THE LAW OF NATIONAL QUARANTINE-II.

DELEGATION OF THE POWER TO MAKE REGULATIONS.

The discussion upon the general law of national quarantine, in the first volume of the "Southern Law Journal, p. 595, fully established, I think, the right of the Congress, under the terms of the Federal Constitution, to enact a national system of quarantine measures, independent of all local quarantine regulations. If this is conceded, it follows that agencies must be created, through which these national measures are to be put into operation. One of two courses must be pursued by the Congress in prescribing the powers and duties of these agencies. Either the Congress must enact a quarantine code of minute provisions, applicable to all the various wants of our enormous expanse of territory, reaching, on the one hand, beyond the Arctic circle, and on the other, nearly into the tropics, as well as adapted to every instance of our complicated foreign and inter-State commerce; or they must sketch the end to be attained by national quarantine measures in outline, and entrust the framing of the more minute regulations to some officer or board of officers.

But the sessions of the Congress are not continuous, and the National Legislature enjoys but a broken existence. It is, also, one of the most dilatory of deliberative assemblies. Of the more than five thousand bills usually introduced into the lower house alone in a single Congress, not two hundred ever become laws. A thousand personal or local interests are constantly struggling with each other, and against all general business, to obtain each for itself the attention of the House of Representatives.

Such being the facts, how disastrous to the public business would have been the consequences, had the Congress withheld from the President, and from the heads of the departments, the power to make the general rules and regulations necessary for the conduct of public affairs, and had insisted upon retaining to themselves the duty of framing the particular rules now governing the collection of duties upon imports, the transportation of goods in bond, the business of the pension and patent offices, and the disposal of the public lands, &c. If the reader would form some adequate conception of the utter imbecility to which the executive departments would have been reduced had Congress chosen the latter alternative-that of keeping to themselves the monopoly of rule-making-let him examine such a document as the 600 page octavo volume, issued by the Secretary of the Treasury, entitled, "General Regulations under the Customs and Navigation Laws of the United States, relating to the collection

of Duties on Imports, the Warehousing, Transportation and Exportation of Imported Merchandise, etc., etc.;" all of which regulations have been framed by that official.

The Congress were perfectly competent to have enacted all these regulations, which would then have appeared as laws upon the statute books. Is it not almost certain, however, that they would not have had the time or the practical knowledge of the needs of the executive departments, in detail, to have made laws, even remotely meeting the wants of commerce as effectively as do these regulations of the Secretary? Is it not more than probable that if the Congress, through distrust, had refused to confer upon the Executive the power to enact the subsidiary laws, called regulations, that the public business would have halted and limped?

I think the almost universal answer would be, that the proposition involved in a negative reply to the foregoing questions is too absurd in its consequences to be seriously maintained.

And yet, precisely that proposition is maintained in the present Senate of the United States, and its principal enunciator is an honorable Senator from the enlightened commonwealth, as she loves to call herself, of Massachusetts. Moreover, it is maintained by him, respecting a subject-matter requiring for its proper comprehension much more expert knowledge than do the collection of taxes or duties, and the disposing of public lands.

There is pending in the United States Senate a bill to prevent the importation of contagious and infectious diseases into the United States. The third section of this bill proposes that "the National Board of Health shall make all needful rules and regulations authorized by the laws of the United States for the prevention of the introduction into and spread within the United States of contagious or infectious diseases, which shall be uniform and subject to approval by the President, and shall be charged with the execution of the same, etc. Mr. Dawes thereupon argued as follows: "I see the difficulty in this committee reporting a code of rules and regulations. The rules and regulations must arise out of the exigency and be suited to it. And 1 see a great deal of propriety in having a board of general application to the different States; but the difficulty in the bill with which I labor is that it is proposed to make a legislature, if I may so call it, of this Board of Health-to give them the power to decide both what is needful and what is authorized." Further on, in reply to an answer by Senator Harris, of Tennessee, Mr. Dawes says: "Then I am to understand the Senator to state that quoad hoc this is a legislature, and its rules and regulations are to have the force and effect of law, and there is the same redress and no other redress than lies against a statute of the United States, which may infringe upon a constitutional right."-Congressional Record, May 2, 1879, p. 20.

Inasmuch as this objection is the last stronghold of those who contend against a national quarantine, I propose to show how little practical weight it has, by simply citing, from the Revised Statutes of the United States (2d ed.), instances of the similar grants of quasi legislative power to officers of the government. As Mr. Harris pertinently remarked, in answer to Mr. Dawes,

"the statute book is groaning under the authorities given to the Secretary of the Treasury to make rules and regulations affecting some of the most important interests of the whole people of the country."

THE PRESIDENT.

I cite from the 2d Edition of the Revised Statutes of the United States. "Sec. 1955. The President shall have power to restrict and regulate or to prohibit, the importation and use of fire-arms, ammunition, and distilled spirits into and within the Territory of Alaska. The exportation of the same from any other port or place in the United States, when destined to any port or place in that Territory, and all such arms, ammunition, and distilled spirits, exported or attempted to be exported from any port or place in the United States and destined for such Territory, in violation of any regulations that may be prescribed under this section, and all such arms, ammunition, and distilled spirits landed or attempted to be landed or used at any port or place in the Territory in violation of such regulations, shall be forfeited; and if the value of the same exceeds four hundred dollars the vessel upon which the same is found, or from which they have been landed, together with her tackle, apparel, and furniture, and cargo, shall be forfeited; and any person wilfully violating such regulations shall be fined not more than five hundred dollars, or imprisoned not more than six months."

"Sec. 2132. The President is authorized, whenever in his opinion the public interest may require the same, to prohibit the introduction of goods, or of any particular article, into the country belonging to any Indian tribe, and to direct all licenses to trade with such tribe to be revoked, and all applications therefor to be rejected," &c., &c.

"Sec. 2133. Any person other than an Indian who shall attempt to reside in the Indian country as a trader, or to introduce goods, or to trade therein without such license, shall forfeit all merchandise offered for sale to the Indians, or found in his possession, and shall, moreover, be liable to a penalty of five hundred dollars."

THE SECRETARY OF THE TREASURY.

Sec. 1956. Killing of fur-bearing animals in Alaska Territory prohibited. Penalty, fine not less than $200 nor more than $1,000 dollars or imprisonment, or both. Secretary of the Treasury shall have power to authorize the killing of such animals, except fur-seals, under such regulations as he may prescribe."

"Sec. 1969. Empowers the Secretary of the Treasury to make all needful rules and regulations for the collection and payment of the tax upon seal skins."

"Sec. 2493. The importation of heat cattle and the hides of neat cattle from any foreign country into the United States is prohibited; Provided, That the operation of this section shall be suspended as to any foreign country or countries, or any parts of such country or countries, whenever the Secretary of the Treasury shall officially determine, and give public notice thereof, that such importation will not tend to the introduction or spread of contagious or

infectious diseases among the cattle of the United States; and the Secretary of the Treasury is hereby authorized and empowered, and it shall be his duty to make all necessary orders and regulations to carry this law into effect, or to suspend the same as therein provided."

"Sec. 2495. Any person convicted of a wilful violation of any of the provisions of the two preceding sections, shall be fined not exceeding five hundred dollars, or imprisoned not exceeding one year, or both, in the discretion of the court."

"Sec. 2507. Exempts merchandise sunk and abandoned, under certain circumstances, from liability to duties, but under such regulations as the Secretary of the Treasury may prescribe.""

"Sec. 2508. Exempts lumber from Saint John's river from duty, under certain circumstances, under such regulations as the Secretary of the Treasury may prescribe."

"Sec. 2509. Similar provision as to lumber from St. Croix river, under such regulations as the Secretary of the Treasury may prescribe."

"Sec. 2511. Exacts that machinery for repair may be imported into the United States without payment of duty, on certain conditions; and that the Secretary of the Treasury is authorized and directed to prescribe such rules and regulations as may be necessary to protect the revenue against fraud,'" &c. Sec. 2512. Paintings, statuary, &o., for exhibition and not for sale admitted free of duty, under such regulations as the Secretary of the Treasury may prescribe."

"Sec. 2513. Materials for construction of vessels built in the United States, permitted to be imported in bond, under such regulations as the Secretary of the Treasury may prescribe."

"Sec. 2514. Articles intended for repair of American vessels engaged in foreign trade abroad to be withdrawn from bonded warehouse free of duty, under such regulations as the Secretary of the Treasury may prescribe.

"Sec. 2803. Regulates baggage in transit, to a foreign country, and its delivery to parties in charge, 'under such rules, regulations and fees as the Secretary of the Treasury may prescribe.'"

"Sec. 2804. Regulates the manner of importing cigars, and authorizes the Secretary of the Treasury to make all necessary regulations for carrying the provisions of the law into effect.'

"Sec. 2822. When any merchandise is intended to be imported from any foreign country into either of the following ports of delivery, being ports upon the Mississippi river and its tributaries, namely: Pittsburgh, in Pennsylvania; Wheeling, in West Virginia: Cincinnati, in Ohio; Louisville, in Kentucky; Saint Louis, in Missouri; [and] Nashville, in Tennessee; [and Natchez, in Mississippi.] Such merchandise may be entered at the port of New Orleans, or at either of such ports of entry on the sea-board as may be designated by the Secretary of the Treasury, and thereafter transported to the

port of delivery for which the same is intended, by such inland waters as the Secretary of the Treasury may designate, under such rules and regulations not inconsistent with law, as he may prescribe, in compliance with sections twenty-eight hundred and twenty-five to twenty-eight hundred and thirty-one inclusive, and subject to the forfeitures and penalties therein mentioned."

"Sec. 2949. The Secretary of the Treasury, from time to time, shall establish such rules and regulations, not inconsistent with the laws of the United States, to secure a just, faithful, and impartial appraisement of all merchandise imported into the United States, &c., &c., as the case may require," &c.

"Sec. 2989. The Secretary of the Treasury may, from time to time, establish such rules and regulations, not inconsistent with law, for the due execution of the provisions [relating to warehouses] [of this chapter], and to secure a just accountability under the same, as he may deem expedient and necessary."

"Sec, 3000. Merchandise, entered for warehousing, withdrawable for rewarehouse housing in another district, and any such merchandise may be so transported, &c., over such routes as the Secretary of the Treasury may prescribe," &c.

The penalty for failure to transport by route designated by Secretary of the Treasury is forfeiture of the merchandise. -Act May 20, 1862, § 3.

"Sec. 3002. Withdrawal of merchandise for exportation to Mexico, by certain routes, or such other routes as may be designated by the Secretary of the Treasury."

"Sec, 3003. Withdrawal of merchandise for exportation to certain parts of Mexico, through the port of Lavaca, by certain routes, and the Secretary of the Treasury is hereby authorized to prescribe such regulations, not inconsistent with law, as he may deem proper and necessary, respecting the packing, marking, inspection, etc., and for the due protection of the revenue in other respects.""

"Sec. 3004. Extends foregoing provisions to Indianola, 'under such regulations as the Secretary of the Treasury may prescribe,'" etc.

"Sec. 3005. Merchandise arriving at certain named ports, or any other ports specially designated by the Secretary of the Treasury, for transportation to British provinces or Mexico, may be entered, etc., and conveyed in transit through the territory of the United States, etc., under such regulations as the Secretary of the Treasury may prescribe.'"

"Sec. 3006. Provides for transportation from one port of the United States to another over foreign territory, by such routes, and under such rules, regulations and conditions as the Secretary of the Treasury may prescribe.'"

The penalty for violation of the sundry provisions relative to safety of inland transportation of unappraised merchandise, is imprisonment for two years, in addition to any penalties previously prescribed. -Acts June 27, 1864, § 4, and July 14, 1870, § 37.