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1824. only because the powers of Congress have nothing
to say to the carrying of passengers.
It may be urged against this train of reasoning, Ogden.
that Congress has actually législated on the subject of passengers. By the act of the 2d of March, 1819, regulating passenger ships and vessels, the fact is admitted; but, though the humane motives which suggested the law; and its provisions, are laudable, its constitutionality may well be doubted. If Congress has the power to regulate the conveyance of mere passengers, coming by water from foreign countries, it has an equal power to regulate. those coming by land, or passing from one Stata to another. If that law be constitutional, or if a steam boat, only employed in carrying passengers between New-Jersey and New-York, can come within the jurisdiction of Congress, it must necessarily follow, that Congress has a right (and, indeed, according to the doctrine of our adversaries, is exclusively authorized,) to regulate the number of passengers to be received into every ordinary stage coach, though it does not carry the mail, and the size, shape, description, and kind of diligence, and the kind and number of horses, to be employed in conveying passengers between NewBrunswick and Maine, Vermont and New York, and througb the State of New Jersey, between New-York and. Philadelphia! If this legislation falls under the power to regulate commerce, and that power is exclusive, it must be contended, that done of the States in which these diligences may travel, have a right to pass any law respecting them! Neither this Court, nor the people of the
United States, are, probably, prepared for the assertion of that claim. The States have always legislated on a different principle, whether the conveyance of passengers was to be by land or water. Every State has, probably, made- numerous provisions on this subject; but, want of time and opportunity has confined research to the statútes of New York and Georgia.
a Io those States, 1st, as to ferries and bridges: In the lays': of New York, (3d vol. Webster's ed. p. 321.) an act passed 19th March, 1803, grants to John Ransom the exclusive right, for ten years, to keep a ferry across Lake Champlain, from his landing, at Cumberland Head, to Grand Isle, in Vermont, with a prohibition and penalty against any other person's keeping a ferry, or transporting any persons, goods or chattels, for hire or pay, across the lake, between the point of Cumberland Head and the north point, called Gravelly Point, son said Cumberland Head. An act passed May 16th, 1810, (6th vol. Websters & Skinner's ed. p. 16.) makes the same grant for ten years more, with the same prohibition and penalties, to Russel Ransom. An act passed May 26th, 1812, (Id. 394.) grants, in the same way, to Peter Deall, and his assigns, to keep a ferry across Lake Champlain, from Ticonderoga to the town of Shoreham, in Vermont, for sixteen years, with a like prohibition and penalties for carrying, &c. from any place on the west shore., within half a mile porth or south of Deall's dwelling house. An act, passed March 28, 1805, (4th vol. same ed. 66.) gives to David Mayo the same right, from his landing, in the said town of Champlain, to Windmill Point, in Vermont, for ten years, with a like prohibition and penalty. An act, passed February 20, 1807, (5th vol. same ed. p: 11.) gives to Peter Steenberg the same right to keep, &c. a ferry between the south west point of Carlton Islanıl and the outlet of Lake Ontario, (the high road to Canada,) with the same prohibition and penalty.
In Georgia, by an act of the 14th December, '1809, an exclusive right is given to Joseph Hill, &c. for one hundred years, to erect throp toll bridges across the Savannah and its branches, (dia!
1824. It is, however, contended, that the power of me regulating commerce is concurrent. This posi
tion, indeed, is by no means universally acceded
viding South Carolina and Georgia,) a little above the city of Sa-
2. As to stages. In the laws of New-York, an act, passed March 30, 1798, (4th vol. Loring & Andrews' ed p. 399.) grants to Alexander J. Turner and Adonijah Skinner, an exclusive right for five years, of running stages between Lansingburgh and the town of Hampton, in the county of Washington, (i. e. to Vermont, or the road through it to Canada.) An act, passed February 26, 1803, (3d vol. Webster's ed. p. 322.) grants to T. Donally and
to. Judge Tucker, in his edition of Blackstone,“. 1824. ranks among the powers exclusively granted to the federal government, the power to regulate
others, the exclusive right, for seven years, of the same kind, from the city of Albany to the north boundary line of the State of New Jersey. An act, passed April 6, 1807, (5th vol. Websters & Skinner's ed. p. 186.) grants to John Metcalf the exclusive right, for seven years, of running stage wagons between the village of Canandaigua and the village of Buffalo, (i. e. the road by lake Erie to Pennsylvania, Ohio and Michigan.) i
In Georgia, an act of November 23, 1802, gives to Nathaniel Twining, &c. for ten years, the sole and exclusive right of run., ning a line of stagr carriages between the city of Savannah and town of St. Marys, (on the borders of Florida.). Şec. 2, gives to him an exclusive right of conveying passengers and their baggage, by water, between Darien and St. Marys, (a coasting trade bem tween two ports of entry, if carrying passengers be a branch of trade,) till a post road is established. An act of December 7th, 1812, gives to William Dunham the right of running stage carriages as above. Add to these, the decision of Perrins v. Sikes, in 1802, ( Day's Connect. Rep. in Err. p. 19.) that a .grant by the General Assembly, of an exclusive privilege to carry passengers by the stage, on the post road leading to Boston, as far as the Massachusetts line, was valid, which may be added as another legal decision on the constitutionality of those laws. Indeed, as to the regulation of passengers arriving in ships from foreign parts, some of the States have exercised, at least, a concurrent power. Of that kind is the act of the State of New-York, (2 N. R. L. 440.) and New Jersey. has passed a similar law on 10th of February, 1819. (Justice's ed. N. J. Laws, 655.) So also in Massachusetts, (2 Mass. Laws, 629.) by an act of February, 1794, masters of vessels coming from abroad, are required to report passengers, &c. And in Delaware, (2 Laws of Del. ed. 1797, by S. & J. Adams, c. 134. p. 1354.) an act to prevent infectious diseases, passed 24th of January, 1797, (sec. 5.) enacts, that no master, &c. of any ship bound to any port of that State, shall bring or import any greater
Vol. 1. Part 1. App. D. p. 180.
1824. commerce, &c. the commerce between the indi-, .
viduals of the same State being reserved to the Gibbons
State governments. And be repeats the doctrine,“ on the very untenable ground, that the regulation of commerce is not susceptible of a concurrent exercise: a doctrine which a review of State laws will show to be contrary to fact and experience. The opposite doetrine is strongly supported by Kent, Ch. J. in Livingston v. Van Ingen,' as the only safe and practicable rule of conduct, and the true constitutional rule, arising from the federal system. And it is the only safe
number of passengers and servants than shall be well provided and supplied with good and wholesome meat, drink, and other necessaries, particularly vinegar, as well to wash and cleanse the vessel, as for the use of the persons on board, during the voyage; and it directs the size of each birth, &c.; and tbat if any master shall offend, &c. he shall farseit 600 dollars for every such offence. Sec. 7, enacts, that every master, &c. shall pay to the physician who boards his ship, six cents for every person he shall import or land in that State, which he is thereby authorized to recover from such passengers and bervants respectively; and the physician shall pay over the moneys so received, to the treasurer of the trustees of the poor in his county. Here is another instance inconsistent with the position of the appellant's counsel, (if carrying passengers be trading,) that a State has no right to raise a tax or revenue by foreign trade. By another act of that State, passed February 3, 1802, the reaster or owner is required to give bond, that the person so imported and landed, shall not become chargeable. If the regulation of passengers belong to commerce, and that exclusively, (as it myst, if the power to regulate commerce be exclusive,) by what authority can a State Court issue a ne exeat against a trader or merchant about to leave the State?
a 2, 309.