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December 1, 1859


THIS case was brought up from the Supreme Court of the State of Alabama by a writ of error issued under the 25th section of the judiciary act. The facts of the case are stated in the opinion of the court. It was argued by Mr. Phillips for the plaintiffs in error, and submitted or a printed brief by Mr. C. C. Clay, jun., for the appellees.

The opinion of the court was delivered by: In the passenger cases (7 Howard) Justice McLEAN said: 'The power to regulate commerce, foreign and between the States, was vested exclusively in Congress.' (p. 400.)

Mr. Phillips gave a history of the case, and then proceeded:

The construction given to this act by the Supreme Court of the State includes boats engaged in commerce between the ports of another State and a port within its own territory. See cases of Cuba, Swan, and Bell, 28 Ala. Rep., 185. And the question thus presented is, whether this is not an interference with the power to regulate commerce, within the meaning of the Constitution of the United States, and in conflict with the acts of Congress on the same subject matter.

Commencing with the act of 1st September, 1789, 1 Stat., 55, we find a provision for registering vessels, coupled with the declaration, that vessels so registered 'shall be deemed and taken to be and denominated vessels of the United States, and entitled to the benefits granted by any law of the United States to ships or vessels of the descriptions aforesaid.'

This registry is to be made with the collector of the district to which the vessel belongs, and the form of a certificate is given, to be signed by the Secretary of the Treasury, the party applying having first made the prescribed oath, which, among other, contains the names of the owners and their residences.

Bond is to be given that the certificate thus issued shall not be transferred, and provision is made that, in case of any change of ownership, it is to be given up to be cancelled, and a new certificate issued. The 22d section of the act makes similar provisions as to enrolment.

These provisions are re-enacted in the act of December 31, 1792, 1 Stat., 287; 18th February, 1793, 1 Stat., 305.

The statute of 2d March, 1797, makes provision for the case of a sale by process of law. 1 Stat., 498.

The 2d section of the act 2d March, 1819, authorizes vessels licensed to trade between the different districts of the United States, to carry on said trade 'between the districts included within the aforesaid great districts, and between a State in one and an adjoining State in another great district, in manner and subject only to the regulations that are now by law required to be observed by such ships or vessels in trading from one district to another in the same State, or from a district in one State to a district in the next adjoining State.'By the act 29th July, 1850, 9 Stat., 440, it is provided that no bill of sale, mortgage, &c., shall be valid against any other person than the grantor or mortgagor, and those having actual notice, unless the same be recorded in the office of the collector of customs where the vessel is registered or enrolled. It is made the duty of the collector to keep a record of all such conveyances, and shall, when required, certify the same, setting forth the names of the owners, their proportionate shares, &c., for which fees are allowed.

The power to regulate commerce conferred in the Constitution of the United States includes the regulation of navigation, and was one of the primary objects which led to its adoption.

Gibbons v. Ogden, 9 Wheat., 567.

State of Pennsylvania v. Wheeling Bridge, 18 How., 431.

The power to regulate navigation is the power to prescribe rules in conformity with which navigation must be carried on. It extends to the persons who conduct it, as well as to the instruments used.

Cooley v. Portwardens Phil., 12 How., 316.

Is the power to regulate commerce thus granted to the Federal Government exclusive? In Gibbons v. Ogden the court say: 'It has been concluded that, as the word '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 the argument, and the court is not satisfied that it has been refuted.'

In Miln v. State of New York, (11 Peters, 130,) which involved the constitutionality of an act requiring captains of vessels arriving in the port of that State to furnish a list of passengers, &c., and which was sustained as a police regulation, the court 'waived the examination of the question whether the power to regulate commerce be or be not exclusive of the States.'

In commenting on this case, Justice WAYNE says that the power to be exercised under State authority was after the passengers had landed. That on the question as to the exclusiveness of the power the judges were divided, four being in favor of the exclusiveness, and three opposed, and to this state of opinion was owing the waiver above quoted.

7 Howard, 431.

Justice WAYNE: This power 'includes navigation upon the high seas, and in the bays, harbors, lakes, and navigable waters within the United States, and any law by a State in any way affecting the right of navigation, or subjecting the exercise of the right to a condition, is contrary to the grant.' (P. 414.)

Justices CATRON and GRIER: 'That Congress has regulated commerce and intercourse with foreign nations and between the several States, by willing that it shall be free, and it is therefore not left to the direction of each State in the Union either to refuse a right of passage to persons or property through her territory, or to exact a duty for permission to exercise it.' (P. 464.)

In Cooley v. Portwardens of Philadelphia, the court say: 'Although Congress has legislated on the subject of pilotage, its legislation manifests an intention, with a single exception, not to regulate this subject, but to leave its regulation to the several States. To these precise questions, which are all we are called on to decide, this opinion must be understood to be confined. It does not extend to the question, what other subjects under the commercial power are within the exclusive control of Congress, or may be regulated by the States in the absence of all Congressional legislation,' &c.

12 Howard, 320.

But whether this power is exclusive or not, when Congress, in pursuance of the power, proceeds to regulate the subject matter, it necessarily excludes State interference with the same subject matter.

In Houston v. Moore, (5 Wheat.,) the court say: 'We are altogether incapable of comprehending how two distinct wills can at the same time be exercised in relation to the same subject, to be effectual, and at the same time compatible with one another.'

In Prigg v. Commonwealth of Pennsylvania, (16 Pet., 617,) the language of the court is: 'If Congress have a constitutional power to regulate a particular subject, and they do regulate it in a particular manner, and in a certain form, it cannot be that the State Legislatures have a right to interfere, and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject matter. Its silence as to what it does not do is as expressive of what its intention is, as the direct provisions made by it.'

The license granted to the steamer to carry on the coasting trade is a grant of authority to do whatever it purports to authorize. The States cannot add to the regulations made by the paramount authority, nor subtract anything from them.

Gibbons v. Ogden, p. 579.

The People v. Brooks, 4 Denio, 479.

The act of the State is in direct conflict with these principles, for, in effect, it declares that vessels engaged in foreign commerce, or the coasting trade, shall not navigate its waters, without complying with a condition not prescribed by the acts of Congress. If the State has the power to inflict a penalty for the violation of the condition, it is equally authorized to use force to prevent the violation.

It is not pretended that the act is based on the police power of the State; neither the preservation of the health, morals, nor the peace of the community, is affected by it. In the language of the Supreme Court of the State, its object is merely to 'advance the remedies for torts or contracts done or made by the agents of steamboats,' &c.

While the power of the State over its legal remedies is admitted, this, like the taxing power of the State, cannot be exercised so as to interfere with the power ...

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