for they have long created a distinct class, and compose a large chapter in American jurisprudence, involving principles of the utmost moment, were understood to be lying over without any progress. No arguments had been allowed, for a year or two, upon such questions. Former arguments in questions depending before the court went for nothing; and cases, that had been fully heard and argued, were ordered to stand for further hearing, when the bench should again be full. This state of things had commenced, it is well known, before the decease of the late chief justice. Then, the vacant central chair, needing no crape to cover it; auguries of various kinds, in the political state of the community, filling and affecting the mind with a solemnity corresponding to their importance, (in the apprehension of those who could comprehend the crisis,) to an extent beyond the mere conflicting interests of litigant parties; signs and omens of alteration in the system, all but organic in their tone and character; all these things together conspired to produce a species of portentous pause, as it were, in the elements that were involved in the pending questions, and to prepare the way, by a gradual process, for the reversal of that powerful charm, which had hitherto held and controlled them in their civil combination, and which had served to communicate a sort of vital efficacy to the fundamental sanctions of law and order. It can hardly have failed to strike the dullest observation, after a survey of the present volume, that some considerable change has come over the spirit of our supreme national judicature, upon this great class of questions; and conclusions press themselves upon the mind, which we are loth to assume as entirely foregone, which we may not disregard, and which we cannot quite dismiss as without significance and force. This, we confess, is the last quarter to which we should have looked for any cause of concern. Perditio ex te would indeed be the deepest sigh of the constitution. But as the prospect is charged, perhaps to our too anxious apprehension, with shades which have not hitherto seemed to rest upon it, and we find ourselves insensibly using a tone to which neither the public ear nor our own is altogether accustomed, and are dealing, moreover, with topics with which we may well presume all our readers are not entirely familiar, we may be called upon to go further, and explain more fully and clearly the grounds of our misgivings; so as to be able to decide whether they have any just and serious foundation. We certainly feel some hesitation how to proceed with due respect to the important interests, and proper deference to the distinguished individuals, concerned in this discussion. We did propose to pause before entering particularly upon the themes presented by this last volume, in order to take a cursory retrospect, as well as to survey the present condition also, of the most admirable structure, of a judicial character, of which the world, as we believe, has ever seen the example. But we are admonished of the limited space that can be allowed, in a publication like this, to subjects even of the most acknowledged importance, — too limited to permit the scope to which our remarks would be necessarily extended; and we must therefore reserve those remarks for a fitting opportunity. We may premise to the further observations which we propose to make, upon the principal matter of the present volume, that among the first and most pressing objects of the Constitution for the well-being of society, in its present advanced state of civilization and freedom, were those which related to commerce, contracts, and currency. Next to that instinctive sense of the intrinsic value of union, in and of itself, to the peace and prosperity of the community, which comprehended intuitively all the interests which that union intended to secure, these main points were seized as having most immediate bearing upon the general concerns of the social league, and were made the subjects of distinct and specific provisions. Union may be said, indeed, to have been one broad, comprehensive term, for all these interests. These important provisions may be considered among the direct details of its obvious principles. They may be regarded, in fact, as among the cardinal points of the Constitution. They extended, in the first place, to commercial intercourse in all its relations, whether with foreign nations, or among the different States, as well as with the interior native communities. They included, also, the coinage and regulation of the circulating medium. And, in connexion with the general power to establish a universal standard of value, may be mentioned the further authority given, of a similar character, to regulate weights and measures. Besides the express investiture of Congress with control over these concerns, its powers were supported and guarded against encroachments, or even approaches to interference, on the part of the States, by special and decisive interdicts upon the VOL. XLVI. — No. 98. 17 local legislatures, in regard to the principal part of those special objects. The States were forbidden, for example, to meddle with the business of tariff, or to disturb the uniformity of duties. No State, again, was permitted to coin money, emit bills of credit, tamper with the payment of debts by means of tender laws, or in any manner to impair the obligation of con`tracts. In scanning the web, so carefully wrought, of union, it is at once observable how far these provisions go to form warp and woof; and it is worth while to notice, how they seem to be woven into the very texture, as it were, of the Constitution. It is perfectly obvious how essential they are to the proper character of a civil government, professing to secure the ends of its establishment; and one which, while possessing the general powers of war and peace, and of forming foreign treaties, should be endowed, above all, with sufficient authority to prevent civil discord and confusion, and to protect the interests of all the parts, and the rights of the whole community alike. And it is more than matter of curiosity, it is a source of mortification, to trace the incessant attempts to evade the force of these prohibitions upon the States, and to impeach the peculiar and preeminent powers given to Congress over subjects intended to be placed altogether beyond their control. Nothing can be more remarkable, in fact, than the constant course of argument against constitutional powers, of which the present volume furnishes abundant example, by attempting to give such a definition to each, as would exclude almost every case that would be apt to arise, from coming within the scope of the constitutional provision. Plausible pretexts, it can be easily perceived, would never be wanting for such ingenious purposes; and invention could never be at a loss, either for expedients or glosses. But we believe it to be impossible, within the reach of human language, to use terms at once more significant, specific, and comprehensive, for the objects intended to be accomplished, than those which are employed by the Constitution; and all precautions must prove vain, all language ineffectual, all provisions in fact abortive, if such as these can be successfully avoided or defeated. - Take, for example, the power to regulate commerce, which is granted to Congress in the most general and absolute terms. Now, in seeking for a definition of this power from the nature of the grant, from its subject, its objects, its design, and character, it must be evident, that it is intended to be entire and exclusive, or that it is none; or, at least, next almost to nothing. It cannot exist fully and effectually in one depositary, and at the same time have a repeated existence, or coexistence, elsewhere, and that in a number of distinct, and, as to this point, equal authorities. The power is broken down under any process that shall impair its unity, or destroy its solidity. Again, it cannot reasonably be contended that the power, if used, though not to its full extent, is to be considered as being used but in part only, and abandoned for the rest, and thereof left derelict to the several States. It is apparent, that, at this rate, we should not have any general regulation of commerce whatever; but that we should have as many customs of the sea, if we may borrow that ancient phrase, to deal with, as there were legislatures upon land. The power is not one that consists of parts thus detached, and parcelled out; but it exists as an integer, and forms a simple sum total. When, therefore, Congress undertakes to exercise this power, it is just as much exercised in respect to what it leaves unregulated, as in what it purports to regulate, whether by positive enactments or inhibitions. The legislative power given to Congress over this subject is as large, and as liberal, and appropriate, as the maritime jurisdiction granted by the Constitution. It spreads alike over the whole ocean; and flows into every bay and indentation of the coast, as fully and as forcibly as it swells upon the deep. Neither does the character of the element alter by its own mere ebb and flow. A different doctrine would let in, or rather would let out, the legislation of all the States upon. the subject, wherever the wave receded, or space was left unoccupied, or any opening whatever afforded. At this rate, again, there would be no room allowed for the favorite maxim of political economy, laissez faire, in commerce, although it should be within the very purview of legislative intention. There would indeed be no end to the superfluous and even vexatious details of every variety, and from every quarter, each having its own particular interest in view, or some sectional policy to promote, by which the whole subject would be encumbered, and liable to be overwhelmed. It would be admitting the independent, and probably conflicting, legislation of the States, if not quite up to the discordant spirit of the old confederation, at all events, to the limit of every actual and positive provision of Congress. The idea of admitting State legislation as a complement to that of the Union on the subject, would be next to the annihilation of the constitutional power. Even if Congress should not have seen fit to exercise the power in any shape, it does not follow that it would have been competent for the several States to have assumed it. Such has, accordingly, been the construction given to this power by the judgments of the Supreme Court. And it has been considered, further, that it did not stop at the water's edge, so as to be marked off by the dividing line between the ocean and the land; but that an internal State regulation, actually interfering with its integrity, and crossing the path of its provisions, was equally proscribed by its principle. This was determined in a case arising in Maryland, after much debate; and the question has again occurred in New York, in relation to a local regulation of what is termed the passenger trade. The city of New York forms, as it were, the tunnel which receives the influx of emigration, amounting now almost to a torrent, from foreign shores; and which, turned the other way, pours it out upon the wide west, and over the whole field of the Union. A law of the State, not of recent enactment, requires the master of every vessel, whether citizen or foreigner, on his arrival from a foreign voyage, to make report, within twenty-four hours, of the passengers on board, as well as those that have been landed in the course of it, under a penalty, which it inflicts on the master, or the consignee, for the neglect or violation. The question upon which the court finally divided was, whether this was a regulation of commerce; for, notwithstanding a sort of middle ground was taken by Mr. Justice Thompson, very consistently, to be sure, with his former sentiments, the judgment was not left to stand upon this intermediate kind of isthmus; and that was the exact point upon which the decision turned. Mr. Justice Barbour maintained, with great talent and ingenuity, in an opinion carrying with it the majority of the court, that it was not to be regarded as a regulation of commerce, but merely one of police. We are quite ready to say, that if the subject could be taken up and considered entirely free from the just influence of former decisions of the same tribunal, both in regard to principle and precedent, constituting the established doctrine of the court, in consonance with the tenor of the Constitution, and with that habitual respect for the decisions of a majority of that court, of which we cannot yet divest ourselves, there is much in the |