Gibbons v. Ogden, 22 U.S. 1 (1824)

             APPEAL FROM THE COURT 
      FOR THE TRIAL OF IMPEACHMENTS AND
              CORRECTION OF ERRORS 
            OF THE STATE OF NEW YORK

Syllabus

The laws of New York granting to Robert R. Livingston and Robert Fulton 
the exclusive right of navigating the waters of that State with 
steamboats are in collision with the acts of Congress regulating the 
coasting trade, which, being made in pursuance of the Constitution, are 
supreme, and the State laws must yield to that supremacy, even though 
enacted in pursuance of powers acknowledged to remain in the States.

The power of regulating commerce extends to the regulation of 
navigation. 

The power to regulate commerce extends to every species of commercial 
intercourse between the United States and foreign nations, and among 
the several States. It does not stop at the external boundary of a 
State.

But it does not extend to a commerce which is completely internal.

The power to regulate commerce is general, and has no limitations but 
such as are prescribed in the Constitution itself.

The power to regulate commerce, so far as it extends, is exclusively 
vested in Congress, and no part of it can be exercised by a State. 

A license under the acts of Congress for regulating the coasting trade 
gives a permission to carry on that trade.

State inspection laws, health laws, and laws for regulating the 
internal commerce of a State, and those which respect turnpike roads, 
ferries, &c. are not within the power granted to Congress.

The license is not merely intended to confer the national character.

The power of regulating commerce extends to navigation carried on by 
vessels exclusively employed in transporting passengers.

The power of regulating commerce extends to vessels propelled by steam 
or fire as well as to those navigated by the instrumentality of wind 
and sails. 

Aaron Ogden filed his bill in the Court of Chancery of that State, 
against Thomas Gibbons, setting forth the several acts of the 
Legislature thereof, enacted for the purpose of securing to Robert R. 
Livingston and Robert Fulton the [p*2] exclusive navigation of all the 
waters within the jurisdiction of that State, with boats moved by fire 
or steam, for a term of years which has not yet expired, and authorizing 
the Chancellor to award an injunction restraining any person whatever 
from navigating those waters with boats of that description. The bill 
stated an assignment from Livingston and Fulton to one John R. 
Livingston, and from him to the complainant, Ogden, of the right to 
navigate the waters between Elizabethtown, and other places in New 
Jersey, and the City of New York, and that Gibbons, the defendant below, 
was in possession of two steamboats, called the Stoudinger and the 
Bellona, which were actually employed in running between New York and 
Elizabethtown, in violation of the exclusive privilege conferred on the 
complainant, and praying an injunction to restrain the said Gibbons from 
using the said boats, or any other propelled by fire or steam, in 
navigating the waters within the territory of New York. The injunction 
having been awarded, the answer of Gibbons was filed, in which he stated 
that the boats employed by him were duly enrolled and licensed to be 
employed in carrying on the coasting trade under the Act of Congress, 
passed the 18th of February, 1793, c. 3. entitled, "An act for enrolling 
and licensing ships and vessels to be employed in the coasting trade and 
fisheries, and for regulating the same." And the defendant insisted on 
his right, in virtue of such licenses, to navigate the waters between 
Elizabethtown and the City of New York, the said acts of the Legislature 
of the [p*3] State of New York to the contrary notwithstanding. At the 
hearing, the Chancellor perpetuated the injunction, being of the opinion 
that the said acts were not repugnant to the Constitution and laws of 
the United States, and were valid. This decree was affirmed in the Court 
for the Trial of Impeachments and Correction of Errors, which is the 
highest Court of law and equity in the State, before which the cause 
could be carried, and it was thereupon brought to this Court by appeal. 
[p*186]

Opinions

         MARSHALL, C.J., Opinion of the Court 

Mr. Chief Justice MARSHALL delivered the opinion of the Court, and, 
after stating the case, proceeded as follows:

The appellant contends that this decree is erroneous because the laws 
which purport to give the exclusive privilege it sustains are repugnant 
to the Constitution and laws of the United States.

They are said to be repugnant:

1st. To that clause in the Constitution which authorizes Congress to 
regulate commerce.

2d. To that which authorizes Congress to promote the progress of science 
and useful arts.

The State of New York maintains the Constitutionality of these laws, 
and their Legislature, their Council of Revision, and their Judges, have 
repeatedly concurred in this opinion. It is supported by great names -- 
by names which have all the titles to consideration that virtue, 
intelligence, and office can bestow. No tribunal can approach the 
decision of this question without feeling a just and real respect for 
that opinion which is sustained by such authority, but it is the 
province of this Court, while it respects, not to bow to it implicitly, 
and the Judges must exercise, in the examination of the subject, that 
understanding which Providence has bestowed upon them, with that 
independence which the people of the United [p*187] States expect from 
this department of the government.

As preliminary to the very able discussions of the Constitution which 
we have heard from the bar, and as having some influence on its 
construction, reference has been made to the political situation of 
these States anterior to its formation. It has been said that they were 
sovereign, were completely independent, and were connected with each 
other only by a league. This is true. But, when these allied sovereigns 
converted their league into a government, when they converted their 
Congress of Ambassadors, deputed to deliberate on their common concerns 
and to recommend measures of general utility, into a Legislature, 
empowered to enact laws on the most interesting subjects, the whole 
character in which the States appear underwent a change, the extent of 
which must be determined by a fair consideration of the instrument by 
which that change was effected.

This instrument contains an enumeration of powers expressly granted by 
the people to their government. It has been said that these powers 
ought to be construed strictly. But why ought they to be so construed? 
Is there one sentence in the Constitution which gives countenance to 
this rule? In the last of the enumerated powers, that which grants 
expressly the means for carrying all others into execution, Congress is 
authorized "to make all laws which shall be necessary and proper" for 
the purpose. But this limitation on the means which may be used is not 
extended to the powers which are conferred, nor is there one sentence in 
[p*188] the Constitution which has been pointed out by the gentlemen of 
the bar or which we have been able to discern that prescribes this rule. 
We do not, therefore, think ourselves justified in adopting it. What do 
gentlemen mean by a "strict construction?" If they contend only against 
that enlarged construction, which would extend words beyond their 
natural and obvious import, we might question the application of the 
term, but should not controvert the principle. If they contend for that 
narrow construction which, in support or some theory not to be found in 
the Constitution, would deny to the government those powers which the 
words of the grant, as usually understood, import, and which are 
consistent with the general views and objects of the instrument; for 
that narrow construction which would cripple the government and render 
it unequal to the object for which it is declared to be instituted, and 
to which the powers given, as fairly understood, render it competent; 
then we cannot perceive the propriety of this strict construction, nor 
adopt it as the rule by which the Constitution is to be expounded. As 
men whose intentions require no concealment generally employ the words 
which most directly and aptly express the ideas they intend to convey, 
the enlightened patriots who framed our Constitution, and the people who 
adopted it, must be understood to have employed words in their natural 
sense, and to have intended what they have said. If, from the 
imperfection of human language, there should be serious doubts 
respecting the extent of any given power, it is a well settled rule that 
the objects [p*189] for which it was given, especially when those 
objects are expressed in the instrument itself, should have great 
influence in the construction. We know of no reason for excluding this 
rule from the present case. The grant does not convey power which might 
be beneficial to the grantor if retained by himself, or which can enure 
solely to the benefit of the grantee, but is an investment of power for 
the general advantage, in the hands of agents selected for that purpose, 
which power can never be exercised by the people themselves, but must be 
placed in the hands of agents or lie dormant. We know of no rule for 
construing the extent of such powers other than is given by the language 
of the instrument which confers them, taken in connexion with the 
purposes for which they were conferred.

The words are, "Congress shall have power to regulate commerce with 
foreign nations, and among the several States, and with the Indian 
tribes."

The subject to be regulated is commerce, and our Constitution being, as 
was aptly said at the bar, one of enumeration, and not of definition, 
to ascertain the extent of the power, it becomes necessary to settle the 
meaning of the word. The counsel for the appellee would limit it to 
traffic, to buying and selling, or the interchange of commodities, and 
do not admit that it comprehends navigation. This would restrict a 
general term, applicable to many objects, to one of its significations. 
Commerce, undoubtedly, is traffic, but it is something more: it is 
intercourse. It describes the commercial [p*190] 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 the one nation into the ports of the 
other, and be confined to prescribing rules for the conduct of 
individuals in the actual employment of buying and selling or of barter.

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, has been exercised with the consent of 
all, and has been understood by all to be a commercial regulation. All 
America understands, and has uniformly understood, the word "commerce" 
to comprehend navigation. It was so understood, and must have been so 
understood, when the Constitution was framed. The power over commerce, 
including navigation, was one of the primary objects for which the 
people of America adopted their government, and must have been 
contemplated in forming it. The convention must have used the word in 
that sense, because all have understood it in that sense, and the 
attempt to restrict it comes too late.

If the opinion that "commerce," as the word is used in the 
Constitution, comprehends navigation [p*191] also, requires any 
additional confirmation, that additional confirmation is, we think, 
furnished by the words of the instrument itself.

It is a rule of construction acknowledged by all that the exceptions 
from a power mark its extent, for it would be absurd, as well as 
useless, to except from a granted power that which was not granted -- 
that which the words of the grant could not comprehend. If, then, there 
are in the Constitution plain exceptions from the power over navigation, 
plain inhibitions to the exercise of that power in a particular way, it 
is a proof that those who made these exceptions, and prescribed these 
inhibitions, understood the power to which they applied as being 
granted.

The 9th section of the 1st article declares that "no preference shall 
be given, by any regulation of commerce or revenue, to the ports of one 
State over those of another." This clause cannot be understood as 
applicable to those laws only which are passed for the 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 
in regulating commerce relates to navigation. But the subsequent part 
of the sentence is still more explicit. It is, "nor shall vessels bound 
to or from one State be obliged to enter, clear, or pay duties, in 
another." These words have a direct reference to navigation.

The universally acknowledged power of the government to impose embargoes 
must also be considered as showing that all America is united [p*192] in 
that construction which comprehends navigation in the word commerce. 
Gentlemen have said in argument that this is a branch of the war-making 
power, and that an embargo is an instrument of war, not a regulation of 
trade.

That it may be, and often is, used as an instrument of war cannot be 
denied. An embargo may be imposed for the purpose of facilitating the 
equipment or manning of a fleet, or for the purpose of concealing the 
progress of an expedition preparing to sail from a particular port. In 
these, and in similar cases, it is a military instrument, and partakes 
of the nature of war. But all embargoes are not of this description. 
They are sometimes resorted to without a view to war, and with a single 
view to commerce. In such case, an embargo is no more a war measure than 
a merchantman is a ship of war because both are vessels which navigate 
the ocean with sails and seamen.

When Congress imposed that embargo which, for a time, engaged the 
attention of every man in the United States, the avowed object of the 
law was the protection of commerce, and the avoiding of war. By its 
friends and its enemies, it was treated as a commercial, not as a war, 
measure. The persevering earnestness and zeal with which it was opposed 
in a part of our country which supposed its interests to be vitally 
affected by the act, cannot be forgotten. A want of acuteness in 
discovering objections to a measure to which they felt the most 
deep-rooted hostility will not be imputed to those who were arrayed in 
opposition [p*193] to this. Yet they never suspected that navigation was 
no branch of trade, and was therefore not comprehended in the power to 
regulate commerce. They did, indeed, contest the constitutionality of 
the act, but, on a principle which admits the construction for which the 
appellant contends. They denied that the particular law in question was 
made in pursuance of the Constitution not because the power could not 
act directly on vessels, but because a perpetual embargo was the 
annihilation, and not the regulation, of commerce. In terms, they 
admitted the applicability of the words used in the Constitution to 
vessels, and that in a case which produced a degree and an extent of 
excitement calculated to draw forth every principle on which legitimate 
resistance could be sustained. No example could more strongly illustrate 
the universal understanding of the American people on this subject. 

The word used in the Constitution, then, comprehends, and has been 
always understood to comprehend, navigation within its meaning, and a 
power to regulate navigation is as expressly granted as if that term 
had been added to the word "commerce."

To what commerce does this power extend? The Constitution informs us, to 
commerce "with foreign nations, and among the several States, and with 
the Indian tribes."

It has, we believe, been universally admitted that these words 
comprehend every species of commercial intercourse between the United 
States and foreign nations. No sort of trade can be [p*194] carried on 
between this country and any other to which this power does not extend. 
It has been truly said that "commerce," as the word is used in the 
Constitution, is a unit every part of which is indicated by the term.

If this be the admitted meaning of the word in its application to 
foreign nations, it must carry the same meaning throughout the sentence, 
and remain a unit, unless there be some plain intelligible cause which 
alters it.

The subject to which the power is next applied is to commerce "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 is not intended to say that these words comprehend that commerce 
which is completely internal, which is carried on between man and man 
in a State, or between different parts of the same State, and which does 
not extend to or affect other States. Such a power would be 
inconvenient, and is certainly unnecessary.

Comprehensive as the word "among" is, it may very properly be restricted 
to that commerce which concerns more States than one. The phrase is not 
one which would probably have been selected to indicate the completely 
interior traffic of a State, because it is not an apt phrase for that 
purpose, and the enumeration of the particular classes of commerce to 
which the power was to be extended would not have been made had the 
intention [p*195] been to extend the power to every description. The 
enumeration presupposes something not enumerated, and that something, if 
we regard the language or the subject of the sentence, must be the 
exclusively internal commerce of a State. The genius and character of 
the whole government seem to be that its action is to be applied to all 
the external concerns of the nation, and to those internal concerns 
which affect the States generally, but not to those which are completely 
within a particular State, which do not affect other States, and with 
which it is not necessary to interfere for the purpose of executing some 
of the general powers of the government. The completely internal 
commerce of a State, then, may be considered as reserved for the State 
itself.

But, in regulating commerce with foreign nations, the power of Congress 
does not stop at the jurisdictional lines of the several States. It 
would be a very useless power if it could not pass those lines. The 
commerce of the United States with foreign nations is that of the whole 
United States. Every district has a right to participate in it. The deep 
streams which penetrate our country in every direction pass through the 
interior of almost every State in the Union, and furnish the means of 
exercising this right. If Congress has the power to regulate it, that 
power must be exercised whenever the subject exists. If it exists within 
the States, if a foreign voyage may commence or terminate at a port 
within a State, then the power of Congress may be exercised within a 
State.

This principle is, if possible, still more clear, when [p*196] applied 
to commerce "among the several States." They either join each other, in 
which case they are separated by a mathematical line, or they are 
remote from each other, in which case other States lie between them. 
What is commerce "among" them, and how is it to be conducted? Can a 
trading expedition between two adjoining States, commence and terminate 
outside of each? And if the trading intercourse be between two States 
remote from each other, must it not commence in one, terminate in the 
other, and probably pass through a third? Commerce among the States 
must, of necessity, be commerce with the States. In the regulation of 
trade with the Indian tribes, the action of the law, especially when 
the Constitution was made, was chiefly within a State. The power of 
Congress, then, whatever it may be, must be exercised within the 
territorial jurisdiction of the several States. The sense of the nation 
on this subject is unequivocally manifested by the provisions made in 
the laws for transporting goods by land between Baltimore and 
Providence, between New York and Philadelphia, and between Philadelphia 
and Baltimore.

We are now arrived at the inquiry -- What is this power?

It is the power to regulate, that is, to prescribe the rule by which 
commerce is to be governed. This power, like all others vested in 
Congress, is complete in itself, may be exercised to its utmost extent, 
and acknowledges no limitations other than are prescribed in the 
Constitution. These are expressed in plain terms, and do not affect the 
[p*197] questions which arise in this case, or which have been discussed 
at the bar. If, as has always been understood, the sovereignty of 
Congress, though limited to specified objects, is plenary as to those 
objects, the power over commerce with foreign nations, and among the 
several States, is vested in Congress as absolutely as it would be in a 
single government, having in its Constitution the same restrictions on 
the exercise of the power as are found in the Constitution of the United 
States. The wisdom and the discretion of Congress, their identity with 
the people, and the influence which their constituents possess at 
elections are, in this, as in many other instances, as that, for 
example, of declaring war, the sole restraints on which they have 
relied, to secure them from its abuse. They are the restraints on which 
the people must often they solely, in all representative governments.

The power of Congress, then, comprehends navigation, within the limits 
of every State in the Union, so far as that navigation may be in any 
manner connected with "commerce with foreign nations, or among the 
several States, or with the Indian tribes." It may, of consequence, 
pass the jurisdictional line of New York and act upon the very waters to 
which the prohibition now under consideration applies.

But it has been urged with great earnestness that, although the power 
of Congress to regulate commerce with foreign nations and among the 
several States be coextensive with the subject itself, and have no 
other limits than are prescribed in the Constitution, yet the States may 
severally [p*198] exercise the same power, within their respective 
jurisdictions. In support of this argument, it is said that they 
possessed it as an inseparable attribute of sovereignty, before the 
formation of the Constitution, and still retain it except so far as they 
have surrendered it by that instrument; that this principle results from 
the nature of the government, and is secured by the tenth amendment; 
that an affirmative grant of power is not exclusive unless in its own 
nature it be such that the continued exercise of it by the former 
possessor is inconsistent with the grant, and that this is not of that 
description.

The appellant, conceding these postulates except the last, contends 
that full power to regulate a particular subject implies the whole 
power, and leaves no residuum; that a grant of the whole is incompatible 
with the existence of a right in another to any part of it.

Both parties have appealed to the Constitution, to legislative acts, 
and judicial decisions, and have drawn arguments from all these sources 
to support and illustrate the propositions they respectively maintain.

The grant of the power to lay and collect taxes is, like the power to 
regulate commerce, made in general terms, and has never been understood 
to interfere with the exercise of the same power by the State, and hence 
has been drawn an argument which has been applied to the question under 
consideration. But the two grants are not, it is conceived, similar in 
their terms or their nature. Although many of the powers formerly 
[p*199] exercised by the States are transferred to the government of the 
Union, yet the State governments remain, and constitute a most important 
part of our system. The power of taxation is indispensable to their 
existence, and is a power which, in its own nature, is capable of 
residing in, and being exercised by, different authorities at the same 
time. We are accustomed to see it placed, for different purposes, in 
different hands. Taxation is the simple operation of taking small 
portions from a perpetually accumulating mass, susceptible of almost 
infinite division, and a power in one to take what is necessary for 
certain purposes is not, in its nature, incompatible with a power in 
another to take what is necessary for other purposes. Congress is 
authorized to lay and collect taxes, &c. to pay the debts and provide 
for the common defence and general welfare of the United States. This 
does not interfere with the power of the States to tax for the support 
of their own governments, nor is the exercise of that power by the 
States an exercise of any portion of the power that is granted to the 
United States. In imposing taxes for State purposes, they are not doing 
what Congress is empowered to do. Congress is not empowered to tax for 
those purposes which are within the exclusive province of the States. 
When, then, each government exercises the power of taxation, neither is 
exercising the power of the other. But, when a State proceeds to 
regulate commerce with foreign nations, or among the several States, it 
is exercising the very power that is granted to Congress, [p*200] and is 
doing the very thing which Congress is authorized to do. There is no 
analogy, then, between the power of taxation and the power of regulating 
commerce.

In discussing the question whether this power is still in the States, 
in the case under consideration, we may dismiss from it the inquiry 
whether it is surrendered by the mere grant to Congress, or is retained 
until Congress shall exercise the power. We may dismiss that inquiry 
because it has been exercised, and the regulations which Congress deemed 
it proper to make are now in full operation. The sole question is can a 
State regulate commerce with foreign nations and among the States while 
Congress is regulating it?

The counsel for the respondent answer this question in the affirmative, 
and rely very much on the restrictions in the 10th section as 
supporting their opinion. They say very truly that limitations of a 
power furnish a strong argument in favour of the existence of that 
power, and that the section which prohibits the States from laying 
duties on imports or exports proves that this power might have been 
exercised had it not been expressly forbidden, and consequently that any 
other commercial regulation, not expressly forbidden, to which the 
original power of the State was competent may still be made.

That this restriction shows the opinion of the Convention that a State 
might impose duties on exports and imports, if not expressly forbidden, 
will be conceded, but that it follows as a consequence [p*201] from 
this concession that a State may regulate commerce with foreign nations 
and among the States cannot be admitted.

We must first determine whether the act of laying "duties or imposts on 
imports or exports" is considered in the Constitution as a branch of 
the taxing power, or of the power to regulate commerce. We think it very 
clear that it is considered as a branch of the taxing power. It is so 
treated in the first clause of the 8th section: "Congress shall have 
power to lay and collect taxes, duties, imposts, and excises;" and, 
before commerce is mentioned, the rule by which the exercise of this 
power must be governed is declared. It is that all duties, imposts, and 
excises shall be uniform. In a separate clause of the enumeration, the 
power to regulate commerce is given, as being entirely distinct from the 
right to levy taxes and imposts and as being a new power, not before 
conferred. The Constitution, then, considers these powers as 
substantive, and distinct from each other, and so places them in the 
enumeration it contains. The power of imposing duties on imports is 
classed with the power to levy taxes, and that seems to be its natural 
place. But the power to levy taxes could never be considered as 
abridging the right of the States on that subject, and they might, 
consequently, have exercised it by levying duties on imports or exports, 
had the Constitution contained no prohibition on this subject. This 
prohibition, then, is an exception from the acknowledged power of the 
States [p*202] to levy taxes, not from the questionable power to 
regulate commerce.

"A duty of tonnage" is as much a tax as a duty on imports or exports, 
and the reason which induced the prohibition of those taxes extends to 
this also. This tax may be imposed by a State, with the consent of 
Congress, and it may be admitted that Congress cannot give a right to a 
State in virtue of its own powers. But a duty of tonnage being part of 
the power of imposing taxes, its prohibition may certainly be made to 
depend on Congress, without affording any implication respecting a power 
to regulate commerce. It is true that duties may often be, and in fact 
often are, imposed on tonnage with a view to the regulation of commerce, 
but they may be also imposed with a view to revenue, and it was 
therefore a prudent precaution to prohibit the States from exercising 
this power. The idea that the same measure might, according to 
circumstances, be arranged with different classes of power was no 
novelty to the framers of our Constitution. Those illustrious statesmen 
and patriots had been, many of them, deeply engaged in the discussions 
which preceded the war of our revolution, and all of them were well read 
in those discussions. The right to regulate commerce, even by the 
imposition of duties, was not controverted, but the right to impose a 
duty for the purpose of revenue produced a war as important, perhaps, in 
its consequences to the human race as any the world has ever witnessed.

These restrictions, then, are on the taxing power, [p*203] not on that 
to regulate commerce, and presuppose the existence of that which they 
restrain, not of that which they do not purport to restrain.

But the inspection laws are said to be regulations of commerce, and are 
certainly recognised in the Constitution as being passed in the 
exercise of a power remaining with the States.

That inspection laws may have a remote and considerable influence on 
commerce will not be denied, but that a power to regulate commerce is 
the source from which the right to pass them is derived cannot be 
admitted. The object of inspection laws is to improve the quality of 
articles produced by the labour of a country, to fit them for 
exportation, or, it may be, for domestic use. They act upon the subject 
before it becomes an article of foreign commerce or of commerce among 
the States, and prepare it for that purpose. They form a portion of that 
immense mass of legislation which embraces everything within the 
territory of a State not surrendered to the General Government; all 
which can be most advantageously exercised by the States themselves. 
Inspection laws, quarantine laws, health laws of every description, as 
well as laws for regulating the internal commerce of a State, and those 
which respect turnpike roads, ferries, &c., are component parts of this 
mass.

No direct general power over these objects is granted to Congress, and, 
consequently, they remain subject to State legislation. If the 
legislative power of the Union can reach them, it must be for national 
purposes, it must be where the [p*204] power is expressly given for a 
special purpose or is clearly incidental to some power which is 
expressly given. It is obvious that the government of the Union, in the 
exercise of its express powers -- that, for example, of regulating 
commerce with foreign nations and among the States -- may use means that 
may also be employed by a State in the exercise of its acknowledged 
powers -- that, for example, of regulating commerce within the State. If 
Congress license vessels to sail from one port to another in the same 
State, the act is supposed to be necessarily incidental to the power 
expressly granted to Congress, and implies no claim of a direct power to 
regulate the purely internal commerce of a State or to act directly on 
its system of police. So, if a State, in passing laws on subjects 
acknowledged to be within its control, and with a view to those 
subjects, shall adopt a measure of the same character with one which 
Congress may adopt, it does not derive its authority from the particular 
power which has been granted, but from some other, which remains with 
the State and may be executed by the same means. All experience shows 
that the same measures, or measures scarcely distinguishable from each 
other, may flow from distinct powers, but this does not prove that the 
powers themselves are identical. Although the means used in their 
execution may sometimes approach each other so nearly as to be 
confounded, there are other situations in which they are sufficiently 
distinct to establish their individuality.

In our complex system, presenting the rare and difficult scheme of one 
General Government whose [p*205] action extends over the whole but which 
possesses only certain enumerated powers, and of numerous State 
governments which retain and exercise all powers not delegated to the 
Union, contests respecting power must arise. Were it even otherwise, 
the measures taken by the respective governments to execute their 
acknowledged powers would often be of the same description, and might 
sometimes interfere. This, however, does not prove that the one is 
exercising, or has a right to exercise, the powers of the other.

The acts of Congress passed in 1796 and 1799, 2 U.S.L. 345, 3 U.S.L. 
126, empowering and directing the officers of the General Government to 
conform to and assist in the execution of the quarantine and health 
laws of a State proceed, it is said, upon the idea that these laws are 
constitutional. It is undoubtedly true that they do proceed upon that 
idea, and the constitutionality of such laws has never, so far as we are 
informed, been denied. But they do not imply an acknowledgment that a 
State may rightfully regulate commerce with foreign nations or among the 
States, for they do not imply that such laws are an exercise of that 
power, or enacted with a view to it. On the contrary, they are treated 
as quarantine and health laws, are so denominated in the acts of 
Congress, and are considered as flowing from the acknowledged power of a 
State to provide for the health of its citizens. But as it was apparent 
that some of the provisions made for this purpose and in virtue of this 
power might [p*206] interfere with and be affected by the laws of the 
United States made for the regulation of commerce, Congress, in that 
spirit of harmony and conciliation which ought always to characterize 
the conduct of governments standing in the relation which that of the 
Union and those of the States bear to each other, has directed its 
officers to aid in the execution of these laws, and has, in some 
measure, adapted its own legislation to this object by making provisions 
in aid of those of the States. But, in making these provisions, the 
opinion is unequivocally manifested that Congress may control the State 
laws so far as it may be necessary to control them for the regulation of 
commerce. The act passed in 1803, 3 U.S.L. 529, prohibiting the 
importation of slaves into any State which shall itself prohibit their 
importation, implies, it is said, an admission that the States possessed 
the power to exclude or admit them, from which it is inferred that they 
possess the same power with respect to other articles.

If this inference were correct, if this power was exercised not under 
any particular clause in the Constitution, but in virtue of a general 
right over the subject of commerce, to exist as long as the Constitution 
itself, it might now be exercised. Any State might now import African 
slaves into its own territory. But it is obvious that the power of the 
States over this subject, previous to the year 1808, constitutes an 
exception to the power of [p*207] Congress to regulate commerce, and the 
exception is expressed in such words, as to manifest clearly the 
intention to continue the preexisting right of the States to admit or 
exclude, for a limited period. The words are the migration or 
importation of such persons as any of the States, now existing, shall 
think proper to admit shall not be prohibited by the Congress prior to 
the year 1808. 

The whole object of the exception is to preserve the power to those 
States which might be disposed to exercise it, and its language seems 
to the Court to convey this idea unequivocally. The possession of this 
particular power, then, during the time limited in the Constitution, 
cannot be admitted to prove the possession of any other similar power.

It has been said that the act of August 7, 1789, acknowledges a 
concurrent power in the States to regulate the conduct of pilots, and 
hence is inferred an admission of their concurrent right with Congress 
to regulate commerce with foreign nations and amongst the States. But 
this inference is not, we think, justified by the fact.

Although Congress cannot enable a State to legislate, Congress may adopt 
the provisions of a State on any subject. When the government of the 
Union was brought into existence, it found a system for the regulation 
of its pilots in full force in every State. The act which has been 
mentioned adopts this system, and gives it the same validity as if its 
provisions had been specially made by Congress. But the act, it may be 
said, is prospective also, and the adoption of laws to be made [p*208] 
in future presupposes the right in the maker to legislate on the 
subject.

The act unquestionably manifests an intention to leave this subject 
entirely to the States until Congress should think proper to interpose, 
but the very enactment of such a law indicates an opinion that it was 
necessary, that the existing system would not be applicable to the new 
state of things unless expressly applied to it by Congress. But this 
section is confined to pilots within the "bays, inlets, rivers, 
harbours, and ports of the United States,"