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1824.

merce and that among the States, as they are all given in the same sentence. If the power of regulating the two latter be exclusive, so must it be

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she has gone much farther, and acted on the collector and officers of the customs. (1 Lnws of Va. p. 238. §. 4.) The collector, or other proper officer of the customs, is thereby charged and directed not to suffer any vessel to clear from bis office, unless the master, &c. shall produce inspection notes or certificates, &c. , and make vath that he has no lumber on board, but what is en

tered on his manifest. To this exercise of power, equal to that
of Congress itself, I probably shall be told, that Congress has, in
the collection laws, directed the collectors to pay regard to the
inspection laws of the respective States. That is at leasi an ad-
mission that they are rightfully made; but the answer is entirely
insufficient; for the first act of the United States, directing this,
was passed the 2d of March, 1799, and the act of Virginia, that
I have last referred to, was passed the 26th of December, 1792. '
In like mapper, the laws of the same State give a forfeiture of
uninspected tobacco, about to be exported, and similar duties are
imposed on the master and collector. (i Laws of Va. p. 263.
8. 27. p. 269. . 45. p. 271. s. 49.) This law was also passed in
November, 1792. Connecticut, too, gives a forfeiture of unsur-
veyed tobacco; (i Laws of Conn. p. 395. s. 13.) and, as to pro-
visions, it also enacts a penalty against the master, and imposes a
duty on the collector. (p. 397. s. 20. p. 303.s. 11. p. 407. s. 3.)

Several of those inspection acts regulate as to the importation
of articles, equally with their exportation. The New-York act,
relative to the inspection of sole leather, expressly says, “ Whe-
ther such leather be manufactured within the same, or imported
or brought into it from any place whatsoever.” (2 N. R. L. p.
340. . 2.) In Maryland, the act for the inspection of salted provi-
sions, exported and imported from and to Baltimore, relates to
beef, pork and fish " imported into the said town, froin any part
of this state, or any one of the United States, or from any fa-
reign port whatever.” (2 Laws of Maryland, p. 3. s. 5.) Sec..6
relates to the size, quality, and make of all imported beef and
pork barrels. This act, it is true, was passed in 1786, before
the adoption of the constitution. If the power of Congress, how...
Vol. IX.

16 . . . . . .

1824. with the former. And yet every State, whose

situation places it in communication or contiguity ve with Indian tribes, has thought fit, and, indeed, Ogden.

ever, was exclusive, it should then have ceased to operate. But
the argument does not stop there. In 1796, it was extended to
Havre de Grace, (p. 335. s. 9.) and in 1797 to Chester. (p. 369.
8. 9.) The act of the same State, for the gauge of barrels for
pork, beef, pitch, tar and turpentine, and ta're of barrels for flour and
bread, continued by several statutes down to 1810, and probably to
the present time, prohibits the importation, by land or water, of
those articles, except io barrels of certain dimensions and contents.
In Virginia, the act for the inspection of fish, passed in December,
1795, sec. 6. provides for the inspection of imported fish, as well
as of that pa ked for exportation; and it also enacts a forfeiture
of the article, and a penalty on the master, (1 Luws of Va.
p. 352, s. 3.) In Penusylvestia, the act providing for the inspection of
gunpowder, relates to the inspection of imported as well as mabu-
factured; and gives a forfeiture of the article for selling imported
gunpowder without iuspection. (3 Laws of Penn. p. 240.) And an
antecedent law of March, 1787, directs the captain of every vessel,
importing gunpowder into the port of Philadelphia, under a penalty
and forfeiture of the article, if it be his own property, to deliver it
at a magazine, and directs the health officer to give strangers notice
of the act, and also enjoins the custom-house and naval officers, and
their deputies, to do the same.” (2 Laws of Penn. p. 402. s. 3.) in
New Hampshire, (Laws of N. H. ed. of 1815. p. 460.) by the act
relating to gunpowder, sec. 2. it is enacted, that every master of
apy.merchant vessel bringing gunpowder into Portsmouth, shall,
witbin forty-eight hours, deposit it in a magazine, and, on neglect,
shall pay a fine of 30 pounds to the poor of Portsmouth. Sec. 13.
directs a keeper of the magazine to be chosen, who shall be enti-
tled to a fee on all he shall receive and deliver out; another in-
stance of what the appellant's counsel has declared to be unconsti-
tutional, the raising of revenue by a State law from foreign com-
merce. In dassachusetts, (2 Mass. Laws, p. 37.) the act of .
June 19, 1801, sec. 1. directs imported gunpowder, landed at
the port of Boston, to be deposited in a magazine. And by sec. Š.
no gunpowder shall be kept on board any skip or other vessel,

1824.

Gibbons

Ogden.

found it necessary, by acts of their own Legislatures, to regulate their trade with the lodians, the laws of Congress not only not exhausting, but not even adequately reaching the subject.

It now seems incontrovertibly established, that the States have a concurrent right to legislate on matters of foreign trade, or of that between the States; and a concurrent right to prohibit the exportation or importation of articles of merchandise. If they can do that, even as to the articles themselves, to which the power of Congress expressly relates, and if the right to regulate shinping be only impliedly given to Congress, by the general power to regulate commerce, and only 80 far as they are instruments of that commerce, why cannot a State, that has a concurrent right, within its own sphere, (and that not by implication, but directly, and as the result of its sovereign power, unabridged and unaltered by the constitution,) over all ships or vessels within, or coming within, its jurisdiction, prohibit the entry of any particular kind of vessels within its waters, subject

lying to or grounded at any wharf in Boston, under pain of con

fiscation and pecuniary'penalty. • More extensive examinations would produce a much greater variety of regulations of foreign commerce, and that between the States, made by State Legislatures; but only one more instance need be added, not indeed coming under any of the preceding heads. la Virginia, the act laying taxes for the support.of government, passed in January, 1799, prohibits rumlicensed merchants from selling, by wholesale or retail, goods of foreign growth or manufacture, on land, or on board of any vessel. (1 Laws of Va. p. 386. §. 2.) The same law has been renewed, from time to time, and it probably exists at this day.)

1824. always to be controlled by the contradictory and Lam p aramount regulations of Congress, made within

the sphere of its powers. Ogden.

This leads to the consideration of an argument that has been frequently urged on this subject. It is said, that if a State has a right to prohibit the navigation of its waters to steam boats, it has an equal right to prohibit the same navigation to row boats or sailing vessels; and the extravagance of this position, it is supposed, sufficiently refutes the assertion of a more limited right. First, there is an error in the statement of our claim. We do not prohịbit the navigation of our waters to steam boats; we only prohibit them, while in our waters, from using steam as the means of their propulsion. Every steam boat wbich ventures on the ocean, carries and uses sails; and they can, without difficulty, be adapted to every steam boat. Such a vessel, therefore, may, without objection, load in a different State, or foreign port, and come, by means of steam, to the verge of our waters; there is no difficulty opposed to its coming up, with its full cargo, to our custom house, entering, discharging, reloading, and departing, provided that, for the short space of time while it may be in our waters, it employs the only things that any other vessel can employ for entering and departing, and with which it is or may be amply provided-sails and oars. That is the extent of what is very inconsiderately called our extravagant claim. Let us now examine the argument itself, and to test its soundness, let us apply it to other cases. A State has no right to prohibit the use of narrow wheeled

1824.

Gibbons

Ogden.

wagons for the transportation of merchandise on any of its roads; for if it can do that, it can prohibit the use of any kind of wagons, and, indeed, all transportation of merchandise on any of its roads, and thus affect the commerce between different States. A State has no right to regulate the assize of bread; for if it can do that, it can prohibit all baking of bread, and thus starve the community. Is thiere any one act of legislation against which the same reasoning, drawn from an excessive and tyrannical exercise of legislative authority, may not be urged? And if the argument be unsound, when applied to all those instances, what makes it sound in its application to the present question? The answer to it is found in the rights of a free people, which make every act of tyranny void. But, either the right entirely to prohibit the use of row boats, sailing vessels, and steam boats, belongs to some of the constituted authorities that govern those States, or it does not. If it does not belong to any of them, then, clearly, this boasted argument falls to the ground. If it does belong to some of them, to whom does it belong? Has Congress the power to make such a prohibition of all modes of commercial intercourse, by virtue of its limited authority to regulate commerce with foreign powers, and between the different States? In answering 'no, the embargo laws are fully remembered, and their constitutionality admitted; but it is not derived from the power to regulate commerce. The embargo was a measure of State policy, nearly approaching to war: it may sometimes be of such a character as

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