Justice WAYNE: This power 'includes navigation upon the high seas, and in the bays, harbors, lakes, and navigable waters within the United States, and any law by a State in any way affecting the right of navigation, or subjecting the exercise of the right to a condition, is contrary to the grant.' (P. 414.)
Justices CATRON and GRIER: 'That Congress has regulated commerce and intercourse with foreign nations and between the several States, by willing that it shall be free, and it is therefore not left to the direction of each State in the Union either to refuse a right of passage to persons or property through her territory, or to exact a duty for permission to exercise it.' (P. 464.)
In Cooley v. Portwardens of Philadelphia, the court say: 'Although Congress has legislated on the subject of pilotage, its legislation manifests an intention, with a single exception, not to regulate this subject, but to leave its regulation to the several States. To these precise questions, which are all we are called on to decide, this opinion must be understood to be confined. It does not extend to the question, what other subjects under the commercial power are within the exclusive control of Congress, or may be regulated by the States in the absence of all Congressional legislation,' &c.
12 Howard, 320.
But whether this power is exclusive or not, when Congress, in pursuance of the power, proceeds to regulate the subject matter, it necessarily excludes State interference with the same subject matter.
In Houston v. Moore, (5 Wheat.,) the court say: 'We are altogether incapable of comprehending how two distinct wills can at the same time be exercised in relation to the same subject, to be effectual, and at the same time compatible with one another.'
In Prigg v. Commonwealth of Pennsylvania, (16 Pet., 617,) the language of the court is: 'If Congress have a constitutional power to regulate a particular subject, and they do regulate it in a particular manner, and in a certain form, it cannot be that the State Legislatures have a right to interfere, and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject matter. Its silence as to what it does not do is as expressive of what its intention is, as the direct provisions made by it.'
The license granted to the steamer to carry on the coasting trade is a grant of authority to do whatever it purports to authorize. The States cannot add to the regulations made by the paramount authority, nor subtract anything from them.
Gibbons v. Ogden, p. 579.
The People v. Brooks, 4 Denio, 479.
The act of the State is in direct conflict with these principles, for, in effect, it declares that vessels engaged in foreign commerce, or the coasting trade, shall not navigate its waters, without complying with a condition not prescribed by the acts of Congress. If the State has the power to inflict a penalty for the violation of the condition, it is equally authorized to use force to prevent the violation.
It is not pretended that the act is based on the police power of the State; neither the preservation of the health, morals, nor the peace of the community, is affected by it. In the language of the Supreme Court of the State, its object is merely to 'advance the remedies for torts or contracts done or made by the agents of steamboats,' &c.
While the power of the State over its legal remedies is admitted, this, like the taxing power of the State, cannot be exercised so as to interfere with the power delegated to Congress to regulate commerce.
Brown v. State of Maryland, 12 Wheat., 419.
Hays v. Steamship Company, 17 How., 599.
Towboat Company v. Steamboat Company, Law Register, March, 1857, p. 284.
The act of Congress of 29th July, 1850, provides the mode by which sales and transfers shall be made, and what shall be the evidence of ownership, while the act of the State disregards the mode thus provided, and declares a different rule shall prevail in its courts.
The case of the owners of the Swan against same defendant differs only in this-that the boat in question was engaged in the business of a lighter and tow between the wharves of the city and the vessels, and the vessels anchored in the lower part of the bay.
(See the succeeding case of Foster et al. v. Davenport et al.)
Mr. Clay's argument (adopting a brief filed by Mr. J. T. Taylor) was as follows: