William Johnson

“ And even where freedom of commercial intercourse is made a subject of stipulation in a treaty, it is generally with a view to the removal of some previous restriction, or the introduction of some new privilege, most frequently, is identified with the return to a state of peace. But another view of the subject leads directly to the same conclusion. Power to regulate foreign commerce is given in the same words, and in the same breath, as it were, with that over the commerce of the States and with the Indian tribes. But the power to regulate foreign commerce is necessarily exclusive. ”

“ In attempts to construe the Constitution, I have never found much benefit resulting from the inquiry whether the whole or any part of it is to be construed strictly or literally. The simple, classical, precise, yet comprehensive language in which it is couched leaves, at most, but very little latitude for construction, and when its intent and meaning is discovered, nothing remains but to execute the will of those who made it in the best manner to effect the purposes intended. ”

“ The power of a sovereign state over commerce therefore amounts to nothing more than a power to limit and restrain it at pleasure. And since the power to prescribe the limits to its freedom necessarily implies the power to determine what shall remain unrestrained, it follows that the power must be exclusive; it can reside but in one potentate, and hence the grant of this power carries with it the whole subject, leaving nothing for the State to act upon. ”

“ Shipbuilding, the carrying trade, and propagation of seamen are such vital agents of commercial prosperity that the nation which could not legislate over these subjects would not possess power to regulate commerce. ”

“ And the health laws that require them to be stopped and ventilated are no more intended as regulations on commerce than the laws which permit their importation are intended to innoculate the community with disease. ”

“ As to the transportation of passengers, and passengers in a steamboat, I consider it as having been solemnly recognised by the State of New York as a subject both of commercial regulation and of revenue. She has imposed a transit duty upon steamboat passengers arriving at Albany, and unless this be done in the exercise of her control over personal intercourse, as incident to internal commerce, I know not on what principle the individual has been subjected to this tax. ”

“ Almost every commercial nation reserves to its own subjects a monopoly of its coasting trade, and a countervailing privilege in favour of American shipping is contemplated in the whole legislation of the United States on this subject. It is not to give the vessel an American character that the license is granted ”

“ A common register equally entitles vessels to carry on the coasting trade, although it does not exempt them from the forms of foreign commerce or from compliance with the 16th and 17th sections of the enrolling act. And even a foreign vessel may be employed coastwise upon complying with the requisitions of the 24th section. I consider the license therefore as nothing more than what it purports to be, according to the first section of this act, conferring on the licensed vessel certain privileges in that trade not conferred on other vessels ”

“ As early as 1778, the subject had been pressed upon the attention of Congress by a memorial from the State of New Jersey, and in 1781, we find a resolution presented to that body by one of [p225] the most enlightened men of his day, Dr. Witherspoon, affirming that
it is indispensably necessary that the United States, in Congress assembled, should be vested with a right of superintending the commercial regulations of every State that none may take place that shall be partial or contrary to the common interests. ”

“ Many duties and formalities are necessarily imposed upon the American foreign commerce which would be burdensome in the active coasting trade of the States, and can be dispensed with. A higher rate of tonnage also is imposed, and this license entitles the vessels that take it to those exemptions, but to nothing more. ”

“ As to laws affecting ferries, turnpike roads, and other subjects of the same class, so far from meriting the epithet of commercial regulations, they are, in fact, commercial facilities for which, by the consent of mankind, a compensation is paid upon the same principle that the whole commercial world submit to pay light money to the Danes. ”

“ Other instances could be cited abundantly to prove that collision must be sought to be produced, and when it does arise, the question must be decided how far the powers of Congress are adequate to put it down. Wherever the powers of the respective governments are frankly exercised, with a distinct view to the ends of such powers, they may act upon the same object, or use the same means, and yet the powers be kept perfectly distinct. ”

“ One half the doubts in life arise from the defects of language, and if this instrument had been called an exemption instead of a license, it would have given a better idea of its character. Licensing acts, in fact, in legislation, are universally restraining acts, as, for example, acts licensing gaming houses, retailers of spiritous liquors, &c. ”

“ Hence, first, the consent of Congress to such imposts or duties is made necessary, and, as to inspection laws, it is limited to the minimum of expenses. Then the money so raised shall be paid into the Treasury of the United States, or may be sued for, since it is declared to be for their use. And lastly, all such laws may be modified or repealed by an act of Congress. It is impossible for a right to be more guarded. ”

“ He who robs the mail may also steal the horse that carries it, and would unquestionably be subject to punishment at the same time under the laws of the State in which the crime is committed and under those of the United States. ”

“ The judgment entered by the Court in this cause, has my entire approbation, but, having adopted my conclusions on views [p223] of the subject materially different from those of my brethren, I feel it incumbent on me to exhibit those views. I have also another inducement: in questions of great importance and great delicacy, I feel my duty to the public best discharged by an effort to maintain my opinions in my own way. ”

“ The second, those which the States may exercise with the consent of Congress. And here the sedulous attention to the subject of State exclusion from commercial power is strongly marked. Not satisfied with the express grant to the United States of the power over commerce, this clause negatives the exercise of that power to the States as to the only two objects which could ever tempt them to assume the exercise of that power, to-wit, the collection of a revenue from imposts and duties on imports and exports, or from a tonnage duty. ”