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December 1, 1852


THIS case was brought up from the Supreme Judicial Court of the State of Maine, by a writ of error issued under the 25th section of the Judiciary Act. The facts in the case are stated in the opinion of the court. It was argued by Mr. Paine, for the plaintiffs in error, and by Mr. Kelley and Mr. Moor, for the defendant in error: The following propositions were contended for, in an elaborate brief, filed by the counsel for the plaintiffs in error: 1. That the constitutional power of Congress in question, embraces the right to adopt any means reasonably necessary, in their opinion, to the successful prosecution of commerce among the States and with foreign nations. 2. That Congress has adopted, as such means, the whole commercial marine of the country, every part of which, as a unit, is under their entire control and regulation, without regard to the waters on which the navigation is carried on. 3. That to constitute a part of this commercial marine, no other qualifications are necessary than those prescribed by Con gress in the several acts regulating the registry and enrolment of vessels, and such registry or enrolment is evidence of a compliance with the prescribed conditions. 4. That any vessel so enrolled, being licensed, has an unrestricted right to navigate all the navigable waters of the United States, wherever they may be found serviceable to its use. 5. That the power of Congress to regulate commerce is as extensive on land as water, and is irrespective of both;–that these compose no part of commerce or navigation, but are subject to be adopted as ways or thoroughfares of it, whenever they may be required by the wants of either;–and that in legislating upon the subject, Congress has not discriminated between one class or body of navigable waters and another, but has made all such waters free for the uses of navigation, wherever any portion of the commercial marine of the country may exist. 6. That under the statute of 1831, March 2, § 3, the plaintiffs' boat is expressly included as provided for by said act, and is thus embraced within the power of Congress, even if not included in the general provisions of the acts regulating the 'coasting trade.' 7. That the right of Congress to regulate 'commerce with the Indian tribes,' extends to and embraces the Penobscot tribe of Indians, and the Legislature of Maine has no right to restrict the people to, or deprive them of, any particular mode of intercourse or trade with them. 8. That any act of a State Legislature contravening such right of navigation, as does the act set forth in defendants' bill of complaint, is absolutely null and void. The points made by the counsel for the defendant in error, were thus stated: The only question here is, whether the grant to Moor is in conflict with that provision of the Constitution which gives Congress the right to regulate commerce. A party alleging that a State law is unconstitutional, takes on himself the burden of establishing these three propositions:

The opinion of the court was delivered by: Mr. Justice Daniel delivered the opinion of the court.

First. That the matter or subject in controversy is within the legislative jurisdiction of Congress.

Second. That Congress has de facto legislated on the subject, and embraced it within regulations established by its legislation; and

Third. That the party impeaching the law, has himself acquired rights in the subject-matter which is in controversy, and that these rights have been invaded by the legislation of the State.

Applying these rules to this ease, plaintiffs are bound to show, First. That the navigation of the Penobscot River, above Old-town Falls, is within the jurisdiction of Congress.

Second. That Congress has embraced this navigation in its legislation, and provided regulations for it; and

Third. That they have acquired rights in that navigation under the legislation of Congress, which rights have been impaired by the law of the State.

Plaintiffs must establish all three of these propositions. It is not enough for them to establish any two of them. If they fail in any one of them, they have no ground to stand upon.

1st. As to the first of these propositions. The grant being confined to waters wholly internal, plaintiffs can carry on no navigation by means of those waters, with any foreign nation, nor with any other State. We think this is almost too plain for argument. Moor v. Veazie, 32 Maine Rep. 343; Wilson v. Blackbird Co. 2 Pet. 250; 3 Kent's Com. 458; Livingston v. Van Ingen, 9 Johns. Rep. 506; Gibbons v. Ogden, 17 Id. 488; Id. 9 Wheat. 1; New Bedford Bridge case, 1 Wood. & Minot, 404; Kellogg v. Union Company, 12 Conn. 7; Passenger case, 7 How. 283; Brown v. Maryland, 12 Wheat. 419; New York v. Miln, 11 Pet. 102; 3 Cowen, 713.

Again. This grant is not in conflict with the power of Congress to regulate commerce with the Indian tribes.

1. Because commerce, in this connection, does not include navigation. 32 Maine, 343.

2. Because the constitution manifestly refers only to independent tribes with which the general government may come in conflict; not to those small remnants of tribes scattered over the country, which are under State jurisdiction and guardianship. 32 Maine, 343.

2d. We hold that plaintiffs entirely fail to establish the second proposition, to wit: That the navigation of these waters is embraced within the actual legislation of Congress. None of the acts cited were ever intended to apply to waters wholly within the limits of a State, and which could not be reached by vessels from foreign ports, or from other States.

Again. We contend that if Congress has, or should pass any acts interfering with commerce purely internal, they would be unauthorized and void. Passenger ...

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