The Constitution of the United States gives the power to Congress "to regulate commerce with foreign nations and among the several States." This power is, from its very nature, a paramount and exclusive power, and has always been so considered and so construed. There is no analogy between this power of regulating commerce and most of the other powers which have been granted to the General Government. The power to regulate admits of no partition. It excludes the idea of all concurrent, as well as of all conflicting, action. It can be exercised but by one authority. Regulation may be as much disturbed and deranged, by restraining what is designed to be left free, as by licensing what is designed to be restrained. The grant necessarily carries with it the control of the whole subject, leaving nothing in reference to it for the States to act upon. But it is too obvious to require, or even bear, an argument, that the laws in question, imposing severe penalties, as they do, upon certain classes of seamen for entering certain ports, are infringements, by the States in which they have been enacted, upon this exclusive authority of the General Government.

Nor can the States which have enacted these laws escape, in the judgment of the committee, from the charge of having violated still another provision of the Federal Constitution. The sixth article of that instrument declares, that "all treaties made, or which shall be made, under the authority of the United States, shall be a part of the supreme law of the land." But the provisions of the laws in question, wherever they are appli cable to the crews of foreign vessels, are in direct conflict with most, if not with all, of the commercial treaties which have been made by the United States with foreign nations. Certainly, no treaty of commerce between the United States and any other nation is known to the committee, which contains any restrictions as to the color of the crews by which that commerce is to be carried on.

It seems to be understood, that the application of these laws to foreign vessels has of late years been suspended. This consideration, however, if true, cannot make the laws themselves less obnoxious to constitutional objections; still less can it render them more acceptable to our own citizens. The idea that

foreign seamen are treated with greater clemency in our own ports than native American seamen, can only serve, on the contrary, to increase the impatience, and aggravate the odium, with which such laws are justly regarded.

The committee are aware that the laws in question have sometimes been vindicated upon considerations of domestic police; and they have no disposition to deny, that the general police power belonging to the States, by virtue of their general sovereignty, may justify them in making police regulations even in relations to matters over which an exclusive control is constitutionally vested in the National Government.

But the committee utterly deny that provisions like these can be brought within the legitimate purview of the police power. That American or foreign seamen, charged with no crime, and infected with no contagion, should be searched for on board the vessels to which they belong; should be seized while in the discharge of their duties, or, it may be, while asleep in their berths; should be dragged on shore and incarcerated, without any other examination than an examination of their skins; and should be rendered liable, in certain contingencies over which they may have no possible control, to be subjected to the ignominy and agony of the lash, and even to the infinitely more ignominious and agonizing fate of being sold into slavery for life, and all for purposes of police, is an idea too monstrous to be entertained for a moment. It would seem almost a mockery to allude to the subject of police regulations in connection with such acts of violence.

It may be difficult, perhaps, to assign the precise limits to which this police power of the States may extend. There is one limit to it, however, about which the committee conceive there can be no question. The police power of the States can never be permitted to abrogate the constitutional privileges of a whole class of citizens, upon grounds, not of any temporary moral or physical condition, but of distinctions which originate in their birth, and which are as permanent as their being. Or, to use still more general terms, the police power of the States can never justify enactments or regulations, which are in direct, positive, and permanent conflict with express provisions or fundamental principles of the national compact.

This would seem to be the doctrine laid down by the Supreme Court of the United States in the recent case of Prigg versus the Commonwealth of Pennsylvania. The Court having in that case decided that "the power of legislation in relation to fugitives from labor is exclusive in the national government," seem to have anticipated that a necessity for State interference might arise, in reference to the peace and security of the Commonwealth in which such fugitives might take refuge. They accordingly admit, that the general police power of the States would reach to such a case; but they declare that any such regulations of police "can never be permitted to interfere with, or obstruct, the just rights of the owner to reclaim his slave, derived from the Constitution of the United States."

Now, if such a limitation be applicable to the third paragraph of the second section of the fourth article of the Constitution, it certainly cannot be less applicable to the first paragraph of the same section of the same article. If the police power of a State cannot be permitted to divest a master of his constitutional right over his slave, as secured by one of these provisions, as little can it be suffered to divest a free citizen of his constitutional right over himself, his own actions, and his own motions, as guaranteed by the other. If, on the contrary, this police power can make a citizen no citizen in one State, it is hard to perceive why it cannot make a slave no slave in another State.

There is an act on the statute book of the United States which may seem to have some reference to the subject under consideration. It bears date February 28, 1803, and contains the following, among other provisions:

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"No master or captain of any ship or vessel, or any other person, shall import or bring, or cause to be imported or brought, any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States, or seamen natives of countries beyond the Cape of Good Hope, into any port or place of the United States, which port or place shall be situated in any State, which, by law, has prohibited, or shall prohibit, the admission or importation of such negro, mulatto, or other person of color.

"No ship or vessel arriving in any of the said ports or places

of the United States, and having on board any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States, or seamen natives of countries beyond the Cape of Good Hope, as aforesaid, shall be admitted to an entry."

The act proceeds to prescribe penalties for the violation of these provisions, and to make it the duty of the officers of the revenue of the United States to notice, and be governed by, the provisions of the laws, then existing, of the several States, prohibiting the admission or importation of any negro, mulatto, or other person of color, as aforesaid.

A very brief examination of this act will be sufficient, in the judgment of the committee, to show that it has little, if any, bearing upon the grievances complained of by the memorialists or upon the State laws which are the subject of this report. Indeed, the committee would hardly have thought it necessary to allude to the act, had it not been relied on to some extent by a late Attorney-General of the United States, (Mr. Berrien,) whose opinion is annexed to the report of the minority, to justify the operation of the law of South Carolina in the case of Daniel Fraser, a British sailor, born in the British West Indies.

The act of 1803 was evidently passed in reference to that provision of the Constitution of the United States which declares, "that the migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by Congress prior to the year 1808." This provision of the Constitution, it is well understood, had immediate relation to the slave trade, and was designed to secure to the several States of the Union, until the year 1808, the right to admit within their limits, or to exclude altogether, at their own discretion, the unfortunate subjects of this infamous traffic. The act of 1803 was obviously intended to aid those States, which might prohibit the admission of such persons, in the enforcement of such prohibitions. Congress, however, having taken this whole subject into its own hands at the earliest moment at which the Constitution empowered it to do so, and having enacted laws, coextensive with the whole country, in relation to the introduction of such persons into the United

States, the reasons of the act of 1803 would seem to have wholly ceased; and it may well be questioned whether the act itself, though never formally repealed, has not ceased also. The committee incline to the opinion that it is a mere dead letter upon the statute book.

If, however, it is supposed to have any thing of vitality left, it must be observed that it relates exclusively to vessels arriving from foreign lands. This is evident, both from the general phraseology of the act, and from the particular penalty prescribed for its violation. The vessel, it is declared, shall not be admitted to "entry." But vessels bound to or from one State cannot constitutionally be required to "enter" in another. The act, moreover, expressly excepts from the operation of its provisions all colored persons who are "natives, citizens, or registered seamen of the United States, or seamen natives of countries beyond the Cape of Good Hope." In relation to all colored persons thus excepted, therefore, the act of 1803 contains no prohibition on the part of the general government, and authorizes none on the part of any State; nor are any of its provisions applicable to vessels of the United States passing from port to port. The direct implication of the act, on the contrary, clearly is, that all colored persons included in the terms of the exception, shall have free and unmolested ingress into all the ports of this Union, and that our own vessels shall pass along from port to port with such crews, so far as color is concerned, as their masters and owners may see fit to employ. If, then, the act of 1803 be still in force, and if this be its just construction, no other evidence can be required, that the laws of the Southern States complained of by the memorialists, are in direct collision with a law of the United States.

There is one view in which the law of 1803 is certainly not without importance. There is one point on which, even if dead, it still speaks. The distinct recognition which it contains, of the idea that a negro, mulatto, or other colored person, may be a "citizen" of the United States, is sufficient to prove the opinion which was entertained by the Congress of 1803, upon a doctrine which of late years has so often been denied.

The Committee do not deem it necessary to dwell longer on