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 interstate navigation, the laws undoubtedly affect interstate or foreign commerce; but the intention being to impose restrictions upon the part of the navigation taking place within the State only, the laws should be regarded as regulations of domestic, and not of foreign or interstate commerce. If, then, the laws above cited fairly illustrate the class of laws which are to be deemed to fall within the concurrent power under the case of Cooley v. Board of Wardens, it would seem that they are the same as the class of laws affecting foreign or interstate commerce, which, according to Gibbons v. Ogden, are not regulations of foreign or interstate commerce, because passed diverso intuitu. In this view of the case it practically decides that the commercial powers of Congress are wholly “exclusive,” assuming the correctness of the principles laid down in Gibbons v. Ogden, since the “concurrent power” which the case decides that the States possess, is, in reality, not a power to regulate foreign or interstate commerce.

The distinction stated by the Court in Cooley v. Board of Wardens may have been suggested by language of Woodbury, J., in his opinion in the License Cases. As was above stated, he advocated the doctrine of the concurrency of the commercial power of Congress. At the same time, he was compelled to admit that powers were conferred upon Congress by the “commerce” clause of the Constitution which, in the nature of things, the State could not exercise. The power of the States must necessarily be limited to the enactment of regulations of foreign or interstate commerce operating upon subjects within their territorial limits. The power to pass general regulations of commerce operative throughout the entire country must, of course, be exclusive in Congress. In this view, it might properly be said that the distinction between the exclusive power and the concurrent power was that the former extended to all subjects national in their nature, or admitting of uniformity of regulation, and that the latter included everything else. But it seems clear that the case of Cooley v. Board of Wardens does not intend to distinguish between the “concurrent” and “exclusive” powers upon the basis of the territorial operation of the law. If it did, the case must be deemed overruled in that regard. Many State laws, strictly local in their operation, have been held unconstitutional as regulations of foreign or interstate commerce. Thus, in Welton v. State of Missouri, 91 U. S. 275, a State law imposing a license tax upon all persons