PASSENGER CASES, 48 U. S. 283 (1849) -- US Supreme Court Cases from Justia & Oyez

Statutes of the states of New York and Massachusetts, imposing taxes upon alien passengers arriving in the ports of those states declared to be contrary to the Constitution and laws of the United States, and therefore null and void.

Inasmuch as there was no opinion of the Court as a Court, the reporter refers the reader to the opinions of the judges for an explanation of the statutes and the points in which they conflicted with the Constitution and laws of the United States.

These were kindred cases, and were argued together. They were both brought up to this Court by writs of error issued under the twenty-fifth section of the Judiciary Act, the case of Smith v. Turner being brought from the Court for the Trial of Impeachments and Correction of Errors of the State of New York, and the case of Norris v. City of Boston from the Supreme Judicial Court of Massachusetts. The opinions of the justices of this Court connect the two cases so closely, that the same course will be pursued in reporting them which was adopted in the License Cases. Many of the arguments of counsel relate indiscriminately to both. A statement of each case will, therefore, be made separately, and the arguments and opinions be placed in their appropriate class, as far as practicable.

SMITH v. TURNER

In the first volume of the Revised statutes of New York, pages 445, 446, title 4, will be found the law of the state whose constitutionality was brought into question in this case. The law relates to the marine hospital, then established upon Staten Island, and under the superintendence of a physician and certain commissioners of health.

The seventh section provides, that

"The health commissioner shall demand and be entitled to receive, and in case of neglect or refusal to pay shall sue for and recover in his name of office

Page 48 U. S. 284

the following sums from the master of every vessel that shall arrive in the port of New York, viz.:"

"1. From the master of every vessel from a foreign port, for himself and each cabin passenger, one dollar and fifty cents for each steerage passenger, mate, sailor, or mariner, one dollar."

"2. From the master of each coasting vessel, for each person on board, twenty-five cents, but no coasting vessel from the States of New Jersey, Connecticut, and Rhode Island shall pay for more than one voyage in each month, computing from the first voyage in each year."

The eighth section provides that the money so received shall be denominated "hospital moneys." And the ninth section gives "each master paying hospital moneys a right to demand and recover from each person the sum paid on his account." The tenth section declares any master who shall fail to make the above payments within twenty-four hours after the arrival of his vessel in the port shall forfeit the sum of one hundred dollars. By the eleventh section, the commissioners of health are required to account annually to the comptroller of the state for all moneys received by them for the use of the marine hospital;

"and if such moneys shall in anyone year exceed the sum necessary to defray the expenses of their trust, including their own salaries, and exclusive of such expenses as are to be borne and paid as a part of the contingent charges of the City of New York, they shall pay over such surplus to the treasurer of the Society for the Reformation of Juvenile Delinquents in the City of New York, for the use of the society."

Smith was master of the British ship Henry Bliss, which arrived at New York in June, 1841, and landed two hundred and ninety-five steerage passengers. Turner, the health commissioner, brought an action against him for the sum of $295. To this the following demurrer was filed, viz.:

"And the said George Smith, defendant in this suit, by M. R. Zabriskie, his attorney, comes and defends the wrong and injury, when &c., and says that the said declaration, and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law for the said plaintiff to have or maintain his aforesaid action thereof against the said defendant, and that the said defendant is not bound by law to answer the same; for that the statute of this state, in said declaration referred to, in pursuance of which the said plaintiff claims to be entitled to demand and receive from the said defendant the sum of money in said declaration named, is contrary to the Constitution of the United States, and void, and this he is ready to verify."

The plaintiff joined in demurrer, and the Supreme Court

Page 48 U. S. 285

of Judicature of the People of the State of New York overruled the demurrer, and gave judgment for the plaintiff, on 28 September, 1842. The cause was carried, by writ of error, to the Court for the Trial of Impeachments and Correction of Errors, which affirmed the judgment of the court below in October, 1843. A writ of error, issued under the twenty-fifth section of the Judiciary Act, brought the case up to this Court.

NORRIS v. CITY OF BOSTON

Norris was an inhabitant of St. John's, in the Province of New Brunswick and Kingdom of Great Britain. He was the master of a vessel, and arrived in the port of Boston in June, 1837, in command of a schooner belonging to the port of St. John's, having on board nineteen alien passengers. Prior to landing, he was compelled, by virtue of a law of Massachusetts which is set forth in the special verdict of the jury, to pay the sum of two dollars for each passenger to the City of Boston.

At the October term, 1837, of the court of common pleas, Norris brought a suit against the City of Boston, to recover this money, and was nonsuited. The cause was carried up to the Supreme Judicial Court, where it was tried in November, 1842.

The jury found a special verdict as follows:

"The jury find, that at a session of the Legislature of the Commonwealth of Massachusetts, holden at the City of Boston, on 20 April, 1837, the following law was passed and enacted, to-wit, 'An act relating to alien passengers.'"

" Sec. 1st. When any vessel shall arrive at any port or harbor within this state, from any port or place without the same, with alien passengers on board, the officer or officers whom the mayor and aldermen of the city, or the selectmen of the town, where it is proposed to land such passengers, are hereby authorized and required to appoint, shall go on board such vessels and examine into the condition of said passengers."

" Sec. 2d. If, on such examination, there shall be found among said passengers any lunatic, idiot, maimed, aged, or infirm person, incompetent, in the opinion of the officer so examining, to maintain themselves, or who have been paupers in any other country, no such alien passenger shall be permitted to land until the master, owner, consignee, or agent of such vessel shall have given to such city or town a bond in the sum of one thousand dollars, with good and sufficient security, that no such lunatic or indigent passenger shall become a city, town, or state charge within ten years from the date of said bond. "

Page 48 U. S. 286

" Sec. 3d. No alien passenger, other than those spoken of in the preceding section, shall be permitted to land until the master, owner, consignee, or agent of such vessel shall pay to the regularly appointed boarding officer the sum of two dollars for each passenger so landing, and the money so collected shall be paid into the Treasury of the city or town, to be appropriated as the city or town may direct for the support of foreign paupers."

" Sec. 4th. The officer or officers required in the first section of this act to be appointed by the mayor and aldermen, or the selectmen, respectively, shall, from time to time, notify the pilots of the port of said city or town of the place or places where the said examination is made, and the said pilots shall be required to anchor all such vessels at the place so appointed, and require said vessels there to remain till such examination shall be made; and any pilot who shall refuse or neglect to perform the duty imposed upon him by this section, or who shall through negligence or design permit any alien passengers to land before such examination shall be had, shall forfeit to the city or town a sum not less than fifty nor more than two thousand dollars."

" Sec. 5th. The provisions of this act shall not apply to any vessel coming on shore in distress, or to any alien passengers taken from any wreck when life is in danger."

" Sec. 6th. The twenty-seventh section of the forty-sixth chapter of the Revised statutes is hereby repealed, and the twenty-eighth and twenty-ninth sections of the said chapter shall relate to the provisions of this act in the same manner as they now relate to the section hereby repealed."

" Sec. 7th. This act shall take effect from and after the passage of the same, April 20th, 1837."

"And the jury further find, that the twenty-eighth and twenty-ninth sections, above referred to, are in the words following, to-wit:"

" Sec. 28th. If any master or commanding officer of any vessel shall land, or permit to be landed, any alien passengers, contrary to the provisions of the preceding section, the master or commanding officer of such vessel, and the owner or consignee thereof, shall forfeit the sum of two hundred dollars for every alien passenger so landed; provided always that the provisions aforesaid shall not be construed to extend to seamen sent from foreign places by consuls or vice-consuls of the United States."

" Sec. 29th. If any master or commanding officer of any vessel shall land any alien passenger at any place within this state other than that to which such vessel shall be destined,

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with intention to avoid the requirements aforesaid, such master or commanding officer shall forfeit the sum of one hundred dollars for every alien passenger so landed."

"And the jury further find, that the plaintiff in the above action is an inhabitant of St. John's, in the Province of New Brunswick and Kingdom of Great Britain; that he arrived in the port of Boston on or about the twenty-sixth day of June, A.D. 1837, in command of a certain schooner called the Union Jack, of and belonging to said port of St. John's; there was on board said schooner at the time of her arrival in said port of Boston nineteen persons who were passengers in said Union Jack, aliens to each and every of the states of the United States, but none of them were lunatic, idiots, maimed, aged, or infirm."

"That prior to the landing of said passengers the sum of two dollars for each and every passenger was demanded of the plaintiff by Calvin Bailey, in the name of the City of Boston, and said sum, amounting to thirty-eight dollars, was paid by the plaintiff to said Bailey, for permission to land said alien passengers in said Boston; said sum being paid by the plaintiff under a protest that the exacting the same was illegal."

"That said Calvin Bailey was the regularly appointed boarding officer for said City of Boston, chosen by the city council (consisting of the mayor and aldermen) in pursuance of said act, entitled 'An act relating to alien passengers'; that as such, said Bailey demanded and received said sum of thirty-eight dollars."

"But whether upon the aforesaid facts the defendant did promise, the jury is ignorant."

"If the court shall be of opinion that the aforesaid facts are sufficient to sustain the plaintiff's claim, then the jury find that the defendant did promise, in manner and form as the plaintiff hath alleged, and assess damages in the sum of thirty-eight dollars."

"But if the court are of opinion that the aforesaid facts are not sufficient to sustain the plaintiff's claim, then the jury find that the defendant did not promise in manner and form as the plaintiff hath alleged."

Upon this special verdict the court gave judgment for the defendant, from which judgment a writ of error brought the case up to this Court.

Page 48 U. S. 392

MR. JUSTICE McLEAN.

SMITH v. TURNER

Under the general denomination of health laws in New York, and by the seventh section of an act relating to the marine hospital, it is provided that

"the health commissioner shall demand and be entitled to receive, and in case of neglect or refusal to pay shall sue for and recover, in his name of office, the following sums from the master of every vessel that shall arrive in the port of New York, viz.:"

"1. From the master of every vessel from a foreign port, for himself and each cabin passenger, one dollar and fifty cents; for each steerage passenger, mate, sailor, or mariner, one dollar."

"2. From the master of each coasting vessel, for each person

Page 48 U. S. 393

on board, twenty-five cents, but no coasting vessel from the States of New Jersey, Connecticut, and Rhode Island shall pay for more than one voyage in each month, computing from the first voyage in each year."

The eighth section provides that the money so received shall be denominated "hospital moneys." And the ninth section gives "each master paying hospital moneys a right to demand and recover from each person the sum paid on his account." The tenth section declares any master, who shall fail to make the above payments within twenty-four hours after the arrival of his vessel in the port, shall forfeit the sum of one hundred dollars. By the eleventh section, the commissioners of health are required to account annually to the comptroller of the state for all moneys received by them for the use of the marine hospital,

"and if such moneys shall, in anyone year, exceed the sum necessary to defray the expenses of their trust, including their own salaries, and exclusive of such expenses as are to be borne and paid as a part of the contingent charges of the City of New York, they shall pay over such surplus to the treasurer of the Society for the Reformation of Juvenile Delinquents in the City of New York, for the use of the society."

The plaintiff in error was master of the British ship Henry Bliss, which vessel touched at the port of New York in the month of June, 1841, and landed two hundred and ninety steerage passengers. The defendant in error brought an action of debt on the statute against the plaintiff, to recover one dollar for each of the above passengers. A demurrer was filed, on the ground that the statute of New York was a regulation of commerce, and in conflict with the Constitution of the United States. The supreme court of the state overruled the demurrer, and the court of errors affirmed the judgment. This brings before this Court, under the twenty-fifth section of the Judiciary Act, the constitutionality of the New York statute.

I will consider the case under two general heads:

1. Is the power of Congress to regulate commerce an exclusive power?

2. Is the statute of New York a regulation of commerce?

In the eighth section of the First Article of the Constitution it is declared that Congress shall have power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

Before the adoption of the Constitution, the states, respectively, exercised sovereign power, under no other limitations than those contained in the Articles of Confederation. By the third section of the Sixth Article of that instrument, it was declared that

"No state shall lay any imposts or duties which may

Page 48 U. S. 394

interfere with any stipulations in treaties entered into by the United States in Congress assembled,"

and this was the only commercial restriction on state power.

As might have been expected, this independent legislation, being influenced by local interests and policy, became conflicting and hostile, insomuch that a change of the system was necessary to preserve the fruits of the Revolution. This led to the adoption of the federal Constitution.

It is admitted that, in regard to the commercial, as to other powers, the states cannot be held to have parted with any of the attributes of sovereignty which are not plainly vested in the federal government and inhibited to the states, either expressly or by necessary implication. This implication may arise from the nature of the power.

In the same section which gives the commercial power to Congress, is given power "to borrow money on the credit of the United States," "to establish a uniform rule of naturalization," "to coin money," "to establish post offices and post roads," "to constitute tribunals inferior to the Supreme Court," "to define and punish piracies and felonies committed on the high seas," "to declare war," "to provide and maintain a navy," &c., and "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers."

Only one of these powers is, in the Constitution, expressly inhibited to the states, and yet, from the nature of the other powers, they are equally beyond state jurisdiction.

In the case of Holmes v. Jennison, 14 Pet. 570, the Chief Justice, in giving his own and the opinion of three of his brethren, said:

"All the powers which relate to our foreign intercourse are confided to the general government. Congress have the power to regulate commerce, to define and punish piracies,"

&c.

"Where an authority is granted to the Union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant, there the authority to the federal government is necessarily exclusive, and the same power cannot be constitutionally exercised by the states."

P. 39 U. S. 574.

In Houston v. Moore, 5 Wheat. 23, the Court said:

"We are altogether incapable of comprehending how two distinct wills can, at the same time, be exercised in relation to the same subject, to be effectual, and at the same time compatible with one another."

The Court, again, in treating of the commercial power, said in Gibbons v. Ogden, 9 Wheat. 196:

"It is the power to regulate -- that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and

Page 48 U. S. 395

acknowledges no limitations other than are prescribed in the Constitution. . . . The sovereignty of Congress, though limited to specified objects, is plenary as to those objects."

The power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government having in its Constitution the same restrictions,

&c. And in the same case, page 22 U. S. 199:

"Where, then, each government exercises the power of taxation, neither is exercising the power of the other; but when a state proceeds to regulate commerce with foreign nations, or among the several states, it is exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do."

And Mr. Justice Johnson, who gave a separate opinion in the same case, observes "The power to regulate commerce here meant to be granted was the power to regulate commerce which previously existed in the states." And again, "The power to regulate commerce is necessarily exclusive."

In Brown v. State of Maryland, 12 Pet. 446, the Court said

"It is not, therefore, matter of surprise that the grant of commercial power should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the states."

This question, they remark, "was considered in the case of Gibbons v. Ogden, in which it was declared to be complete in itself, and to acknowledge no limitations," &c. And Mr. Justice Baldwin in the case of Groves v. Slaughter, 15 Pet. 511, says

"That the power of Congress to regulate commerce among the several states is exclusive of any interference by the states has been, in my opinion, conclusively settled by the solemn opinions of this Court"

in the two cases above cited. And he observes "If these decisions are not to be taken as the established construction of this clause of the Constitution, I know of none which are not yet open to doubt."

Mr. Justice Story, in the case of New York v. Miln, 11 Pet. 158, in speaking of the doctrine of concurrent power in the states to regulate commerce, says that in the case of Gibbons v. Ogden,

"it was deliberately examined and deemed inadmissible by the court. . . . Mr. Chief Justice Marshall, with his accustomed accuracy and fullness of illustration, reviewed at that time the whole grounds of the controversy, and from that time to the present the question has been considered, so far as I know, at rest. The power given to Congress to regulate commerce with foreign nations and among the states has been deemed exclusive from the nature and objects of the power and the necessary implications growing out of its exercise. "

Page 48 U. S. 396

When the commercial power was under discussion in the convention which formed the Constitution, Mr. Madison observed that "he was more and more convinced that the regulation of commerce was in its nature indivisible, and ought to be wholly under one authority." Mr. Sherman said

"The power of the United States to regulate trade, being supreme, can control interferences of the state regulations when such interferences happen, so that there is no danger to be apprehended from a concurrent jurisdiction."

Mr. Langdon "insisted that the regulation of tonnage was an essential part of the regulation of trade, and that the states ought to have nothing to do with it." And the motion was carried "that no state shall lay any duty on tonnage without the consent of Congress." 3 Madison Papers 1585, 1586.

The adoption of the above provision in the Constitution, and also the one in the same section --

"that no state shall, without the assent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts shall be for the use of the Treasury of the United States, and all such laws shall be subject to the revision and control of the Congress"

is a restriction, it is contended, upon the acknowledged power of the states.

The force of this argument was admitted by the court in the case of Gibbons v. Ogden, and it was answered by the allegation, that the restriction operated on the taxing power of the states. The same argument was used in the thirty-second number of the Federalist. I yield more to the authority of this position than to the stringency of the argument in support of it. To prohibit the exercise of a power by a state, as a general rule, admits the existence of such power. But this may not be universally true. Had there been no inhibition on the states as to "coining money and fixing the value thereof," or as to tonnage duties, it could not have been successfully contended that the states might exercise those powers. All duties are required to be uniform, and this could not be the result of state action. And the power to coin money and regulate its value, for the Union, is equally beyond the power of a state.

Doubts may exist as to the true construction of an instrument in the minds of its framers, and to obviate those doubts, additional, if not unnecessary, provisions may be inserted. This remark applies to the Constitution in the instances named, and in others.

A concurrent power in the states to regulate commerce is an anomaly not found in the Constitution. If such power exist, it may be exercised independently of the federal authority.

Page 48 U. S. 397

It does not follow, as is often said, with little accuracy, that, when a state law shall conflict with an act of Congress, the former must yield. On the contrary, except in certain cases named in the federal Constitution, this is never correct when the act of the state is strictly within its powers.

I am aware this Court have held that a state may pass a bankrupt law, which is annulled when Congress shall act on the same subject. In Sturges v. Crowninshield, 4 Wheat. 122, the Court said

"Wherever the terms in which a power is granted by the Constitution to Congress, or wherever the nature of the power itself requires that it shall be exclusively exercised by Congress, the subject is as completely taken away from state legislatures as if they had been forbidden to act upon it."

But they say -- "The power granted to Congress of establishing uniform laws on the subject of bankruptcy is not of this description."

The case of Wilson v. Blackbird Creek Marsh Company, 2 Pet. 250, it is contended, recognizes the right of a state to exercise a commercial power, where no conflict is produced with an act of Congress.

It must be admitted that the language of the eminent Chief Justice who wrote the opinion is less guarded than his opinions generally were on constitutional questions.

A company was incorporated and authorized to construct a dam over Blackbird Creek, in the State of Delaware, below where the tide ebbed and flowed, in order to drain the marsh, and by that means improve the health of the neighborhood. The plaintiffs, being desirous of ascending the creek, with their vessel, above the dam, removed a part of it as an obstruction, for which the company recovered damages. The Chief Justice, in speaking of the structure of the dam, the drainage of the marsh, and the improvement of the health of the neighborhood, says:

"Means calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the states. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this Court can take no cognizance."

And he observes

"If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows,"

&c.,

"we should feel not

Page 48 U. S. 398

much difficulty in saying that a state law coming in conflict with such act would be void. But Congress had passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations, and among the several states -- a power which has not been so exercised as to affect the question."

The language of the Chief Justice must be construed in reference to the question before the court; to suppose that he intended to lay down the general proposition, that a state might pass any act to obstruct or regulate commerce which did not come in conflict with an act of Congress, would not only be unauthorized by the language used, and the facts of the case before the court, but it would contradict the language of the court in Gibbons v. Ogden, Brown v. Maryland, and every case in which the commercial power has been considered.

The Chief Justice was speaking of a creek which falls into the Delaware, and admitted in the pleadings to be navigable, but of so limited an extent that it might well be doubted whether the general regulation of commerce could apply to it. Hundreds of creeks within the flow of the tide were similarly situated. In such cases, involving doubt whether the jurisdiction may not be exclusively exercised by the state, it is politic and proper in the judicial power to follow the action of Congress. Over the navigable waters of a state, Congress can exercise no commercial power, except as regards an intercourse with other states of the Union or foreign countries. And doubtless there are many creeks made navigable by the flowing of the tide, or by the backwater from large rivers, which the general phraseology of an act to regulate commerce may not embrace. In all such cases, and many others that may be found to exist, the court could not safely exercise a jurisdiction not expressly sanctioned by Congress.

When the language of the Court is applied to the facts of the above case, no such general principle as contended for is sanctioned. The construction of the dam was complained of, not as a regulation of commerce, but an obstruction of it, and the Court held that

"as Congress had not assumed to control state legislation over those small navigable creeks into which the tide flows, the judicial power could not do so. The act of the state was an internal and a police power to guard the health of its citizens. By the erection of the dam, commerce could only be affected as charged consequentially and contingently. The state neither assumed nor exercised a commercial power. In this whole case, nothing more is found than a forbearance to exercise power over a doubtful object, which should ever characterize the judicial branch of the government. "

Page 48 U. S. 399

A concurrent power excludes the idea of a dependent power. The general government and a state exercise concurrent powers in taxing the people of the state. The objects of taxation may be the same, but the motives and policy of the tax are different, and the powers are distinct and independent. A concurrent power in two distinct sovereignties to regulate the same thing is as inconsistent in principle as it is impracticable in action. It involves a moral and physical impossibility. A joint action is not supposed, and two independent wills cannot do the same thing. The action of one, unless there be an arrangement, must necessarily precede the action of the other, and that which is first, being competent, must establish the rule. If the powers be equal, as must be the case, both being sovereign, one may undo what the other does, and this must be the result of their action.

But the argument is that a state acting in a subordinate capacity, wholly inconsistent with its sovereignty, may regulate foreign commerce until Congress shall act on the same subject, and that the state must then yield to the paramount authority. A jealousy of the federal powers has often been expressed, and an apprehension entertained that they would impair the sovereignty of the states. But this argument degrades the states by making their legislation, to the extent stated, subject to the will of Congress. State powers do not rest upon this basis. Congress can in no respect restrict or enlarge state powers, though they may adopt a state law. State powers are at all times and under all circumstances exercised independently of the general government, and are never declared void or inoperative except when they transcend state jurisdiction. And on the same principle, the federal authority is void when exercised beyond its constitutional limits.

The organization of the militia by a state, and also a state bankrupt law, may be superseded by the action of Congress. But this is not within the above principle. The action of the state is local, and may be necessary on both subjects, and that of Congress is general. In neither case is the same power exercised. No one doubts the power of a state to regulate its internal commerce.

It has been well remarked that the regulation of commerce consists as much in negative as in positive action. There is not a federal power which has been exerted in all its diversified means of operation. And yet it may have been exercised by Congress, influenced by a judicious policy and the instruction of the people. Is a commercial regulation open to state action because the federal power has not been exhausted? No ingenuity can provide for every contingency, and if it

Page 48 U. S. 400

could, it might not be wise to do so. Shall free goods be taxed by a state because Congress have not taxed them? Or shall a state increase the duty on the ground that it is too low? Shall passengers admitted by act of Congress without a tax be taxed by a state? The supposition of such a power in a state is utterly inconsistent with a commercial power, either paramount or exclusive, in Congress.

That it is inconsistent with the exclusive power will be admitted, but the exercise of a subordinate commercial power by a state is contended for. When this power is exercised, how can it be known that the identical thing has not been duly considered by Congress? And how can Congress, by any legislation, prevent this interference? A practical enforcement of this system, if system it may be called, would overthrow the federal commercial power.

Whether I consider the nature and object of the commercial power, the class of powers with which it is placed, the decision of this Court in the case of Gibbons v. Ogden, reiterated in Brown v. State of Maryland, and often reasserted by Mr. Justice Story who participated in those decisions, I am brought to the conclusion that the power "to regulate commerce with foreign nations and among the several states" by the Constitution is exclusively vested in Congress.

I come now to inquire under the second general proposition is the statute of New York a regulation of foreign commerce?

All commercial action within the limits of a state and which does not extend to any other state or foreign country is exclusively under state regulation. Congress have no more power to control this than a state has to regulate commerce "with foreign nations and among the several states." And yet Congress may tax the property within a state, of every description, owned by its citizens, on the basis provided in the Constitution, the same as a state may tax it. But if Congress should impose a tonnage duty on vessels which ply between ports within the same state, or require such vessels to take out a license, or impose a tax on persons transported in them, the act would be unconstitutional and void. But foreign commerce and commerce among the several states, the regulation of which, with certain constitutional exceptions, is exclusively vested in Congress, no state can regulate.

In giving the commercial power to Congress the states did not part with that power of self-preservation which must be inherent in every organized community. They may guard against the introduction of anything which may corrupt the morals, or endanger the health or lives of their citizens. Quarantine or health laws have been passed by the states, and regulations of police for their protection and welfare.

Page 48 U. S. 401

The inspection laws of a state apply chiefly to exports, and the state may lay duties and imposts on imports or exports to pay the expense of executing those laws. But a state is limited to what shall be "absolutely necessary" for that purpose. And still further to guard against the abuse of this power, it is declared that

"the net produce of all duties and imposts laid by a state on imports or exports shall be for the use of the Treasury of the United States, and all such laws shall be subject to the revision and control of Congress."

The cautious manner in which the exercise of this commercial power by a state is guarded shows an extreme jealousy of it by the convention, and no doubt the hostile regulations of commerce by the states, under the Confederation, had induced this jealousy. No one can read this provision, and the one which follows it in relation to tonnage duties, without being convinced that they cover, and were intended to cover, the entire subject of foreign commerce. A criticism on the term import, by which to limit the obvious meaning of this paragraph, is scarcely admissible in construing so grave an instrument.

"Commerce" is defined to be "an exchange of commodities." But this definition does not convey the full meaning of the term. It includes "navigation and intercourse." That the transportation of passengers is a part of commerce is not now an open question. In Gibbons v. Ogden, this Court said "No clear distinction is perceived between the powers to regulate vessels in transporting men for hire and property for hire." The provision of the Constitution, that

"the migration or importation of such persons as any of the states now existing shall think proper to admit shall not be prohibited by Congress prior to the year 1808,"

is a restriction on the general power of Congress to regulate commerce. In reference to this clause, this Court said in the above case

"This section proves that the power to regulate commerce applies equally to the regulation of vessels employed in transporting men who pass from place to place voluntarily, and to those who pass involuntarily."

To encourage foreign emigration was a cherished policy of this country at the time the Constitution was adopted. As a branch of commerce, the transportation of passengers has always given a profitable employment to our ships, and within a few years past has required an amount of tonnage nearly equal to that of imported merchandise.

Is this great branch of our commerce left open to state regulation on the ground that the prohibition refers to an import, and a man is not an import?

Pilot laws enacted by the different states have been referred

Page 48 U. S. 402

to as commercial regulations. That these laws do regulate commerce, to a certain extent, is admitted; but from what authority do they derive their force? Certainly not from the states. By the fourth section of the Act of 7 August, 1789, it is provided

"That all pilots in the bays, inlets, rivers, harbors, 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 may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress."

These state laws, by adoption, are the laws of Congress, and as such effect is given to them. So the laws of the states which regulate the practice of their courts are adopted by Congress to regulate the practice of the federal courts. But these laws, so far as they are adopted, are as much the laws of the United States, and it has often been so held, as if they had been specially enacted by Congress. A repeal of them by the state, unless future changes in the acts be also adopted, does not affect their force in regard to federal action.

In the above instances it has been deemed proper for Congress to legislate by adopting the law of the states. And it is not doubted that this has been found convenient to the public service. Pilot laws were in force in every commercial state on the seaboard when the Constitution was adopted, and on the introduction of a new system, it was prudent to preserve, as far as practicable, the modes of proceeding with which the people of the different states were familiar. In regard to pilots, it was not essential that the laws should be uniform -- their duties could be best regulated by an authority acquainted with the local circumstances under which they were performed, and the fact that the same system is continued shows that the public interest has required no change.

No one has yet drawn the line clearly, because, perhaps, no one can draw it, between the commercial power of the Union and the municipal power of a state. Numerous cases have arisen, involving these powers, which have been decided, but a rule has necessarily been observed as applicable to the circumstances of each case. And so must every case be adjudged.

A state cannot regulate foreign commerce, but it may do many things which more or less affect it. It may tax a ship or other vessel used in commerce the same as other property owned by its citizens. A state may tax the stages in which the mail is transported, but this does not regulate the conveyance of the mail any more than taxing a ship regulates commerce. And yet in both instances the tax on the property in some degree affects its use.

Page 48 U. S. 403

An inquiry is made whether Congress, under "the power to regulate commerce among the several states," can impose a tax for the use of canals, railroads, turnpike roads, and bridges, constructed by a state or its citizens? I answer that Congress has no such power. The United States cannot use anyone of these works without paying the customary tolls. The tolls are imposed, not as a tax, in the ordinary sense of that term, but as compensation for the increased facility afforded by the improvement.

The act of New York now under consideration is called a health law. It imposes a tax on the master and every cabin passenger of a vessel from a foreign port, of one dollar and fifty cents, and of one dollar on the mate, each steerage passenger, sailor, or mariner. And the master is made responsible for the tax, he having a right to exact it of the others. The funds so collected are denominated hospital moneys, and are applied to the use of the marine hospital, the surplus to be paid to the treasurer of the Society for the Reformation of Juvenile Delinquents in the City of New York, for the use of that society.

To call this a "health law" would seem to be a misapplication of the term. It is difficult to perceive how a health law can be extended to the reformation of juvenile offenders. On the same principle, it may be made to embrace all offenders, so as to pay the expenses incident to an administration of the criminal law. And with the same propriety it may include the expenditures of any branch of the civil administration of the City of New York, or of the state. In fact I can see no principle on which the fund can be limited if it may be used as authorized by the act. The amount of the tax is as much within the discretion of the Legislature of New York as the objects to which it may be applied.

It is insisted that if the act, as regards the hospital fund, be within the power of the state, the application of a part of the fund to other objects, as provided in the act, cannot make it unconstitutional. This argument is unsustainable. If the state has power to impose a tax to defray the necessary expenses of a health regulation, and this power being exerted, can the tax be increased so as to defray the expenses of the state government? This is within the principle asserted.

The case of City of New York v. Miln, 11 Pet. 102, is relied on with great confidence as sustaining the act in question. As I assented to the points ruled in that case, consistency, unless convinced of having erred, will compel me to support the law now before us, if it be the same in principle. The law in Miln's Case required that

"the master or commander of any ship or other vessel arriving at the port of New York shall,

Page 48 U. S. 404

within twenty-four hours after his arrival, make a report, in writing, on oath or affirmation, to the Mayor of the City of New York, of the name, place of birth and last legal settlement, age, and occupation of every person brought as a passenger, and of all persons permitted to land at any place during the voyage, or go on board of some other vessel, with the intention of proceeding to said city; under the penalty on such master or commander, and the owner or owners, consignee or consignees, of such ship or vessel, severally and respectively, of seventy-five dollars for each individual not so reported."

And the suit was brought against Miln as consignee of the ship Emily, for the failure of the master to make report of the passengers on board of his vessel.

In their opinion, this Court said

"The law operated on the Territory of New York, over which that state possesses an acknowledged and undisputed jurisdiction for every purpose of internal regulation,"

and

"on persons whose rights and duties are rightfully prescribed and controlled by the laws of the respective states, within whose territorial limits they are found."

This law was considered as an internal police regulation, and as not interfering with commerce.

A duty was not laid upon the vessel or the passengers, but the report only was required from the master, as above stated. Now every state has an unquestionable right to require a register of the names of the persons who come within it to reside temporarily or permanently. This was a precautionary measure to ascertain the rights of the individuals, and the obligations of the public, under any contingency which might occur. It opposed no obstruction to commerce, imposed no tax nor delay, but acted upon the master, owner, or consignee of the vessel, after the termination of the voyage, and when he was within the Territory of the state, mingling with its citizens, and subject to its laws.

But the health law, as it is called, under consideration is altogether different in its objects and means. It imposes a tax or duty on the passengers, officers, and sailors, holding the master responsible for the amount at the immediate termination of the voyage, and necessarily before the passengers have set their feet on land. The tax on each passenger, in the discretion of the legislature, might have been five or ten dollars, or any other sum, amounting even to a prohibition of the transportation of passengers, and the professed object of the tax is as well for the benefit of juvenile offenders as for the marine hospital. And it is not denied that a considerable sum thus received has been applied to the former object. The amount and application of this tax are only important to show the consequences of the exercise of this power by the states. The principle involved is vital to the commercial power of the Union.

Page 48 U. S. 405

The transportation of passengers is regulated by Congress. More than two passengers for every five tons of the ship or vessel are prohibited, under certain penalties, and the master is required to report to the collector a list of the passengers from a foreign port, stating the age, sex, and occupation of each, and the place of their destination. In England, the same subject is regulated by act of Parliament, and the same thing is done, it is believed, in all commercial countries. If the transportation of passengers be a branch of commerce, of which there can be no doubt, it follows that the act of New York, in imposing this tax is a regulation of commerce. It is a tax upon a commercial operation -- upon what may in effect be called an import. In a commercial sense, no just distinction can be made, as regards the law in question, between the transportation of merchandise and passengers. For the transportation of both the shipowner realizes a profit, and each is the subject of a commercial regulation by Congress. When the merchandise is taken from the ship, and becomes mingled with the property of the people of the state, like other property, it is subject to the local law, but until this shall take place, the merchandise is an import, and is not subject to the taxing power of the state, and the same rule applies to passengers. When they leave the ship, and mingle with the citizens of the state, they become subject to its laws.

In Gibbons v. Ogden, the Court held that the act of laying "duties or imposts on imports or exports" is derived from the taxing power, and they lay much stress on the fact, that this power is given in the same sentence as the power to "lay and collect taxes." "The power," they say, "to regulate commerce is given" in a separate clause, "as being entirely distinct from the right to levy taxes and imposts, and as being a new power, not before conferred," and they remark, that, had not the states been prohibited, they might, under the power to tax, have levied "duties on imports or exports." 22 U. S. 9 Wheat. 201.

The Constitution requires that all "duties and imposts shall be uniform," and declares that "no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another." Now it is inexplicable to me how thirteen or more independent states could tax imports under these provisions of the Constitution. The tax must be uniform throughout the Union; consequently the exercise of the power by anyone state would be unconstitutional, as it would destroy the uniformity of the tax. To secure this uniformity was one of the motives which led to the adoption of the Constitution. The want of it produced collisions in the commercial regulations of the states. But if, as is contended, these

Page 48 U. S. 406

provisions of the Constitution operate only on the federal government, and the state are free to regulate commerce by taxing its operations in all cases where they are not expressly prohibited, the Constitution has failed to accomplish the great object of those who adopted it.

These provisions impose restrictions on the exercise of the commercial power, which was exclusively vested in Congress, and it is as binding on the states as any other exclusive power with which it is classed in the Constitution.

It is immaterial under what power duties on imports are imposed. That they are the principal means by which commerce is regulated no one can question. Whether duties shall be imposed with the view to protect our manufactures, or for purposes of revenue only, has always been a leading subject of discussion in Congress, and also what foreign articles may be admitted free of duty. The force of the argument that things untouched by the regulating power have been equally considered with those of the same class on which it has operated, is not admitted by the counsel for the defendant. But does not all experience sustain the argument? A large amount of foreign articles brought into this country for several years have been admitted free of duty. Have not these articles been considered by Congress? The discussion in both houses of Congress, the report by the committees of both, and the laws that have been enacted, show that they have been duly considered.

Except to guard its citizens against diseases and paupers, the municipal power of a state cannot prohibit the introduction of foreigners brought to this country under the authority of Congress. It may deny to them a residence unless they shall give security to indemnify the public should they become paupers. The slave states have the power, as this Court held in Groves v. Slaughter, to prohibit slaves from being brought into them as merchandise. But this was on the ground, that such a prohibition did not come within the power of Congress "to regulate commerce among the several states." It is suggested that under this view of the commercial power, slaves may be introduced into the free states. Does anyone suppose that Congress can ever revive the slave trade? And if this were possible, slaves thus introduced would be free.

As early as May 27, 1796, Congress enacted, that

"the President be authorized to direct the revenue officers commanding forts and revenue cutters to aid in the execution of quarantine, and also in the execution of the health laws of the states respectively."

And by the Act of February 25, 1799, which repealed the above act, more enlarged provisions were enacted, requiring the revenue officers of the United States to conform

Page 48 U. S. 407

to and aid in the execution of the quarantine and health laws of the states. In the first section of this law there is a proviso, that "nothing therein shall enable any state to collect a duty of tonnage or impost without the consent of Congress."

A proviso limits the provisions of the act into which it is introduced. But this proviso may be considered as not restricted to this purpose. It shows with what caution Congress guarded the commercial power, and it is an authoritative provision against its exercise by the states. An impost, in its enlarged sense, means any tax or tribute imposed by authority, and applies as well to a tax on persons as to a tax on merchandise. In this sense it was no doubt used in the above act. Any other construction would be an imputation on the intelligence of Congress.

If this power to tax passengers from a foreign country belongs to a state, a tax, on the same principle, may be imposed on all persons coming into or passing through it from any other state of the Union. And the New York statute does in fact lay a tax on passengers on board of any coasting vessel which arrives at the port of New York, with an exception of passengers in vessels from New Jersey, Connecticut, and Rhode Island, who are required to pay for one trip in each month. All other passengers pay the tax every trip.

If this may be done in New York, every other state may do the same, on all the lines of our internal navigation. Passengers on a steamboat which plies on the Ohio, the Mississippi, or on any of our other rivers, or on the Lakes, may be required to pay a tax, imposed at the discretion of each state within which the boat shall touch. And the same principle will sustain a right in every state to tax all persons who shall pass through its territory on railroad cars, canal boats, stages, or in any other manner. This would enable a state to establish and enforce a nonintercourse with every other state.

The ninth section of the first article of the Constitution declares "Nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another." But if the commercial power of the Union over foreign commerce does not exempt passengers brought into the country from state taxation, they can claim no exemption under the exercise of the same power among the states. In McCulloch v. State of Maryland, 4 Wheat. 431, this Court said

"That there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, is a proposition not to be denied. "

Page 48 U. S. 408

The officers and crew of the vessel are as much the instruments of commerce as the ship, and yet they are taxed under this health law of New York as such instruments. The passengers are taxed as passengers, being the subjects of commerce from a foreign country. By the fourteenth article of the treaty of 1794 with England it is stipulated that the people of each country may freely come, with their ships and cargoes, to the other, subject only to the laws and statutes of the two countries respectively. The statutes here referred to are those of the federal government, and not of the states. The general government only is known in our foreign intercourse.

By the forty-sixth section of the act of March, 1799, the wearing apparel and other personal baggage, and the tools or implements of a mechanical trade, from a foreign port, are admitted free of duty. These provisions of the treaty and of the act are still in force, and they have a strong bearing on this subject. They are, in effect, repugnant to the act of New York.

It is not doubted that a large portion, perhaps nine tenths, of the foreign passengers landed at the port of New York pass through the state to other places of residence. At such places, therefore, pauperism must be increased much more by the influx of foreigners than in the City of New York. If, by reason of commerce, a burden is thrown upon our commercial cities, Congress should make suitable provisions for their relief. And I have no doubt this will be done.

The police power of the state cannot draw within its jurisdiction objects which lie beyond it. It meets the commercial power of the Union in dealing with subjects under the protection of that power, yet it can only be exerted under peculiar emergencies and to a limited extent. In guarding the safety, the health, and morals of its citizens, a state is restricted to appropriate and constitutional means. If extraordinary expense be incurred, an equitable claim to an indemnity can give no power to a state to tax objects not subject to its jurisdiction.

The Attorney General of New York admitted, that, if the commercial power were exclusively vested in Congress, no part of it can be exercised by a state. The soundness of this conclusion is not only sustainable by the decisions of this Court, but by every approved rule of construction. That the power is exclusive seems to be as fully established as any other power under the Constitution which has been controverted.

A tax or duty upon tonnage, merchandise, or passengers is a regulation of commerce, and cannot be laid by a state, except under the sanction of Congress and for the purposes specified in the Constitution. On the subject of foreign commerce, including the transportation of passengers, Congress have adopted

Page 48 U. S. 409

such regulations as they deemed proper, taking into view our relations with other countries. And this covers the whole ground. The act of New York which imposes a tax on passengers of a ship from a foreign port, in the manner provided, is a regulation of foreign commerce, which is exclusively vested in Congress, and the act is therefore void.

NORRIS v. CITY OF BOSTON

This is a writ of error, which brings before the court the judgment of the Supreme Court of the State of Massachusetts.

"An act relating to alien passengers," passed the 20 of April, 1837, by the Legislature of Massachusetts, contains the following provisions:

"§ 1. When any vessel shall arrive at any port or harbor within this state, from any port or place without the same, with alien passengers on board, the officer or officers whom the mayor and aldermen of the city, or the selectmen of the town, where it is proposed to land such passengers, are hereby authorized and required to appoint, shall go on board such vessels and examine into the condition of said passengers."

"§ 2. If, on such examination, there shall be found among said passengers any lunatic, idiot, maimed, aged, or infirm person, incompetent, in the opinion of the officer so examining, to maintain themselves, or who have been paupers in any other country, no such alien passenger shall be permitted to land, until the master, owner, consignee, or agent of such vessel shall have given to such city or town a bond in the sum of one thousand dollars, with good and sufficient security, that no such lunatic or indigent passenger shall become a city, town, or state charge within ten years from the date of said bond."

"§ 3. No alien passenger, other than those spoken of in the preceding section, shall be permitted to land, until the master, owner, consignee, or agent of such vessel shall pay to the regularly appointed boarding officer the sum of two dollars for each passenger so landing; and the money so collected shall be paid into the treasury of the city or town, to be appropriated as the city or town may direct for the support of foreign paupers."

The plaintiff being an inhabitant of St. John's, in the Province of New Brunswick and Kingdom of Great Britain, arriving in the port of Boston, from that place, in command of a schooner called the Union Jack, which had on board nineteen alien passengers, for each of which two dollars were demanded of the plaintiff, and paid by him, on protest that the exaction was illegal. An action being brought, to recover back this

Page 48 U. S. 410

money, against the City of Boston, in the court of common pleas, under the instructions of the court, the jury found a verdict for the defendant, on which judgment was entered, and which was affirmed on a writ of error to the supreme court.

Under the first and second sections of the above act, the persons appointed may go on board of a ship from a foreign port, which arrives at the port of Boston with alien passengers on board, and examine whether any of them are lunatics, idiots, maimed, aged, or infirm, incompetent to maintain themselves, or have been paupers in any other country, and not permit such persons to be put on shore, unless security shall be given that they shall not become a city, town, or state charge. This is the exercise of an unquestionable power in the state to protect itself from foreign paupers and other persons who would be a public charge, but the nineteen alien passengers for whom the tax was paid did not come, nor anyone of them, within the second section. The tax of two dollars was paid by the master for each of these passengers before they were permitted to land. This, according to the view taken in the above case of Smith v. Turner, was a regulation of commerce, and not being within the power of the state, the act imposing the tax is void.

The fund thus raised was no doubt faithfully applied for the support of foreign paupers, but the question is one of power, and not of policy. The judgment of the supreme court, in my opinion, should be reversed, and this cause be remanded to that court, with instructions to carry out the judgment of this Court.

MR. JUSTICE WAYNE.

NORRIS v. CITY OF BOSTON, AND SMITH v. TURNER

I agree with MR. JUSTICE McLEAN MR. JUSTICE CATRON, MR. JUSTICE McKINLEY, and MR. JUSTICE GRIER, that the laws of Massachusetts and New York, so far as they are in question in these cases, are unconstitutional and void. I would not say so, if I had any, the least, doubt of it, for I think it obligatory upon this Court, when there is a doubt of the unconstitutionality of a law, that its judgment should be in favor of its validity. I have formed my conclusions in these cases with this admission constantly in mind.

Before stating, however, what they are, it will be well for me to say that the four judges and myself who concur in giving the judgment in these cases do not differ in the grounds upon which our judgment has been formed, except in one particular, in no way at variance with our united conclusion;

Page 48 U. S. 411

and that is that a majority of us do not think it necessary in these cases to reaffirm, with our brother McLEAN what this Court has long since decided, that the constitutional power to regulate "commerce with foreign nations, and among the several states, and with the Indian tribes," is exclusively vested in Congress, and that no part of it can be exercised by a state.

I believe it to be so, just as it is expressed in the preceding sentence. And in the sense in which those words were used by this Court in the case of Gibbons v. Ogden, 9 Wheat. 198. All that was decided in that case remains unchanged by any subsequent opinion or judgment of this Court. Some of the judges of it have, in several cases, expressed opinions that the power to regulate commerce is not exclusively vested in Congress. But they are individual opinions, without judicial authority to overrule the contrary conclusion, as it was given by this Court in Gibbons v. Ogden.

Still I do not think it necessary to reaffirm that position in these cases, as a part of our judgments upon them. Its exclusiveness in Congress will, it is true, be an unavoidable inference from some of the arguments which I shall use upon the power of Congress to regulate commerce; but it will be seen that the argument, as a whole, will be a proper and apt foundation for the conclusion to which five of us have come -- that the laws of Massachusetts and New York, so far as they are resisted by the plaintiffs in the cases before us, are tax acts, in the nature of regulations acting upon the commerce of the United States, such as no state can now constitutionally pass.

For the acts of Massachusetts and New York imposing taxes upon passengers, and for the pleadings upon which these cases have been brought to this Court, I refer to the opinion of MR. JUSTICE CATRON. They are fully and accurately stated. I take pleasure in saying that I concur with him in all the points made in his opinion, and in his reasoning in support of them. They are sustained by such minute references to the legislation of Congress and to treaty stipulations, that nothing of either is left to be added. As an argument, it closes this controversy against any other view of the subject matter, in opposition to my learned brother's conclusions.

His leading positions are, that the acts of Massachusetts and New York are tax or revenue acts upon the commerce of the United States, as that commerce has been regulated by the legislation of Congress and by treaty stipulations; that the power to regulate commerce having been acted upon by Congress indicates how far the power is to be exercised for the United States as a nation, with which there can be no interference

Page 48 U. S. 412

by any state legislation; that a treaty permitting the ingress of foreigners into the United States, with or without any other stipulation than a reciprocal right of ingress for our people into the territories of the nation with which the treaty may be made, prevents a state from imposing a poll tax or personal impost upon foreigners, either directly or indirectly, for any purpose whatever, as a condition for being landed in any part of the United States, whether such foreigners shall come to it for commercial purposes, or as immigrants, or for temporary visitation.

Those of us who are united with MR. JUSTICE CATRON in giving the judgments in these cases concur with him in those opinions. MR. JUSTICE McKINLEY and MR. JUSTICE GRIER have just said so, my own concurrence has been already expressed, and the second division of MR. JUSTICE McLEAN's opinion contains conclusions identical with those of MR. JUSTICE CATRON concerning the unconstitutionality of the laws of Massachusetts and New York, on account of the conflict between them with the legislation of Congress and with treaty stipulations. I also concur with MR. JUSTICE McKINLEY in his interpretation of the ninth section of the first article of the Constitution; also with MR. JUSTICE GRIER, in his opinion in the case of Norris v. City of Boston.

I have been more particular in speaking of the opinions of MESSRS. JUSTICES McLEAN and CATRON than I would otherwise have been, and of the points of agreement between them, and of the concurrence of MESSRS. JUSTICES McKINLEY and GRIER and myself in all in which both opinions agree, because a summary may be made from them of what the Court means to decide in the cases before us. In my view, after a very careful perusal of those opinions, and of those also of MR. JUSTICE McKINLEY and MR. JUSTICE GRIER, I think the Court means now to decide:

1. That the acts of New York and Massachusetts imposing a tax upon passengers, either foreigners or citizens, coming into the ports in those states, either in foreign vessels or vessels of the United States, from foreign nations or from ports in the United States, are unconstitutional and void, being in their nature regulations of commerce contrary to the grant in the Constitution to Congress of the power to regulate commerce with foreign nations and among the several states.

2. That the states of this Union cannot constitutionally tax the commerce of the United States for the purpose of paying any expense incident to the execution of their police laws, and that the commerce of the United States includes an intercourse of persons, as well as the importation of merchandise.

3. That the acts of Massachusetts and New York in question

Page 48 U. S. 413

in these cases conflict with treaty stipulations existing between the United States and Great Britain, permitting the inhabitants of the two countries

"freely and securely to come, with their ships and cargoes, to all places, ports, and rivers in the territories of each country to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of said territories, respectively; also, to hire and occupy houses and warehouses for the purposes of their commerce, and generally the merchants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes of the two countries, respectively,"

and that said laws are therefore unconstitutional and void.

4. That the Congress of the United States having by sundry acts passed at different times admitted foreigners into the United States with their personal luggage and tools of trade free from all duty or imposts, the acts of Massachusetts and New York imposing any tax upon foreigners or immigrants for any purpose whatever, whilst the vessel is in transitu to her port of destination, though said vessel may have arrived within the jurisdictional limits of either of the states of Massachusetts or New York, and before the passengers have been landed, are in violation of said acts of Congress, and therefore unconstitutional and void.

5. That the acts of Massachusetts and New York, so far as they impose any obligation upon the owners or consignees of vessels, or upon the captains of vessels or freighters of the same, arriving in the ports of the United States within the said states, to pay any tax or duty of any kind whatever, or to be in any way responsible for the same, for passengers arriving in the United States or coming from a port in the United States, are unconstitutional and void; being contrary to the constitutional grant to Congress of the power to regulate commerce with foreign nations and among the several states, and to the legislation of Congress under the said power, by which the United States have been laid off into collection districts, and ports of entry established within the same, and commercial regulations prescribed, under which vessels, their cargoes and passengers, are to be admitted into the ports of the United States, as well from abroad as from other ports of the United States. That the act of New York now in question, so far as it imposes a tax upon passengers arriving in vessels from other ports in the United States, is properly in this case before this Court for construction, and that the said tax is unconstitutional and void. That the ninth section of the first article of the Constitution includes within it the migration of other persons,

Page 48 U. S. 414

as well as the importation of slaves, and in terms recognizes that other persons as well as slaves may be the subjects of importation and commerce.

6. That the fifth clause of the ninth section of the first article of the Constitution, which declares that

"no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another state; nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another,"

is a limitation upon the power of Congress to regulate commerce for the purpose of producing entire commercial equality within the United States, and also a prohibition upon the states to destroy such equality by any legislation prescribing a condition upon which vessels bound from one state shall enter the ports of another state.

7. That the acts of Massachusetts and New York, so far as they impose a tax upon passengers, are unconstitutional and void, because each of them so far conflicts with the first clause of the eighth section of the first article of the Constitution, which enjoins that all duties, imposts, and excises shall be uniform throughout the United States; because the constitutional uniformity enjoined in respect to duties and imposts is as real and obligatory upon the states, in the absence of all legislation by Congress, as if the uniformity had been made by the legislation of Congress, and that such constitutional uniformity is interfered with and destroyed by any state imposing any tax upon the intercourse of persons from state to state, or from foreign countries to the United States.

8. That the power in Congress to regulate commerce with foreign nations and among the several states includes navigation upon the high seas, and in the bays, harbors, lakes, and navigable waters within the United States, and that any tax by a state in any way affecting the right of navigation, or subjecting the exercise of the right to a condition, is contrary to the aforesaid grant.

9. That the states of this Union may, in the exercise of their police powers, pass quarantine and health laws, interdicting vessels coming from foreign ports, or ports within the United States, from landing passengers and goods, prescribe the places and time for vessels to quarantine, and impose penalties upon persons for violating the same; and that such laws, though affecting commerce in its transit, are not regulations of commerce prescribing terms upon which merchandise and persons shall be admitted into the ports of the United States, but precautionary regulations to prevent vessels engaged in commerce from introducing disease into the ports to which they are bound, and that the states may, in the exercise of such police power, without

Page 48 U. S. 415

any violation of the power in Congress to regulate commerce, exact from the owner or consignee of a quarantined vessel, and from the passengers on board of her, such fees as will pay to the state the cost of their detention and of the purification of the vessel, cargo, and apparel of the persons on board.

Having done what I thought it was right to do to prevent hereafter any misapprehension of what the court now means to decide, I will give some reasons, in addition to those which have been urged by my associates, in support of our common result. In the first place, let it be understood, that in whatever I may say upon the power which Congress has "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes," the internal trade of a state is not meant to be included, that not being in any way within the regulating power of Congress.

In the consideration, too, of the power in Congress to regulate commerce, I shall not rely, in the first instance, upon what may be constitutionally done in many commercial particulars, as well under the treatymaking power as by the legislation of Congress. My first object is to show the plenitude of the power in Congress from the grant itself, without aid from any other clause in the Constitution. The treatymaking power for commercial purposes, however, and other clauses in the Constitution relating to commerce, may afterwards be used to enforce and illustrate the extent and character of the power which Congress has to regulate commerce. It is a grant of legislative power, susceptible, from its terms and the subject matter, of definite and indisputable interpretation.

Any mere comment upon the etymology of the words "regulate" and "commerce" would be unsatisfactory in such a discussion. But if their meaning, as they were used by the framers of the Constitution, can be made precise by the subject matter, then it cannot be doubted that it was intended by them that Congress should have the legislative power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes, to the exclusion of any regulation for such commerce by anyone of the states.

All commerce between nations is permissive or conventional. The first includes every allowance of it, under what is termed by writers upon international law the liberty or freedom of commerce -- its allowance by statutes, or by the orders of any magistracy having the power to exercise the sovereignty of a nation in respect to commerce. Conventional commerce is, of course, that which nations carry on with each other under treaty stipulations. With colonial commerce -- another distinct kind, between nations and their colonies, which the laws

Page 48 U. S. 416

of nations permit the former to monopolize -- we have nothing to do upon this occasion.

Now what commerce was in fact, at least so far as European nations were concerned, had been settled beyond all dispute before our separation from the mother country. I t was well known to the framers of the Constitution, in all its extent and variety. Hard denials of many of its privileges had taught them what it was. They were familiar with the many valuable works upon trade and international law which were written and published, and which had been circulated in England and in the Colonies from the early part of the last century up to the beginning of the Revolution. It is not too much to say that our controversies with the mother country upon the subject had given to the statesmen in America in that day more accurate knowledge of all that concerned trade in all its branches and rights, and a more prompt use of it for any occasion, than is now known or could be used by the statesmen and jurists of our own time. Their knowledge, then, may well be invoked to measure the constitutional power of Congress to regulate commerce.

Commerce between nations or among states has several branches. Martens, in his Summary of the Laws of Nations says

"It consists in selling the superfluity; in purchasing articles of necessity, as well productions as manufactures; in buying from one nation and selling to another, or in transporting the merchandise from the seller to the buyer to gain the freight."

"Generally speaking, the commerce in Europe is so far free, that no nation refuses positively and entirely to permit the subjects of another nation, when even there is no treaty between them, to trade with its possessions in or out of Europe, or to establish themselves in its territory for that purpose. A state of war forms here a natural exception. However, as long as there is no treaty existing, every state retains its natural right to lay on such commerce whatever restriction it pleases. A nation is then fully authorized to prohibit the entry or exportation of certain merchandise, to institute customs and to augment them at pleasure, to prescribe the manner in which the commerce with its dominions shall be carried on, to point out the places where it shall be carried on, or to exempt from it certain parts of its dominions, to exercise freely its sovereign power over the foreigners living in its territories, to make whatever distinctions between the nations with whom it trades it may find conducive to its interests."

In all of the foregoing particulars Congress may act legislatively. It is conceded that the states may not do so in any

Page 48 U. S. 417

one of them, and if, in virtue of the power to lay taxes, the United States and the states may act in that way concurrently upon foreigners when they reside in a state, it does not follow that the states may impose a personal impost upon them, as the condition of their being permitted to land in a port of the United States.

"Duties on the entry of merchandise are to be paid indiscriminately by foreigners as well as subjects. Personal imposts it is customary not to exact from foreigners till they have for some time been inhabitants of the state."

Martens 97.

Keeping, then, in mind what commerce is, and how far a nation may legally limit her own commercial transactions with another state, we cannot be at a loss to determine, from the subject matter of the clause in the Constitution, that the meaning of the terms used in it is to exclude the states from regulating commerce in any way, except their own internal trade, and to confide its legislative regulation completely and entirely to Congress. When I say completely and entirely to Congress, I mean all that can be included in the term "commerce among the several states," subject, of course, to the right of the states to pass inspection laws in the mode prescribed by the Constitution, to the prohibition of any duty upon exports, either from one state to another state or to foreign countries, and to that commercial uniformity which the Constitution enjoins respecting all that relates to the introduction of merchandise into the United States, and those who may bring it for sale, whether they are citizens or foreigners, and all that concerns navigation, whether vessels are employed in the transportation of passengers or freight, or both, including, also, all the regulations which the necessities and safety of navigation may require.

"Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries &c., are component parts of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government."

But the conclusion derived from the subject matter of the clause, as I have just stated it, is strengthened particularly by what may be done in respect to commerce by treaty, and by other clauses in the Constitution relating to commerce. Martens, p. 151, says

"The mere general liberty of trade, such as it is acknowledged at present in Europe, being too vague to secure to a nation all the advantages it is necessary it should derive from its commerce, commercial powers have been obliged to have recourse to treaties for their mutual benefit. The number of these treaties is considerably augmented since the

Page 48 U. S. 418

sixteenth century. However they may differ in their conditions, they turn generally on these three point: 1. On commerce in time of peace. 2. On the measures to be pursued with respect to commerce and commercial subjects in case of rupture between the parties. 3. On the commerce of the contracting party that may happen to remain neuter, while the other contracting party is at war with a third power. With respect to the first point the custom is: 1. To settle in general the privileges that the contracting powers grant reciprocally to their subjects. 2. To enter into the particulars of the rights to be enjoyed by their subjects, as well with respect to their property as to their personal rights. Particular care is usually taken to provide for the free enjoyment of their religion; for their right to the benefit of the laws of the country; for the security of the books of commerce &c. 3. To mention specifically the kinds of merchandise which are to be admitted, to be imported or exported, and the advantages to be granted relatively to customs, tonnage &c."

"With respect to the rights and immunities in case of a rupture between the parties, the great objects to be obtained are: 1. An exemption from seizure of the person or effects of the subjects residing in the territory of the other contracting power. 2. To fix the time which they shall have to remove with their property out of the territory. 3. Or to point out the conditions on which they may be permitted to remain in the enemy's country during the war."

"In specifying the rights of commerce to be enjoyed by the neutral power, it is particularly necessary: 1. To exempt its vessels from embargo. 2. To specify the merchandise which is to be accounted contraband of war, and to settle the penalties in case of contravention. 3. To agree on the manner in which vessels shall be searched at sea. 4. To stipulate whether neutral bottoms are to make neutral goods or not."

It seems to me, when such regulations of commerce as may be made by treaty are considered in connection with that clause in the Constitution giving to Congress the power to regulate it by legislation, and also in connection with the restraints upon the states in the tenth section of the first article of the Constitution, in respect to treaties and commerce, that the states have parted with all power over commerce, except the regulation of their internal trade. The restraints in that section are, that no state shall enter into any treaty, alliance, or confederation; no state shall, without the consent of Congress, lay any duties on imports or exports, except what may be necessary for executing its inspection laws; no state shall, without the consent of Congress, lay any duty of tonnage,

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or enter into any agreement or compact with another state or with a foreign power.

The states, then, cannot regulate commerce by a treaty or compact, and before it can be claimed that they may do so in any way by legislation, it must be shown that the surrender which they have made to a common government to regulate commerce for the benefit of all of them has been done in terms which necessarily imply that the same power may be used by them separately, or that the power in Congress to regulate commerce has been modified by some other clause in the Constitution. No such modifying clause exists. The terms used do not, in their ordinary import, admit of any exception from the entireness of the power in Congress to regulate commerce with foreign nations and among the several states, and with the Indian tribes. The exercise of any such power of regulation by the states, or anyone or more of them, would conflict with the constitutional authority of the United States to regulate commerce by legislation and by treaty, and would measurably replace the states in their commercial attitude to each other as they stood under the Articles of Confederation, and not as they meant to be when "we, the people of the United States," in their separate sovereignties, as they existed under the Articles of Confederation, superseded the latter by their ratification of "the Constitution for the United States of America."

In what I have said concerning commercial regulations under the treatymaking power, I do not mean to be understood as saying that by treaty all regulation of commerce can be made, independently of legislation by Congress. That question I do not enter into here, for in such cases as are now before the court I have no right to do so. It has only been alluded to by me to prevent any such inference from being made.

Apply the foregoing reasoning to the acts of Massachusetts and New York, and whatever may be the motive for such enactments or their legislative denomination, if they practically operate as regulations of commerce, or as restraints upon navigation, they are unconstitutional. When they are considered in connection with the existing legislation of Congress in respect to trade and navigation, and with treaty stipulations, they are certainly found to be in conflict with the supreme law of the land.

But those acts conflict also with other clauses in the Constitution relating to commerce and navigation; also, with that clause which declares that duties, imposts, and excises shall be uniform throughout the United States. Not in respect to excises, for those being taxes upon the consumption or retail sale

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of commodities, the states have a power to lay them, as well as Congress. Not so, however, as to duties and imposts; the first, in its ordinary taxing sense, being taxes or customs upon merchandise; and an impost being also, in its restrained sense, a duty upon imported goods, but also, in its more enlarged meaning, any tax or imposition upon persons. Notwithstanding what may have otherwise been said, I was brought to the conclusion, in my consideration of the taxing power of Congress before these cases were before us, that there was no substantial reason for supposing it was used by the framers of the Constitution exclusively in its more confined sense.

But I return to those clauses with which I have said the acts in question conflict. It will be conceded by all, that the fifth clause of the ninth section of the first article of the Constitution, declaring that "no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another," was intended to establish among them a perfect equality in commerce and navigation. That all should be alike, in respect to commerce and navigation, is an enjoined constitutional equality, which can neither be interrupted by Congress nor by the states. When Congress enacts regulations of commerce or revenue, it does so for the United States, and the equality exists. When a state passes a law in any way acting upon commerce, or one of revenue, it can only do so for itself, and the equality is destroyed. In such a case the Constitution would be violated, both in spirit and in letter.

Again, it is declared in the first clause of the eighth section of the first article of the Constitution, that all duties, imposts, and excises shall be uniform throughout the United States; that is, first, that when Congress lays duties, imposts, or excises, they shall be uniform; and secondly, that if, in the exercise of the taxing power, Congress shall not lay duties or imposts upon persons and particular things imported, the states shall not destroy the uniformity, in the absence of regulation, by taxing either. Things imported, it is admitted, the states cannot tax, whether Congress has made them dutiable articles or free goods; but persons, it is said, they can, because a state's right to tax is only restrained in respect to imports and exports, and, as a person is not an import, a tax or duty may be laid upon him as the condition of his admission into the state.

But this is not a correct or full view of the point. A state's right to tax may only be limited to the extent mentioned; but that does not give the state the right to tax a foreigner or person for coming into one of the states of the United States. That would be a tax or revenue act, in the nature of a regulation of commerce, acting upon navigation. It is not a disputable

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point, that, under the power given to Congress to lay and collect taxes, duties, imposts, and excises, it may, in the exercise of its power to regulate commerce, tax persons as well as things, as the condition of their admission into the United States. To lay and collect taxes, duties, and imposts gives to Congress a plenary power over all persons and things for taxation, except exports. Such is the received meaning of the word taxes in its most extended sense, and always so when it is not used in contradistinction to terms of taxation, having a limited meaning as to the objects to which, by usage, the terms apply. It is in the Constitution used in both senses. In its extended sense, when it is said that Congress may lay and collect taxes, and in a more confined sense, in contradistinction to duties, imposts, and excises.

The power, then, to tax, and the power to regulate commerce, give to Congress the right to tax persons who may come into the United States, as a regulation of commerce and navigation. I have already mentioned, among the restraints which nations may impose upon the liberty or freedom of commerce, those which may be put upon foreigners coming into or residing within their territories. This right exists to its fullest extent, as a portion of the commercial rights of nations, when not limited by treaties.

The power to regulate commerce with foreign nations and among the several states having been given to Congress, Congress may, but the states cannot, tax persons for coming into the United States.

It is urged, however, in reply to what has just been said, that, as the power to regulate commerce and the right to levy taxes are distinct and substantive powers, the first cannot be used to limit the right of the states to tax, beyond the prohibition upon them not to tax exports or imports. The proposition is rightly stated, but what is gained in these cases from it? Nothing. The sums directed to be paid by or for passengers are said to be taxes which the states have a right to impose, in virtue of their police powers, either to prevent the evils of pauperism or to protect their inhabitants from apprehended disease. But the question in these cases is, not whether the states may or may not tax, but whether they can levy a tax upon passengers coming into the United States under the authority and sanction of the laws of Congress and treaty stipulations.

The right in a nation or state occurs -- not in all cases, for there are international exceptions -- upon all persons and things when they come or are brought within the territory of a state. Not, however, because the person or thing is within the territory, but because they are under the sovereignty or political

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jurisdiction of the state. If not within the latter, the right to tax does not arise until that event occurs. States may have territorial jurisdiction for most of the purposes of sovereignty, without political jurisdiction for some of them.

The distinction is not mine. It has been long since made by jurists and writers upon national law, because the history of nations, from an early antiquity until now, shows such relations between them. The framers of the Constitution acted upon it throughout, in all the sovereign powers which they proposed that the states should yield to the United States. Martens properly says that to have a just idea of the states of which Europe is composed, we must distinguish those which are absolutely sovereign from those which are but demi-sovereign. The states of the German empire, for instance, and the Italian princes who acknowledge their submission to the empire -- and the German states, in their present Diet for great national purposes, with a vicar at its head, overtopping in might and majesty, but with regulated power, all before who have been emperors of Germany. I do not mean to say that the states of this Union are demi-sovereign to the general government in the sense in which some of the nations in Europe are to other nations; but that such connection between those nations furnishes the proof of the distinction between territorial sovereignty and political sovereignty. The sovereignty of these states and that of the United States, in all constitutional particulars, have a different origin. But I do mean to say, that the distinction between territorial and political jurisdiction arises, whether the association be voluntary between states, or otherwise. Whenever one power has an exterritorial right over the territory or sovereignty of another power, it is called by writers "a partial right of sovereignty." Is not that exactly the case between the United States, as a nation, and the states? Do not the constitutional powers of the United States act upon the territory, as well as upon the sovereignty, of the states, to the extent of what was their sovereignty before they yielded it to the United States? Can anyone of the sovereign powers of the United States be carried out by legislation, without acting upon the territory and sovereignty of the states? This being so, Congress may say, and does say, whence a voyage may begin to the United States, and where it may end in a state of the United States. Though in its transit it enters the territory of a state, the political jurisdiction of the state cannot interfere with it by taxation in any way until the voyage has ended; not until the persons who may be brought as passengers have been landed, or the goods which may have been entered as merchandise have passed from the hands of the importer, or have been

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made by himself a portion of the mass of the general property of the state. It is upon this distinction between territorial and political jurisdiction that the case of Brown v. Maryland rests. Without it, it has no other foundation, although it is not so expressed in the opinion of the court.

In these cases the laws complained of meet the vessels when they have arrived in the harbor, on the way to the port to which they are bound, before the passengers have been landed. And before they are landed they are met by superadded conditions in the shape of a tax, with which it is said they must comply, or which the captain must pay for them, before they are permitted to land. Certainly it is not within the political jurisdiction of a state, in such circumstances of a voyage, to tax passengers.

But it is said, notwithstanding, that the tax may be laid in virtue of police power in the states, never surrendered by them to the United States. A proper understanding of the police power of a nation will probably remove the objection from the minds of those who made it. What is the supreme police power of a state? It is one of the different means used by sovereignty to accomplish that great object, the good of the state. It is either national or municipal, in the confined application of that word to corporations and cities. It was used in the argument invariably in its national sense. In that sense it comprehends the restraint which nations may put upon the liberty of entry and passage of persons into different countries, for the purposes of visitation or commerce.

The first restraint that nations reserve to themselves is the right to be informed of the name and quality of every foreigner that arrives. That, and no more than that, was Miln's Case, 11 Peters. Nations have a right to keep at a distance all suspected persons; to forbid the entry of foreigners or foreign merchandise of a certain description, as circumstances may require. In a word, it extends to every person and everything in the territory, and foreigners are subject to it, as well as subjects to the state, except only ministers and other diplomatic functionaries, and they are bound to observe municipal police, though not liable to its penalties.

"The care of hindering what might trouble the internal tranquility and security of the state is the basis of the police, and authorizes the sovereign to make laws and establish institutions for that purpose, and as every foreigner living in the state ought to concur in promoting the object, even those who enjoy the right exterritorialy (such as sovereigns and ministers) cannot dispense with observing the laws of police, although in case of transgression they cannot be punished like native or temporary subjects of the state. "

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Police powers, then, and sovereign powers are the same, the former being considered so many particular rights under that name or word collectively placed in the hands of the sovereign. Certainly the states of this Union have not retained them to the extent of the preceding enumeration. How much of it have the states retained? I answer, unhesitatingly, all necessary to their internal government. Generally, all not delegated by them in the Articles of Confederation to the United States of America; all not yielded by them under the Constitution of the United States. Among them, qualified rights to protect their inhabitants by quarantine from disease; imperfect and qualified, because the commercial power which Congress has is necessarily connected with quarantine. And Congress may, by adoption, presently and for the future, provide for the observance of such state laws, making such alterations as the interests and conveniences of commerce and navigation may require, always keeping in mind that the great object of quarantine shall be secured.

Such has been the interpretation of the rights of the states to quarantine, and of that of Congress over it, from the beginning of the federal government. Under it the states and the United States, both having measurably concurrent rights of legislation in the matter, have reposed quietly and without any harm to either, until the acts now in question caused this controversy. The Act of February 25, 1799, 1 Stat. 619, will show this.

By that act, collectors, revenue officers, masters and crews of revenue cutters, and military officers in command of forts upon the coast, are required to aid in the execution of the state's quarantine laws. But then, and it may be observed particularly in reference to the acts of Massachusetts and New York now in question, the law provides that nothing in the act "shall enable a state to collect a duty of tonnage or impost without the consent of Congress"; that no part of the cargo of any vessel shall in any case be taken out, otherwise than as by law is allowed, or according to the regulations thereinafter established; thus showing that the state's quarantine power over the cargo for the purpose of purifying it or the vessel has been taken away. By the second section of the same act, the power of the states in respect to warehouses and other buildings for the purification of the cargo is also taken away, and exclusively assumed by the United States. And by the third section, in order that the states may be subjected to as little expense as possible, and that the safety of the public revenue may not be lessened, it is provided that the United States, under the orders of the President of the United States, shall purchase or erect

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suitable warehouses, with wharves and enclosures for goods and merchandise taken from vessels subject to quarantine, or other restraint, pursuant to the health laws of any state. And in regard to the word imposts, in the first section of the act, I may here remark, though I have heretofore given its meaning, that it means in the act, as well as it does in the Constitution, personal imposts upon a foreigner enjoying the protection of a state, or it may be a condition of his admission, Martens 97, as well as any tax or duty upon goods, and Martens, as well as all other jurists and writers upon international law, uses the word in the sense I have said it has also, as "imposts on real estates and duties on the entry and consumption of merchandises." Pp. 97, 98.

But further, by the police power in the states they have reserved the right to be informed of the name and quality of every foreigner that arrives in the state. This, and no more than this, was Miln's Case in 11 Peters. But after they have been landed, as is said in Miln's Case. And it was surprising to me, in the argument of these cases, that that admission in Miln's Case was overlooked by those who spoke in favor of the constitutionality of the laws of Massachusetts and New York, for the right of New York to a list of passengers, notwithstanding the passenger laws of the United States, is put upon the ground that those laws "affect passengers whilst on their voyage, and until they shall have landed." And

"after that, and when they shall have ceased to have any connection with the ship, and when, therefore, they shall have ceased to be passengers, the acts of Congress applying to them as such, and only professing to legislate in relation to them as such, have then performed their office, and can with no propriety of language be said to come in conflict with the law of a state, whose operation only begins where that of the laws of Congress ends."

That is that the passenger acts, as my brother CATRON has shown in his opinion, extend to his protection from all state interference, by taxation or otherwise, from the time of his embarkation abroad until he is landed in the port of the United States for which the vessel sailed.

The states have also reserved the police right to turn off from their territories paupers, vagabonds, and fugitives from justice. But they have not reserved the use of taxation universally as the means to accomplish that object, as they had it before they became the United States. Having surrendered to the United States the sovereign police power over commerce, to be exercised by Congress or the treatymaking power, it is necessarily a part of the power of the United States to determine who shall come to and reside in the United States for

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the purposes of trade, independently of every other condition of admittance which the states may attempt to impose upon such persons. When it is done in either way, the United States, of course, subject the foreigner to the laws of the United States, and cannot exempt him from the internal power of police of the states in any particular in which it is not constitutionally in conflict with the laws of the United States. And in this sense it is that, in treaties providing for such mutual admission of foreigners between nations, it is universally said, "but subject always to the laws and statutes of the two countries respectively," but certainly not to such of the laws of a state as would exclude the foreigner, or which add another condition to his admission into the United States.

And further I may here remark that this right of taxation claimed for the states upon foreign passengers is inconsistent with the naturalization clause in the Constitution, and the laws of Congress regulating it. If a state can, by taxation or otherwise, direct upon what terms foreigners may come into it, it may defeat the whole and long-cherished policy of this country and of the Constitution in respect to immigrants coming to the United States.

But I have said the states have the right to turn off paupers, vagabonds, and fugitives from justice, and the states where slaves are have a constitutional right to exclude all such as are, from a common ancestry and country, of the same class of men. And when Congress shall legislate -- if it be not disrespectful for one who is a member of the judiciary to suppose so absurd a thing of another department of the government -- to make paupers, vagabonds, suspected persons, and fugitives from justice subjects of admission into the United States, I do not doubt it will be found and declared, should it ever become a matter for judicial decision, that such persons are not within the regulating power which the United States have over commerce. Paupers, vagabonds, and fugitives never have been subjects of rightful national intercourse, or of commercial regulations, except in the transportation of them to distant colonies to get rid of them, or for punishment as convicts. They have no rights of national intercourse; no one has a right to transport them, without authority of law, from where they are to any other place, and their only rights where they may be are such as the law gives to all men who have not altogether forfeited its protection.

The states may meet such persons upon their arrival in port, and may put them under all proper restraints. They may prevent them from entering their territories, may carry them out or drive them off. But can such a police power be rightfully

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exercised over those who are not paupers, vagabonds, or fugitives from justice? The international right of visitation forbids it. The freedom or liberty of commerce allowed by all European nations to the inhabitants of other nations does not permit it; and the constitutional obligations of the states of this Union to the United States, in respect to commerce and navigation and naturalization, have qualified the original discretion of the states as to who shall come and live in the United States. Of the extent of those qualifications, or what may be the rights of the United States and the states individually in that regard, I shall not speak now.

But it was assumed that a state has unlimited discretion, in virtue of its unsurrendered police power, to determine what persons shall reside in it. Then it was said to follow, that the state can remove all persons who are thought dangerous to its welfare, and to this right to remove, it was said, the right to determine who shall enter the state is an inseparable incident.

That erroneous proposition of the state's discretion in this matter has led to all the more mistaken inferences made from it. The error arose from its having been overlooked that a part of the supreme police power of a nation is identical, as I have shown it to be, with its sovereignty over commerce. Or, more properly speaking, the regulation of commerce is one of those particular rights collectively placed in the hands of the sovereign for the good of the state. Until it is shown that the police power in one of its particulars is not what it has just been said to be, the discretion of a State of this Union to determine what persons may come to and reside in it, and what persons may be removed from it, remains unproved. It cannot be proved, and the laws of Massachusetts and New York derive no support from police power in favor of their constitutionality.

Some reliance in the argument was put upon the cases of Holmes v. Jennison, 14 Pet. 540, Groves v. Slaughter, 15 Pet. 449, and Prigg v. Commonwealth of Pennsylvania, 16 Pet. 539, to maintain the discretion of a state to say who shall come to and live in it. Why either case should have been cited for such a purpose I was at a loss to know, and have been more so from a subsequent examination of each of them.

All that is decided in the case of Holmes v. Jennison is that the states of this Union have no constitutional power to give up fugitives from justice to the authorities of a nation from which they have fled. That it is not an international obligation to do so, and that all authority to make treaties for such a purpose is in the United States.

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The point ruled in the case of Groves v. Slaughter is that the State of Mississippi could constitutionally prohibit negroes from being brought into that state for sale as merchandise, but that the provision in her Constitution required legislation before it acted upon the subject matter.

The case of Prigg v. Commonwealth of Pennsylvania is inapplicable to the cases before us, except in the support which it gives to the construction of the police power, as stated in this opinion -- that it is applicable to idlers, vagabonds, paupers, and, I may add, fugitives from justice, and suspected persons.

Miln's Case I will speak of hereafter, and now only say that no point was ruled in it, either in respect to commerce or the right of the state to a list of passengers who may come by sea into New York after they are landed, which gives any countenance or support to the laws now in question.

The fear expressed, that if the states have not the discretion to determine who may come and live in them, the United States may introduce into the Southern states emancipated negroes from the West Indies and elsewhere, has no foundation. It is not an allowable inference from the denial of that position, or the assertion of the reverse of it.

All the political sovereignty of the United States within the states must be exercised according to the subject matter upon which it may be brought to bear, and according to what was the actual condition of the states in their domestic institutions when the Constitution was formed, until a state shall please to alter them. The Constitution was formed by states in which slavery existed, and was not likely to be relinquished, and states in which slavery had been, but was abolished, or for the prospective abolition of which provision had been made by law. The undisturbed continuance of that difference between the states at that time, unless as it might be changed by a state itself, was the recognized condition in the Constitution for the national union. It has that, and can have no other, foundation.

It is not acknowledged by all that the ninth section of the First Article of the Constitution is a recognition of that fact? There are other clauses in the Constitution equally, and some of them more, expressive of it.

That is a very narrow view of the Constitution which supposes that any political sovereign right given by it can be exercised, or was meant to be used, by the United States in such a way as to dissolve, or even disquiet, the fundamental organization of either of the states. The Constitution is to be interpreted by what was the condition of the parties to it when it

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was formed, by their object and purpose in forming it, and by the actual recognition in it of the dissimilar institutions of the states. The exercise of constitutional power by the United States, or the consequences of its exercise, are not to be concluded by the summary logic of ifs and syllogisms.

It will be found, too, should this matter of introducing free negroes into the southern states ever become the subject of judicial inquiry, that they have a guard against it in the Constitution, making it altogether unnecessary for them to resort to the casus gentis extraordinarius, the casus extremae necessitatis of nations, for their protection and preservation. They may rely upon the Constitution, and the correct interpretation of it, without seeking to be relieved from any of their obligations under it, or having recourse to the jus necessitatis for self-preservation.

I have purposely refrained from repeating anything that has been said in the opinions of my learned brothers, with whom I am united in pronouncing the laws of Massachusetts and New York in question unconstitutional. What they have said for themselves they have also said for me, and I do not believe that I have said anything in this opinion which is not sanctioned by them.

Having said all that I mean to say directly concerning the cases before us, I will now do what I have long wished to do, but for which a proper opportunity has not been presented before. It is to make a narrative in respect to the case of City of New York v. Miln, reported in 11 Pet. 102, that hereafter the profession may know definitely what was and what was not decided in that case by this Court. It has been much relied upon in the cases before us for what was not decided by the Court.

The opinion given by Mr. Justice Barbour in that case, though reported as the opinion of the Court, had not at any time the concurrence of a majority of its members, except in this particular -- that so much of the act of New York as required the captain of a vessel to report his passengers as the act directs it to be done was a police regulation, and therefore was not unconstitutional or a violation of the power of Congress to regulate commerce. In that particular and in that only, and, as it is said in the conclusion of the opinion,

"that so much of the section of the act of the Legislature of New York as applies to the breaches assigned in the declaration does not assume to regulate commerce between the port of New York and foreign ports, and that so much of said act is constitutional."

36 U. S. 11 Pet. 143. But as to all besides in that opinion as to the constitutional power of Congress to regulate commerce, except

Page 48 U. S. 430

the disclaimer in the 132d page, that it was not intended to enter into any examination of the question, whether the power to regulate commerce be or be not exclusive of the states -- and especially the declaration that persons were not the subjects of commerce, the opinion had not the assent of a majority of the members of this Court, nor even that of a majority of the judges who concurred in the judgment. The report of the case in Peters and the opinion of Mr. Justice Baldwin accidentally excluded from the report, without the slightest fault in the then reporter of the Court or in the clerk, but which we have in full in Baldwin's view of the Constitution, published in the same year, fully sustain what I have just said. I mention nothing from memory, and stand upon the record for all that I have said or shall say concerning the case.

The Court then consisted of seven Justices, including the Chief Justice; all of us were present at the argument; all of us were in consultation upon the case; all of us heard the opinions read, which were written by Messrs. Justices Thompson and Barbour in the case; and all of us, except Mr. Justice Baldwin were present in this room when Mr. Justice Barbour read the opinion which appears in Peters as the opinion of the Court.

The case had been argued by counsel on both sides, as if the whole of the act of New York were involved in the certificate of the division of opinion by which it was brought before this Court. The point certified was in these words:

"That the act of the Legislature of New York, mentioned in the plaintiff's declaration, assumes to regulate trade and commerce between the ports of New York and foreign ports, and is unconstitutional and void."

In the consultation of the judges upon the case, as the report shows, the first point considered by us was one of jurisdiction. That is that the point certified was a submission of the whole case, which is not permitted, and was not a specific point arising on the trial of the cause. The Court thought it was the latter, principally for th

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PASSENGER CASES, 48 U. S. 283 (1849)

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Passenger Cases, 48 U.S. 7 How. 283 283 (1849)