Chapter XIII: Appendix: Impressment (12)

The committee will take notice, Mr. Chairman, that, under our present duty, together with the expense of transportation, our manufacturers are able to supply their own immediate neighborhood; and this proves the magnitude of that substantial encouragement which these two causes concur to give. There is little or no foreign iron, I presume, used in the county of Lancaster. This is owing to the heavy expense of land carriage; and as we recede farther from the coast, the manufacturers are still more completely secured, as to their own immediate market, against the competition of the imported article. But what they ask is to be allowed to supply the sea-coast, at such a price as shall be formed by adding to the cost at the mines the expense of land carriage to the sea; and this appears to me most unreasonable. The effect of it would be to compel the consumer to pay the cost of two land transportations; for, in the first place, the price of iron at the inland furnaces will always be found to be at, or not much below, the price of the imported article in the seaport, and the cost of transportation to the neighborhood of the furnace; and to enable the home product to hold a competition with the imported in the seaport, the cost of another transportation downward, from the furnace to the coast, must be added. Until our means of inland commerce be improved, and the charges of transportation by that means lessened, it appears to me wholly impracticable, with such duties as any one would think of proposing, to meet the wishes of the manufacturers of this article. Suppose we were to add the duty proposed by this bill, although it would benefit the capital invested in works near the sea and the navigable rivers, yet the benefit would not extend far in the interior. Where, then, are we to stop, or what limit is proposed to us?

The freight of iron has been afforded from Sweden to the United States as low as eight dollars per ton. This is not more than the price of fifty miles of land carriage. Stockholm, therefore, for the purpose of this argument, may be considered as within fifty miles of Philadelphia. Now, it is at once a just and a strong view of this case, to consider, that there are, within fifty miles of our market, vast multitudes of persons who are willing to labor in the production of this article for us, at the rate of seven cents per day, while we have no labor which will not command, upon the average, at least five or six times that amount. The question is, then, shall we buy this article of these manufacturers, and suffer our own labor to earn its greater reward, or shall we employ our own labor in a similar manufacture, and make up to it, by a tax on consumers, the loss which it must necessarily sustain.

I proceed, Sir, to the article of hemp. Of this we imported last year, in round numbers, 6,000 tons, paying a duty of $30 a ton, or $180,000 on the whole amount; and this article, it is to be remembered, is consumed almost entirely in the uses of navigation. The whole burden may be said to fall on one interest. It is said we can produce this article if we will raise the duties. But why is it not produced now? or why, at least, have we not seen some specimens? for the present is a very high duty, when expenses of importation are added. Hemp was purchased at St. Petersburg, last year, at $101.67 per ton. Charges attending shipment, &c., $14.25. Freight may be stated at $30 per ton, and our existing duty $30 more. These three last sums, being the charges of transportation, amount to a protection of near seventy-five per cent in favor of the home manufacturer, if there be any such. And we ought to consider, also, that the price of hemp at St. Petersburg is increased by all the expense of transportation from the place of growth to that port; so that probably the whole cost of transportation, from the place of growth to our market, including our duty, is equal to the first cost of the article; or, in other words, is a protection in favor of our own product of one hundred per cent.

And since it is stated that we have great quantities of fine land for the production of hemp, of which I have no doubt, the question recurs, Why is it not produced? I speak of the water-rotted hemp, for it is admitted that that which is dew-rotted is not sufficiently good for the requisite purposes. I cannot say whether the cause be in climate, in the process of rotting, or what else, but the fact is certain, that there is no American water-rotted hemp in the market. We are acting, therefore, upon an hypothesis. Is it not reasonable that those who say that they _can_ produce the article shall at least prove the truth of that allegation, before new taxes are laid on those who use the foreign commodity? Suppose this bill passes; the price of hemp is immediately raised $14.80 per ton, and this burden falls immediately on the ship-builder; and no part of it, for the present, will go for the benefit of the American grower, because he has none of the article than can be used, nor is it expected that much of it will be produced for a considerable time. Still the tax takes effect upon the imported article; and the ship-owners, to enable the Kentucky farmer to receive an additional $14 on his ton of hemp, whenever he may be able to raise and manufacture it, pay, in the mean time, an equal sum per ton into the treasury on all the imported hemp which they are still obliged to use; and this is called "protection"! Is this just or fair? A particular interest is here burdened, not only for the benefit of another particular interest, but burdened also beyond that, for the benefit of the treasury. It is said to be important for the country that this article should be raised in it; then let the country bear the expense, and pay the bounty. If it be for the good of the whole, let the sacrifice be made by the whole, and not by a part. If it be thought useful and necessary, from political considerations, to encourage the growth and manufacture of hemp, government has abundant means of doing it. It might give a direct bounty, and such a measure would, at least, distribute the burden equally; or, as government itself is a great consumer of this article, it might stipulate to confine its own purchases to the home product, so soon as it should be shown to be of the proper quality. I see no objection to this proceeding, if it be thought to be an object to encourage the production. It might easily, and perhaps properly, be provided by law, that the navy should be supplied with American hemp, the quality being good, at any price not exceeding, by more than a given amount, the current price of foreign hemp in our market. Every thing conspires to render some such course preferable to the one now proposed. The encouragement in that way would be ample, and, if the experiment should succeed, the whole object would be gained; and, if it should fail, no considerable loss or evil would be felt by any one.

I stated, some days ago, and I wish to renew the statement, what was the amount of the proposed augmentation of the duties on iron and hemp, in the cost of a vessel. Take the case of a common ship of three hundred tons, not coppered, nor copper-fastened. It would stand thus, by the present duties:--

14-1/2 tons of iron, for hull, rigging, and
and anchors, at $15 per ton, $217.50
10 tons of hemp, at $30, 300.00
40 bolts Russia duck, at $2, 80.00
20 bolts Ravens duck, at $1.25, 25.00
On articles of ship-chandlery, cabin
furniture, hard-ware, &c., 40.00
_______
$662.50
-------

The bill proposes to add,--

$7.40 per ton on iron, which will be $107.30
$14.80 per ton on hemp, equal to 148.00
And on duck, by the late amendment
of the bill, say 25 per cent, 25.00
_______
$280.30
_______

But to the duties on iron and hemp should be added those paid on copper, whenever that article is used. By the statement which I furnished the other day, it appeared that the duties received by government on articles used in the construction of a vessel of three hundred and fifty-nine tons, with copper fastenings, amounted to $1,056. With the augmentations of this bill, they would be equal to $1,400.

Now I cannot but flatter myself, Mr. Chairman, that, before the committee will consent to this new burden upon the shipping interest, it will very deliberately weigh the probable consequences. I would again urgently solicit its attention to the condition of that interest. We are told that government has protected it, by discriminating duties, and by an exclusive right to the coasting trade. But it would retain the coasting trade by its own natural efforts, in like manner, and with more certainty, than it now retains any portion of foreign trade. The discriminating duties are now abolished, and while they existed, they were nothing more than countervailing measures; not so much designed to give our navigation an advantage over that of other nations, as to put it upon an equality; and we have, accordingly, abolished ours, when they have been willing to abolish theirs. Look to the rate of freights. Were they ever lower, or even so low? I ask gentlemen who know, whether the harbor of Charleston, and the river of Savannah, be not crowded with ships seeking employment, and finding none? I would ask the gentlemen from New Orleans, if their magnificent Mississippi does not exhibit, for furlongs, a forest of masts? The condition, Sir, of the shipping interest is not that of those who are insisting on high profits, or struggling for monopoly; but it is the condition of men content with the smallest earnings, and anxious for their bread. The freight of cotton has formerly been three pence sterling, from Charleston to Liverpool, in time of peace. It is now I know not what, or how many fractions of a penny; I think, however, it is stated at five eighths. The producers, then, of this great staple, are able, by means of this navigation, to send it, for a cent a pound, from their own doors to the best market in the world.

Mr. Chairman, I will now only remind the committee that, while we are proposing to add new burdens to the shipping interest, a very different line of policy is followed by our great commercial and maritime rival. It seems to be announced as the sentiment of the government of England, and undoubtedly it is its real sentiment, that the first of all manufactures is the manufacture of ships. A constant and wakeful attention is paid to this interest, and very important regulations, favorable to it, have been adopted within the last year, some of which I will beg leave to refer to, with the hope of exciting the notice, not only of the committee, but of all others who may feel, as I do, a deep interest in this subject. In the first place, a general amendment has taken place in the register acts, introducing many new provisions, and, among others, the following:--

A direct mortgage of the interest of a ship is allowed, without subjecting the mortgagee to the responsibility of an owner.

The proportion of interest held by each owner is exhibited in the register, thereby facilitating both sales and mortgages, and giving a new value to shipping among the moneyed classes.

Shares, in the ships of copartnerships, may be registered as joint property, and subject to the same rules as other partnership effects.

Ships may be registered in the name of trustees, for the benefit of joint-stock companies.

And many other regulations are adopted, with the same general view of rendering the mode of holding the property as convenient and as favorable as possible.

By another act, British registered vessels, of every description, are allowed to enter into the general and the coasting trade in the India seas, and may now trade to and from India, with any part of the world except China.

By a third, all limitations and restrictions, as to latitude and longitude, are removed from ships engaged in the Southern whale-fishery. These regulations, I presume, have not been made without first obtaining the consent of the East India Company; so true is it found, that real encouragement of enterprise oftener consists, in our days, in restraining or buying off monopolies and prohibitions, than in imposing or extending them.

The trade with Ireland is turned into a free coasting trade; light duties have been reduced, and various other beneficial arrangements made, and still others proposed. I might add, that, in favor of general commerce, and as showing their confidence in the principles of liberal intercourse, the British government has perfected the warehouse system, and authorized a reciprocity of duties with foreign states, at the discretion of the Privy Council.

This, Sir, is the attention which our great rival is paying to these important subjects, and we may assure ourselves that, if we do not cherish a proper sense of our own interests, she will not only beat us, but will deserve to beat us.

Sir, I will detain you no longer. There are some parts of this bill which I highly approve; there are others in which I should acquiesce; but those to which I have now stated my objections appear to me so destitute of all justice, so burdensome and so dangerous to that interest which has steadily enriched, gallantly defended, and proudly distinguished us, that nothing can prevail upon me to give it my support.[10]

* * * * *

NOTE.

This is commonly called Mr. Webster's "Free Trade" speech. It has been found difficult to select one among his many speeches in support of the policy of Protection which would fully represent his views on the subject; but the reasons for his change of opinion, and for his advocacy of Protection, are fully stated in many of the speeches printed in this volume, delivered after the year 1830. Perhaps as good a statement as can be selected from his many speeches on the Tariff, in explanation of his change of position as to the need, policy, and duty of protection to American manufactures, may be found in his speech delivered in the Senate of the United States, on the 25th and 26th of July, 1846, on the Bill "To reduce the Duties on Imports, and for other Purposes." In this speech, he made the following frank avowal of the reasons which induced him to reconsider and reverse his original opinions on the subject:--

"But, Sir, before I proceed further with this part of the case, I
will take notice of what appears, latterly, to be an attempt, by
the republication of opinions and expressions, arguments and
speeches of mine, at an earlier and later period of life, to found
against me a charge of inconsistency, on this subject of the
protective policy of the country. Mr. President, if it be an
inconsistency to hold an opinion upon a subject at one time and in
one state of circumstances, and to hold a different opinion upon
the same subject at another time and in a different state of
circumstances, I admit the charge. Nay, Sir, I will go further; and
in regard to questions which, from their nature, do not depend upon
circumstances for their true and just solution, I mean
constitutional questions, if it be an inconsistency to hold an
opinion to-day, even upon such a question, and on that same
question to hold a different opinion a quarter of a century
afterwards, upon a more comprehensive view of the whole subject,
with a more thorough investigation into the original purposes and
objects of that Constitution, and especially after a more thorough
exposition of those objects and purposes by those who framed it,
and have been trusted to administer it, I should not shrink even
from that imputation. I hope I know more of the Constitution of my
country than I did when I was twenty years old. I hope I have
contemplated its great objects more broadly. I hope I have read
with deeper interest the sentiments of the great men who framed it.
I hope I have studied with more care the condition of the country
when the convention assembled to form it. And yet I do not know
that I have much to retract or to change on these points.

"But, Sir, I am of the opinion of a very eminent person, who had
occasion, not long since, to speak of this topic in another place.
Inconsistencies of opinion, arising from changes of circumstances,
are often justifiable. But there is one sort of inconsistency which
is culpable. It is the inconsistency between a man's conviction and
his vote; between his conscience and his conduct. No man shall ever
charge me with an inconsistency like that. And now, Sir, allow me
to say, that I am quite indifferent, or rather thankful, to those
conductors of the public press who think they cannot do better than
now and then to spread my poor opinions before the public.

"I have said many times, and it is true, that, up to the year 1824,
the people of that part of the country to which I belong, being
addicted to commerce, having been successful in commerce, their
capital being very much engaged in commerce, were averse to
entering upon a system of manufacturing operations. Every member in
Congress from the State of Massachusetts, with the exception, I
think, of one, voted against the act of 1824. But what were we to
do? Were we not bound, after 1817 and 1824, to consider that the
policy of the country was settled, had become settled, as a policy,
to protect the domestic industry of the country by solemn laws? The
leading speech[11] which ushered in the act of 1824 was called a
speech for the 'American System.' The bill was carried principally
by the Middle States. Pennsylvania and New York would have it so;
and what were we to do? Were we to stand aloof from the occupations
which others were pursuing around us? Were we to pick clean teeth
on a constitutional doubt which a majority in the councils of the
nation had overruled? No, Sir; we had no option. All that was left
us was to fall in with the settled policy of the country; because,
if any thing can ever settle the policy of the country, or if any
thing can ever settle the practical construction of the
Constitution of the country, it must be these repeated decisions of
Congress, and enactments of successive laws conformable to these
decisions. New England, then, did fall in. She went into
manufacturing operations, not from original choice, but from the
necessity of the circumstances in which the legislation of the
country had placed her. And, for one, I resolved then, and have
acted upon the resolution ever since, that, having compelled the
Eastern States to go into these pursuits for a livelihood, the
country was bound to fulfil the just expectations which it had
inspired."

[Footnote 1: Mr. Clay.]

[Footnote 2: Lord Lansdowne.]

[Footnote 3: Lord Liverpool.]

[Footnote 4: Mr. Huskisson, President of the English Board of Trade.]

[Footnote 5: The Marquess of Lansdowne.]

[Footnote 6: Lord Liverpool.]

[Footnote 7: Mr. Tod.]

[Footnote 8: "The present equable diffusion of moderate wealth cannot be better illustrated, than by remarking that in this age many palaces and superb mansions have been pulled down, or converted to other purposes, while none have been erected on a like scale. The numberless baronial castles and mansions, in all parts of England, now in ruins, may all be adduced as examples of the decrease of inordinate wealth. On the other hand, the multiplication of commodious dwellings for the upper and middle classes of society, and the increased comforts of all ranks, exhibit a picture of individual happiness, unknown in any other age."--_Sir G. Blane's Letter to Lord Spencer, in_ 1800.]

[Footnote 9: The price of labor in Russia may be pretty well collected from Tooke's "View of the Russian Empire." "The workmen in the mines and the founderies are, indeed, all called master-people; but they distinguish themselves into masters, under-masters, apprentices, delvers, servants, carriers, washers, and separators. In proportion to their ability their wages are regulated, which proceed from fifteen to upwards of thirty roubles per annum. The provisions which they receive from the magazines are deducted from this pay." The value of the rouble at that time (1799) was about twenty-four pence sterling, or forty-five cents of our money.

"By the edict of 1799," it is added, "a laborer with a horse shall receive, daily, in summer, twenty, and in winter, twelve copecks; a laborer without a horse, in summer, ten, in winter, eight copecks."

A copeck is the hundredth part of a rouble, or about half a cent of our money. The price of labor may have risen, in some degree, since that period, but probably not much.]

[Footnote 10: Since the delivery of this speech, an arrival has brought London papers containing the speech of the English Chancellor of the Exchequer (Mr. Robinson), on the 23d of February last, in submitting to Parliament the annual financial statement. Abundant confirmation will be found in that statement of the remarks made in the preceding speech, as to the prevailing sentiment, in the English government, on the general subject of prohibitory laws, and on the silk manufacture and the wool tax particularly.]

[Footnote 11: That of Mr. Clay.]

THE CASE OF GIBBONS AND OGDEN.

AN ARGUMENT MADE IN THE CASE OF GIBBONS AND OGDEN IN THE SUPREME COURT OF THE UNITED STATES, FEBRUARY TERM, 1824.

[This was an 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 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 had not then expired; and authorizing the Chancellor to award an injunction, restraining any person whatever from navigating those waters with boats of that description. The bill stated an assignment from Livingston and Fulton to one John R. Livingston, and from him to the complainant, Ogden, of the right to navigate the waters between Elizabethtown, and other places in New Jersey, and the city of New York; and that Gibbons, the defendant below, was in possession of two steamboats, called the Stoudinger and the Bellona, which were actually employed in running between New York and Elizabethtown, in violation of the exclusive privilege conferred on the complainant, and praying an injunction to restrain the said Gibbons from using the said boats, or any other propelled by fire or steam, in navigating the waters within the territory of New York.

The injunction having been awarded, the answer of Gibbons was filed, in which he stated, that the boats employed by him were duly enrolled and licensed to be employed in carrying on the coasting trade, under the act of Congress, passed the 18th of February, 1793, ch. 8, 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 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 of New York before which the cause could be carried, and it was thereupon carried up to the Supreme Court of the United States by appeal.

The following argument was made by Mr. Webster, for the plaintiff in error.]

It is admitted, that there is a very respectable weight of authority in favor of the decision which is sought to be reversed. The laws in question, I am aware, have been deliberately re-enacted by the legislature of New York; and they have also received the sanction, at different times, of all her judicial tribunals, than which there are few, if any, in the country, more justly entitled to respect and deference. The disposition of the court will be, undoubtedly, to support, if it can, laws so passed and so sanctioned. I admit, therefore, that it is justly expected of us that we should make out a clear case; and unless we do so, we cannot hope for a reversal. It should be remembered, however, that the whole of this branch of power, as exercised by this court, is a power of revision. The question must be decided by the State courts, and decided in a particular manner, before it can be brought here at all. Such decisions alone give this court jurisdiction; and therefore, while they are to be respected as the judgments of learned judges, they are yet in the condition of all decisions from which the law allows an appeal.

It will 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 steamboats on the coasts and in the bays and rivers of the country, has become very general. The intercourse of its different parts essentially depends upon this mode of conveyance and transportation. Rivers and bays, in many cases, form the divisions between States; and thence it is 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 be caused to the general intercourse of the community. Such events have actually occurred, and have 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 neighboring 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 steamboats between the ancient shores of New Jersey and New York, he shall be entitled to an action for damages, in 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 will hardly be contended, that all these acts are consistent with the laws and Constitution of the United States. If there is no power in the general government to control this extreme belligerent legislation of the States, the powers of the government are essentially deficient in a most important and interesting particular. The present controversy respects the earliest of these State laws, those of New York. On these, this court is now to pronounce; and if they should be declared to be valid and operative, I hope somebody will point out where the State right stops, and on what grounds the acts of other States are to be held inoperative and void.

It will be necessary to advert more particularly to the laws of New York, as they are stated in the record. The first was passed March 19th, 1787. By this act, a sole 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 any attempt to use his privilege, repealing the grant to him, and conferring similar privileges on Robert R. Livingston, 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 Robert R. Livingston by the last act should be extended to him and Robert Fulton, for twenty years from the passing of the 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 vessel, without the license 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 are one or two other acts mentioned in the pleadings, which principally respect the time allowed for complying with the condition of the grant, and are 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 for steam navigation.

The appellant being owner of a steamboat, and being found navigating the waters between New Jersey and the city of New York, over which waters Ogden, the plaintiff below, claims 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 steamboat in question; that the boat is a vessel of more than twenty 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 that it 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 has 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 forfeited 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 that 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; 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, I shall contend, in the first place, that they exceed the power of the legislature; and, secondly, that, if they could be considered valid for any purpose, they are void still, as against any right enjoyed under the laws of the United States with which they come in collision; and that in this case they are found interfering with such rights.

I shall contend that the power of Congress to regulate commerce is complete and entire, and, to a certain extent, necessarily exclusive; that the acts in question are regulations of commerce, in a most important particular, affecting it in those respects in which it is under the exclusive authority of Congress. I state this first proposition guardedly. I do not mean to say, that all regulations which may, in their operation, affect commerce, are exclusively in the power of Congress; but that such power as has been exercised in this case does not remain with the States. Nothing is more complex than commerce; and in such an age as this, no words embrace a wider field than _commercial regulation_. Almost all the business and intercourse of life may be connected incidentally, more or less, with commercial regulations. But it is only necessary to apply to this part of the Constitution the well-settled rules of construction. Some powers are held 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 many important questions; and the same mode is proper here. And, as some powers have been held to be 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 will 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 I think 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 is exclusive in Congress.

It is in vain to look for a precise and exact _definition_ of the powers of Congress on several subjects. The Constitution does not undertake the task of making such exact definitions. In conferring powers, it proceeds by the way of _enumeration_, stating the powers conferred, one after another, in few words and where the power is 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 are better known than the immediate causes which led to the adoption of the present Constitution; and there is nothing, as I think, 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 is 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 required. 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 is 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 as the only means of enabling the country to pay the public debt, and to do justice to those who had most effectually labored for its independence. The leading state papers of the time are full of this topic. The New Jersey resolutions[1] complain that the regulation of trade was in the power of the several States, within their separate jurisdiction, to 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 sole 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 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 will 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[3] 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.

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

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

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

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

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

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

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