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New-York and Massachusetts had not authority, under the constitution of the United States, to levy the taxes in question, and that the judgments of the State courts must therefore be reversed, and so, accordingly, they were. The other four judges, Chiet Justice Taney, and Justices Daniel, Woodbury and Nelson, dissented from the opinion of the majority, and agreed in holding that the disputed taxes were not unconstitutional.
Of the five judges who constituted the majority of the court, Mr. Justice McLean is the only one whose argument seems to be intended as a discussion of the whole question involved, in both cases complete in itself, having no reference to the opinions of any of his colleagues ; each of whom professes to confine himself to only one or two topics, or to only one of the two cases. This gentleman formerly enjoyed a considerable reputation for administrative ability in the office of postmaster general, but if this opinion is to be taken as any test of his judicial ability, we think it must be rated rather low. He takes up the New-York case first, and proposes to " consider it under two general heads : 1. Is the power of congress to regulate commerce an exclusive power? 2. Is the statute of New York a regulation of commerce ?" In support of the affirmative of the first question, after admitting that the States have not parted with any of the attributes of sovereignty which are not plainly vested in the federal government, and inhibited to them, either expressly or by necessary implication, to show that this implication may arise from the nature of the power, he refers to the
to borrow money on the credit of the United States;" to establish an uniform rule of naturalization;" "to coin money;" to establish post offices and post roads;"> " to constitute tribunals inferior to the supreme court ;"'" to define and punish piracies and felonies committed on the high seas;" "to declare war;" "to provide and maintain a navy," &c., &c.; " to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” “All of which are con. tained in the same section with the power to regulate commerce, and only one of them is expressly inhibited to the States; and yet, he says, from the nature of the others, they are all equally beyond State jurisdiction. He then proceeds to cite the opinions of the supreme court, and those of particular judges in several cases, the substance of all
which is sufficiently expressed in the language of Chief Justice Marshall, in the case of Holmes vs. Jennison, 14. Peters, 517. “Where an authority is granted to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant, that the authority to the federal government is necessarily exclusive, and the same power cannot be constitutionally exercised by the States.”
He takes occasion, in this part of his argument, to hazard the opinion, that even if the States were not expressly proprohibited from “coining money and fixing the value thereof” and from laying tonnage duties, they could not exercise those powers : because all “duties are required to be uniform, and this could not be the result of State action. And the power to coin money and regulate its value for the Union is equally beyond the power of a State.”
But nothing can be more clear, from the language of the constitution itself
, than that the injunction that all duties shall be uniform is a restriction on the power of the federal government in laying duties, and has no reference whatever to the States, and could not have been intended to have any, since they are, by the same instrument, expressly prohibited from laying duties at all, either on imports or tonnage. And, but for this prohibition, there is no more reason why they should not have levied tonnage duties than duties on imports, which it was distinctly affirmed in the Federalist, and admitted by the supreme court in the case of Gibbons vs. Ogden, 9 Wheat. 201, they might have done. For assuredly a tonnage duty is no more a regulation of commerce than a duty on inports. And as to coining money and regulating its value, although a State could not exercise these powers for the Union, there is cer. tainly no reason in the nature of things why she should not do so for herself.
Speaking of the case of Wilson vs. The Blackbird Creek Marsh Company, (2 Peters, 240) which it seems had been cited to show that a State might exercise some power over commerce, when no conflict is produced with an act of congress, he says: "It must be admitted that the language of the eminent Chief Justice, (Marshall) who wrote the opinion, is less guarded than his opinions generally were on constitutional questions.” But with all due deference to the learned ex-postmaster general, we are inc ined to
think that the fault is in him and not in the late chief justice, whose language he does not appear to have precisely understood. For the purpose of draining a marsh and improving the health of the neighborhood, the legislature of Delaware had incorporated a company with authority to construct a dam, which obstructed, below the ebb and flow of the tide and the head of navigation, a small navigable creek which falls into the Delaware. The dam was objected to, as being inconsistent with the general power of congress to regulate commerce; and the following is the language of the chief justice, in delivering the judgment of the court, to which the criticism of Mr. Justice McLean applies :
“ Means calgulated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved in the States. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgement, unless it comes in conflict with the constitution, or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance. If congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce, the object of which was to control State legislation over those amall navigable creeks into which the tide flows," &c., "we should teel not much difficulty in saying that a State law coming into conflict with such act would ve void. But congress had passed no such act. The repugnancy of the law of Delaware to the constitution is placed entirely on its repugnancy in the power to regulate commerce with foreign nations and among the several States-a power which has not been so exercised as to affect the question.”
Now the construction of the dam was certainly not a regulation of commerce, and was, therefore, no usurpation of the authority of congress to regulate commerce.
If congress had established a port of entry at some point on the creek, above where it was obstructed by the dam, that would have been a regulation of commerce, with which the construction of the dam would have interfered; or if there had been a general act of congress declaring that the head of navigation for vessels of a certain draft, of every creek in each of the States, should be a port of entry for
vessels coming from any other State, and this creek had been navigable for such vessels above the dam, the construction of the dam would have conflicted with a regulation of commerce. This was undoubtedly the meaning of Chief Justice Marshall, and it is difficult to conceive how a general proposition, embracing these ideas, could have been more definitely and guardedly expressed than in the language which he used. But even in the face of such acts of congress as we have supposed, we should still be inclined to hold that a State could have the power to do such acts as the construction of the dam across Blackbird creek. The truth is, that the framers of the constitution could not have intended, because they could not have deemed it necessary, to provide against the danger, that the States would destroy or impair their own natural advantages, any more than it is deemed necessary, by any legislator, to make laws against suicide or self-mutilation.
We cannot forbear to select the following paragraph as a fair sample of the sort of reasoning by which the first head of his argument is sustained :
" It has been well remarked, that the regulation of commerce consists as much in negative as in positive action. There is not a sederal power which has been exerted in all its diversified means of operation. And yet it may have been exercised by congre -, influenced by a judicious policy and the instruction of the people. Is a commercial regulation open 10 State action, because the federal power has not been exhausted ? No ir:genuity can provide for every contingency; and if it could, it might not be wise to do so. Shall free goods be taxed hy a State, because congress has not taxed them? Or shall a State increase the duty, on the ground that it is too low? Shall passengers, admitted by acis of congress without a tax, be taxed by a State? The supposition of such a power in a State is utterly inconsistent with a commercial power, either paramount or exclusive in congress."
A State cannot lay a duty on free goods, nor an additional duty on such as congress has already subjected to a duty, simply because the constitution expressly forbids it. If there were no such prohibition in the constitution, a State might do either or both. Unless passengers are imporls, (which some of the judges, as we shall see, are bold enough to affiria they are,) the constitution does not,
either expressly or by any implication which would not equally apply to merchandise, prohibit the States from taxing them, and therefore such a tax is not unconstitutional.
It may be safely conceded, that the power of congress "to regulate commerce with foreign nations, and among the several States," is exclusive. Indeed it cannot be doubted, that the power to regulate the external commerce of the States with foreign nations, and with each other, is vested exclusively in congress : because the very idea of regulation necessarily implies the supreme control of one authority, to which all others must give way. But the question still remains: what is the regulation of commerce? How is it defined ? To what does it extend? What does it embrace ? And until it is shown that a State tax on passengers landed on the shores of the State does fall within the legitimate definition of the regulation of commerce, no progress has been made towards the conclusion to which the majority of the court have jumped.
It is worthy of remark, that while Mr. Justice McLean makes the exclusiveness of the power of congress to regulate commerce one of the essential grounds of his argument, the other judges, who concur with him in the general result, unite in disclaiming any intention to decide that question, which, they say, does not necessarily arise in these cases.
We come now to the second head : Is the statute of NewYork a regulation of foreign commerce? And here, that we may not be suspected of doing him any injustice, we will permit him to speak for himself
, by making large extracts from the opinion. After a few preliminary observations, which are not necessary to the argument, he proceeds as follows:
“ Commerce is defined to be an exchange of commodities.' But this definition does not convey the full meaning of the term. It includes navigation and intercourse.' Thal the transportation of passengers is a part of commerce is not now an open question. In Gibbon os. Ogden, this court say, 'no clear distinction is perceived between the powers to regulate vessels in transporting men for hire and property for hire.' The provision of the constitution, that the migration or importation of such persons as any of the States now oxisting shall think proper to admit, shall not be prohibited by the