ment of her colored population," the infliction of arbitrary violence upon the citizens of other states, conceded to be rightfully within her territories. We have thought it therefore principally important in this discussion to show, what has generally and very properly been assumed as too plain for proof, that among the privileges and immunities secured to the citizens of each state is included as the very first of them the right freely to enter and continue in any other state; and that this right is placed by the Constitution beyond the control or reach of state legislation. If we have been successful in exhibiting the impregnable strength of this position, we can not regard as misapplied the time employed in the discussion.

We hold it therefore to have been proved that the law of South Carolina which has occupied our attention is in conflict with the provisions of the second Section of Article fourth in the Federal Constitution.

We proposed furthermore, in the outset of our inquiry, to consider whether it is not also in conflict with that part of the Constitution which vests in Congress the power" to regulate commerce with foreign nations and among the several states." Upon this question we shall simply offer a few statements and suggestions, without attempting a formal and complete argument.

Since the term commerce includes not merely traffic but also intercourse, it is held that the power to regulate commerce includes the power to regulate navigation, the principal medium of commercial intercourse. The power to regulate is the power to prescribe the rule, and in whatever authority vested, is in its very nature exclusive; implying full control over the thing to be regulated, and excluding the action of all others that would perform the same operation on the same thing. By virtue of the power to regulate commerce, therefore, Congress holds and exercises exclusive power to prescribe the reg

ulations, the rules and conditions, under which intercourse by means of shipping shall be carried on between different states of the Union. And its regulations necessarily exhaust the whole subject, covering not only what is prohibited and what is enjoined, but likewise what is left free; so that a state is no more competent to impose on commerce restrictions which Congress has not imposed, than to dispense with those which Congress has imposed. Such, as we understand it, is the settled construction of this part of the Constitution. And the master of a vessel who has complied with all the requisitions of the national law, acquires under that paramount law a right, upon which no state authority is competent to act, to enter any American port, in the prosecution of his lawful business, with his vessel and its crew. Yet when he seeks to enter the harbor of Charleston, the state law meets him at its mouth, tells him that he will not be permitted to bring into the port seamen of a certain description, constituting a part or perhaps the whole of his crew, subjects him if he does to onerous fines or to imprisonment, seizes on the men and confines them in jail, and while it deprives him of their services, compels him to pay the expenses of their unwilling detention, and to become responsible in heavy bonds for their leaving the state. If in all this, the state does not attempt to prescribe rules and conditions under which commercial privileges shall be enjoyed, to impose restrictions on the exercise of rights derived from a paramount law, and to set up its authority against that of Congress on a subject within the exclusive control of the latter, if in short its acts do not amount to a regulating of commerce, then it is not easy to conceive what acts would come within that description. The defense usually set up is, that the laws in question are not regulations of commerce, but of police, and the case already alluded to, that of the City of

New York vs. Milne,* is cited as conclusive on that point. We forbear at this stage of the discussion to go into an examination of that and other cases bearing upon this issue. We look with regret, we must confess, on the departure which we think the reasoning in that case exhibits from the principles which governed the Supreme Court of the nation in the days of Marshall. But whatever else may be said of it, it certainly does not authorize, nay even does not permit us, to regard the South Carolina law as a mere regulation of internal police. We deny, under that very decision, that it is such a regulation. We take issue on that precise point, and, though by no means obliged to do so, would confidently rest upon it our whole case, so far as the present question is concerned. We should of course admit that the master and crew of a vessel, so long as they form a part of the population of any state, are bound to obey all valid laws which they find in force within the state for the government of that population. We go farther, and concede, under the decision to which appeal is made, that laws acting upon them as a distinct portion of that population and subjecting them to special impositions and restrictions, may be valid, (not must be so) as regulations of police and not of commerce, though they act upon the agents and instruments of commercial intercourse. But the South Carolina law can not be brought even within this category. It is not a law for the government of the population of that state, or of any part thereof, permanent or transient, black or white. It might perhaps be so regarded, if it merely provided for incarcerating or enslaving negroes, or putting white men under bonds, being within the state, for there arising; but so far as it is a law of exclusion, and we have seen that that is its character, it is any thing else than a law of internal

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police. It lacks the most essential element of such a law, even under the sweeping definition given in the case on which so much reliance is placed. Its operation is not "within the territorial limits of the state, and upon persons or things under its jurisdiction." The state in enacting it announces in express terms to persons out of its territories its determination to keep them out. In forbidding their entrance it does not extend its law over subjects, but opposes its force to strangers. We insist on the distinction here suggested, though we can not dwell upon it. It will we think be obvious, and it is certainly decisive. An enactment to keep people out of a state is essentially a different thing from one to govern them in it; and in the present instance, the keeping out, as we have seen, is everything. There is not a provision in the enactment that is not made to depend on the prohibition of entrance. If that falls, the whole falls. The South Carolina law, in that it is a law of exclusion, is not a law of internal or municipal government or police, and is not protected by the decision in the case of the City of New York vs. Milne; and on the other hand, being a law of exclusion, it is to the extent of its operation a law of non-intercourse, a law assuming to regulate commerce, and in fact, as far as it goes, to regulate it to its destruction.

We are brought thus to the close of a discussion, the unexpected length of which can not possibly have been less pleasing to our readers than to ourselves. We have been anxious however to do some measure of justice to the gravely important questions of constitutional right in issue between the contending states. No one clause in the Constitution has received so little attention and been so imperfectly understood, no one, we would say rather, so strangely misunderstood, as that with which we have been principally occupied. It has been our main object therefore to

present, as the result of the most candid and thorough investigation which we could give it, a full and fair exposition of that Article, which might challenge the entire confidence of our readers, even though in so doing we should draw largely on their patience and overdraw our own. We leave this part of our subject with a profound conviction, that on all the substantial grounds of her controversy, Massachusetts is clearly and undeniably in the right; and proceed to consider, in answer to the remaining questions proposed at the opening of the discussion, whether, being thus in the right, she has by any part of her action in the premises put herself in the wrong. And this is the same as to inquire whether the aggression upon her rights is such as to require or justify her interference, and if so, whether her interposition has been properly conducted.

Let it not be supposed, because we have impeached the law of South Carolina under the Constitution merely as a law of exclusion, that we regard the attempted closing of her ports against colored citizens as the head and front of her offending. Our reasons for so framing our argument have been already stated. But the essential and intrinsic illegality, the cruel oppression, the odious tyranny, that mark each separate provision of that enactment, we have never for a moment intended to leave out of view or to under-estimate. The prohibition of entrance, though it gives character to the whole law, stamps it at once as unconstitutional, and stops all further inquiry as unavailing to save and needless to condemn it, is after all, practically, the least important part of it. Standing alone, it would still be invalid, but it would also be impotent; for individuals would disregard it with impunity. Against a mere brutum fulmen, Massachusetts need not have interposed her ægis. It is not the assertion on parchment of power contrary to the Constitution, but power effectually usurped, exer

cised, maintained, in acts of arbitrary and unusual violence, inflicting on her citizens gross and grievous injury, and invading personal rights most sacred and most solemnly guarantied, that makes the gravamen of the charge preferred against her sister state. Against every one of these acts she enters her protest, as in itself a distinct violation of the constitutional guaranty. She goes further, and insists that independently of the restraints imposed by the Constitution, the state of South Carolina, in assuming jurisdiction over the ships of a friendly power, seeking under the protection merely of the law of nations the hospitalities of her shores, in seizing on such persons among their crews as may be obnoxious to her suspicions, taking them from their vessels and compelling them to enter her territory against their will, there to be imprisoned, scourged or sold into slavery, and that too by the most summary proceeding, without allegation of cause or crime, without hearing, trial or appeal, without even a suspicion except what is based on their color-in arrogating to herself such powers, and committing such acts, does violence to every principle recognized among civilized and Christian communities as governing their peaceful intercourse, assumes an attitude of unprovoked hostility, and, as between sovereign and independent powers, makes it the indispensable duty of the injured state to interfere in behalf of her citizens, by force of arms if necessary, to obtain for them protection and redress. Such occasion does Massachusetts profess to find in the enactments of South Carolina, for interposing by legal and peaceful means for the protection of her citizens. We can not think she states her case too strongly. It is not even pretended that those enactments are in their nature or operation any thing else than what she describes them to be. They speak for themselves as they stand on the statute book of the accused state, whose boast it is, that not one of them

remains or will be permitted to remain a dead letter upon its pages. Who can require her to submit, without a question, to such undisguised aggression? Who can censure or complain of her, if obeying only the plainest dictates of duty, to herself and her citizens, she endeavors by all appropriate means to bring these enactments to the test of the Constitution? Certainly not the other party in the controversy. Of such a course, a state intending to square her laws by the Constitution would not be disposed, and any other would have no right, to complain.

But there may perhaps be something in the circumstances of the case, which should induce Massachusetts to forbear the prosecution of her conceded rights. Let us see. We may be told that these laws are absolutely necessary in the southern states, to protect their people from imminent peril; that negroes from the north, mingling with the slave population of the southern cities, are confessedly a danger ous element in their society, sowing the seeds of disaffection and insubordination, and even exposing them to the horrors of insurrection and servile war; that such dangers must be guarded against at every hazard; that the measures adopted for this purpose, though apparently harsh and oppressive, inflict but little practical evil; that the free admission of colored seamen into southern ports would be to them at most a mere convenience, and though it is one which the Constitution undoubtedly gives them a right to claim, yet that Massachusetts ought not to insist on that right when its exercise so manifestly endangers the peace of her sister states, and the lives and property of their people. Such is the argument, as we may suppose it might be addressed to the sober reason of Massachusetts, candidly seeking to decide on her own duties in the case, in view at once of the positive rights of her own citizens and the real necessities of other states. By southern orators it is urged in a tone by no

means

so deprecatory. Whether wholesale denunciation, threats and defiance, are calculated to give it more weight in her estimation, it can not be necessary to say. We design to bestow on it a respectful consideration, because, whether, of force or not, it is the only one that is or can be urged; because it is accepted as sufficient, with no very close scrutiny as we think, by some northern men, even among those who can not be charged with any special subserviency to southern purposes; and because we have no doubt it is urged in good faith by very many southern men, who would be sincerely disposed to avoid infractions of the Constitution and collision among the states, if they had not learned, under the influence of a sympathetic but groundless panic, to regard their perseverance in the aggressive policy as a matter of life and death. We have then to meet and answer, though in a new form, the old argument from the necessity of the case.

But let it be observed that we have nothing to do with the necessity, to which men of the Calhoun stamp insist, on sacrificing the Constitution, the Union, the rights of the free states and of their citizens, the first principles of republican government and the highest claims of humanity; the necessity of maintaining against all the natural influences of the times the permanent and vigorous vitality of the dear domestic institution.

The only question which we entertain is simply this: is the exigency of the case such that South Carolina may properly invoke the forbearance of Massachusetts to indulge her in the use of means, forbidden by the Constitution and derogatory to the rights of individuals held under its guaranties, as being necessary to secure, not the permanency of her peculiar institutions, but the present safety of her people under them, against immediate dangers?

We believe the laws in question to be as unnecessary as they are illegal, the alleged dangers to have been grossly exaggerated, and every legiti

mate object which they propose to be attainable by other means within the constitutional power of the

states.

We admit, without hesitation, that the presence among a slave population of negroes from the free states must in all cases be attended by some degree of danger. That it would be safe or prudent, while allowing them a free entrance into southern ports, to leave them entirely without regulation or restraint, is more than we claim or believe. We go further, and concede that no restraint short of their entire and effectual exclusion, is likely to prove a perfect safeguard against every hazard. The very idea of freedom, however suggested to the mind of the slave, is always dangerous to the master. Every avenue by which it may gain access there, it is undoubtedly his policy to keep carefully closed and guarded. Especially dangerous is it when suggested by the sight of one of his own color from a more favored land, a freeman and a citizen, with rights acknowledged and respected, pursuing his chosen employment, and master of himself, his earnings, his time, and his movements. The slave can not with safety be permitted thus to unlearn the great lesson of his life, that servitude or something worse is the inevitable and universal destiny of his race. He will be come perhaps discontented, restless, unmanageable, valueless, dangerous. Such consequences may be to a greater or less extent unavoidable, but they are of a kind for which the state itself and its institutions are alone responsible. Against dangers of this description, however real and serious, the southern states have no right to guard themselves, under any ordinary circumstances, at the expense of the free citizens of other states, and by the sacrifice of rights which the Constitution, and their own solemn covenants have secured to them. Other danVOL. IV.

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gers, indeed, there may be, against which, so far as they exist, it is proper they should be guarded by special enactments. No good citizen of Massachusetts or of any other state, wishes to see Charleston the scene of insurrection, or South Carolina desolated by the fires and carnage of a servile war. Against those, of whatever color, who may go there to plot and execute such direful mischief, or to instigate others to do it, that state has power, both of punishment and precaution, ample and unquestioned, and commensurate with any danger which may arise from their presence or approach. But the power she has actually exercised observes no such proportion. Crimes like these are the crimes of individuals, attempted, if at all, in rare and widely separated instances. Neither reason nor experience permits us to impute them, even in intent, to one in a thousand of those who unceremoniously, and without an attempt at discrimination, are thrust out of the territories of the state, or subjected when within it to the treatment of convicted felons. The imagination of Carolinians would seem to be haunted by the idea, that colored seamen, in seeking admission to southern ports, are, one and all, bent on exciting insurrection, and that either of their own impulse, or as the agents of northern fanatics, they devote themselves to this work, as to their proper vocation; and yet, so far as we have seen, there is but a single instance in which even the attempt has been made, with what success we shall presently consider, to fix the charge of such criminal agency upon that class of persons, or any of them. That their free intercourse with slaves may, in various ways, tend to aggravate the causes of disorder, always rife among such a population, is a more probable charge. And so far as this danger arises from their overt acts, from any thing they may say or do to excite or ag