has been already seen) from prohibiting the im- 1824. portation of negroes, &c., before 1808. But in 1803, it passed "an act to prevent the importation At that time, Congress absolutely permitted the slave trade; but, would not that law have been valid to prohibit it from that port? New-Jersey passed a law to the same purport, in March, 1798, (Patterson's ed. p. 307. Justice's ed. p. 371, 372, 373.) when Congress had only prohibited, and could only prohibit, the trade as a foreign trade. Sec. 12, 13. prohibit the importation of slaves for sale. Sec. 17, 18, 19. prohibit the slave trade, and the fitting out of vessels, for the purpose of transporting slaves from one place to another, clearly including from one State to another, which Congress then could not do. Connecticut, in October, 1788, after she and nine States had ratified the constitution, (Hudson & Goodwin's ed. p. 626.) forbade any citizen or inhabitant of that State, either as master, factor, supercargo, owner, or hirer of any vessel, directly or indirectly, to transport, or buy, or sell, or receive on board his vessel, with intent to cause to be transported or imported, any of the inhabitants of Africa, as slaves, with qui tam penalties; and made all insurances on them void. And, in 1792, (p. 628.) let it be still remembered, when Congress had no such power, she enacted, that no citizen or inhabitant of that State should transport out of the State, for the purpose of selling into any other State, country or kingdom, or buy or sell, with intent to transport out of that State, or should sell, if transported, &c. In Massachusetts, (1 Laws of Mass. 407, 408.) an act, passed March 26, 1788, reciting the evils of the African trade, enacts, that no citizen of that Commonwealth, or other person residing within the same, shall, for himself or any other person, as master, factor, supercargo, owner or hirer, in whole or in part, of any vessel, directly or indirectly, import or transport, or buy, or sell, or receive on board his or their vessels, with intent to cause to be imported or transported, 'any of the inhabitants of any state or kingdom, in that part of the world called Africa, as slaves, &c. under a penalty for every vessel fitted out with such intent, and actually employed, &c. Doubtless, the laws of other States might be produced to the same purpose, if the means of examination had been convenient ; Gibbons V. Ogdeni. Gibbons V. Ogden. 1824. of certain persons into certain, States, where, by the laws thereof, their importation is prohibited." Proceeding upon the right of the several States to prohibit, and acting under its general power to regulate commerce, it imposes additional penalties on the importing or landing of any negro, mulatto, or person of colour, &c., in any State which, by law, has prohibited, or shall prohibit, their admission or importation. And it makes it the duty of the officers of the customs, to notice and be governed by the provisions of the laws of the several States prohibiting their importation or admission; and enjoins it on them vigilantly to carry into effect the said laws of such States, any law of the United States to the contrary notwithstanding. How could Congress do this, if the power of prohibiting the trade were not unquestionably possessed by the States, in their sovereign capacity? The quarantine laws further illustrate our position. The appellant's counsel says, these are to be considered merely as laws of police; they are laws of police, but they are also laws of commerce; for such is the nature of that commerce, which we are told must be regulated exclusively by Congress, that it enters into, and mixes itself with, almost all the concerns of life. But surely that furnishes an argument, showing the necessity those already cited, however, are sufficient to show, that the indi vidual States regulated the slave trade, as a trade, both with foreign nations, and between the States, by virtue of their own sovereign authority, after the adoption of the constitution; but before Congress did, and before they could do it: a 3 U. S. L. p. 529. Gibbons V. Ogden: that the States should have a concurrent power 1824. over it. Judge Tucker considers them as laws of commerce, when he says, "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:" (and why must not that be the case, if the power of Congress regulating commerce be exclusive?) "but Congress have manifested a different interpretation of that instrument, and have passed several acts for giving aid and effect to the execution of the laws of the several States respecting quarantine." It will be recollected, that the first recognition by Congress of the quarantine laws, was in 1796; and that only directs the officers of the government to obey them; but does not pretend, or attempt, to legalize them. And, indeed, it could not do so, if the States had no concurrent power, and the regulation of commerce was exclusively delegated to Congress; for the power which is exclusively delegated to Congress, can only be exercised by Congress itself, and cannot be sub-delegated by it. It is, therefore, no reply to the force of the argument drawn from those laws, to say, that they have been ratified by Congress. Another answer to that observation is, that the supposed ratification by Con 1824. Gibbons gress did not take place until 1796; and that many of those laws were in active operation several V. years before. For instance, as few out of many: Ogden. New Hampshire passed her quarantine laws first, . February 3d, 1789," and again on the 25th of September, 1792.' Connecticut passed hers in May, 1795. The laws of Maryland show the temporary continuation of those laws in that State, from 1784 to 1785, from 1785 to 1792, from 1792 to 1799, and so down to 1810; and the 2d vol.' contains a law passed in November, 1793, giving to the Governor the strongest powers on the subject. The State of Virginia passed, 26th of December, 1792,"an act reducing into one the several acts to oblige vessels coming from foreign parts, to perform quarantine;" which act was amended on the 5th of December, 1793; and further amended on the 19th of December, 1795. Georgia passed her quarantine law December 17th, 1793. Undoubtedly those laws derive their efficacy from the sovereign authority of the States; and they expressly restrain, and indeed prohibit, the entry of vessels into part of the waters and ports of the States. They are all so similar, that one or two Gibbons V. Ogden. may suffice as examples. The quarantine law of 1824. Georgia, s. 1. prohibits the landing of persons or goods coming in any vessel from an infected place, without permission from the proper authority; and enacts, that the said vessels or boats, and the persons and goods coming and imported in, or going on board during the time of quarantine; and all ships, vessels, boats, and persons, receiving any person or goods under quarantine, shall be subject to such orders, rules and directions, touching quarantine, as shall be made by the authority directing the same. The law of Delaware, passed the 24th of January, 1797, s. 1. provides, that "no master of a ship bound to any part of that State, having on board any greater number of passengers than forty, or any person with an infectious disease, or coming from a sickly port, shall bring his ship, or suffer it to be brought, nearer than one mile to any port or place of landing; nor land such persons, or their goods, till he shall have obtained a permit." The law of Massachusetts, passed June 22d, 1797, s. 6.* enacts, that "vessels passing the castle, in Boston harbour, may be questioned and detained; s. 12. that vessels at any other port than Boston, may be prevented from coming up, and brought to anchor where the select men shall direct; s. 4. empowers the select men of any town, bordering on either of the neighbouring States, to appoint persons to attend at ferries and other proper places, by or over which passengers a 2 Del. Laws, ed. 1797, cap. 134. p. 1354. b2 Mass. Laws, p. 788. |