in evidence. When produced, it was a surprise to the defendant. He had had no opportunity to make a previous motion to secure a return of it. The paper had no pecuniary value, but was relevant to the issue made on the trial. Admission of the paper was considered a violation of the Fourth Amendment.

Agnello v. United States, 269 U.S. 20, held that the Fourth and Fifth Amendments were violated by admission in evidence of contraband narcotics found in defendant's house, several blocks distant from the place of arrest, after his arrest, and seized there without a warrant. Under such circumstances the seizure could not be justified as incidental to the arrest.

There is no room in the present case for applying the Fifth Amendment unless the Fourth Amendment was first violated. There was no evidence of compulsion to induce the defendants to talk over their many telephones. They were continually and voluntarily transacting business without knowledge of the interception. Our consideration must be confined to the Fourth Amendment.

The striking outcome of the Weeks case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction if obtained by government officers through a violation of the Amendment. Theretofore many had supposed that under the ordinary common law rules, if the tendered evidence was pertinent, the method of obtaining it was [463] unimportant. This was held by the Supreme Judicial Court of Massachusetts in Commonwealth v. Dana, 2 Metcalf, 329, 337. There it was ruled that the only remedy open to a defendant whose rights under a state constitutional equivalent of the Fourth Amendment had been invaded was by suit and judgment for damages, as Lord Camden held in Entick v. Carrington, 19 Howell State Trials, 1029. Mr. Justice Bradley made effective use of this case in Boyd v. United States. But in the Weeks case, and those which followed, this Court decided with great emphasis, and established as the law for the federal courts, that the protection of the Fourth Amendment would be much impaired unless it was held that not only was the official violator of the rights under the Amendment subject to action at the suit of the injured defendant, but also that the evidence thereby obtained could not be received.

The well known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to prevent the use of governmental force to search a man's house, his person, his papers and his effects; and to prevent their seizure against his will. This phase of the misuse of governmental power of compulsion is the emphasis of the opinion of the Court in the Boyd case. This appears too in the Weeks case, in the Silverthorne case and in the Amos case.

Gouled v. United States carried the inhibition against unreasonable searches and seizures to the extreme limit. Its authority is not to be enlarged by implication and must be confined to the precise state of facts disclosed by the record. A representative of the Intelligence Department of the Army, having by stealth obtained admission to the defendant's office, seized and carried away certain private papers valuable for evidential purposes. This was held an unreasonable search and seizure within the Fourth Amendment. A stealthy entrance in such circumstances [464] became the equivalent to an entry by force. There was actual entrance into the private quarters of defendant and the taking away of something tangible. Here we have testimony only of voluntary conversations secretly overheard.

The Amendment itself shows that the search is to be of material things — the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is that it must specify the place to be searched and the person or things to be seized.

It is urged that the language of Mr. Justice Field in Ex parte Jackson, already quoted, offers an analogy to the interpretation of the Fourth Amendment in respect of wire tapping. But the analogy fails. The Fourth Amendment may have proper application to a sealed letter in the mail because of the constitutional provision for the Postoffice Department and the relations between the Government and those who pay to secure protection of their sealed letters. See Revised Statutes, §§ 3978 to 3988, whereby Congress monopolizes the carriage of letters and excludes from that business everyone else, and § 3929 which forbids any postmaster or other person to open any letter not addressed to himself. It is plainly within the words of the Amendment to say that the unlawful rifling by a government agent of a sealed letter is a search and seizure of the sender's papers or effects. The letter is a paper, an effect, and in the custody of a Government that forbids carriage except under its protection.

The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.

[465] By the invention of the telephone, fifty years ago, and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the Amendment can not be extended and expanded to include telephone wires reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched.

This Court in Carroll v. United States, 267 U.S. 132, 149, declared:

"The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted and in a manner which will conserve public interests as well as the interests and rights of individual citizens."

Justice Bradley in the Boyd case, and Justice Clark in the Gouled case, said that the Fifth Amendment and the Fourth Amendment were to be liberally construed to effect the purpose of the framers of the Constitution in the interest of liberty. But that can not justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight.

Hester v. United States, 265 U.S. 57, held that the testimony of two officers of the law who trespassed on the defendant's land, concealed themselves one hundred yards away from his house and saw him come out and hand a bottle of whiskey to another, was not inadmissible. While there was a trespass, there was no search of person, house, papers or effects. United States v. Lee, 274 U.S. 559, 563; Eversole v. State, 106 Tex. Cr. 567.

Congress may of course protect the secrecy of telephone messages by making them, when intercepted, inadmissible in evidence in federal criminal trials, by direct legislation, [466] and thus depart from the common law of evidence. But the courts may not adopt such a policy by attributing an enlarged and unusual meaning to the Fourth Amendment. The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house and messages while passing over them are not within the protection of the Fourth Amendment. Here those who intercepted the projected voices were not in the house of either party to the conversation.

Neither the cases we have cited nor any of the many federal decisions brought to our attention hold the Fourth Amendment to have been violated as against a defendant unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house "or curtilage" for the purpose of making a seizure.

We think, therefore, that the wire tapping here disclosed did not amount to a search or seizure within the meaning of the Fourth Amendment.

What has been said disposes of the only question that comes within the terms of our order granting certiorari in these cases. But some of our number, departing from that order, have concluded that there is merit in the two-fold objection overruled in both courts below that evidence obtained through intercepting of telephone messages by government agents was inadmissible because the mode of obtaining it was unethical and a misdemeanor under the law of Washington. To avoid any misapprehension of our views of that objection we shall deal with it in both of its phases.

While a Territory, the English common law prevailed in Washington and thus continued after her admission in 1889. The rules of evidence in criminal cases in courts of the United States sitting there, consequently are those of the common law. United States v. Reid, 12 How. 361, [467] 363, 366; Logan v. United States, 144 U.S. 263, 301; Rosen v. United States, 245 U.S. 467; Withaup v. United States, 127 Fed. 530, 534; Robinson v. United States, 292 Fed. 683, 685.

The common law rule is that the admissibility of evidence is not affected by the illegality of the means by which it was obtained. Professor Greenleaf in his work on evidence, vol. 1, 12th ed., by Redfield, § 254(a) says:

"It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue, to determine that question."

Mr. Jones in his work on the same subject refers to Mr. Greenleaf's statement, and says:

"Where there is no violation of a constitutional guaranty, the verity of the above statement is absolute." Vol. 5, § 2075, note 3.

The rule is supported by many English and American cases cited by Jones in vol. 5, § 2075, note 3, and § 2076, note 6; and by Wigmore, vol. 4, § 2183. It is recognized by this Court in Adams v. New York, 192 U.S. 585. The Weeks case, announced an exception to the common law rule by excluding all evidence in the procuring of which government officials took part by methods forbidden by the Fourth and Fifth Amendments. Many state courts do not follow the Weeks case. People v. Defore, 242 N.Y. 13. But those who do, treat it as an exception to the general common law rule and required by constitutional limitations. Hughes v. State, 145 Tenn. 544, 551, 566; State v. Wills, 91 W. Va. 659, 677; State v. Slamon, 73 Vt. 212, 214, 215; Gindrat v. People, 138 Ill. 103, 111; People v. Castree, 311 Ill. 392, 396, 397; State v. [468] Gardner, 77 Mont. 8, 21; State v. Fahn, 53 N. Dak. 203, 210. The common law rule must apply in the case at bar.

Nor can we, without the sanction of congressional enactment, subscribe to the suggestion that the courts have a discretion to exclude evidence, the admission of which is not unconstitutional, because unethically secured. This would be at variance with the common law doctrine generally supported by authority. There is no case that sustains, nor any recognized text book that gives color to such a view. Our general experience shows that much evidence has always been receivable although not obtained by conformity to the highest ethics. The history of criminal trials shows numerous cases of prosecutions of oath-bound conspiracies for murder, robbery, and other crimes, where officers of the law have disguised themselves and joined the organizations, taken the oaths and given themselves every appearance of active members engaged in the promotion of crime, for the purpose of securing evidence. Evidence secured by such means has always been received.

A standard which would forbid the reception of evidence if obtained by other than nice ethical conduct by government officials would make society suffer and give criminals greater immunity than has been known heretofore. In the absence of controlling legislation by Congress, those who realize the difficulties in bringing offenders to justice may well deem it wise that the exclusion of evidence should be confined to cases where rights under the Constitution would be violated by admitting it.

The statute of Washington, adopted in 1909, provides (Remington Compiled Statutes, 1922, § 2656-18) that:

"Every person . . . who shall intercept, read or in any manner interrupt or delay the sending of a message over any telegraph or telephone line . . . shall be guilty of a misdemeanor."

[469] This statute does not declare that evidence obtained by such interception shall be inadmissible, and by the common law, already referred to, it would not be. People v. McDonald, 177 App. Div. (N.Y.) 806. Whether the State of Washington may prosecute and punish federal officers violating this law and those whose messages were intercepted may sue them civilly is not before us. But clearly a statute, passed twenty years after the admission of the State into the Union can not affect the rules of evidence applicable in courts of the United States in criminal cases. Chief Justice Taney, in United States v. Reid, 12 How. 361, 363, construing the 34th section of the Judiciary Act, said:

"But it could not be supposed, without very plain words to show it, that Congress intended to give the states the power of prescribing the rules of evidence in trials for offenses against the United States. For this construction would place the criminal jurisprudence of one sovereignty under the control of another." See also Withaup v. United States, 127 Fed. 530, 534.

The judgments of the Circuit Court of Appeals are affirmed. The mandates will go down forthwith under Rule 31.

Affirmed.

MR. JUSTICE BRANDEIS, dissenting.

The defendants were convicted of conspiring to violate the National Prohibition Act. Before any of the persons now charged had been arrested or indicted, the telephones by means of which they habitually communicated with one another and with others had been tapped by federal officers. To this end, a lineman of long experience in wire-tapping was employed, on behalf of the Government and at its expense. He tapped eight telephones, some in the homes of the persons charged, some in their offices. Acting on behalf of the Government and in their official capacity, at least six other prohibition agents listened over the tapped wires and reported the messages taken. Their operations extended over a period of nearly five months. The type-written record of the notes of conversations overheard occupies 775 typewritten pages. By objections seasonably made and persistently renewed, the defendants objected to the admission of the evidence obtained by wire-tapping, on the ground that the Government's wire-tapping constituted an unreasonable search and seizure, in violation of the Fourth Amendment; and that the use as evidence of the conversations overheard compelled the defendants to be witnesses against themselves, in violation of the Fifth Amendment.

The Government makes no attempt to defend the methods employed by its officers. Indeed, it concedes [472] that if wire-tapping can be deemed a search and seizure within the Fourth Amendment, such wire-tapping as was practiced in the case at bar was an unreasonable search and seizure, and that the evidence thus obtained was inadmissible. But it relies on the language of the Amendment; and it claims that the protection given thereby cannot properly be held to include a telephone conversation.

"We must never forget," said Mr. Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 407, "that it is a constitution we are expounding." Since then, this Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the Fathers could not have dreamed. See Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1, 9; Northern Pacific Ry. Co. v. North Dakota, 250 U.S. 135; Dakota Central Telephone Co. v. South Dakota, 250 U.S. 163; Brooks v. United States, 267 U.S. 432. We have likewise held that general limitations on the powers of Government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modern conditions by regulations which "a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive." Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387; Buck v. Bell, 274 U.S. 200. Clauses guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world. It was with reference to such a clause that this Court said in Weems v. United States, 217 U.S. 349, 373: "Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions [473] and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall `designed to approach immortality as nearly as human institutions can approach it.' The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality."

When the Fourth and Fifth Amendments were adopted, "the form that evil had theretofore taken," had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify — a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life — a seizure effected, if need be, by breaking and entry. Protection against such invasion of "the sanctities of a man's home and the privacies of life" was provided in the Fourth and Fifth Amendments by specific language. Boyd v. United States, 116 U.S. 616, 630. But "time works changes, brings into existence new conditions and purposes." Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.

[474] Moreover, "in the application of a constitution, our contemplation cannot be only of what has been but of what may be." The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. "That places the liberty of every man in the hands of every petty officer" was said by James Otis of much lesser intrusions than these.[1] To Lord Camden, a far slighter intrusions seemed "subversive of all the comforts of society."[2] Can it be that the Constitution affords no protection against such invasions of individual security?

A sufficient answer is found in Boyd v. United States, 116 U.S. 616, 627-630, a case that will be remembered as long as civil liberty lives in the United States. This Court there reviewed the history that lay behind the Fourth and Fifth Amendments. We said with reference to Lord Camden's judgment in Entick v. Carrington, 19 Howell's State Trials, 1030: "The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case there before the court, with its adventitious circumstances; they apply to all invasions on the part of the Government and its employes of the sanctities of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, [475] personal liberty and private property, where that right has never been forfeited by his conviction of some public offence, — it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence of a crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other."[3]

In Ex parte Jackson, 96 U.S. 727, it was held that a sealed letter entrusted to the mail is protected by the Amendments. The mail is a public service furnished by the Government. The telephone is a public service furnished by its authority. There is, in essence, no difference between the sealed letter and the private telephone message. As Judge Rudkin said below: "True the one is visible, the other invisible; the one is tangible, the other intangible; the one is sealed and the other unsealed, but these are distinctions without a difference." The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations [476] between them upon any subject, and although proper, confidential and privileged, may be overheard. Moreover, the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire-tapping.

Time and again, this Court in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it. This was notably illustrated in the Boyd case itself. Taking language in its ordinary meaning, there is no "search" or "seizure" when a defendant is required to produce a document in the orderly process of a court's procedure. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," would not be violated, under any ordinary construction of language, by compelling obedience to a subpoena. But this Court holds the evidence inadmissible simply because the information leading to the issue of the subpoena has been unlawfully secured. Silverthorne Lumber Co. v. United States, 251 U.S. 385. Literally, there is no "search" or "seizure" when a friendly visitor abstracts papers from an office; yet we held in Gouled v. United States, 255 U.S. 298, that evidence so obtained could not be used. No court which looked at the words of the Amendment rather than at its underlying purpose would hold, as this Court did in Ex parte Jackson, 96 U.S. 727, 733, that its protection extended to letters in the mails. The provision against self-incrimination in the Fifth Amendment has been given an equally broad construction. The language is: "No person. . . shall be compelled in any criminal case to be a witness against himself." Yet we have held, not only that the [477] protection of the Amendment extends to a witness before a grand jury, although he has not been charged with crime, Counselman v. Hitchcock, 142 U.S. 547, 562, 586. but that: "It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant." McCarthy v. Arndstein, 266 U.S. 34, 40. The narrow language of the Amendment has been consistently construed in the light of its object, "to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard." Counselman v. Hitchcock, supra, p. 562.

Decisions of this Court applying the principle of the Boyd case have settled these things. Unjustified search and seizure violates the Fourth Amendment, whatever the character of the paper;[4] whether the paper when taken by the federal officers was in the home,[5] in an office[6] or elsewhere;[7] whether the taking was effected by force,[8] by [478] fraud,[9] or in the orderly process of a court's procedure.[10] From these decisions, it follows necessarily that the Amendment is violated by the officer's reading the paper without a physical seizure, without his even touching it; and that use, in any criminal proceeding, of the contents of the paper so examined — as where they are testified to by a federal officer who thus saw the document or where, through knowledge so obtained, a copy has been procured elsewhere[11] — any such use constitutes a violation of the Fifth Amendment.

The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence [479] in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

Applying to the Fourth and Fifth Amendments the established rule of construction, the defendants' objections to the evidence obtained by wire-tapping must, in my opinion, be sustained. It is, of course, immaterial where the physical connection with the telephone wires leading into the defendants' premises was made. And it is also immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.[12]

Independently of the constitutional question, I am of opinion that the judgment should be reversed. By the laws of Washington, wire-tapping is a crime.[13] Pierce's [480] Code, 1921, § 8976(18). To prove its case, the Government was obliged to lay bare the crimes committed by its officers on its behalf. A federal court should not permit such a prosecution to continue. Compare Harkin v. Brundage, 276 U.S. 36, id. 604.

[481] The situation in the case at bar differs widely from that presented in Burdeau v. McDowell, 256 U.S. 465. There, only a single lot of papers was involved. They had been obtained by a private detective while acting on behalf of a private party; without the knowledge of any federal official; long before anyone had thought of instituting a [482] federal prosecution. Here, the evidence obtained by crime was obtained at the Government's expense, by its officers, while acting on its behalf; the officers who committed these crimes are the same officers who were charged with the enforcement of the Prohibition Act; the crimes of these officers were committed for the purpose of securing evidence with which to obtain an indictment and to secure a conviction. The evidence so obtained constitutes the warp and woof of the Government's case. The aggregate of the Government evidence occupies 306 pages of the printed record. More than 210 of them are filled by recitals of the details of the wire-tapping and of facts ascertained thereby.[14] There is literally no other evidence of guilt on the part of some of the defendants except that illegally obtained by these officers. As to nearly all the defendants (except those who admitted guilt), the evidence relied upon to secure a conviction consisted mainly of that which these officers had so obtained by violating the state law.

As Judge Rudkin said below: "Here we are concerned with neither eavesdroppers nor thieves. Nor are we concerned with the acts of private individuals. . . . We are concerned only with the acts of federal agents whose powers are limited and controlled by the Constitution of the United States." The Eighteenth Amendment has not in terms empowered Congress to authorize anyone to violate the criminal laws of a State. And Congress has never purported to do so. Compare Maryland v. Soper, 270 U.S. 9. The terms of appointment of federal prohibition agents do not purport to confer upon them authority to violate any criminal law. Their superior officer, the Secretary of the Treasury, has not instructed them to commit [483] crime on behalf of the United States. It may be assumed that the Attorney General of the United States did not give any such instruction.[15]

When these unlawful acts were committed, they were crimes only of the officers individually. The Government was innocent, in legal contemplation; for no federal official is authorized to commit a crime on its behalf. When the Government, having full knowledge, sought, through the Department of Justice, to avail itself of the fruits of these acts in order to accomplish its own ends, it assumed moral responsibility for the officers' crimes. Compare The Paquete Habana, 189 U.S. 453, 465; O'Reilly deCamara v. Brooke, 209 U.S. 45, 52; Dodge v. United States, 272 U.S. 530, 532; Gambino v. United States, 275 U.S. 310. And if this Court should permit the Government, by means of its officers' crimes, to effect its purpose of punishing the defendants, there would seem to be present all the elements of a ratification. If so, the Government itself would become a lawbreaker.

Will this Court by sustaining the judgment below sanction such conduct on the part of the Executive? The governing principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands.[16] The maxim of unclean hands comes [484] from courts of equity.[17] But the principle prevails also in courts of law. Its common application is in civil actions between private parties. Where the Government is the actor, the reasons for applying it are even more persuasive. Where the remedies invoked are those of the criminal law, the reasons are compelling.[18]

The door of a court is not barred because the plaintiff has committed a crime. The confirmed criminal is as much entitled to redress as his most virtuous fellow citizen; no record of crime, however long, makes one an outlaw. The court's aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress.[19] Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for law; in order is to promote confidence in the administration of justice; in order to preserve the judicial process from contamination. The rule is one, not of action, but of inaction. It is sometimes [485] spoken of as a rule of substantive law. But it extends to matters of procedure as well.[20] A defense may be waived. It is waived when not pleaded. But the objection that the plaintiff comes with unclean hands will be taken by the court itself.[21] It will be taken despite the wish to the contrary of all the parties to the litigation. The court protects itself.

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

MR. JUSTICE HOLMES:

My brother BRANDEIS has given this case so exhaustive an examination that I desire to add but a few words. While I do not deny it, I am not prepared to say that the penumbra of the Fourth and Fifth Amendments covers the defendant, although I fully agree that Courts are apt to err by sticking too closely to the words of a law where those words import a policy that goes beyond them. Gooch v. Oregon Short Line R.R. Co., 258 U.S. 22, 24. But I think, as MR. JUSTICE BRANDEIS says, that apart from the Constitution the Government ought not to use [470] evidence obtained and only obtainable by a criminal act. There is no body of precedents by which we are bound, and which confines us to logical deduction from established rules. Therefore we must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. If it pays its officers for having got evidence by crime I do not see why it may not as well pay them for getting it in the same way, and I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that in the future it will pay for the fruits. We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.

For those who agree with me, no distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed. See Silverthorne Lumber Co. v. United States, 251 U.S. 385. And if all that I have said so far be accepted it makes no difference that in this case wire tapping is made a crime by the law of the State, not by the law of the United States. It is true that a State cannot make rules of evidence for Courts of the United States, but the State has authority over the conduct in question, and I hardly think that the United States would appear to greater advantage when paying for an odious crime against State law than when inciting to the disregard of its own. I am aware of the often repeated statement that in a criminal proceeding the Court will not take notice of the manner in which papers offered in evidence have been [471] obtained. But that somewhat rudimentary mode of disposing of the question has been overthrown by Weeks v. United States, 232 U.S. 383 and the cases that have followed it. I have said that we are free to choose between two principles of policy. But if we are to confine ourselves to precedent and logic the reason for excluding evidence obtained by violating the Constitution seems to me logically to lead to excluding evidence obtained by a crime of the officers of the law.

MR. JUSTICE BUTLER, dissenting.

I sincerely regret that I cannot support the opinion and judgments of the Court in these cases.

[486] The order allowing the writs of certiorari operated to limit arguments of counsel to the constitutional question. I do not participate in the controversy that has arisen here as to whether the evidence was inadmissible because the mode of obtaining it was unethical and a misdemeanor under state law. I prefer to say nothing concerning those questions because they are not within the jurisdiction taken by the order.

The Court is required to construe the provision of the Fourth Amendment that declares: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." The Fifth Amendment prevents the use of evidence obtained through searches and seizures in violation of the rights of the accused protected by the Fourth Amendment.

The single question for consideration is this: May the Government, consistently with that clause, have its officers whenever they see fit, tap wires, listen to, take down and report, the private messages and conversations transmitted by telephones?

The United States maintains that "The `wire tapping' operations of the federal prohibition agents were not a `search and seizure' in violation of the security of the `persons, houses, papers and effects' of the petitioners in the constitutional sense or within the intendment of the Fourth Amendment." The Court, adhering to and reiterating the principles laid down and applied in prior decisions[*] construing the search and seizure clause, in substance adopts the contention of the Government.

The question at issue depends upon a just appreciation of the facts.

[487] Telephones are used generally for transmission of messages concerning official, social, business and personal affairs including communications that are private and privileged — those between physician and patient, lawyer and client, parent and child, husband and wife. The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass. During their transmission the exclusive use of the wire belongs to the persons served by it. Wire tapping involves interference with the wire while being used. Tapping the wires and listening in by the officers literally constituted a search for evidence. As the communications passed, they were heard and taken down.

In Boyd v. United States, 116 U.S. 616, there was no "search or seizure" within the literal or ordinary meaning of the words, nor was Boyd — if these constitutional provisions were read strictly according to the letter — compelled in a "criminal case" to be a "witness" against himself. The statute, there held unconstitutional because repugnant to the search and seizure clause, merely authorized judgment for sums claimed by the Government on account of revenue if the defendant failed to produce his books, invoices and papers. The principle of that case has been followed, developed and applied in this and many other courts. And it is in harmony with the rule of liberal construction that always has been applied to provisions of the Constitution safeguarding personal rights (Byars v. United States, 273 U.S. 28, 32), as well as to those granting governmental powers. McCulloch v. Maryland, 4 Wheat. 316, 404, 406, 407, 421. Marbury v. Madison, 1 Cranch 137, 153, 176. Cohens v. Virginia, 6 Wheat. 264. Myers v. United States, 272 U.S. 52.

This Court has always construed the Constitution in the light of the principles upon which it was founded. [488] The direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions. Under the principles established and applied by this Court, the Fourth Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words. That construction is consonant with sound reason and in full accord with the course of decisions since McCulloch v. Maryland. That is the principle directly applied in the Boyd case.

When the facts in these cases are truly estimated, a fair application of that principle decides the constitutional question in favor of the petitioners. With great deference, I think they should be given a new trial.

MR. JUSTICE STONE, dissenting.

I concur in the opinions of MR. JUSTICE HOLMES and MR. JUSTICE BRANDEIS. I agree also with that of MR. JUSTICE BUTLER so far as it deals with the merits. The effect of the order granting certiorari was to limit the argument to a single question, but I do not understand that it restrains the Court from a consideration of any question which we find to be presented by the record, for, under Jud. Code, § 240(a), this Court determines a case here on certiorari "with the same power and authority, and with like effect, as if the cause had been brought [here] by unrestricted writ of error or appeal."

[1] Otis' Argument against Writs of Assistance. See Tudor, James Otis, p. 66; John Adams, Works, Vol. II, p. 524; Minot, Continuation of the History of Massachusetts Bay, Vol. II, p. 95.

[2] Entick v. Carrington, 19 Howell's State Trials, 1030, 1066.

[3] In Interstate Commerce Commission v. Brimson, 154 U.S. 447, 479, the statement made in the Boyd case was repeated; and the Court quoted the statement of Mr. Justice Field in In re Pacific Railway Commission, 32 Fed. 241, 250: "Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers, from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value." The Boyd case has been recently reaffirmed in Silverthorne Lumber Co. v. United States, 251 U.S. 385, in Gouled v. United States, 255 U.S. 298, and in Byars v. United States, 273 U.S. 28.

[4] Gouled v. United States, 255 U.S. 298.

[5] Weeks v. United States, 232 U.S. 383; Amos v. United States, 255 U.S. 313; Agnello v. United States, 269 U.S. 20; Byars v. United States, 273 U.S. 28.

[6] Boyd v. United States, 116 U.S. 616; Hale v. Henkel, 201 U.S. 43, 70; Silverthorne Lumber Co. v. United States, 251 U.S. 385; Gouled v. United States, 255 U.S. 298; Marron v. United States, 275 U.S. 192.

[7] Ex parte Jackson, 96 U.S. 727, 733; Carroll v. United States, 267 U.S. 132, 156; Gambino v. United States, 275 U.S. 310.

[8] Weeks v. United States, 232 U.S. 383; Silverthorne Lumber Co. v. United States, 251 U.S. 385; Amos v. United States, 255 U.S. 313; Carroll v. United States, 267 U.S. 132, 156; Agnello v. United States, 269 U.S. 20; Gambino v. United States, 275 U.S. 310.

[9] Gouled v. United States, 255 U.S. 298.

[10] Boyd v. United States, 116 U.S. 616; Hale v. Henkel, 201 U.S. 43, 70. See Gouled v. United States, 255 U.S. 298; Byars v. United States, 273 U.S. 28; Marron v. United States, 275 U.S. 192.

[11] Silverthorne Lumber Co. v. United States, 251 U.S. 385. Compare Gouled v. United States, 255 U.S. 298, 307. In Stroud v. United States, 251 U.S. 15, and Hester v. United States, 265 U.S. 57, the letter and articles admitted were not obtained by unlawful search and seizure. They were voluntary dilosures by the defendant. Compare Smith v. United States, 2 F. (2d) 715; United States v. Lee, 274 U.S. 559.

[12] The point is thus stated by counsel for the telephone companies, who have filed a brief as amici curiae: "Criminals will not escape detection and conviction merely because evidence obtained by tapping wires of a public telephone system is inadmissible, if it should be so held; but, in any event, it is better that a few criminals escape than that the privacies of life of all the people be exposed to the agents of the government, who will act at their own discretion, the honest and the dishonest, unauthorized and unrestrained by the courts. Legislation making wire tapping a crime will not suffice if the courts nevertheless hold the evidence to be lawful."

[13] In the following states it is a criminal offense to intercept a message sent by telegraph and/or telephone: Alabama, Code, 1923, § 5256; Arizona, Revised Statutes, 1913, Penal Code, § 692; Arkansas, Crawford & Moses Digest, 1921, § 10246; California, Deering's Penal Code, 1927, § 640; Colorado, Compiled Laws, 1921, § 6969; Connecticut, General Statutes, 1918, § 6292; Idaho, Compiled Statutes, 1919, §§ 8574, 8586; Illinois, Revised Statutes, 1927, c. 134, § 21; Iowa, Code, 1927, § 13121; Kansas, Revised Statutes, 1923, c. 17, § 1908; Michigan, Compiled Laws, 1915, § 15403; Montana, Penal Code, 1921, § 11518; Nebraska, Compiled Statutes, 1922, § 7115; Nevada, Revised Laws, 1912, §§ 4608, 6572(18); New York, Consolidated Laws, c. 40, § 1423(6); North Dakota, Compiled Laws, 1913, § 10231; Ohio, Page's General Code, 1926, § 13402; Oklahoma, Session Laws, 1923, c. 46; Oregon, Olson's Laws, 1920, § 2265; South Dakota, Revised Code, 1919, § 4312; Tennessee, Shannon's Code, 1919, §§ 1839, 1840; Utah, Compiled Laws, 1917, § 8433; Virginia, Code, 1924, § 4477(2), (3); Washington, Pierce's Code, 1921, § 8976(18); Wisconsin, Statutes, 1927, § 348.37; Wyoming, Compiled Statutes, 1920, § 7148. Compare State v. Behringer, 19 Ariz. 502; State v. Nordskog, 76 Wash. 472.

In the following states it is a criminal offense for a company engaged in the transmission of messages by telegraph and/or telephone, or its employees, or, in many instances, persons conniving with them, to disclose or to assist in the disclosure of any message: Alabama, Code, 1923, §§ 5543, 5545; Arizona, Revised Statutes, 1913, Penal Code, §§ 621, 623, 691; Arkansas, Crawford & Moses Digest, 1921, § 10250; California, Deering's Penal Code, 1927, §§ 619, 621, 639, 641; Colorado, Compiled Laws, 1921, §§ 6966, 6968, 6970; Connecticut, General Statutes, 1918, § 6292; Florida, Revised General Statutes, 1920, §§ 5754, 5755; Idaho, Compiled Statutes, 1919, §§ 8568, 8570; Illinois, Revised Statutes, 1927, c. 134, §§ 7, 7a; Indiana, Burns' Revised Statutes, 1926, § 2862; Iowa, Code, 1924, § 8305; Louisiana, Acts, 1918, c. 134, p. 228; Maine, Revised Statutes, 1916, c. 60, § 24; Maryland, Bagby's Code, 1926, § 489; Michigan, Compiled Statutes, 1915, § 15104; Minnesota, General Statutes, 1923, §§ 10423, 10424; Mississippi, Hemingway's Code, 1927, § 1174; Missouri, Revised Statutes, 1919, § 3605; Montana, Penal Code, 1921, § 11494; Nebraska, Compiled Statutes, 1922, § 7088; Nevada, Revised Laws, 1912, §§ 4603, 4605, 4609, 4631; New Jersey, Compiled Statutes, 1910, p. 5319; New York, Consolidated Laws, c. 40, §§ 552, 553; North Carolina, Consolidated Statutes, 1919, §§ 4497, 4498, 4499; North Dakota, Compiled Laws, 1913, § 10078; Ohio, Page's General Code, 1926, § 13388, 13419; Oklahoma, Session Laws, 1923, c. 46; Oregon, Olson's Laws, 1920, §§ 2260, 2266; Pennsylvania, Statutes, 1920, §§ 6306, 6308, 6309; Rhode Island, General Laws, 1923, § 6104; South Dakota, Revised Code, 1919, §§ 4346, 9801; Tennessee, Shannon's Code, 1919, §§ 1837, 1838; Utah, Compiled Laws, 1917, §§ 8403, 8405, 8434; Washington, Pierce's Code, 1921, §§ 8982, 8983, Wisconsin, Statutes, 1927, § 348.36.

The Alaskan Penal Code, Act of March 3, 1899, c. 429, 30 Stat. 1253, 1278, provides that "if any officer, agent, operator, clerk, or employee of any telegraph company, or any other person, shall wilfully divulge to any other person than the party from whom the same was received, or to whom the same was addressed, or his agent or attorney, any message received or sent, or intended to be sent, over any telegraph line, or the contents, substance, purport, effect, or meaning of such message, or any part thereof,. . . the person so offending shall be deemed guilty of a misdemeanor, and shall be punished by a fine not to exceed one thousand dollars or imprisonment not to exceed one year, or by both such fine and imprisonment, in the discretion of the court."

The Act of October 29, 1918, c. 197, 40 Stat. 1017, provided: "That whoever during the period of governmental operation of the telephone and telegraph systems of the United States . . . shall, without authority and without the knowledge and consent of the other users thereof, except as may be necessary for operation of the service, tap any telegraph or telephone line, or wilfully interfere with the operation of such telephone and telegraph systems or with the transmission of any telephone or telegraph message, or with the delivery of any such message, or whoever being employed in any such telephone or telegraph service shall divulge the contents of any such telephone or telegraph message to any person not duly authorized to receive the same, shall be fined not exceeding $1,000 or imprisoned for not more than one year, or both."

The Radio Act, February 23, 1927, c. 169, § 27, 44 Stat. 1162, 1172, provides that "no person not being authorized by the sender shall intercept any message and divulge or publish the contents, substance, purport, effect, or meaning of such intercepted message to any person."

[14] The above figures relate to Case No. 493. In Nos. 532-533, the Government evidence fills 278 pages, of which 140 are recitals of the evidence obtained by wire-tapping.

[15] According to the Government's brief, p. 41, "The Prohibition Unit of the Treasury disclaims it [wire-tapping] and the Department of Justice has frowned on it." See also "Prohibition Enforcement," 69th Congress, 2d Session, Senate Doc. No. 198, pp. IV, V, 13, 15, referred to Committee, January 25, 1927; also Same, Part 2.

[16] See Hannay v. Eve, 3 Cranch, 242, 247; Bank of the United States v. Owens, 2 Pet. 527, 538; Bartle v. Coleman, 4 Pet. 184, 188; Kennett v. Chambers, 14 How. 38, 52; Marshall v. Baltimore & Ohio R.R. Co., 16 How. 314, 334; Tool Co. v. Norris, 2 Wall 45, 54; The Ouachita Cotton, 6 Wall. 521, 532; Coppell v. Hall, 7 Wall. 542; Forsyth v. Woods, 11 Wall. 484, 486; Hanauer v. Doane, 12 Wall. 342, 349; Trist v. Child, 21 Wall. 441, 448; Meguire v. Corwine, 101 U.S. 108, 111; Oscanyan v. Arms Co., 103 U.S. 261; Irwin v. Williar, 110 U.S. 499, 510; Woodstock Iron Co. v. Richmond & Danville Extension Co., 129 U.S. 643; Gibbs v. Consolidated Gas Co., 130 U.S. 396, 411; Embrey v. Jemison, 131 U.S. 336, 348; West v. Camden, 135 U.S. 507, 521; McMullen v. Hoffman, 174 U.S. 639, 654; Hazelton v. Sheckells, 202 U.S. 71; Crocker v. United States, 240 U.S. 74, 78. Compare Holman v. Johnson, 1 Cowp. 341.

[17] See Creath's Administrator v. Sims, 5 How. 192, 204; Kennett v. Chambers, 14 How. 38, 49; Randall v. Howard, 2 Black, 585, 586; Wheeler v. Sage, 1 Wall. 518, 530; Dent v. Ferguson, 132 U.S. 50, 64; Pope Manufacturing Co. v. Gormully, 144 U.S. 224, 236; Miller v. Ammon, 145 U.S. 421, 425; Hazelton v. Sheckells, 202 U.S. 71, 79. Compare International News Service v. Associated Press, 248 U.S. 215, 245.

[18] Compare State v. Simmons, 39 Kan. 262, 264-265; State v. Miller, 44 Mo. App. 159, 163-164; In re Robinson, 29 Neb. 135; Harris v. State, 15 Tex. App. 629, 634-635, 639.

[19] See Armstrong v. Toler, 11 Wheat. 258; Brooks v. Martin, 2 Wall. 70; Planters' Bank v. Union Bank, 16 Wall. 483, 499-500; Houston & Texas Central R.R. Co. v. Texas, 177 U.S. 66, 99; Bothwell v. Buckbee, Mears Co., 275 U.S. 274.

[20] See Lutton v. Benin, 11 Mod. 50; Barlow v. Hall, 2 Anst. 461; Wells v. Gurney, 8 Barn. & Cress. 769; Ilsley v. Nichols, 12 Pick. 270; Carpenter v. Spooner, 2 Sandf. 717; Metcalf v. Clark, 41 Barb. 45; Williams ads. Reed, 29 N.J.L. 385; Hill v. Goodrich, 32 Conn. 588; Townsend v. Smith, 47 Wis. 623; Blandin v. Ostrander, 239 Fed. 700; Harkin v. Brundage, 276 U.S. 36, id., 604.

[21] Coppell v. Hall, 7 Wall. 542, 558; Oscanyan v. Arms Co., 103 U.S. 261, 267; Higgins v. McCrea, 116 U.S. 671, 685. Compare Evans v. Richardson, 3 Mer. 469; Norman v. Cole, 3 Esp. 253; Northwestern Salt Co. v. Electrolytic Alkali Co., [1913] 3 K.B. 422.

[*] Ex parte Jackson, 96 U.S. 727. Boyd v. United States, 116 U.S. 616. Weeks v. United States, 232 U.S. 383. Silverthorne Lumber Co. v. United States, 251 U.S. 385. Gouled v. United States, 255 U.S. 298. Amos v. United States, 255 U.S. 313.