adopted, then a general term applicable to many objects is restricted to one of its significations. If the latter, then a general term is retained in its general sense. To adopt the former, without some guiding grounds furnished by the context, or the nature of the power, would be improper. The words being general, the sense must be general also, and embrace all subjects comprehended under them, unless there be some obvious mischief, or repugnance to other clauses to limit them. In the present case there is nothing to justify such a limitation. Commerce undoubtedly is traffic; but it is something more. It is intercourse. It describes the commercial 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 one nation into the ports of another; and be confined to prescribing rules for the conduct. of individuals in the actual employment of buying and selling, or barter.1

§ 1062. 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; it has been exercised with the consent of all America; and it has been always understood to be a commercial regulation. The power over navigation, and over commercial intercourse, was one of the primary objects, for which the people of America adopted their government; and it is impossible, that the convention should not so have understood the word "commerce," as embracing it. Indeed, to construe the power, so as to impair its efficacy, would defeat the very object, for which it was introduced into. the constitution; 3 for there cannot be a doubt, that to exclude navigation and intercourse from its scope would be to entail upon us all the prominent defects of the confederation, and subject the union to the ill-adjusted systems of rival states, and the oppressive preferences of foreign nations in favor of their own navigation.1

1 Gibbons v. Ogden, 9 Wheat. 189, 190; Id. 229, 230.

29 Wheat. R. 190, 191; Id. 215, 216, 217; Id. 229, 230; 1 Tucker's Black. Comm. App. 249 to 252.

3 12 Wheat. R. 446.

41 Tucker's Black. Comm. App. 247, 248, 249.

§ 1063. The very exceptions found in the constitution demonstrate this; for it would be absurd, as well as useless, to except from a granted power that, which was not granted, or that, which the words did not comprehend. There are plain exceptions in the constitution from the power over navigation, and plain inhibitions to the exercise of that power in a particular way. Why should these be made, if the power itself was not understood to be granted? The clause already cited, that no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another, is of this nature. This clause cannot be understood, as applicable to those laws only, which are passed for 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, relates to navigation. But the remaining part of the sentence directly points to navigation. "Nor shall vessels, bound to or from one state, be obliged to enter, clear, or pay duties in another."1 In short, our whole system for the encouragement of navigation in the coasting trade and fisheries, is exclusively founded upon this supposition. Yet no one has ever been bold enough to question the constitutionality of the laws, creating this system.2

§ 1064. Foreign and domestic intercourse has been universally understood to be within the reach of the power. How, otherwise, could our systems of prohibition and non-intercourse be defended? From what other source has been derived the power of laying embar goes 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. It may, therefore, be safely affirmed, that the terms of the constitution have at all times been understood to include a

19 Wheat. R. 191.

2 9 Wheat. R. 191, 215, 216; North River Steamboat Company v. Livingston, 3 Cowen's R. 713.

39 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, vol. 3, § 1285 to § 1287.

power over navigation, as well as trade, over intercourse, as well as traffic; 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. Commerce, 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 throughout the sentence. The next words are "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 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

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

2 Gibbons v. Ogden, 9 Wheaton's R. 1, 201; Ib. 224; Ib. 225 to 228. See Mr. Verplank'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 Wheaton's R. 194.

▲ Gibbons v. Ogden, 9 Wheaton's R. 194, 195, 196; Brown v. Maryland, 12 Wheaton, 446, 447.

that of regulating it with foreign states. 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.2 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. 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 ports, 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 suffering states; and thus a state of affairs disorderly and unnatural grew up, the necessary tendency of which was to destroy the union itself. 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. But these regulations are but imperfectly obeyed; and great public mischiefs have consequently followed.5 Indeed, without this power to regulate commerce among the states, the power of regulating foreign, commerce would be incomplete and

1 See the Federalist, No. 6, 7, 11, 12, 22, 41, 42; N. R. Steamboat Company v. Livingston, 3 Cowen's R. 713.

2 12 Wheaton's R. 448, 449; 9 Wheaton, 199 to 204.

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

See President Monroe's Exposition and Message, 4 May, 1822, p. 31, 32.

The Federalist, No. 42, 22.

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.2 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.3

§ 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 deliberation, that the power is exclusive in the government of the United States. 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."

§ 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

1 The Federalist, No. 42.

2 The Federalist, No. 11, 12.

"the

3 See the opinion of Mr. Justice Johnson, 9 Wheaton's R. 224 to 228. 4 In the convention it was moved to amend the article, so as to give to congress sole and exclusive" power; but the proposition was rejected by the vote of six states against five. Journal of Convention, 220, 270.

Gibbons v. Ogden, 9 Wheaton's R. 1, 198, 199, 200, 201, 202; Brown v. Maryland, 12 Wheaton's R. 419, 445, 446; 1 Tucker's Black. Comm. App. 180, 309; N. R. Steamboat Co. v. Livingston, 3 Cowen's R. 713; [City of New York v. Miln, 11 Peters, S. C. R 158; Passenger Cases, 7 Howard, S. C. R. 393, 411.]

69 Wheaton's R. 196, 198, 209; Ib. 227, 228.