New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-11-23
,,..,Io, then N ire vessel BY meanso Of the vessel '

dearly within the power. ;au.oa ss II
Aers was lie limitation Of the power, won'i
S,lov when subject 70 spint OF ny Iercitca wsre
nrstatop. that the waters Of the United sa' Ss, the
within the power; but for the S.oe Sithin the
Se.se wa. within the poser, the crew wei VET 70 trade
.s~sr the cargo within the power, the IT, waters bv
- wi,hin the power-the regulation OF .a must be
mans Of which the vessel can alone "''0'
within the power. + ,he United States 40
10 vest " WI aqnmorce and not give M ."
S..,,yy - ra,n,s,s the orly mode 10 WIN"
ue,ce. jSr the most part, could DC % w. In
have left the ccun,ry pIe rs our wiss men at thai
End iouno .ho"cIf.l when the Constitution
w Tsr waters therefore, 81 the United states,
Nshst mode existing then, aDd Tor the most par eA
,s.s.siy NJ the mode for carrying on commerce
quay Nv virtue Of the power, within control of the
Tn;ted States by Congressional legislation, -,
Bat there is limitation, may please your iiohors,
Iii rcfeuce To each one Of these subjects end every
sxh,r subject which uoy be considered commercial,
within the meaning Of the clause; and thar limitation
IA 10 be found in the fact that il II maze 10 Apply
exclusvely TO foreign commerce, and 10 commerce.
among tie States, aud commerce WIN tne inu'ah
tBibes. Why was that limitation because inc IN
terpal commerce Of State, being a SUBJECT anectng
chiefly II interest of the State herse could pc WIN
out any danger to continuance VI HateInai ice.ue
among the Sta es and without any harm TO the
strength Of the Government TO arise under the Con-
stjtutop left as il when the Consti' ution was
adonted within the power Of the States respectively.
Ant foreign Commerce DtliS a IHhtJtI IN WNCI
United States, as whole, had an interest, and for
which in gard TO the nations with which 1t might be
carried op, the United States alone was responsible,
tbe other Governments Of the world having nctmDg "
do with the government Of each State, ana the com,
neIce among the States having already furnished
ample cause Of dissatisfaction and heartbuInihg, IL
was thought absolutely important to vest the com
mere al power with reference TO tins poru|n OF com
merce foreign and among the States, IN Congress.
And again whyl For the sake Of uniformity OF regu-
htion. That is AL That vessel bearing the coors
Of the United States with reference to her oo4suhg
trade and the authority TO carry II on, should nave
the same right to traverse the nayigable waters OF
NewYok az the uavlgable waters OF any other state
that the rule, the night should not be one IN New
York practically, and another pracucay In any olhsi
State How was that uniformity to be attained
The ans wer was as obvious as the light. There was
ooe subject TO be regulated. The existing mischief
was the result Of regulation Of that subject ny sey-
eral distinct and sovereign powers Inc cause Of the
danger consisted in the multiplicity Of the wills by
which the tnblect was being, and without remedy
would thereafter be, regulated And /. became there.
fore important and absolutely vital to the practical
existence Of uniform rule that there should be-
with reference to the authority to establish that rule
but one power one mind, will; and that mind and
will and power, in the language OF Mr.. Madison, 1t
was allmportant, looking to the then aud the future
inters SITS Of the United States vest in the Govern
meDt Of the United States. So much, may II please
the Court, for the object Of giving the ser
Now word or two upon question, unimportant
however far as the exgencies of this controversy
are concerned. Is the power, Of ITSELF independent of
legislative action. exclusive Of State power! Re
Gently, am aware, may It please your lionors that
upon this question the Judgment Of the Supreme
Court Of the United States has not been uniform. DIFF
NTences Of opinion are TO be found believe STILL on
the bench at present. One thing however Is certain
that so far as Judicial authority stands looking
70 the past ana p1esent- IL an open question, to say
the least of it.
Ny brother who argued the case with so much
ability yesterday MT Seward seemed to think il
almost impossible to imagite that any mind could
come to the conclusion that this power, by its own
integrity, by its own force, was exc usve of the same
power i'll the States There have been min Is may it
BIT ATE Taur HODOrs that though it was very possible
- come 70 .hat conclusion, aud not possible to
49, oo ,o anv ether. uinds am cure that tho dis
pgusbed counsel would not, if he could, depreclale
Chief Justice Marshall thought Mr. Justice Story
thought so Il shall mention only the great dead. Mr.
Justice johnson thought So Mr.. Justice Washington
read the opinion of the Court in Gibbons VS.. Ogten,
md as Mr.. Chief Justice Savage read that opinion
be entire Court, as then constituted Thought So Ii
uch opinion is evidence OF any intellectual defect,
ommend me to such defect!
Nv brother Hill, of whose argument shall not say
THAT think, because he is present-as no sensitive
gentlemen likes to be praised to his tace-thonght yes
BY that even his speech OF tue preceding uay, |
powerful as that wes-beautiful as tina. was Il may
sy that without shocking his sensibltyl was not
complete without bringing to his aid especially the
authority Of Mr. Justice Savage. Ana Wna, nGes o'sa
nrly distinguished Judge tell us, IN the OPINION 10
which NV brother referred Tread from page i3i oil
18th Of Wendell After giving the commercIa' G tnse,
and the subsequent clause, which gave to the tmted
States the authority to pass all laws, &C., the learned
Chief Justice proceeds to state; Act srro,n, md
hiI ees b. employed the cossng 'rade
and for regulating the has been decided
AZ. me s. sse 81 po%sr Of 1.
What emphasize, the learned Judge though II In
pOraDt 10 emphasize.
I shall hot speak because he is living aud is daily
exhibiting them, has said that from the time of that
decision to receI period, wheD for the INST, 1t was
supposed III st there In United ates concurren
d. wer subordinate power depending upon the ex.
eIc'se of the power by Congress, was, he believed
universally considered upon the bench and as far As
he knew, by the bar that the grant of tho
power took the whole subject involved within the
power out Of the spleIe Of State jurisdiction.
Mr. Justice JOIN sons opinion, not dissentiog, 10 the
ease Of Gibbons Ogden, but giving his reasons for
ascent TO that opinion, says land, as think, with
great force, and but for the different opinions upon the
Bench, as stituted, l should have said with
anding force that the exercise OF the power Dy
by Congress, III passing regulations, bah the eject 80
far related to the extent and operation oil the
power upon similar power III the States merely OF
restraining the vessel in which commerce was TO be
earned Oh; and that III the absence Of any Congress
sioDal Legislation, limiting the power the waters OF the
United States by force Of the power alone, became
dedicated to the use of navigation far as that use
became important necessary for foreign commerce,
or the commerce between the States.
In the case in 18th Howard, p. 29a, think II Is
upon our brief. l refer particularly to page 80.
Your honors viii fluid in the op,i lon gwen 10y Mr.
Justice Curtis whose loss from tie bench all WHO, as
well as your Honors and nyself knew ME great value
even to the enlightened jurists Of that tribunal, Ia
nebi), is exceedingly cautious in denying the eXcu-
give value Of the power irrespective OF It's actual eX-
ercise. He argues il this way Commerce Is com
prehensive term. The subjects embraced III 1t are
extensive and multiiarious Some OF them may,
without danger Of conflicting legislation, be len to the
legislation Of the States; but there are subjects ot
commerce which, from their very nature, must be a-
Die to but legislative power; and be comes to the
spd tie ;nTges who co,ucidad with him in