present opinion that would be persuasive, and perhaps prevailing. Without conceding that as a regulation of commerce it would have been void, or that the power in Congress was exclusive, or that the legislative action of a State was forbidden unless it came in conflict with an act of Congress, it was denied, and upon that the opinion rested, that the provision of the State of New York in question could be properly regarded as a regulation of commerce. When we recall, however, the reverence that is due to the authority of Chief Justice Marshall, which still forms part, in a moral sense, of the character of the same court, and are led to look back to the former opinions expressed and delivered by him upon the same subject, and when we learn that his concurrence was claimed, in the grounds of the dissenting opinion devolved upon Mr. Justice Story, and come to listen to the clear and cogent conclusions drawn from the precedent and doctrine of those antecedent decisions by this last distinguished judge, whose abilities were never more conspicuously manifested, nor exerted with more signal force than upon this and the subsequent occasions, which we shall refer to in the course of this volume, we are necessarily led to pause, and suspend not only the expression of our own judgment, but the judgment itself, for that just, final opinion, which remains to be formed. In our impression of the argumentative power displayed in the report of this whole case, we should do injustice not to combine the bar and the bench. And it would be equally unjust to confine that acknowledgment to the argument in the present case.

The whole question we conceive to be fairly and comprehensively stated, and the difference of opinion to be very clearly defined and marked, in the following passage from the dissenting opinion of Judge Story.

"But how can it be truly said, that the act of New York is not a regulation of commerce? No one can well doubt, that, if the same act had been passed by Congress, it would have been a regulation of commerce; and in that way, and in that only, would it be a constitutional act of Congress. The right of Congress to pass such an act has been expressly conceded at the argument. The act of New York purports on its very face to regulate the conduct of masters, and owners, and passengers, in foreign trade; and in foreign ports and places. Suppose the act had required, that the master and owner of ships should make report of all goods taken on board or landed in foreign ports, and of the nature, qualities, and value of such goods;

could there be a doubt that it would have been a regulation of commerce? If not, in what essential respect does the requirement of a report of the passengers taken or landed in a foreign port or place, differ from the case put? I profess not to be able to see any. I listened with great attention to the argument, to ascertain upon what ground the act of New York was to be maintained, not to be a regulation of commerce. I confess that I was unable to ascertain any, from the reasoning of either of the learned counsel who spoke for the plaintiff. Their whole argument on this point seemed to me to amount to this that if it were a regulation of commerce, still it might also be deemed a regulation of police, and a part of the systemn of poor laws; and therefore justifiable as a means to attain the end. In my judgment, for the reasons already suggested, that is not a just consequence, or a legitimate deduction. If the act is a regulation of commerce, and that subject belongs exclusively to Congress; it is a means cut off from the range of State sovereignty and State legislation.” — p. 157.

The idea of any dormant power, or unexpended balance of authority, to be used as a sort of remainder by the States, so long as it was not exercised by Congress, or of considering this legislation of the States as a regular complement of that of the Union, to which we have just adverted, is disposed of in the answer given to it, by the Act of Congress of 1819, regulating passenger ships, &c.

"This last suggestion is peculiarly important in the present case; for Congress has, by the act of the 2d of March, 1819, ch. 170, regulated passenger ships and vessels. Subject to the regulations therein provided, passengers may be brought into the United States from foreign ports. These regulations, being all which Congress have chosen to enact, amount, upon the reasoning already stated, to a complete exercise of its power over the whole subject, as well in what is omitted as in what is provided for. Unless, then, we are prepared to say, that wherever Congress has legislated upon this subject, clearly within its constitutional authority, and made all such regulations, as in its own judgment and discretion were deemed expedient, the States may step in and supply all other regulations, which they may deem expedient, as complementary to those of Congress, thus subjecting all our trade, commerce and navigation, and intercourse with foreign nations, to the double operations of distinct and independent sovereignties; it seems to me impossible to maintain the doctrine, that the States have a concurrent jurisdiction with Congress on the regulation of commerce,

whether Congress has or has not legislated upon the subject; but a fortiori when it has legislated."— pp. 158, 159.

The Supreme Court had acted effectually upon the subject of one State undertaking to interfere with the commercial rights and intercourse of its sister States, in the well-known case of Gibbons and Ogden. It cannot quite escape observation, that under the shape, not to say pretext, of internal regulations of police of the protective kind, on the maritime side of commercial States, to go no further, for the purpose of guarding against the introductions of such persons as a State may think proper to exclude, the fundamental principle, common both to the Confederation and the Constitution, communicating to citizens of each State, the rights of citizens of all the States, may be brought in question. That persons are not the subjects of commerce, may, in some physical sense, with a certain gloomy exception, be true. But the freedom of commercial intercourse, even for foreigners, it will be remembered, was secured by one of the most famed and familiar clauses of Magna Charta, referred to with almost as inuch frequency, among the few that have been found worth preserving in modern times, as that relating to trial by jury. The rule itself was an early triumph of civilization, in advance, it would seem, of the age that established it, which has wrought itself into the operation of the jus gentium; and the regulation, as well as protection of it, properly belongs to the general province of a national government, which may well exercise it with a due reference to all its proper concernments. In connexion with this subject, the power of establishing a uniform rule of naturalization has been expressly assigned to Congress. Few powers will be found more delicate in the operation of the federal government, to judge from experience, than those of this nature.

Massachusetts also, we are sorry to say, furnished her contribution to swell the present volume. We say this with sorrow, because whatever may be thought of the merits of the question, it is undeniable, that the tone and character of the decision chime in with doctrines, which tend, or may be urged, deplorably, to the subversion of the principles of law and property. This cause went before the Supreme Court of the United States under the double disadvantage of a compromising division, in the first place, of the Supreme Court of the Commonwealth, and secondly, of a denial in effect,

by its judgment, that the Act incorporating the Warren Bridge, was any violation of the principles either of the State or National Constitutions. It is to be allowed, at the same time, that much of the argument, on behalf of the new bridge, on the final hearing, proceeded upon grounds quite consistent in themselves with the general principles of justice. And the opinion of one of the members of the Court, Mr. Justice McLean, which went half way with the majority of the Court in affirming the formal judgment of the Massachusetts Bench, fully adopted the course of that portion of the argument, which was apparently intended to form in fact the condition of his own concurrence; namely, that property was not to be sequestrated by the public, upon any occasion, without compensation. But this, unfortunately, it was confessed, when it came to be sifted, could afford no ground for any relief by judgment of the United States Supreme Court, and that the only form in which this tribunal could deal with it was, whether the act impaired the constitutional obligation of contract. A suitable reverence was thus, to be sure, manifested for the essential idea of justice, the principle of which was acknowledged, while the injury itself was left to seek its own redress. But this is a discussion, into which we own we have not much spirit to enter. The point, on which alone it could come before the national Supreme Court, has been determined in the negative. We may remark, however, that at the same time, it is not easy to comprehend the ground, or understand the logic, upon which, if the Court considered the act to be one impairing the obligation of contract, while it was at the same time in the exercise of the right of eminent domain, it could be possible to avoid the force of the constitutional prohibition. But it is possible we do not quite clearly, or fully, comprehend that portion of the juridical argument, which was presented upon this head. And upon the main point of the opinion, we may decently copy the language of becoming obedience, and we may add, dignified submission, used by Mr. Justice Story, in another prominent case in the present volume, which will form a subject of distinct and further notice.

"It is proper to notice the statement at the bar, that the point of the constitutionality of this act has been already decided by this Court. If so, I bow to its authority. I am not disposed to shake, even if I could, the solemn decisions of this Court

upon any great principles of law, and, a fortiori, not that which respects the interpretation of the Constitution itself."

In the review, which we rather omit than incline to make, of this very important cause, it is impossible not to feel and to allow the surpassing power of this last most able and eminent judge, over all the materials of the cause, and the prevailing strength of reasoning brought to bear upon the subject, whether in relation to the force of precedent, or the weight of principle. Passing however from the tale of things that were, and considering the case itself to be settled, so far as it can be considered as settled, salvo jure in regard to the general authority of the constitutional clause which was brought in question, no further interest may remain attached to the result, or involved in the argument of this memorable decision, at least none of so much consequence and solemnity as the bearing of any established rule of construction, understood to be extracted from former decisions, and drawn into authority for the support of doctrine contained in the present. Such a rule and guide of construction, it seems, was deemed to be found in the prior decision of the same Court, in the case of the Providence Bank. The case, and the comment, are contained in the following passage, from the opinion of Mr. Chief Justice Taney, pronounced in the name of the Court.

"But the case most analogous to this, and in which the question came more directly before the Court, is the case of the Providence Bank v. Billings & Pittmann, 4 Pet. 514; and which was decided in 1830. In that case, it appeared that the legislature of Rhode Island had chartered the bank, in the usual form of such acts of incorporation. The charter contained no stipulation on the part of the State, that it would not impose a tax on the bank, nor any reservation of the right to do so. It was silent on this point. Afterwards, a law was passed, imposing a tax on all banks in the State; and the right to impose this tax was resisted by the Providence Bank, upon the ground, that if the State could impose a tax, it might tax so heavily as to render the franchise of no value, and destroy the institution; that the charter was a contract, and that a power which may in effect destroy the charter is inconsistent with it, and is impliedly renounced by granting it. But the Court said, that the taxing power was of vital importance, and essential to the existence of government; and that the relinquishment of such a power is never to be assumed. And in delivering the 18

VOL. XLVI.

No. 98.