Article 1, Section 8, Clause 3 (Commerce)
St. George Tucker, Blackstone's Commentaries 1:App. 248--541803
We have already had occasion to mention the state of foreign commerce, upon the conclusion of the peace with Great-Britain; and the conduct of the government of that nation in excluding our vessels from their ports in the West-India Islands. The proposition made by the state of Virginia to authorise congress to prohibit the importation of the growth or produce of those islands into the United States in British vessels, and even to adopt more energetic measures, by refusing the necessary supplies to those islands, if adopted, would probably have counteracted the designs of that politic nation: but, that fatal want of unanimity among the states, which at that period marked all their councils, defeated the proposal. The boldness of the measure on the part of Great-Britain, evinced a determination to secure her commercial advantages, even at the risk of the existence of her colonies; yet it is not to be imagined that she would have persevered in such a conduct towards her own colonies, if the United States had offered to retaliate her policy, by refusing them provisions, lumber, and other articles of the first necessity, unless they were admitted to send them thither in their own vessels, as well as in those of British subjects. For, independent of the injustice and inhumanity of such a conduct in the predominant state, the prosperity of the sugar colonies must have been of more consequence to Great-Britain, than the whole of the carrying trade between those islands and the United States. True it is, that it was pretended by the British ministry, and their adherents, that Nova Scotia and Canada could supply those islands, with every necessary formerly derived from the United States. But the bare admission of those articles from the United States, in any manner whatsoever, might be relied on as an unequivocal evidence that they had no confidence in the sufficiency of the resources which might be drawn from Canada or Nova Scotia; and experience is said to be strongly in favour of the opinion that those colonies cannot supply the sugar islands, either with provisions or lumber, in any degree proportionate to their necessities. The conduct of Great-Britain in declining any commercial treaty with America, at that time, was unquestionably dictated at first by a knowledge of the inability of congress to extort terms of reciprocity from her; and of that want of unanimity among the states, which, under the existing confederation, was a perpetual bar to any restriction upon her commerce with the whole of the states; and any partial restriction would be sure to fail of effect.
Having repeatedly noticed the defect of the former confederation, in respect to the regulation of the commerce between the several states, and the inconveniences resulting from it, I shall only mention one not yet touched upon: I mean the burthens which might be imposed by some of the states, on others, whose exports, and imports must necessarily pass through them. Thus a duty on salt imported into Virginia, or on tobacco exported from thence, might operate very extensively as a tax upon the citizens of the western parts of North Carolina and Tennessee, to the exclusive emolument of the state of Virginia. So unreasonable an advantage ought not to prevail among members of the same confederacy, and without a power to control it lodged somewhere, it would be impossible that it should not be exerted: the repetition of such exertions could scarcely fail to lay the foundation of irreconcileable jealousies, and animosities among the states. And it was evidently with a view to prevent these inconveniences, that the constitution provides that no state shall, without the consent of congress, lay any imposts, or duties on exports or imports, except what may be absolutely necessary for executing it's inspection laws.
A direct consequence of this power of regulating commerce with foreign nations, and among the several states, is that of establishing ports; or such places of entry, lading, and unlading, as may be most convenient for the merchant on the one hand, and for the easy and effectual collection of the revenue from customs, on the other. In England, this is one of the branches of the royal prerogative, but is vested in the supreme federal legislature, and not in the executive, by the constitution of the United States.
Previous to the revolution the ports of Virginia were coextensive with her tide waters. The ships anchored wherever their navigators thought proper, and discharged or took on board their cargoes, as suited their own convenience, or contributed to the saving of expence. Nothing could be more favourable to the practice of smuggling; and consequently the revenue was frequently defrauded with impunity. Nothing could be more unfavourable to the internal navigation by small vessels, although few countries possess greater advantages for it's encouragement and promotion. The employment of a considerable number of these, would not only afford a nursery for seamen, but prove an actual mercantile saving to the state, so long as commerce should be carried on in foreign bottoms, as was at that time pretty generally the case. The legislature became sensible of these things, and in the year 1784, (May session, c. 82.) passed an act, whereby ships and other vessels trading to this commonwealth, from foreign parts, being the property of other than citizens of the commonwealth, were obliged to lade, and unlade at certain particular ports, and no where else, within the commonwealth. The number of ports was increased, by the act of 1786. c. 42. and the restrictions as to unlading was extended to all vessels whatsoever, coming into the state; but any vessel built within the United States, and wholly owned by any citizens thereof, was permitted to take in her lading at any port or place within the state. These acts underwent some further amendments by the acts of 1787. c. 3, among which were some wholesome regulations respecting river craft: but these appear to have been considered as repealed, by the act of 1 cong. 1 sess. c. 11. sec. 22 and 23, on the subject of the coasting trade. But the constitutionality of that act may perhaps be questioned, so far as it relates to vessels trading wholly within the limits of any particular state. The policy of the before-mentioned acts of this state, appears to have been well founded: the effects begun to manifest themselves in the production of a greater number of river craft, than had ever been known at any former period. . . . But the acts of congress, for the establishment of ports, having extended the number for foreign ships to fourteen, and even permitted them to proceed as far as the tide-water flows in James' River, Rappahannock, and Potowmac, these salutary regulations in the state laws, have undoubtedly been, in a great measure, frustrated. It seems rather extraordinary, that on a subject of this nature, no regard should have been paid to the former policy of the state legislature, especially, as that policy was evidently favourable to the collection of the revenue arising from the customs.
A distinction between the admission of foreign ships, and those of our own confederacy, into the ports of the state, obviously appears to be proper to be made on other grounds. The navigation of our rivers was found, in the time of the revolutionary war, to be infinitely too familiar to our enemies, in consequence of the privilege before-mentioned, which had so long been enjoyed by the trading ships of Great Britain. A renewal of the same policy will probably produce the same consequences, whenever the occasion will permit. But if these reasons be not sufficiently cogent for restraining foreign ships to a few ports, and those as near to the sea as might be consistent with safety; the promotion of an internal domestic navigation, as a nursery for domestic seamen, appears of itself to be an object of sufficient importance to have engaged the attention of congress to this subject.
Another consequence of the right of regulating foreign commerce, seems to be the power of compelling vessels infected with any contagious disease, or arriving from places usually infected with them, to perform their quarantine. The laws of the respective states, upon this subject, were, by some persons, supposed to have been virtually repealed by the constitution of the United States. But congress have manifested a different interpretation of the operation of that instrument, and had passed several acts for giving aid and effect to the execution of the laws of the several states respecting quarantine. The last act upon the subject, 5. cong. c. 118, enjoins it as a duty upon the collectors, and other officers of the revenue, the masters and crews of the revenue-cutters, and the commanding officers of forts or stations upon the sea-coasts, duly to observe, and aid in the execution of those laws. Upon the like principle, I presume that the act of this commonwealth concerning wrecks, (Edi. 1794. c. 6.) remains in force, until congress shall think proper to pass some law upon that subject. A contrary construction of the operation of the federal constitution in these and other similar cases, upon which congress may be authorised to legislate, but omit doing it, might be productive of infinite inconvenience and disorder.
The right of regulating foreign commerce, draws after it also, the right of regulating the conduct of seamen, employed in the merchant service; and by a continued chain, that of punishing other persons harbouring or secreting them, as well on land, as elsewhere; and the act of 1. cong. 2. sess. c. 29, accordingly makes it penal in any person to harbour or secret any seaman regularly engaged in the service of any ship.
There seems to be one class of laws which respect foreign commerce, over which the states still retain an absolute authority; those, I mean, which relate to the inspection of their own produce, for the execution of which, they may even lay an impost, or duty, as far as may be absolutely necessary for that purpose: of this necessity it seems presumable, they are to be regarded as the sole judges. [C. U. S. Art. 1. Sec. 10.] The article, indeed, is not altogether free from obscurity; but as no controversy hath hitherto arisen upon the subject, it is not my intention to begin one.
But, this power of regulating commerce is qualified by some very salutary restrictions; for the constitution expressly declares, Art. 1. Sec. 9. "That no tax or duty shall be laid on articles exported from any state . . . that no preference shall be given by any regulation of commerce, or revenue, to the ports of one state, over those of another; and that vessels bound to, or from, one state, shall not be obliged to enter, clear, or pay duties in another." These restrictions are well calculated to suppress those jealousies, which must inevitably have arisen among the states, had any tax or duty been laid upon any particular article of exportation; and, at the same time, to curb any disposition towards partiality in congress, should it at any time be likely to manifest itself.
An amendment to the constitution proposed by the convention of this state, and concurred in by that of North Carolina, was, "That no commercial treaty should be ratified without the concurrence of two-thirds of the whole number of the members of the senate. . . . And, that no navigation law, or law regulating commerce should be passed without the consent of two-thirds of the members present in both houses." It is somewhat remarkable, that the treaty of navigation and commerce concluded with Great Britain in the year 1794, notwithstanding the very general repugnance to it in almost every part of the United States, was, nevertheless, ratified precisely in the manner proposed by the first of these amendments. It appears that a proposition somewhat like the second, viz. "that no treaty should be binding upon the United States, which was not ratified by law," had been made in the general convention at Philadelphia, and rejected. Nevertheless, the experience which we have had upon the subject of treaties, seems to recommend the adoption of some further precautions against the indiscreet use of this extensive power. On this subject we shall say something more here-after.
The regulation of commerce with the Indian tribes, as distinguished from foreign nations, seems, in some degree, to be founded upon this principle, that those tribes which are not settled within the limits of any particular state, could only be regarded as tributary to the United States in their federal capacity; as to those who reside within the limits of particular states, it was thought necessary to unfetter them from two limitations in the articles of confederation which rendered the provision obscure, and perhaps contradictory. The power is there restrained to Indians not members of any of the states, and is not to violate or infringe the legislative right of any state within its own limits. What description of Indians were to be deemed members of a state, had been a question of frequent contention and perplexity in the federal councils. And how the trade with Indians, though not members of a state, yet residing within its legislative jurisdiction, could be regulated by an external authority, without so far intruding on the internal rights of legislation, seems altogether incomprehensible.
The Founders' Constitution
Volume 2, Article 1, Section 8, Clause 3 (Commerce), Document 11
The University of Chicago Press
Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969.
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