Supposing, therefore, the Ohio River to be exclusively within the territory of Virginia, on both banks, and from its head to its mouth, and that she might authorize bridges over it, yet that power is subordinate to the constitutional authority of Congress over commerce. And if Congress, in the exercise of its power, has manifested a negative policy hostile to bridges over the Ohio, any conflicting exercise of State authority would be void. And yet, in their answer, this hostile policy of Congress is the confessed motive for procuring their charter from the State of Virginia. Nay, more, its purpose is admitted to be that which the power granted to Congress by the 3d clause, 8th article, of the Constitution was especially intended to prevent, the acquisition by States, for their citizens, of commercial advantages by separate legislation.
'The addition of territory and of settlement on the Pacific Ocean, and the increasing population and commerce of that coast, have recently given new importance to the subject; the change in federal policy and legislation as to bridges and other works of internal improvement has made it incumbent upon the States, by separate legislation, to consult and promote their own and the general welfare and prosperity.' Original Answer, p. 24.
The defendants' allusion to the Pacific settlements and commerce is of deep significance, and indicates the result to be expected, if States may thwart and override the constitutional provision, and by separate legislation consult their own and the general welfare. It has been well remarked, that in such event, the Constitution would be a rope of sand.
It is manifest, therefore, that the only constitutional power that could in any event authorize this bridge had been invoked, and that by its negative action, potentially as by express enactment, this structure was prohibited.
Commerce, on the Ohio, being thus regulated by Congress, and that regulation including all the subjects of navigation, its vehicle, and those engaged in its management, it follows that any act or erection, in any way affecting the subjects thus regulated, whether by individuals or State governments, is unlawful. In the great case of Gibbons v. Ogden, (9 Wheaton, 1,) this court decided that the power to regulate commerce included navigation, and when exercised by that body, any conflicting State regulation, no matter for what purpose or extent adopted, was void. In the subsequent case of Wilson v. The Blackbird Creek Marsh Company, (2 Peters, 245,) it was held that any exercise of this power by Congress excluded and controlled all State action.
Subsequent cases have illustrated these principles, applying them to all action, direct, or indirect, of individuals or States interfering with congressional regulations of foreign and domestic commerce. In the passenger cases, Norris v. Boston, and Smith v. Turner, (Pamph. Rep. p. 85,) Chief Justice Taney remarks: 'It has always been admitted, in the discussion upon this clause of the Constitution, (art. 8, sect. 3,) that the power to regulate commerce includes navigation, and ships, and crews, because they are the ordinary means of commercial intercourse.' In the same cases, Mr. Justice Daniel observes: 'The power to regulate commerce, includes the regulation of the vessel, as well as the cargo, and the manner of using the vessel in that commerce.' Id. p. 131.
In those cases the following propositions were among others maintained:
'That the power to regulate commerce, foreign and between the States, was vested exclusively in Congress.' Mr. Justice McLean, 7 Howard, 400.
'That the power in Congress to regulate commerce with foreign nations, and among the several States, 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 aforesaid grant.' Mr. Justice Wayne, Id. 414.
'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.' Mr. Justice Catron and Mr. Justice Grier, Id. 464.