be recovered by any person who will sue for the same in the name of the Governor of the Commonwealth.

The defendant appeared and filed the plea of "nil debet," on which issue was joined; and on the trial the jury found a special verdict as follows: "That the defendant, a citizen of Massachusetts, according to the allegations set forth in the plaintiff's declaration, did, on or about the 4th day of August, 1856, then being the captain and owner of the schooner Nymphus C. Hall, owned in part by citizens of Massachusetts, leave the waters of Virginia with said schooner for a port north of and beyond the capes of Virginia, without having first obtained a certificate of inspection, as required by the provisions of the statute in such cases made and provided." And they find for the plaintiff the penalty of five hundred dollars, with interest, damages and costs, if the aforesaid act is not in violation of the Constitution of the United States, or the Constitution and Bill of Rights of Virginia; but if it is in violation of any of these, then they find for the defendant. Upon this verdict the Circuit court rendered a judgment for the plaintiff; and Baker applied to this court for a writ of error to the judgment, which was awarded.

The case was argued by Crump, Johnson, of Massachusetts, and Tazewell Taylor, for the appellant, and the Attorney General, for the appellee.

Crump, for the appellant: This is a qui tam action to recover a penalty for the violation of the inspection law of Virginia. The jury have found a special verdict, submitting the question of the constitutionality of the act of March, 1856, to the court; and the only question in the case is, Is the act in accordance with the Bill of Rights and Constitution of Virginia and the Constitution of the United States?

1st. I shall first consider this question with reference

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Wise, Governor.

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Wise, Governor.

to the Constitution of the United States. And the objections to the act in this view of it is, that it is a restriction upon commerce. This cannot be imposed by the government of the United States; and therefore it is clear that no State government can impose it. The Constitution of the United States, as we all know, arose out of a commercial necessity; and the great object of it was to settle the very difficulties between the States which this act of Virginia has again introduced.

The question has been very much debated, whether the power of Congress to regulate commerce is exclusive. In Gibbons v. Ogden, 9 Wheat. R. 1, and in the Passenger Cases, 7 How. U. S. R. 283, it was held to be exclusive. It is true that the court will not look with jealousy to the action of the States in trivial matters, where no public harm can arise from the act. And such was the case of Willson & als. v. The Black Bird Creek Marsh Co., 2 Peters' R. 245. But such a case as this cannot be considered as shaking the doctrine so fully considered in Gibbons v. Ogden, in which the court held that where a right is given by a State which is clearly repugnant to the Constitution of the United States, it is void. Here the power exercised by the State is clearly repugnant to the Constitution of the United States. That gives to Congress the exclusive right to regulate commerce; and it is idle to say that this act is not a regulation of commerce. It is not only a regulation of commerce, but it is an unequal regulation, imposing burthens upon Northern ships which it does not impose upon those of the South. And though it is called an inspection law, it is not such in the sense of the Constitution; nor is it a quarantine law; but it is in fact a regulation of commerce.

If a State may enact inspection laws, they must operate equally upon all who come under their operation. Congress itself is forbid to give preference, by any reg

ulation of commerce or revenue, to the ports of one State over those of another. Art. 1, § 8, clause 6. And surely a State, in enacting an inspection law, is bound by the spirit of the Constitution to provide for its equal operation upon all who are subject to it. And it will be conceded that it was the purpose of this act to establish preferences.

Again: By the 2d section of the 4th article of the Constitution, clause 1: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Under this provision the citizen of Massachusetts has the same rights as a citizen of Virginia, in Virginia. But the act violates this provision. A citizen of Virginia may go in his vessel to Massachusetts unaffected by this act; but a citizen of Massachusetts, making the same voyage, must have his vessel inspected. This provision of the Constitution was considered by Justice Washington in Corfield v. Coryell, 4 Wash. C. C. R. 371, 380; and he lays down the principle for which we contend. That principle is, that with our own property and in our own persons to stand upon the same footing as a citizen. And it is no answer to say that we cannot carry slaves to another State. Mr. Madison said in 1788 that there was always this restriction. To say that the owner of a ship, owning everything on board of it, when stopped on his voyage, enjoys the same privileges as a citizen who proceeds on his voyage without interruption, is mockery. Chapman v. Miller, 2 Speer's R. 769.

The act is inconsistent with the 4th article of the amendments to the Constitution. This article may not apply to State legislation, but it is in the spirit of our Bill of Rights, and is an amendment proposed by Virginia. And though the language of our Bill of Rights is not quite so broad, yet they mean the same thing; and

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Wise, Governor.

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Wise, Governor.

the one was taken from the other. And so the General court held in Murray's Case, 2 Va. Cas. 504.

The counsel referred to ǹumerous cases to show that the court would declare an act unconstitutional. And he referred to the Code, p. 759, 761, to show that in Virginia a search warrant and a warrant for an arrest must be founded on the oath of some person. And he cited 4 Black. Com. 162 as to police powers and search war

rants.

Johnson, of Massachusetts, on the same side: The question involved in this case is not of an ordinary character. This is but the third time it has come before the courts, and the first time it has arisen in Virginia. The case divides itself into two branches-one under the Constitution of the United States, and the other under the Constitution of Virginia. I shall confine myself to the first, and leave to my associates the task of discussing the second.

The question disturbed the country from 1781 until the meeting of the convention of 1787; and it appears in the Constitution of the United States, article 1, § 8, in the form of a regulation of commerce. It then rested until 1824, when the great case of Gibbons v. Ogden, 9 Wheat. R. 1, settled it finally; and, though there have been some subsequent cases, that decision has never been questioned.

The opinions of the men of that day afford a strong argument as to the true construction of the Constitution. The resolutions of Virginia, of Dr. Witherspoon, of the Congress of the Confederation of New Jersey and New York, all of them, went for an authority which should have the sole and exclusive power to regulate commerce.

The Constitution, article 1, § 8, clause 3, says: "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the

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Indian tribes." The language employed, the location. in the sentence, the nature of the power, and the necessities of the country, show that this power was intended to be exclusive. I repudiate a strict construction of the Constitution. Its framers were plain men, though great Governor. men; and the instrument was intended for the people; and the true question is, What is the plain and rational meaning of the language employed in the instrument?

What, then, is the meaning of the word "regulate"? It is imperial, almost despotic. To regulate-to make a rule—to prescribe-to adjust. We hear of one regulator in inachinery; not two. To regulate would therefore indicate supremacy; and so it was held in Gibbons v. Ogden. To be a regulator it must be supreme. In article 4, § 3, clause 2, it is provided that Congress "may make all needful rules and regulations respecting the territories, &c." There it is clearly an exclusive power. But the doctrine of exclusiveness is found more strongly expressed in the 9th section of the 1st article in relation to the migration or importation of such persons as the States may think proper to admit. The limitation of a power in any body implies the existence of the power if not limited. And if the power is concurrent in the States, wherefore is this limitation upon the power of Congress in the particular case? A concurrent power is a co-equal power; and if there was a concurrent power in the States to direct or control the importation of slaves, then there was no necessity for this limitation upon the power of Congress.

There are in the Constitution three classes of cases: First-where a power is granted in exclusive terms. That is not the case here. Second-where a power is prohibited to the States. That is not the case here. Third-where a power is given in general but not exclusive terms, and is not prohibited to the States. In this class of cases the power is to be construed according VOL. XVI.-13

Wise,