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1824. may pass
may pass from such infected places, which persons have power to examine, stop and restrain such pas
sengers from travelling, until licensed by a Justice Ogden.
of the peace, or the select men; and a fine of 100 pounds is enacted on the passenger presuming to travel onward ; s. 5. gives power to seize and detain suspected goods coming from агу
other State," &c! By an act of June 20th, 1799, c. 10.« “ any master, &c. who shall enter the harbour of Boston after notice of a quarantine, for all vessels coming from the same place, &c., or who shall land, or suffer to be landed, any passenger or goods, without permission of the board of health, is subject to fine and imprisonment." These are all obviously direct regulations of trade, and so is the whole of every quarantine system.
The regulation of pilots in sea ports, flows from the power of regulating external commerce. This power, like that of making quarantine regulations, has hitherto been exclusively exercised by the several States ; eCongress having only made one law on the subject, and that seems explicitly to recognise the concurrent power of the States, and to place over it the true constitutional control. By the 4th sec. of the act of August 7th, 1789, c. 9.' it is enacted, that “all pilots in the bays, inlets, rivers, harbours and ports of the United States, shall continue to be regulated in conformity with the existing laws of the States, respectively, wherein such pilots may be; or with such laws as the States
a p. 872.
may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress.” Now, it is a principle which cannot be too often brought into view or enforced, that Congress cannot delegate to State Legislatures, the exercise of powers which are given to it exclusively; and the very act of referring to those laws, is a recognition that the power to legislate on the subject is concurrent.
In like manner, the laws regulating light houses, buoys, &c. are all exercises of the implied powers derived from that of regulating commerce. They have hitherto been generally left to Congress; but it does not follow from thence, that they are exclusive. Can it be doubted, that any State has a right to establish a light house or buoys at its own expense, in one of its harbours ? That a State has such a power cannot be questioned, if it be shown that individuals have. Some time in 1798, a number of the inhabitants of New-Bedford, Massachusetts, raised a fund by subscription, for building and maintaining a light house at Clark's Point, at the entrance of the harbour of New-Bedford. They maintained it, and kept it regularly lighted for about a year; and the act of Congress admits their right to do so. On the 29th of April, 1800, Congress enacted, that the light house lately erected at Clark's P at, &c., sball and may be supported at the expen of the United States, &c. Provided, that the property and jurisdiction of the said light house, and sufficient territory for
a 3 V. S. L. p. 366. c. 193. 8. $.
1824. the accommodation thereof, shall be fully ceded
and legally vested in the United States.
The laws of Congress on this subject, recognise Ogden.
the right of the States to maintain light houses, if they please. The first act, passed August 7th, 1789," directs, that their expenses, after the 15th of August, 1789, shall be defrayed out of the treasury of the United States: Provided, nevertheless, that none of the said expenses shall continue to be so defrayed by the United States, after the expiration of one year, unless such light houses shall, in the mean time, be ceded, &c. Few States did make the requisite cession; and by the act of July, 1790, the time was extended to the 1st of July, 1791, and so, from time to time, for five or six years, till all the State : came in ; during which the light houses in sever l of the States were kept up by their authority, without the control of Congress.
The inspection laws are very important regulations of trade. Tucker says, “ there seems to be one class of laws, which respects foreign commerce, over which the States still retain an absolute authority; those I mean which relate to the inspection of their own produce, for the execution of which, they may even lay an impost or duty, as far as may be absolutely necessary for that purpose. Of this necessity, it seems presumable, they are to be regarded as the sole judges.” The extent
a 2 U. S. L. p. 34.
and importance of this system of regulations 1824. does.not strike the mind at the first view ; nor do
Gibbons the powerful inferences it affords, to show the con
Ogden. current right in the States to regulate commerce. Judge Tucker has very imperfectly stated their extent. They do, indeed, regulate, in almost every State, the foreign trade, so far as it is connected with our produce to be exported; but they do not confine themselves to produce to be exported, they relate to imports also. They act by restraining, and sometimes prohibiting, the exportation and importation of certain articles. Before examining those laws, it may be asked, from whence is the right of restraining derived, but from the more extended right of prohibiting? The difference between regulation or restraining and interdiction, is only a difference of degree in the exercise of the same right, and not a difference of right. The article in the constitution, art. 1. sec. 10. impliedly allows that right to be in the several States, and the right to enforce their laws by any other means than imposts and duties, and, therefore, by prohibitions of exports or imports. The right does not depend on the idea, that the thing prohibited or restrained from being exported or imported, is dangerous or noxious; even if that could, ex necessitate, create a right, and give it to the State, instead of the congressional jurisdiction.; on the contrary, the rules and enactments seem arbitrary.*
a For instance, as to the number of hoops on, and size of barrels.or casks, (2 N. R. L. of N. Y. p. 321. s. 5. p. 325. §. 3. p.
1824: As to trade with the Indian tribes, without stopGibbons ping to enter into details, it is sufficient to say, it
must stand on the same footing as foreign comOgden.
330. s. 3, 4. i Laws of Maryland, Maxey's ed. 218. i Vir. Laws, Pace & Pleasant's ed. p. 352. s. 3. p. 350. s. 3.' Laws of Conn. Hudson & Goodwin's ed. p. 394. s. 1, 2.5, 6. 8, 9.) as to quantity as well as quality or kind, of their contents. What pieces of beef or pork, (2 N. R. L. of N. Y. p. 326. s. 4. p. 326. s. 5. 9. p. 327. s. 11.) or quantity and size of nails should be in one cask, (Laws of N. H. Melcher's ed. 386. Laws of Conn. p. 394. š. 2. p. 256. s. 2.) or the length, breadth, and thickness of staves and heading, lumber, boards, shingles, &c. (2 N. R. L. of N. Y.
p. 336. s. 1. 1 Laws of Vir. 237. Luws of Conn. p. 397. s. 21.) These regulations have no object but to improve our foreign trade, and raise the character and reputation of the articles in a foreign market; and if the States have no right to pass laws prohibiting exportation, what can prevent a person having an inferior article, from exporting it, in its uninspected state, and taking his chance for the price it might bring in a foreign market?
These laws are much too numerous and complicated to be detailed; but a very slight examination of some of them will show the very extensive powers for regulating commerce, possessed by the Legislatures from which they emanate. Some operate by the forfeiture of the uninspected article, as in the New York act for · inspecting pot and pearl ashes. (2 N. R. L. p. 335. s. 8.) It gives the liberty of entering on board of any ship, &c. to search for arry pot or pearl ashes, shipped or shipping for exportation; and, if any unbranded be discovered, it is forfeited, and the captain subject to a pecuniary fine. A similar forfeiture is given in the same State, (p. 339. s. 8.) and a penalty du the master. (p. 339, 340. s. 10.) In Kentucky, a similar forfeiture is given, for attempting to export unbranded dour. (Ky. Laws, Toulman's ed. 440.) lo New Hampshire, a like forfeiture is given of unpacked beef or pork shipped for exportation. (Laws of N. H. p. 387,388.) And in Connecticut, a forfeiture is given of unbranded nails. (Laws of Conn. p. 527. s. 5.) Virginia has enacted a forfeiture of unbranded fish, and a penalty on the master. (1 Laws of Va. p. 353. s. 6.) She has not only done the same in respect to lumber, but