wise, could our systems of prohibition and non-intercourse be defended? From what other source has been derived the power of laying embargoes in a time of peace, and without any reference to war or its operations? Yet this power has been universally admitted to be constitutional, even in times of the highest political excitement. And although the laying of an embargo in the form of a perpetual law was contested as unconstitutional, at one period of our political history, it was so not because an embargo was not a regulation of commerce, but because a perpetual embargo was an annihilation, and not a regulation of commerce.1 It may, therefore, be safely affirmed that the terms

1 9 Wheat. 191, 192, 193; 1 Kent's Comm. Lect. 19, p. 404, 405; The Brigantine William, 2 Hall's Law Journal, 265; Sergeant on Const. ch. 28, p. 290, &c.; post, § 1285 to § 1287. [See also 3 Bradford's History of Massachusetts, 108. Mr. Randolph was also disposed to question the constitutionality of the embargo except as an incipient war measure. See Garland's Life of Randolph, I. 269. Mr. Webster says: "No doubt a great majority of the people of New England conscientiously believed the embargo law of 1807 unconstitutional. They reasoned thus: Congress has power to regulate commerce; but here is a law, they said, stopping all commerce, and stopping it indefinitely. The law is perpetual; that is, it is not limited in point of time, and must of course continue until it shall be repealed by some other law. It is as perpetual, therefore, as the law against treason or murder. Now, is this regulating commerce, or destroying it? Is it guiding, controlling, giving the rule to commerce as a subsisting thing, or is it putting an end to it altogether? Webster's Works, III. 327. Connected with this subject is an exceedingly interesting episode in the life of Mr. Samuel Dexter. He was employed in the embargo cases before Judge Davis. "On those occasions the constitutionality of the embargo law came up, as a matter of course, and Mr. Dexter's arguments upon that question were very elaborate. Judge Davis decided in favor of the constitutionality of the embargo law; and that decision was afterwards confirmed by the highest authority. Mr. Dexter, probably, never argued more entirely in conformity with his solemn convictions, than when he contended that this extremely unpopular law was a violation of the Constitution. The decision of this question was of the highest importance. Bonds had been given, under the provisions of this law, to an enormous amount; and the penalties were now claimed by the government.

"After Judge Davis had decided that the law was constitutional, and before that decision had been confirmed by a higher tribunal, Mr. Dexter persisted in arguing the question of constitutionality to the jury, notwithstanding the remonstrances of the bench. At length Judge Davis, under some excitement, and after repeated admonitions, said to Mr. Dexter, that if he again attempted to raise that question to the jury, he should feel it to be his duty to commit him for contempt of court. A solemn pause ensued; all eyes were turned towards Mr. Dexter. With great calmness of voice and manner, he requested a postponement of the cause until the following morning. The judge assented; some other matter was taken up, and Mr. Dexter left the

court-room.

"On the following morning there was a full attendance of persons anxious to witness the result of this extraordinary collision between the advocate and the judge. Being asked if he was ready to proceed with the cause on trial the preceding day,

of the Constitution have at all times been understood to include a power over navigation, as well as trade; over intercourse, as well as traffic;1 and that, in the practice of other countries, and especially in our own, there has been no diversity of judgment or opinion. During our whole colonial history, this was acted upon by the British Parliament as an uncontested doctrine. That government regulated not merely our traffic with foreign nations, but our navigation and intercourse, as unquestioned functions of the power to regulate commerce.2

§ 1065. This power the Constitution extends to commerce with foreign nations, and among the several States, and with the Indian tribes. In regard to foreign nations, it is universally admitted that the words comprehend every species of commercial intercourse. No sort of trade or intercourse can be carried on between this country and another, to which they do not extend. merce, as used in the Constitution, is a unit, every part of which is indicated by the term. If this be its admitted meaning in its application to foreign nations, it must carry the same meaning The next words are, throughout the sentence.3

66 among the

Mr. Dexter rose, and, facing the bench, commenced his remarks by stating that he had slept poorly, and had passed a night of great anxiety. He had reflected very solemnly upon the occurrence of yesterday, and he trusted it had not failed to exercise the thoughts of another, in all its bearings. No man cherished a higher respect for the legitimate authority of those tribunals before which he was called to practise his profession; but he entertained no less respect for his moral obligations to his clients. And finally, after a few additional remarks, he stated to the court that he had arrived at the clear conviction that it was his duty to argue the constitutional question to the jury, notwithstanding the decision of a single judge of an inferior grade; and that he should proceed to do so regardless of any consequences. He then turned to the jury, and, undisturbed by the court, began, continued, and ended a most elaborate argument against the constitutionality of the embargo law." Reminiscences of Dexter, by "Sigma," No. 9.

When this scene took place, it was not so fully settled as it is now that juries in the federal courts are not the rightful judges of the law, even in criminal cases. See United States v. Battiste, 2 Sum. 240; Stittinus v. United States, 5 Cranch C. C. 573 ; United States v. Morris, 1 Curt. 53; United States v. Riley, 5 Blatch. 206.]

19 Wheat. 189, 190, 191, 193, 215, 216, 217; Id. 226; 12 Wheat. R. 446, 447; North River Steamboat Co. v. Livingston, 3 Cowen's R. 713.

2 Gibbons v. Ogden, 9 Wheat. R. 1, 201; Id. 224; Id. 225 to 228. See Mr. Verplanck's letter to Col. Drayton in 1831; Resolves of Congress, 14th Oct. 1774 (1 Journal of Congress, 27); 2 Marshall's Life of Washington (in five volumes), p. 77, 81; Dr. Franklin's Examination, before the House of Commons, in 1766; Dickerson's Farmer's Letters, No. 2, 1767; 1 Jefferson's Corresp. 7; Burke's Speech on American Taxation, 1774.

3 Gibbons v. Ogden, 9 Wheat. R. 194.

several States." The word "among" means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States cannot stop at the external boundary line of each State, but may be introduced into the interior. It does not, indeed, comprehend any commerce, which is purely internal, between man and man in a single State, or between different parts of the same State, and not extending to, or affecting other States. Commerce among the States means, commerce which concerns more States than one. It is not an apt phrase to indicate the mere interior traffic of a single State. The completely internal commerce of a State may be properly considered as reserved to the State itself.1

§ 1066. The importance of the power of regulating commerce among the States, for the purposes of the Union, is scarcely less than that of regulating it with foreign states.2 A very material object of this power is the relief of the States, which import and export through other States, from the levy of improper contributions on them by the latter. If each State were at liberty to regulate the trade between State and State, it is easy to foresee that ways would be found out to load the articles of import and export, during their passage through the jurisdiction, with duties, which should fall on the makers of the latter, and the consumers of the former.3 The experience of the American States during the confederation abundantly establishes that such arrangements could be, and would be made under the stimulating influence of local interests, and the desire of undue gain. Instead of acting as a nation in regard to foreign powers, the States individually commenced a system of restraint upon each other, whereby the interests of foreign powers were promoted at their expense.

4

1 Gibbons v. Ogden, 9 Wheat. R. 194, 195, 196; Brown v. Maryland, 12 Wheat. 446, 447; Veazie v. Moor, 14 Howard, S. C. R. 568. [Although that commerce which is carried on entirely within the limits of a State, and does not extend to or affect other States, is excluded from federal control (Veazie v. Moor, 14 How. 561), yet a river entirely within a State, which, by uniting with other waters, forms a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water, is to be regarded as navigable waters of the United States, and is subject to the regulations of Congress. The Daniel Ball, 10 Wall. 558. See further, note to § 1072, post.]

2 See The Federalist, No. 6, 7, 11, 12, 22, 41, 42; North River Steamboat Company v. Livingston, 3 Cowen's R. 713.

3 12 Wheaton's R. 448, 449; 9 Wheaton, 199 to 204.

4 The Federalist, No. 42; 1 Tuck. Black. Comm. App. 247 to 252.

When one State imposed high duties on the goods or vessels of a foreign power to countervail the regulations of such powers, the next adjoining States imposed lighter duties to invite those articles into their port, that they might be transferred thence into the other States, securing the duties to themselves. This contracted policy in some of the States was soon counteracted by others. Restraints were immediately laid on such commerce by the suf fering States; and thus a state of affairs disorderly and unnatural grew up, the necessary tendency of which was to destroy the Union itself.1 The history of other nations, also, furnishes the same admonition. In Switzerland, where the union is very slight, it has been found necessary to provide that each canton shall be obliged to allow a passage to merchandise through its jurisdiction into other cantons without an augmentation of tolls. In Germany, it is a law of the empire that the princes shall not lay tolls. on customs or bridges, rivers or passages, without the consent of the emperor and diet. and diet. But these regulations are but imperfectly obeyed; and great public mischiefs have consequently followed.2 Indeed, without this power to regulate commerce among the States, the power of regulating foreign commerce would be incomplete and ineffectual. The very laws of the Union in regard to the latter, whether for revenue, for restriction, for retaliation, or for encouragement of domestic products or pursuits, might be evaded at pleasure, or rendered impotent.4 In short, in a practical view, it is impossible to separate the regulation of foreign commerce and domestic commerce among the States from each other. The same public policy applies to each; and not a reason can be assigned for confiding the power over the one, which does not conduce to establish the propriety of conceding the power over the other.5

§ 1067. The next inquiry is, whether this power to regulate. commerce is exclusive of the same power in the States, or is concurrent with it. It has been settled, upon the most solemn

1 See President Monroe's Exposition and Message, 4 May, 1822, p. 31, 32. [See History of the Constitution, by Curtis, B. III. ch. 1 and 6; Writings of Madison, I. 320.]

2 The Federalist, No. 22, 42.

4 The Federalist, No. 11, 12.

3 The Federalist, No. 42.

5 See the opinion of Mr. Justice Johnson, 9 Wheat. R. 224 to 228.

6 In the convention it was moved to amend the article, so as to give to Congress "the sole and exclusive " power; but the proposition was rejected by the vote of six States against five. Journal of Convention, 220, 270.

deliberation, that the power is exclusive in the government of the United States.1 The reasoning upon which this doctrine is founded is to the following effect: The power to regulate commerce is general and unlimited in its terms. The full power to regulate a particular subject implies the whole power, and leaves no residuum. A grant of the whole is incompatible with the existence of a right in another to any part of it. A grant of a power to regulate necessarily excludes the action of all others. who would perform the same operation on the same thing. Regulation is designed to indicate the entire result, applying to those parts which remain as they were as well as to those which are altered. It produces a uniform whole, which is as much disturbed and deranged by changing what the regulating power designs to have unbounded as that on which it has operated.2

§ 1068. The power to regulate commerce is not at all like that to lay taxes. The latter may well be concurrent, while the former is exclusive, resulting from the different nature of the two powers. The power of Congress, in laying taxes, is not necessarily or naturally inconsistent with that of the States. Each may lay a tax on the same property, without interfering with the action of the other; for taxation is but taking small portions from the mass of property, which is susceptible of almost infinite division. In imposing taxes for State purposes, a State is not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power which is granted to Congress, and is doing the very thing which Congress is authorized to do. There is no analogy, then, between the power of taxation and the power of regulating commerce.3

§ 1069. Nor can any power be inferred in the States to regulate commerce, from other clauses in the Constitution or the acknowledged rights exercised by the States. The Constitution

1 Gibbons v. Ogden, 9 Wheat. R. 1, 198, 199, 200, 201, 202; Brown v. Maryland, 12 Wheat. R. 419, 445, 446; 1 Tuck. Black. Comm. App. 180, 309; North River Steamboat Company v. Livingston, 3 Cowen's R. 713. [See note to § 1072.]

2 9 Wheat. R. 196, 198, 209; Ib. 227, 228.

3 Gibbons v. Ogden, 9 Wheaton's R. 199, 200.