48 U.S. 283
7 How. 283
12 L.Ed. 702
GEORGE SMITH, PLAINTIFF IN ERROR,
v.
WILLIAM TURNER, HEALTH-COMMISSIONER OF THE PORT
OF NEW YORK.
JAMES NORRIS, PLAINTIFF IN ERROR,
v.
THE CITY OF BOSTON.
January Term, 1849
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. The 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, 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 any one 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 of Judicature of the People of the State of New York overruled the demurrer, and gave judgment for the plaintiff, on the 28th of 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 the 20th of 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 harbour 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.
"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, 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, mained, 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 are 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.
The case of Smith v. Turner was argued at December term, 1845, by Mr. Webster and Mr. D. B. Ogden, for the plaintiff in error, and by Mr. Willis Hall and Mr. John Van Buren, for the defendant in error; at December term, 1847, by the same counsel upon each side; and at December term, 1848, by Mr. John Van Buren, for the defendant in error.
The case of Norris v. The City of Boston was argued at December term, 1846, by Mr. Webster and Mr. Choate, for the plaintiff in error, and by Mr. Davis, for the defendant in error; at December term, 1847, by Mr. Choate, for the plaintiff in error; and at December term, 1848, by Mr. Webster and Mr. J. Prescott Hall, for the plaintiff in error, and by Mr. Davis and Mr. Ashmun, for the defendant in error.
It is impossible to report all these arguments. If it were done, these cases alone would require a volume. The Reporter selects such sketches of the arguments as have been kindly furnished to him by the counsel themselves, and omits those for which he would have to rely upon his own notes.
The arguments reported are those of Mr. D. B. Ogden and Mr. J. Prescott Hall, for the plaintiff in error, and Mr. Davis, Mr. Willis Hall, and Mr. Van Buren, for the defendant in error. Mr. Ogden argued the New York, and Mr. J. Prescott Hall the Boston case. On the other side, the New York case was argued by Mr. Willis Hall and Mr. Van Buren, and the Boston case by Mr. Davis. Although the arguments are placed in the usual order, namely, one for the plaintiff in the first place, then those for the defendant in error, and then a concluding argument for the plaintiff in error, yet it is certain that some of these counsel never heard the arguments to which, from this collocation, they might be supposed to reply, arising from the different terms at which the arguments were made. The Reporter has observed the order of time in arranging them as he has done. He knows that some injustice is done to the counsel, but it is impossible to avoid it.
The points stated upon both sides were as follows, viz.:——
NORRIS v. CITY OF BOSTON.
On the part of the plaintiff in error it will be contended:——
1. That the act in question is a regulation of commerce of the strictest and most important class, and that Congress possesses the exclusive power of making such a regulation.
And hereunder will be cited 11 Pet. 102; 4 Wash. C. C. 379; 3 How. 212; 14 Pet. 541; 4 Met. 285; 2 Pet. 245; 9 Wheat. 1; 12 Wheat. 436; Federalist, No. 42; 3 Cow. 473; 1 Kent, 5th ed.; 2 Story's Const. 506; 15 Pet. 506; 3 N. H. 499.
2. That the act is an impost or duty on imports, and so expressly prohibited by the Constitution, or is in fraud of that prohibition.
And hereunder will be cited 4 Met. 285; 12 Wheat. 436; Dig. Lib. 1, tit. 3, De Leg. et Senat. Cons. § 29; 3 Cow. 738; 14 Pet. 570.
3. That it is repugnant to the actual regulations and legally manifested will of Congress. 9 Wheat. 210; 4 Met. 295; 11 Pet. 137; 12 Wheat. 446; 5 Wheat. 22; 6 Pet. 515; 15 Pet. 509; 14 Pet. 576; Laws U. S. 1799, c. 128, § 46; 1 Story's Laws, 612, 1819, c. 170; 3 Story's Laws, 1722, Laws of Naturalization, 1802, c. 28; 1816, c. 32; 1824, c. 186.
D. WEBSTER,
R. CHOATE, For Plaintiff in error.
SMITH v. TURNER.
The points on behalf of the defendant in error were thus stated by Mr. Willis Hall and Mr. Van Buren:——
I. This case involves precisely the same question that was submitted to this court in the case of the City of New York v. Miln, 11 Peters, 102, which, after two discussions, was decided, on full consideration, in favor of the State power.
II. The Constitution of the United States is a specific grant of certain enumerated powers, made to the Union by existing State sovereignties, coupled with prohibitions upon the States. If a given power is not granted to the Union or prohibited to the States, it is a demonstration that it belongs to the States.
III. The quarantine laws of the State of New York have been sanctioned and adopted by Congress, and frequently adverted to by this court with approbation.
IV. The quarantine charges are merely a common law toll, granted by the State to the Board of Health of the city of New York, in the exercise of an undoubted right, which the State has never, directly or indirectly, given up or abandoned.
V. An historical examination of the earlier laws of the State will authorize the three following conclusions, to wit:——
1. The people of the State of New York have acted in good faith. They have not, under color of quarantine or health laws, attempted to regulate commerce. They have had no object in view but protection from infectious diseases.
2. The people of the State of New York, when they adopted the Federal Constitution, did not understand it as depriving them of this right. They did not suppose their harbours were to be taken from them, but only that they were to allow the Union to use them for purposes of war and commerce. Had they understood it as now claimed, there is no hazard in saying it never would have been adopted. point contended for by the defendant in error is contemporaneous with its formation, and has been continued without objection for half a century.
The rule in Stewart's case therefore applies, 'that a contemporary exposition of the Constitution of the United States, adopted in practice, and acquiesced in for a number of years, fixes the meaning of it, and the court will not control it.'
VI. If the law in question is deemed to be in the nature of an inspection law, it lays no 'duty on imports or exports,' and therefore comes not within the prohibitions or provisions of the tenth section of the first article, or in any manner within the cognizance of the Federal Constitution.
But if, on the other hand, the court think the tenth section applicable to this law, then the section itself prescribes the only redress.
VII. It is not a regulation of commerce, because not so intended in fact nor by presumption of law; all the physical instruments or agents on which a regulation of commerce can act are merely means, and as such common to the States, unless expressly prohibited to them.
VIII. It is not 'an impost or duty upon imports,' because passengers voluntarily immigrating into the country by sea or land can in no sense be called 'imports.'
IX. The law in question, so far from being an infringement of Federal power, is exclusively within the State power. The end is the health of the city of New York, and of those who enter it, which is an object not committed to Congress. The means, a tax upon passengers equally removed from Federal jurisdiction.
Mr. D. B. Ogden, for the plaintiff in error.
This is a second argument in this case, which has been ordered by the court, it must be presumed, in consequence of a difference of opinion upon the case among the members of the court by whom the former argument was heard.
This admonishes me, that, however confident I may heretofore have felt that the judgment of the Court for the Correction of Errors in New York ought to be reversed, there must be great and serious doubts upon the subject. I therefore enter upon this second argument with a confidence certainly much lessened, but with a hope of success by no means extinguished.
By the Constitution of the United States, the people of the United States have vested certain powers in Congress, and the people of the several States have vested in their respective State legislatures other powers.
It is to be expected, that, in this complex system, composed of two governments, difficulties will arise as to the true line of distinction between the powers of the one government and the other.
To ascertain and point out with precision where that line is, and to say, both to the general and to the State governments, thus far shalt thou go and no farther, is the high and exalted duty of this honorable court. It is duty imposed upon it by the people of the United States, who have declared in their Constitution that the judicial power of the government shall extend to all cases in law or equity arising under the Constitution. No court ever held so exalted a station. It represents the sovereignty of the people of a great nation. Its decrees are the decrees of the people, and it is intended to secure to the people the benefits of their Constitution by keeping within their proper constitutional bounds all the other departments of both the general and State governments.
You are now called upon by the plaintiff in error in this case to examine and decide upon the constitutionality and validity of a law passed by one of the State legislatures. I feel and acknowledge, not only the importance, but the great delicacy, of the question before me.
I know, to use the language of the late chief justice in the great case of Fletcher v. Peck, that 'this court will not declare a law of a State to be unconstitutional, unless the opposition between the Constitution and the law be clear and plain.' The duty of deciding upon the constitutionality of this law, you must perform. You will decide it cautiously, not rashly,—with great care and deliberation, but at the same time with that fearlessness which the people of the United States, and my clients, who consider their constitutional rights violated by this law, have a right to expect at your hands.
Before I proceed to the argument of the particular points which arise in this case, I hope I may be pardoned in making one or two preliminary remarks. They are made with perfect respect for the court, and for every member of it; and they are made because, in my humble opinion, they ought never to be lost sight of by the court when considering a constitutional question.
In all our courts the judges are bound to decide according to the law of the land; not according to what they think the law ought to be, but according to the manner in which they find it settled by adjudged cases. The judges are bound by the most solemn obligations to decide according to the law as they find it. In cases where, perhaps, it was originally a question of great doubt what the law was, but it has now been rendered certain by a variety of judicial decisions, no judge would, in ordinary cases, although he might think the law should have been settled otherwise, feel himself at liberty to decide contrary to a series of adjudged cases upon the subject, but would feel himself bound to yield his opinion to the authority of such cases.
This court have always, in ordinary cases between man and man, adhered to this rule.
If this were not so, it will at once be perceived that the law would remain for ever unsettled, which would be one of the greatest misfortunes in a community like ours, who are governed by fixed laws, and not by the whims and caprices of judges, or of any other set of men. Lord Mansfield, in delivening one of his opinions, said that it was not so much matter what the law in the case was, as that it should be settled and known.
Now if, in questions originally doubtful, the good of the community requires that they should be considered as settled by adjudged cases, and what was doubtful before should be considered so no longer, I ask the court whether adjudged cases upon points of doubtful construction of the Constitution are not peculiary within the good sense and principle of the rule? If, in ordinary questions, it is the interest of the public that there should be an end of litigation as to what the law is, is it not emphatically the interest of the public that their great organic law should be fixed and settled?—that, in points upon which the construction of the Constitution is doubtful, (and it could only be when that construction is doubtful that the case could come before this court,) the construction given by adjudged cases should be adhered to?
If in ordinary cases between man and man it is important that the law should be settled, it seems to me that it is infinitely more important to the community that the construction of the Constitution should be settled. It is all-important to every citizen of the United States that he should know what his constitutional rights and duties are. This, in many cases, can only be learned by the decisions of this court. And if those decisions are to be changed with every change of judges, what are our constitutional rights worth? To-day they are one thing, to-morrow another.
Instead of being fixed and stable, they change with the opinions of every new judge, they become unstable as the wind, and our boasted constitutional rights may be said no longer to depend upon law, but we hold them according to the whims and caprice of the judges who may happen to be on the bench of this court.
I press this point no further. I repeat it, the observations which I have made upon it are submitted most respectfully to the court. I hope I have not pressed them in an offensive manner. I certainly mean not to do so. I feel their importance to my clients and to the people at large, and I hope the court will excuse any undue earnestness in my manner.
My clients feel that their constitutional rights, as settled by former adjudications of this court, have been violated by the law of New York, and they claim the benefit of the construction of the Constitution as settled by those former adjudications.
There is one other point to which I wish to call the attention of the court prior to entering upon the argument of the case. The rights of the State governments were urged with great vehemence by the counsel for the defendant in error upon the former argument. And in every argument which I have ever heard in this court, in which the validity of State laws came in question, the same argument has been urged, and pressed with equal vehemence. I have views upon this subject which I wish briefly to submit to the consideration of the court.
We talk a great deal of the sovereignty of the United States and of the sovereignty of the several States. I hold that the only sovereignty in this country is in the people. From them, humanly speaking, proceed all the powers possessed by those who govern them. I know and acknowledge no other sovereign than the people. Whatever powers the general government possess are given to them by the people. Whatever powers the State governments possess are given by the people in the several States. The whole sovereignty of the country being in the people, they have the right to parcel it out, and to place it in the hands of such agents as they, in their wisdom, think proper.
The people of the United States, and the people of every State in the Union, having, by their conventions, adopted the Constitution of the United States, and thus become parties to it, have given and vested certain powers in the government of the United States; and in the strongest terms have declared that all those powers are to be exercised independent of all authority of the local State governments, because they have made it incumbent upon the members of the several State legislatures to take an oath to support this Constitution, thus making the government of the United States, and intending to make it, supreme so far as the powers vested in it are granted by the people.
I apprehend, therefore, that the questions arising under this Constitution are, and must be, decided by the Constitution itself, without reference to State rights or to State legislation, or to State constitutions. This Constitution, as far as it goes, is paramount to them all.
This Constitution is a most solemn instrument, to which all the people of the United States are parties. In construing it, we must look at its words. Where they are plain, and their meaning certain, there can be no doubt that in construing it we must give the words their full effect. The great object is to find out and ascertain the intent and meaning of the people in adopting the Constitution, and where the words express that meaning clearly, there can be no room for cavil or doubt.
Where the words used are such as may bear two constructions, and it is a matter of coubt what construction they ought to receive, then we must resort to other means of construing it. We must examine, first, the reasons and objects for which the Constitution was formed and adopted, and take care that in giving a construction to it we do not thwart the object and intention of those who framed and adopted it.
In order to assist us in ascertaining what was the intention of any particular clause of the Constitution, we may refer to the proceedings of the convention by whom it was formed, and we may there discover what was their intention when they inserted the clause under consideration. And we may refer to early and contemporaneous constructions given to it by those who were called upon to act under it, because the persons who lived and acted at the time the Constitution was formed are more likely to know what was its intention than we are at this day; and it is upon this principle that contemporaneous constructions of any law are always resorted to, and deemed of great weight.
There is one other observation upon this point which I deem worthy of consideration upon this subject of State rights. The argument resorted to upon the other side is, and always has been, that the State governments were in existence anterior to the formation of the Federal government, that the State governments were perfectly free and independent governments, and that the Constitution of the United States is one of limited powers, and that all the powers not expressly given to it, and not expressly taken away from the State governments, remain in the State goverments. Let us examine this argument a little.
It is true that, when the government of the United States was first organized under the Constitution, there were existing in the Union thirteen separate independent States, all having constitutions formed and established, or recognized, by the people. These governments were organized by the people in the several States with such powers as the people chose to give them, but with no other powers. When the national government was formed, the powers of the State governments were, to a certain extent, taken away, and vested in the national government.
Since the establishment of the present government of the United States, the people, in many of the States, have done away with their old constitutions, and adopted new ones. This is the case in Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Maryland, and Virginia. Whether it be so in any other of the old States I am not sure. In Maine and Vermont in the East, and in all the new States in the West and Southwest, the State governments came into existence subsequent to the formation of the Constitution of the United States. And it is worthy of remark, that, in every one of these new constitutions, without, as I believe, a single exception, there is a provision that the members of the State legislatures and the judicial and executive officers shall take an oath to support the Constitution of the United States.
What is the meaning and effect of this provision? Does it not amount to a declaration by the people to the bodies constituted by the Constitution,—Remember, while we have given you certain powers, we apprise you that we have already given powers to the general government, and you hold the powers now given to you upon condition that you support the Constitution of the United States, and you shall take an oath to do so, before you shall exercise any of the powers with which we have intrusted you? This amounts to an acknowledgment of the supremacy of the government of the United States, and of the Constitution of the United States, so far as, by a fair construction of it, it goes. And what that construction is, this court are to decide. And, in my view of the Constitution, it is idle to talk of an invasion of State rights as a reason for not giving a fair and just construction to it.
The very thing the people intended when they adopted the Constitution of the United States was, that it should be the supreme law of the land, and that this court should have the power of construing it in all doubtful cases.
One of the wisest things ever said by Mr. Madison will be found in his account of the proceedings of the convention who formed the Constitution, at page 923, Vol. II., of the Madison Papers, where he says, 'There was less danger of encroachment from the general government than from the State governments, and that the mischiefs from encroachments would be less fatal if made by the former than if made by the latter.' And in page 924 he says, 'Guards were more necessary against encroachments of the State governments on the general government, than of the latter on the former.'
Having made these preliminary observations, which I think the case called for, and which I hope the court will not think out of place, I propose now to argue the case presented to the court by this record for its consideration. I shall confine my remarks entirely to the case from New York. I have purposely kept myself in total ignorance as to the facts and points in the Boston case. I have no concern in that case, and kept myself, therefore, ignorant upon the subject of it, lest in the course of my argument I might be led to say something in relation to a case with which I have no business to interfere.
Before entering upon the argument, it is necessary that the court should distinctly understand the points in controversy between us.
The action in the State court, the judgment in which this court are now asked to review, was an action of debt brought by the plaintiff, the health-officer of the city of New York, against the defendant below, in order to recover the sum of one dollar for each steerage passenger brought by the defendant, the master of a British ship, which arrived in New York with two hundred and ninety-five steerage passengers, brought on board the said ship from Liverpool, in England, to the port of New York. The plaintiff below claimed to be entitled to recover this amount from the defendant, upon the ground that he was entitled to recover it under and by virtue of an act of the legislature of the State of New York.
To this declaration the defendant filed a demurrer, alleging as a cause of demurrer that the statute of New York under which the plaintiff made his claim was void, it having been passed in violation of the Constitution of the United States.
The plaintiff joined in demurrer, and the only question therefore raised by the pleadings was the validity of the statute of New York on which the action was founded.
The action was commenced in the Supreme Court of the State. Upon the argument of the demurrer, the court sustained the validity of the law, and gave judgment for the plaintiff. The defendant below brought his writ of error, and carried the case up to the Court for the Correction of Errors in New York, the highest court in that State. The Court of Errors affirmed the judgment of the Supreme Court, and the case is now brought by writ of error to this court, under the provisions of the Judiciary Act of 1789.
The single question, therefore, presented to the court by this record is, whether the statute of the legislature of New York upon which the act is founded is an unconstitutional and invalid law, or whether it is a constitutional and valid law.
In order to decide this question, we must first understand what the law is. It will be found in the first volume of the Revised Statutes, 2d ed., p. 436.
'Sec. 7. 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 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.
'Sec. 8. The moneys so received shall be denominated hospital moneys, and shall be appropriated to the use of the marine hospital, deducting a commission of two and one half per cent. for collection.
'Sec. 9. Each master paying hospital moneys shall be entitled to demand and recover from each person for whom they shall be paid the sum paid on his account.
'Sec. 10. Every master of a coasting-vessel shall pay to the health-commissioner, at his office, in the city of New York, within twenty-four hours after the arrival of his vessel in the port, such hospital moneys as shall then be demandable from him; and every master, for each omission of such duty, shall forfeit the sum of one hundred dollars.'
By the thirteenth section it is made the duty of the commissioners of health to account annually to the Comptroller of the State for all moneys received for the use of the marine hospital; and if such moneys shall, in any one 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 part of the contingent charges of the city of New York, they shall pay over the surplus to the treasurer of the Society for the Reformation of Juvenile Delinquents in the city of New York, for the use of the said society.
It is by a subsequent section declared, that there shall be paid to the Society for the Reformation of Juvenile Delinquents the sum of eight thousand dollars.
By referring to the same book, 1 Revised Statutes, 2d ed., 417, it will be found that the board of health in the city of New York consists, besides the mayor of the city, of the health-officer, the resident physician, and the health-commissioner.
The health-officer is to reside at the quarantine ground, to board and examine any vessel arriving, &c., and to have the charge of the hospital at the quarantine ground.
The resident physician and the health-commissioner are to reside in the city, and shall meet daily at the office of the board of health in the city during certain portions of the year. And they are to receive an annual salary of one thousand dollars each, to be paid out of the moneys appropriated for the use of the marine hospital.
In page 425, section 43, all passengers placed under quarantine, who shall be unable to maintain themselves, shall be provided for by the master of the vessel in which they shall have arrived.
These laws, then, impose a tax upon all passengers arriving at the port of New York. Have the legislature of New York the constitutional power to impose such a tax? It is a tax, not only upon foreign passengers, but a tax upon every citizen of the United States arriving coastwise at that port. But we have in this case to deal only with that part of the act imposing a tax upon foreigners arriving in a foreign ship from a foreign port.
The principal ground upon which the validity of the law is attempted to be supported is, that it is a part of the quarantine system which it is essential for the safety and health of the city of New York that the legislature of that State should have the power of establishing, which power they never intended to part with when they adopted the Constitution of the United States.
Let us stop here and examine into the strength of this argument, which is the very corner-stone upon which the whole fabric of this statute is attempted to be reared and sustained.
That every community has a right to provide for its own safety is readily admitted. Salus populi est suprema lex, is a maxim always true in all nations, and is acted upon by all civilized, as well as all uncivilized, nations. I admit it in its fullest force. The quarantine laws of New York are upon this principle to be justified and maintained.
A brief reference to a part of their history may not be without its use in this case.
The Constitution having given to Congress power to regulate the commerce of the country with foreign nations and between the several States, under that power Congress have passed laws in relation to ships and vessels of the United States, as the means by which commerce is carried on, and therefore within their power as having the power to regulate commerce; and these regulations have made it incumbent on vessels arriving at the different ports of the United States to make entries at the custom-house within a given time, with a manifest of their cargoes, &c., and make provision that the cargoes shall be entered by the importers within a given time.
It was found that some of the provisions of the quarantine laws of New York interfered with these provisions of the court of the United States. These laws compel vessels to come to anchor at the quarantine ground, in certain cases to land their cargoes there, and contain several other provisions of this kind. It was stated by one of the learned counsel, that a correspondence upon the subject of these laws, after repeated visitations of the yellow-fever, took place between John Jay, the then governor of New York, and the President of the United States, upon the subject of these laws, which correspondence produced the act of Congress to which I shall presently draw the attention of the court.
It is certainly not necessary for me to say that John Jay was, not only one of the purest and best men this country has produced, but one of the best lawyers in the country, well acquainted with the Constitution, and familiar with all its provisions. He, together with Mr. Madison and General Hamilton, wrote the Federalist, a book well known to this court, and he was the first chief justice of this court.
Now, from the statement of the counsel, Mr. Jay was so strongly convinced that the exclusive power of regulating commerce was vested in Congress, that he believed that several of the provisions of the quarantine law interfered with the power of Congress, and that, although it was deemed by him and the legislature of the State that those provisions were essential parts of the quarantine laws, yet, in order to give them validity, an act of Congress was necessary. Hence his correspondence with the President, and hence the act of Congress to which I will now draw your attention.
It will be recollected as an historical fact, that, in the spring of 1794, Mr. Jay was sent as minister to England, for the purpose of endeavouring to make an amicable settlement of our differences with England, which then threatened an immediate war between the two countries. Mr. Jay's treaty was made in November, 1794; he returned to the United States in the spring of 1795, and was elected governor of New York during his absence.
The yellow-fever had first made its appearance, and raged with great violence, in Philadelphia, in 1793. In 1795, in the summer, it broke out in New York, and raged there with considerable violence. It was no doubt immediately after this fever had subsided that the attention of the governor and legislature of New York was called to the quarantine laws, and thus, no doubt, the correspondence of which the counsel has spoken took place between Governor Jay and the President. And we find in 1 Story's Laws of the U. S. 432, an act passed on May 27th, 1796, entitled 'An act relative to quarantine,' which authorizes the President to direct the revenue-officers, and the officers commanding forts and revenue-cutters, to aid in the execution of the quarantine and health laws of the States, in such manner as may appear to him necessary. This was a short law, consisting of one short sentence, in substance as I have stated it.
In February, 1799,—in less than three years afterwards, and after the yellow-fever had again made its appearance and raged with great violence in New York in 1798,—Congress passed another law on the subject, (Ibid. 564,) which declares, that 'the quarantines and other restraints which shall be required and established by the health-laws of any State, or pursuant thereto, respecting any vessels arriving in or bound to any port or district thereof, whether from a foreign port or place or from another district in the United States, shall be duly observed by the collectors and all other officers of the revenue of the United States.
'And the Secretary of the Treasury is authorized, in respect to vessels which shall be subject to quarantine, to prolong the terms limited for the entry of the same, and the report and entry of their cargoes, and to vary or dispense with any other regulations applicable to such reports.
'Provided, that nothing herein shall enable any State to collect a duty of tonnage or import without the consent of Congress.'
The other sections of the act relate to the manner in which cargoes are to be landed, &c.
Now this law shows, that, notwithstanding the great principle that every community has a right to provide for the safety of its people, by preventing the introduction of contagious and infectious diseases, yet, in the opinion both of Governor Jay and of Congress, so exclusive is the power of Congress to regulate commerce, that its aid and consent are necessary in order to give validity to the quarantine laws of the different States. And so cautious were Congress in giving their aid and consent, that they made an express condition in the proviso, 'that nothing herein shall enable any State to collect a duty of tonnage or import without the consent of Congress.'And if I shall hereafter succeed in proving that this tax upon passengers is an import duty, then it is not only prohibited by the Constitution, but by this act of Congress.
Having given this brief history of the introduction of the system of quarantine, I shall now proceed to inquire whether the law, the validity of which is not called in question, is a quarantine law.
I would here, however, premise, that in this argument the quarantine systems, such as they were, which were established by the legislature of the different States prior to the organization of the general government, can have no bearing upon the question now under our consideration, because anterior to that time there can be no doubt that the several State legislatures had a constitutional power to make such regulations upon the subject as they thought proper. Since the organization of the Federal government, the quarantine laws of the State are enforced by the consent of Congress in the acts to which I have already referred, subject, however, to the conditions imposed by these acts; and so far as the condition upon which the assent of Congress was given has been violated, the laws are void.
But the question which I now propose to discuss is whether the law, the validity of which is called in question, can be considered as a part of the quarantine system of the port of New York.
I understand the principle of these laws to be this. The State has the right, and it is imposed upon it as a most solemn duty, to provide for the safety of its citizens by preventing, as far as human means can prevent it, the introduction among them of contagious and infectious diseases.
This I understand to be the object and the end of all quarantine laws. In order to do this, the authorities of the State have the right to prevent the introduction into the city of New York of all persons laboring under an infectious or contagious disease. They have the right to prevent the landing of any merchandise or other thing which is deemed calculated to produce infection and disease. They have the right to prevent any ship or vessel, which is likely to have the seeds of contagion or infection on board of her, from coming to the city until properly cleansed. Having these rights, they must necessarily have all the rights and powers which are essential to their due exercise. They have, therefore, the right to board and examine every ship or vessel arriving at the port, for the purpose of ascertaining the state of health of the persons on board. They have the right to examine into the cause, as to its nature and state and condition. They have the right to examine into the state of the ship, and to have her properly cleansed, and they have a right to detain any ship or vessel at the quarantine ground for a length of time sufficient for all these purposes. All these rights are acknowledged and readily admitted to belong to every State in the Union. The expenses attending such examinations and searches may perhaps be considered in the light of port charges, and may therefore be properly chargeable to the ship or vessel. No complaint is made upon that subject. They are by the law charged upon the ship.
Now what has the passenger-tax to do with all this? Is it in any way necessary that this tax should be laid upon passengers? What is its declared object? It is to establish and support a marine hospital, to pay the salaries of a physician and his assistant, who reside in the city of New York, and to support a society for the reformation of juvenile delinquents or convicts.
Take the most favorable view of the case, and it is moneys raised, not to enable the authorities of New York to prevent the introduction of disease into that city, but to pay the expenses attending the exercise of the power of the State to protect its citizens from the consequences of disease already in the city. It is a tax to save the State the expense of protecting its citizens from disease within the city, and it is not a means of preventing the introduction of disease. It is a tax upon passengers for the benefit of the State of New York, and so the legislature of that State evidently consider it, by appropriating it to objects totally unconnected with the system of quarantine.
By an act of the legislature of New York, 2 Rev. Stat. 430, it will be found that the sums to be levied by the former law upon the master, mate, and seamen are no longer to be collected by the health-commissioner, but by the trustees of the seaman's fund, &c. And by section fifty-four, page 439, it is declared that the eight thousand dollars appropriated by the former act in aid of the Society for the Reformation of Juvenile Delinquents in the city of New York shall continue to be paid by the health-commissioner out of the moneys collected from passengers; but if the amount collected from passengers should be insufficient (after paying all the expenses of the quarantine establishment at Staten Island) to meet the eight thousand dollars more appropriated from the hospital funds for the support of the Society for the Reformation of Juvenile Delinquents in the city of New York, then the balance to make up the eight thousand dollars shall be appropriated annually from the State treasury.
This act is evidence of two things:——
1st. That the passenger-tax is no part of the quarantine system, but is resorted to as a means of paying the expenses attending its execution.
2d. That the funds are applied to the relief of the State treasury.
I have thus stated the reasons why the imposition of this tax cannot be considered as any part of the quarantine laws, and by declaring it to be unconstitutional this court will not in the least interfere with the quarantine laws of the States. This law imposes a tax; it is treated as a tax levied upon passengers throughout the whole law; and the only question in the case is, whether the legislature of the State of New York can, in consistency with the provisions of the Constitution of the United States, impose and collect such a tax, and it is to this question that my argument will be applied.
Similar provisions, it is said, are made in several of the States. I do not stop to examine into the provisions of the different State laws upon the subject, for this plain reason:—the more State laws that have been passed upon this subject, the greater the necessity there is of this court's interference. If the State legislatures have the power to impose a tax upon passengers, the amount of that tax must be fixed at such a rate as the different legislatures in their wisdom may think proper to fix it at. Hence the court will perceive that the tax upon a passenger arriving in the United States may differ, and in all probability will differ, in amount in each State having a seaport, and thus destroy that uniformity of taxation upon persons arriving here which nothing but an act of Congress can establish, and which the interest of the country requires.
The question now to be discussed is, whether the legislatue of the State of New York have a constitutional power to impose a tax upon foreigners arriving at the port of New York from a foreign port.
By the Constitution of the United States the people of the United States intended, instead of the old Confederation, to form a national government. However we may differ in our opinions as to the power of the general government upon some subjects relating to our internal affairs, I think all must admit, that, in regard to all our relations as a nation with other nations, or the subjects or citizens of other nations, the whole power of the country is placed by the people in the hands of the general government. Power is given to Congress to regulate commerce with foreign nations, to collect imposts and duties, to declare war and to make peace, to raise and support an army or navy. Power is given to the national government to make treaties, &c., with foreign nations; in short, to manage all matters which may arise between this nation and any other. This is the spirit of the whole Constitution; it was one of the causes, if not the principal cause, of its formation and adoption.
Now, what shall be the intercourse between the United States and a foreign nation, and between our citizens and their citizens or subjects, and upon what terms that intercourse shall be carried on, are clearly national questions, and as such must be decided upon by the national government. The States can have no possible constitutional power in any manner to interfere with it.
It can be no answer to this to say, that, until Congress pass some regulations upon the subject, the States may make their own regulations upon it; because this is a national question. It is a subject which the States have no right to touch or interfere with in any manner. It is a subject upon which the people have intrusted them with no power.
If I am right in this, it seems to me to follow, that whether foreigners upon their arrival in the United States shall or shall not be compelled to pay a tax, before they will be permitted to put their feet ashore in this land of liberty, is a question which belongs exclusively to the general or national government. If this be a correct view of the case, then it follows that, in passing the law the validity of which we are now discussing, the legislature of New York have exceeded their powers and authority, and have improperly trenched upon the powers of the national government, and their act is therefore void.
Let us pursue this point a little further.
If the legislature of the State of New York have the right to impose a tax upon foreigners arriving at the ports of New York, then the amount of the tax is necessarily wholly within their power and discretion. They may impose a tax of one dollar upon each passenger, or a tax of one thousand dollars. It will thus be plainly perceived that they may totally prohibit the importation of foreigners into the ports of New York, and thus thwart what may be considered the settled policy of the general government upon this subject.
Again, Congress have passed several laws in relation to passengers. They have, it is true, imposed no import duty upon their arrival in the United States. Does not this, in effect, amount to a declaration on the part of Congress that they shall pay no such duty? Is it competent for a State legislature to say, If Congress do not impose a duty upon passengers, they have not legislated on the subject,—we will therefore impose such a duty?According to this argument, if Congress think no duty should be paid upon foreign passengers arriving in the United States, yet they must impose some duty, or the State legislatures may impose such a duty as they in their discretion think proper.
Thus far my argument upon this point is that the whole subject of the admission of foreigners into the United States, and the terms upon which they shall be admitted, belongs, and must belong, exclusively to the national government.
I proceed now to take another view of the case.
The law of New York imposes a tax. It imposes a tax upon persons brought or imported into the United States. Is not that an impost?
The Constitution, in express terms, prohibits, the State from passing any law imposing duties or imposts on imports without the consent of Congress. The precise words of this section of the Constitution are worth attending to upon this point:—'No State shall, without the consent of Congress, lay any imposts or duties on imports or exports,' &c.
Not upon goods or merchandise imported, but upon imports, upon any and every thing imported or brought into the country. And the words include men, as well as merchandise. That the meaning of the word imports includes men as well as things cannot, it seems to me, be denied. In common parlance, we say, when a new manufacture is established, in which we have had no experience, we must import our workmen from Europe, where they have experience in these matters. When we speak of the great perfection which any particular manufacture may have arrived at in a short time, we say the workmen were imported from Europe.
But another clause in the Constitution throws great light upon this subject:—'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, but a tax or duty may be imposed on such importation not exceeding ten dollars for each person.'
I propose detaining the court for a short time by making a few observations upon this clause of the Constitution. It is a limitation upon the powers of Congress. Now, a limitation of a power admits the existence of the power limited. Congress, then, had by the Constitution, by the admission contained in this clause of it, power to prohibit the migration or importation of any persons other than citizens of the United States into the country, and they had the power, by the like admission, to impose a tax or duty upon such importation. If Congress had such power, whence did they derive it? What part of the Constitution gave it to them?They had power to collect and lay duties upon imports. They had power to regulate commerce with foreign nations, and they had all the powers necessarily belonging to a general national government, as it regards foreigners.
As the limitations in that clause of the Constitution were imposed but for a limited time, and as that time has long since expired, Congress now possess all the powers which the Constitution gave them, subject no longer to the limitations contained in this clause, which has expired by its own limitation.
Congress have, therefore, now the power,——
1. To prohibit migration of foreigners altogether.
2. To impose such an import duty upon their arrival in the United States as Congress in their wisdom may think proper.
This, I presume, will not and cannot be denied.
Now, if Congress have that power, it is derived either,——
1. From the power to lay and collect import duties.
2. From the power of regulating commerce with foreign nations.
3. Or from its being an attribute necessarily belonging to the national government.
And if Congress derive the power from any one of these sources, their power is necessarily exclusive of any State authority upon the subject. As to imports, I have already shown that the States are expressly prohibited by the Constitution from laying or collecting any such duties. As to the power to regulate commerce with foreign nations, I intend to endeavour to show, in a subsequent part of my argument, that that power is also exclusive of the State legislatures. As to the authority derived from the fact, that it is an attribute of the national government, there can be no doubt that, in that view of the case, the State governments can have no concurrent power on the subject.
If, therefore, Congress possess the power of levying an import duty upon persons imported or brought into the United States, if they have the power to prohibit the importation of them altogether, no State can have such power, and the law of the State of New York is unconstitutional and void.
But it is said that this clause of the Constitution was only intended to be applicable to slaves which might be brought into the United States. It seems to me that this argument cannot avail the opposing counsel. Because, if this be so, then, as I have already shown that this clause was a limitation upon the powers of Congress, if that limitation extended only to slaves, then the powers of Congress, so far as they relate to free foreigners migrating to the United States, were left, and now exist, wholly unlimited, except so far as limitations may be found in the words of the Constitution or in the nature of the case.
But the convention intended, as the words of the clause evidently show, that the provision should not be confined to slaves. 3 Madison Papers, 1429.
Mr. Gouverneur Morris objected, that, as the clause now stands, it implies that the legislature may tax freemen imported. Colonel Mason admitted this to be so, and said 'that it was necessary for the case of convicts, in order to prevent the introduction of them.' With this explanation, the clause was passed unanimously.
I shall here leave this point in the case.
I think I have shown that this tax is an impost, and that the State of New York has no constitutional power to lay and collect it, without the assent of Congress, and if collected, it must be paid into the treasury of the United States.
But we were told upon the former argument, that no import duty could be laid upon white men. I have shown that such was not the opinion of the framers of the Constitution. But what is this law of New York? It imposes a tax upon every passenger brought or imported into the port of New York. Such a tax is an impost. And if it be true that no impost can be laid upon white men, by what authority does the State of New York impose such a duty upon every passenger, white or black, bond or free? Because we call it a tax, not an impost; as if a change of the name can alter the nature of the thing.
This law is not only an impost, but a regulation of commerce; and I propose now to inquire whether, as such, it must not be considered as unconstitutional and void?
In discussing this question, it is not my intention to go into a lengthened and minute consideration of the several cases which have been heretofore decided in this court, in which the validity of State laws has been the subject of decisions here. These cases were so fully considered in the License cases decided at the last term, that every member of the court must be familiar with them. To enter now into a labored examination of them would, therefore, be little less than a waste of the time of the court.
'Congress have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.'
What is the meaning of the word commerce in this clause of the Constitution? It becomes necessary to settle the meaning of the word. Chief Justice Marshall, in the case of Gibbons v. Ogden, 9 Wheat. 189, says, speaking of this word,—'The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce undoubtedly is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse.'
And in the same case, page 193, Chief Justice Marshall says, 'It has, we believe, been universally admitted, that these words comprehend every species of commercial intercourse between the United States and foreign nations.'
Commerce, then, is intercourse, and Congress have the power of regulating that intercourse; and, as I shall contend, the exclusive power of regulating the intercourse with foreign nations. The Constitution draws a plain distinction between the commerce with foreign nations and the commerce among the several States. If there were no such distinction, the law would have been differently expressed; the power to regulate the commerce of the United States would have included both.
Why is this marked distinction made in the Constitution?
The regulation of the commerce with foreign nations, including the regulation of all our intercourse with them, may, in many instances, materially affect the relation between us and foreign nations. It may often lead to war. It may become the subject of treaties. All which considerations show that it is a national question, from which the States must be absolutely excluded. Not so with the power of regulating commerce among the States. This is a mere internal matter among ourselves, with which foreigners can have nothing to do. They can know only the one government, and can do nothing with the State governments. The power to regulate this internal commerce is vested in Congress, and they may exercise it or not, as they think proper; and until they do exercise it, it is possible that the States may have power to regulate the matter among themselves. Not so with foreign commerce. Foreign nations know nothing of the States, and can look only to the general government. With respect to foreign commerce, it is essential that the regulations should be uniform throughout the whole country, so that the different nations should know the terms upon which their commerce or intercourse with this country can be carried on.
In all cases where the right of commercial regulations comes before this court, this distinction should never be lost sight of. In cases of commerce among the States, if Congress do not exercise the powers given to them, it may be matter of doubt whether the State legislatures may not make regulations of the commerce among themselves, and those regulations may be good until Congress shall undertake to make the regulations. And all the cases where it has been admitted by any judge of this court that the States have a concurrent power to make such regulations of commerce will be found to be of that nature. The two leading cases are Gibbons v. Ogden, 9 Wheat. 1, and Wilson v. The Black Bird Creek Co., 2 Peters, 245. They will both be found to be cases of internal commerce among the States.
In the case of the City of New York v. Miln, 11 Peters, the opinion of the court was delivered by Mr. Justice Barbour. He says,—'We shall not enter into any examination of the question whether the power to regulate commerce be or be not exclusive of the States, because the opinion which we have formed renders it unnecessary; in other words, we are of opinion that the act is not a regulation of commerce, but of police; and that, being thus considered, it was passed in the exercise of a power which rightfully belonged to the State.—If, as we think, it be a regulation, not of commerce, but police, then it is not taken from the States.' (p. 132.)
In that case, the law of New York was considered as a part of its system of poor laws, and was, therefore, held to be constitutional. But even in that case Judge Story dissented from the opinion of the court, and stated that Chief Justice Marshall had been of opinion, upon the former argument of the case, that the law of New York was unconstitutional.
In Judge Story's opinion, we find this paragraph (p. 161): 'The result of the whole reasoning is, that whatever restrains or prevents the introduction or importation of passengers or goods into the country, authorized and allowed by Congress, whether in the shape of a tax or other charge, or whether before or after arrival in port, interferes with the exclusive right of Congress to regulate commerce.'
And this is in strict conformity with the doctrine established in the case of Brown v. The State of Maryland, 12 Wheat. 419. That was also the case of an imported article from a foreign nation, upon which the plaintiff in error had paid a duty upon its importation. The State undertook, by law, to say that he should not sell it without a license.
The court decided that the duty required and paid upon the importation of the article was a regulation of commerce, and that, upon paying that duty, the importer had a right to sell the article; else the importation of it would be of no use to him, and he would have complied with the regulations of Congress to no purpose, if, after paying the duty, he could not sell the article, which was the sole and only object of its importation.
The court said, that, although the imported article was within the State, yet, so long as it remained in the original package in which it was imported, it could not be considered as having become so identified with the mass of property in the State as to subject it to the power of taxation by the State.
In support of the doctrine for which I am now contending, I beg to refer the court to the opinion of Judge Johnson in the case of Gibbons v. Ogden, 9 Wheat. 227, by which it will be found that he takes the distinction between foreign commerce and the commerce among the States. The court declared that the power to regulate is exclusive, although that was a case of collision between the State law and the law of Congress.
In the case of Brown v. The State of Maryland, the decision of the court was substantially the same.
I contend, then, both upon principle and upon authority, that the power to regulate commerce with foreign nations is vested in Congress exclusively; that the States have no power to interfere with it; that commerce means intercourse, and that passengers are as much a part of that commerce and intercourse as goods or merchandise; that no State has the power of making any regulations upon the subject, and most assuredly not of laying and collecting an import duty upon passengers imported or brought into the United States. 1 Tucker's Black., Appendix, page 150; 3 Madison Papers, 1585.
Before I leave this point of the case, I would call the attention of the court to the opinion of our State legislature upon this subject,—an opinion entitled to some little weight in this case. (Mr. Ogden here read the resolution passed by the legislature of the State of New York, in February, 1847.)
In the opinion, then, of the legislature of New York, passengers are a part of the commerce of the country, which Congress have the power to regulate, and the regulation of it belongs to Congress by virtue of the Constitution, and the State legislature cannot legislate on the subject. This, it seems to me, is the plain language of this resolution. Now, I think taxing passengers has something to do with regulating the commerce and intercourse between the United States and foreign nations, and in the language of the legislature in this resolution, that regulation 'belongs, by virtue of the Constitution, to Congress.'
The case of pilots has frequently been referred to as a regulation of commerce, and therefore within the powers given to Congress; and in these cases the power of Congress has never been held to be exclusive, but State laws are constantly passed on that subject, and their validity has never been questioned. I propose to make a few observations upon this subject.
The only power which Congress can possess over pilots must be derived from the power given to them to regulate commerce. There is no express power given as to the regulation of pilots. And unless the regulation of pilots can be considered as a regulation of commerce, it is not within the constitutional power of Congress.
And it may be well doubted whether the regulation of pilots can be considered as a regulation of commerce. Pilots are rather a necessary aid to the successful carrying on of commerce than a regulation of commerce itself.
A power to regulate commerce would hardly confer the power of regulating ship-carpenters, and yet they are essential to create the very means, and the only means, by which commerce can be carried on. Pilots are, it seems to me, rather to be considered as belonging to the port arrangements, such as the places where ships from different places may be anchored, as to the wharfage, &c., all of which are now considered as regulations of commerce, although the commerce of the country may be, and often is, materially affected by them.
The regulations of commerce should be uniform throughout the whole country. This never can be the case in the regulation of pilots. Different skill and experience are required at different ports. The distance which the pilot must conduct vessels is different at different ports; the dangers to be avoided are more numerous and greater at some ports than others. The charges of pilotage must, therefore, be greater at some ports than at others. No uniform regulations can, therefore, be made upon the subject. The whole spirit of the Constitution is, that the commercial regulations of Congress should be uniform throughout the whole country; and as it is impossible that the regulations of pilots should be so, it affords a strong argument to prove that their regulation never was intended to be given to Congress.
Again, the regulation of pilots can hardly be considered as a regulation of foreign commerce; it is a mere local matter, confined to particular ports and harbours, and may, therefore, be considered as a subject upon which the States may legislate, and their laws be valid, until they come in conflict with the laws of Congress.
And this seems to have been the understanding of Congress. At their first session under the Constitution, in August, 1789, in 'An act for the establishment and support of light-houses, beacons, buoys, and public piers,' we find a section declaring that all 'pilots in the bays, inlets, rivers, harbours, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress.'
The words of this section are peculiar. Congress make no regulations as to pilots, but leave them as they were regulated by the States. They are to continue subject to the regulation of State laws then existing, and such State laws as may hereafter be enacted by the States, until further provision shall be made by Congress;—seeming to act upon the principle that the State laws would be valid until interfered with by Congress.
The provision is found in an act for establishing and supporting light-houses, beacons, buoys, and public piers. The objects of the act are local, and though intended for the security and safety of the commerce of the country, they cannot be strictly called regulations of commerce. As to foreign commerce, no foreign nation could complain if we had no light-houses, no beacons, or buoys. These are things for our own advantage and convenience, by making our ports more accessible to ships and vessels. They are peculiarly advantageous to the particular ports near which they are found, and might, therefore, well be left to State legislation.
Noscitur a sociis. The provision in relation to pilots in this law is to be judged of by the other provisions found in the law, none of which can be considered as commercial regulations in the sense in which the terms are used in the Constitution.
The only other law ever passed by Congress in relation to pilots was passed on the 2d of March, 1837, which declares that it shall and may be lawful for the master or commander of any vessel coming into or going out of any port situate upon waters which are the boundary between two States, to employ any pilot duly authorized by the laws of either of the said States bounded on the said waters, to pilot the said vessel to or from the said port, &c.
It will be perceived, that this act does not pretend, in any part of it, to be a regulation of pilots. It regulates shipmasters, if it can be called a regulation at all, and it authorizes them to employ certain pilots; but it is no regulation of those pilots.
I have been thus particular upon the subject of pilots, because I am confident that Congress never have attempted any regulation of them; that any uniform regulation, which is the only regulation Congress could make on the subject, is, from the nature of the subject, impossible; and that the only provision Congress have ever pretended to make upon the subject is to consider them as local matters, like light-houses, &c., and therefore have left them properly to State laws.
There can be no doubt that any State may erect and maintain a light-house, may plant buoys and beacons for the benefit and advantage of its own ports and harbours. So may any individual, and these, although they may be extremely useful to commerce, cannot be called regulations of commerce. And pilots stand upon the same footing, and are so placed by the act of Congress of 1789.
We may say of the laws relating to pilots, as Chief Justice Marshall says of the inspection laws of the States, in his opinion in Gibbons v. Ogden:—'That these laws may have a remote and considerable influence on commerce will not be denied; but that a power to regulate commerce is the source from which the right to pass them is derived cannot be admitted.'
There is another clause in the Constitution which has some bearing upon this case, and which I shall briefly consider:—'No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.'
This clause, it is true, is a limitation upon the powers of Congress, and is not applicable in its terms to State legislation on the subject. But the words are general, and if Congress, who have the power of regulating the commerce of the country, and the revenue arising from that commerce, have no power to give the preference mentioned in this clause of the Constitution, surely a State which has no power to regulate commerce, and has nothing to do with the revenue derived from it, can give no such preference.
The intention of this clause in the Constitution evidently is, that the regulations of commerce and of its revenues shall be equal and uniform in all the ports of the United States. It was the inequality existing in these respects in the different ports of the United States which, more than any thing else, gave birth to the Constitution.
Now a very important part of the commerce and intercourse between the United States and Europe is the transportation of passengers. The passage-money received from passengers is a most important item in the freights carried by our merchantships. This tax upon passengers is in effect a tax upon the shipowner. He may, indeed, add it to the amount he charges for the passage. If he does so, he is compelled to charge so much more for a passage to New York than is charged to any other port. The great body of our immigrants, many of whom bring with them large families, cannot afford to pay an additional dollar for themselves and each individual of their families. and they will therefore said for other ports. The consequence is, that the ship-owner in New York must lose the passage-money altogether, or he must consent to pay the dollar himself.
The amount of this tax annually paid is much larger than is generally supposed. By the report of the commissioners of immigration, made on the 1st of October last, it appears that, from the 5th of May to the 30th of September, not quite five months, the number of passengers, foreigners, who arrived at New York was 101,546. For the remaining seven months of the year they may be fairly estimated at 100,000 more, making 200,000 in a year, which is a tax upon our ship-owners of $200,000 per annum.
The court will now see that these merchants have good reason for appealing to this court for the establishment of their constitutional right to be put upon a equal footing with the ship-owners in the other ports of the United States.
It is no argument against us upon this point to say, that some of the other States also impose a similar tax upon passengers. Because, if the different States have the power of imposing this tax, the amount of it will be varied according to the discretion of the different State legislatures, which proves the necessity that this whole matter should be exclusively under the regulation of Congress, in order to produce that equality and uniformity called for by the Constitution.
My argument upon this point applies with much greater force to the case of a foreign ship or vessel importing or bringing passengers to this country. Foreigners can only know us as one nation, and certainly would have great right to complain, if compelled to pay a different rate of duty at the different ports of the United States.
I have now stated the several grounds upon which I have supposed the law of New York, the validity of which is the question in this cause, to be unconstitutional and void. The public authorities in New York have always doubted the validity of the law. Collier's Report in January, 1842; Governor Bouck's Message; the act of the legislature of 1844.
These public documents show,——
First. That the validity of the law is considered as doubtful by the government of New York.
Secondly. That they are ready to abide by, and to submit to, any decision this honorable court may make upon the subject.
As a citizen of New York, I am proud to say that, although there is no State in the Union whose laws have been so frequently before this court as violating the Constitution, yet there is no State which has ever shown greater respect and veneration for the Constitution and for this honorable court, by always submitting without a murmur to its decisions. The pride of New York is, that she is a member of this republic,—that the republic has a Constitution made and adopted for the purpose of preserving the peace, prosperity, and happiness of the people. She believes that on the preservation of this Constitution depends our Union, that upon our Union depend the happiness and prosperity and the liberties of the people of these United States. And however, in New York, we may differ among ourselves upon minor points, the greatest wish of our hearts is that this Constitution and this Union may be perpetual.
NORRIS v. CITY OF BOSTON.
The following is a sketch of the argument of Mr. Davis, for the defendants.
He said he rose to address the court with unaffected distrust and difference in his ability to add any thing new in a case that had been so fully investigated. The only circumstance which inspired him with confidence was the order of the court directing the rehearing, which he thought would have been more usefully executed by confiding the case to other counsel; but he had found it not entirely easy to pursue this course, as the Executive of the State had manifested a wish that he should remain in the case.
The great question involved was the constitutionality of the act of Massachusetts of 1837, regulating the introduction of alien paupers. The plaintiff's counsel alleged, substantially,——
1st. That Congress has the exclusive power to regulate foreign commerce.
2d. That in a case like that of the law of Massachusetts it is unnecessary to prove any conflict with any law of the United States, for the act of Massachusetts assumes to regulate foreign commerce, which is of itself a violation of the Constitution.
3d. That the bringing in of alien passengers is a part of foreign commerce, and hence any attempt to regulate concerning them is a regulation of commerce.
4th. That nevertheless the law of Massachusetts does in fact conflict with certain legislation and certain treaties of the United States.
5th. That the law furthermore falls within certain provisions of the Constitution, which prohibit the levying of a duty on imports, and also on tonnage.
We contend, on the other hand,——
1st. That the power of Congress over foreign commerce is not exclusive, but is and has at all times been exercised, both in regard to foreign commerce and the commerce between the States, concurrently within the territory of the State, and that no regulation of a State within its territory has been or can be adjudged unlawful, unless it be repugnant to or incompatible with some law of the United States.
2d. That, consequently, although alien passengers are brought in by vessels engaged in foreign commerce, yet they must be subject to and obey the police laws of the State, unless such laws are in collision with laws of the United States.
3d. That the law of Massachusetts does not conflict with any act or treaty of the United States upon the subject of passengers.
4th. That it does not fall within the clause of the Constitution prohibiting the levy of duties on imports or upon tonnage, but is a police act for the regulation of paupers and pauperism.
I shall notice all these positions, but not in the order in which they have been stated.
First, I shall contend that the law of Massachusetts was not made for the purpose of regulating foreign commerce, although it affects it so far as is necessary in providing for the regulation of a class of persons connected with it, but it is in fact an act modifying the pauper laws of the State, and designed to mitigate, in some degree, the burdens attempted to be thrown upon us in subjecting us to support the alien poor.
This can be made manifest by tracing the history of our legislation upon this subject, and the causes which have led to it. It will appear that the Colony, Province, and State, each in turn, exercised a free, unrestrained authority over paupers and pauperism. I shall do little more than refer the court to some of the laws, and state in the briefest way their provisions.
In 1639, there is an act of the Colony providing for the poor, which evidently alludes to still earlier laws. (Ancient Charters and Colony Laws, 173.) This act made it the duty of towns, not only to provide for the poor, but for all alike, whether native inhabitants, alien sojourners, or transient persons.
In 1692, provision was made compelling the relatives of poor persons to contribute, when able, to their support. Ibid. 252.
In 1693, provision was made for the forcible removal of paupers, not only from one town to another, but out of the Colony; and further provision of the like kind was made in 1767. Ibid. 252, 662.
In 1720, the overseers of the poor were authorized and required to bind out as apprentices the children of paupers. Ibid. 429.
By the statute of 1793, c. 59, §§ 15 and 17, felons, convicts, and infamous persons are denied the right of landing in the Commonwealth, and shipmasters forbidden under penalties to bring in such.
By the statute of 1819, c. 165, masters of vessels, if required by the overseers of the poor in any town, are obliged to give bonds to indemnify the town for three years against any cost or charge from persons brought in, who might become paupers.
By the statute of 1830, c. 150, masters of vessels are required to give bonds to indemnify the towns where they may land alien passenger against liability for their support as paupers, unless excused from so doing by the overseers of the poor. And there is a further provision, that, by paying five dollars for any passenger, the claim for a bond should be commuted.
These various provisions were carried substantially into the Revised Statutes in 1836.
Thus stood the law at the end of nearly two hundred years from the first legislation now on record, by which it appears that the Colony, Province, and State had in succession asserted an unlimited power over paupers and pauperism. They asserted, not only the right to compel the body politic to provide for the poor, but they made the relatives within certain degrees contribute, if able; they bound out poor children, expelled from their territory paupers which belonged elsewhere, denied to such the right to come in, and also shut out convicts, felons, and infamous persons. They asserted manifestly the highest prerogative over the whole subject, and the State has, down to this time, considered its power in this respect unabridged. They went to the extent of determining for themselves of what and of whom their residents should consist, maintaining this right as well after the adoption of the Federal Constitution as before.
About the year 1830, perhaps a little later, the king of England appointed a commission to examine into the condition of the poor, and to report the evidence, and a plan of relief. By the increase of population and the introduction of machinery instead of the human hand in manufactures, the evil of pauperism had greatly increased, and demanded some expedient to mitigate its pressure.
This commission, after years of toil and taking an unexampled mass of evidence, reported it, with their comments thereon. The evidence comes from magistrates, parish officers, clergymen, &c., and discloses the most hideous details of poverty, distress, and profligacy that have ever been spread before the public. It may all be found in the public library in this capital, but it would require a month's labor to peruse it.
The great fact material here is, that the commission found that several of the parishes had already adopted emigration as the most sure and effectual method of obtaining certain relief. They had, therefore, raised money to pay the charges of shipping paupers to foreign lands. The commission give it as their opinion, that this mode of disposing of paupers promised much, and ought to be encouraged. The fruits of this policy were soon visible among us. Indeed, such a fraudulent conspiracy to relieve themselves, not only of the obligations of humanity, but of the expense of supporting their own helpless population, could not remain long concealed. Idiots, lunatics, the lame, the aged and infirm, women and children, were thrown upon our shore destitute of every thing, and our poor-houses were filled with foreigners in this hopeless and helpless condition.
The same plan of relief was also adopted at a later day on the Continent, and we seemed in a fair way to become the poor-house of Europe. The evil has gone on increasing, until not only the poor-houses and hospitals are full, but in Boston and New York immense sums have been expended in mitigating the sufferings of the alien poor and destitute.
The proof of these coming events was unmistakable farther back than 1837, when the act of Massachusetts now in question became a law. The State saw, not only parishes which were insensible to the dictates of humanity and capable of transporting their poor and destitute to unknown lands, there to leave them to the mercy of strangers, but relatives and kindred regardless of the ties of blood, who were willing to thrust from them the aged, the infirm, the insane, and the helpless, and to place them beyond the possibility of a return.
These were the circumstances which, in 1837, demanded legislation, and the act, in our view, met the exigency, and nothing more. It secures two things:—first, a bond to indemnify against the liability for the support of those wholly incapable of providing for themselves; and, secondly, two dollars for each and every other alien passenger. This bond and money must be furnished before the passengers are permitted to land.
It is admitted that the provisions of the act are reasonable, so far as regards the class who come in form a pauperis, but the law in other respects is alleged to be invalid. It was said, among other things, that we lay hold of a ship before she comes to our jurisdiction; but this is evidently a total misapprehension, for she must, by the terms of the act, be within our waters, in the port or harbour where the passengers are to be landed, before she is boarded and the passengers examined.
The act is in every feature manifestly a pauper law, growing out of pressing emergency, and although as lenient as the circumstances would allow, yet our right to make and enforce it is denied. We have seen that the State has exercised for two hundred years the right to make pauper laws. Can she do it now? I contend that this power is one of her attributes of sovereignty, which she has never surrendered, and now has the right to enjoy.
That she has not granted it to the United States, and that they do not possess it, is obvious. And it is equally obvious that the States have generally exercised this power since the adoption of the Constitution. In New York v. Miln, 11 Pet. 141, the court say the police power of New York could not be more appropriately exercised than in providing against the evils of pauperism. Also, at page 142, they declare pauperism to be a moral pestilence, as much requiring protective measures as contagion or infection. In Prigg v. Pennsylvania, 16 Peters, 625, the court say the right to expel paupers and vagabonds is undoubted. The same principle is recognized and approved in the License Cases, 5 How. 629.
These authorities, as well as the case of Holmes v. Jennison, 14 Peters, 540, place the right of the State not only to regulate, but to expel, paupers in a very clear light. The State having this right, has she so used it as to regulate unlawfully foreign commerce, or has she usurped the taxing power of the United States? The ground assumed is, that the power of Congress to regulate commerce is exclusive, and hence the State can make no law which affects such commerce without regulating it unlawfully.
This power is not, by the terms of the grant, any more exclusive than the power over the militia, or the right to make bankrupt laws. Upon examination of the adjudged cases, it will be equally manifest that the court have not so settled the question. There are dicta which seem to look that way, and some learned judges who have sat upon this bench have expressed themselves as satisfied with these dicta; but there are dicta, also, the other way, equally respectable.
The position assumed by the counsel is, that a State law made in the exercise of lawful power is unconstitutional, if it affects foreign commerce. This conclusion, I contend, cannot be maintained.
Gibbons v. Ogden, 9 Wheat. 1, is the leading case in which this question of exclusive authority has been agitated, and is the case supposed to give countenance to the idea, that the power is exclusive; and yet the court manifestly studiously avoid deciding the question. On the contrary, they give a construction to the powers and laws of the States irreconcilable with such exclusive rights as are now claimed. The court concede, in distinct terms, that the laws concerning pilots and pilotage, quarantine, health, harbours,—in short, police laws generally,—are constitutional, though they do interfere with, and to some extent regulate, commerce. They rest on the police power of a State exercised for necessary purposes, and are police laws,—not laws regulating foreign commerce.
It is obvious that police and municipal laws do and must exist, to a great extent, and must, from the character of our government, deal with and affect foreign commerce. Debts must be collected and crimes punished; ships must be under sanitary and harbour regulations; pilots are indispensable; in general terms, life, property, and personal rights must be protected. All such laws, in their application to those engaged in foreign commerce, must affect and influence, nay, often tend to regulate, that commerce. They cannot be executed without, and, moreover, most of them must be State laws, and cannot be supplied by the United States if they had power to do it. The court saw all this when considering Gibbons v. Ogden, and declare, in terms not to be misapprehended, that police laws come from the acknowledged power of the State. They are, says the chief justice, police laws,—not laws regulating commerce. The fact that they do affect commerce does not make them unlawful, though the influence amounts to regulation, because they are made for other lawful purposes, and are as indispensable to the public welfare as foreign commerce.
The court were manifestly of opinion, that health laws, harbour laws, and police laws generally, do not conflict with the power of the United States to regulate commerce, nor disturb the harmony of the governments; but both the States and the United States may and ought to exercise their respective powers together in the ports which are common to both.
The doctrine distinctly maintained is, that all police laws are constitutional unless in conflict with some law of the United States. This opinion is fully sustained in the case of New York v. Miln, 11 Peters, 102, and in the License Cases, 5 How. 504.
This is irreconcilable with the proposition of the plaintiff's counsel, that such a law may be unconstitutional without collision with a law of the United States, and proves, moreover, that the power to regulate commerce is not exclusive.
The extent of the police powers of the State, and their right to concurrent jurisdiction over foreign commerce, for many purposes, within a State, are illustrated in the same case in another way, still more conclusive. The court say that police measures may be similar to the measures of the United States, the forms of law may be the same as those employed by the United States to regulate commerce, and yet such police acts are not unconstitutional, unless they come in actual collision with the laws of the United States. The case, therefore, of Gibbons v. Ogden falls far short of maintaining the exclusive power over commerce which is set up in this case.
Thus stood the law in 1847, when the subject came under the consideration of the court in the License Cases, 5 Howard, when a majority of the bench concurred in opinion,——
1. That the question had not been judicially settled.
2. That the power to regulate foreign commerce is concurrent.
3. That there neither is nor can be any unconstitutionality in State laws regulating foreign commerce within State territory, unless such laws are in conflict with some law of Congress.
The question being thus finally disposed of, I come to the inquiry, whether there is any law of the United States in conflict with the law of Massachusetts. The plaintiff's counsel allege that such conflict does exist. But before examining the laws said to be in collision, I will ascertain, as far as I am able, the principles upon which unconstitutional conflict rests.
The Constitution of the United States declares that the laws of the United States shall be supreme; and it has been often held, that, in case of conflict, the law of a State must yield. But when does illegal conflict exist? What is the evidence of it? State laws may be similar to those of the United States, may act upon the same subjects and deal with the same persons, and not be in collision. State laws may control navigation, passengers, ship-owners, merchants, cargoes, &c., may enforce upon such civil process, criminal process, quarantine laws, health laws, pilotage laws, harbour laws, dock and wharfage laws, &c., and yet cause no collision, no repugnancy or incompatibility with the laws of the United States upon the same subjects.
It is not legislation upon the same subject, or every seeming conflict, then, that amounts to unconstitutional collision. The rule applicable to collision is laid down with some distinctness in 1 Story's Com. 432:—'In cases of implied limitations or prohibitions it is not sufficient to show a possible or potential inconvenience. There must be a plain incompatibility, a direct repugnancy, or an extreme potential inconvenience, leading to the same result.'A law may be potentially inconvenient, and yet constitutional. The system presupposes that the two governments must work together in the same territory, and upon the same objects, or they cannot enjoy the functions confided to them. The first object, therefore, is to harmonize their action, and reconcile as far as possible the exercise of the powers belonging to each. The one, for example, has the care of life and health, the other of commerce; but life and health cannot be protected without controlling commerce. The object, then, should be to harmonize both, by not bringing into conflict any laws which can be reconciled by a liberal and fair interpretation of the Constitution.
Hence it is that repugnance must be direct and incompatibility plain, and hence it is that mere inconvenience is not to be regarded, and hence it is that the rule substantially excludes all cases of collision, except those which cannot be reconciled. If a navigator be arrested on board of a vessel about to sail, or the ship be seized for debt, it is attended with inconvenience. If the vessel and crew are detained at quarantine, or she is compelled to deposit ballast in a particular place, it may be inconvenient; and so it may be to take and pay a pilot. And yet it is manifest that, in most of these matters, the States do and must hold the right to make and enforce laws, and the law of collision must conform to this state of things. Congress neither can, nor was it ever designed it should, provide for all the public wants and exigencies in seaports. Hence the necessity of a concurrent, instead of an exclusive, jurisdiction in the regulation of commerce.
With these remarks, I now come to the inquiry, whether the acts which have been referred to are in collision with the law of Massachusetts.
The act of 1799, c. 110, § 46, (1 Stat. at Large, 661,) exempts from duty the apparel, personal baggage, and mechanical implements of all passengers. The law of Massachusetts in no respect interferes with or impedes the execution of this act. It has no provision whatever in regard to apparel, baggage, or tools. Where, then, is the direct repugnancy, the plain incompatibility, required by the rule?
The act of 1819, c. 46, (2 Stat. at Large, 488,) secures to passengers ship-room, by limiting the number to two for every five tons, and has provisions, also, in regard to ship's stores. It requires, also, the master to report a list of the passengers.
These are all, except the last provision, designed to secure the comfort of the passengers while on the voyage. The law of Massachusetts neither impedes, modifies, nor changes any of the provisions. Indeed, the only thing in common to these acts and the law of Massachusetts is the fact that they relate to passengers.
This last-named act was considered in New York v. Miln, and the law of that State declared not to be in conflict.
It seems to be supposed that a State has no power to legislate in regard to passengers; but this is a misapprehension. Because, as I have shown, the State has the right, as it possesses concurrent power over the subject, and because it does and has exercised the power in regard to quarantine and health, subjecting passengers to detention and rigorous restraint. The pauper law of Massachusetts is as much a police act as the health laws, and there is as urgent necessity for guarding against the evils of pauperism as against contagion.
The counsel next referred generally to the naturalization laws, leaving us to infer that the law of the State is in conflict with all of them. This may be so, but I have not sagacity enough to see in what way this conflict exists, or how the process of naturalization has any connection with foreign commerce, as it cannot occur until long after the subjects of it have arrived in the country. The connection, if any, is too remote to demand notice.
It is next said to be in conflict with the treaty of 1794 with Great Britain; but this treaty was abrogated by the war. The treaty of 1815, in its first article, is not very dissimilar from the fourteenth article of the treaty of 1794. It secures reciprocal liberty of commerce to the subjects of each country; but the terms are express, that persons doing business in the one country or the other shall be subject to the laws where they are. The laws of Massachusetts cannot, therefore, conflict with any rights secured by that treaty.
On the whole, there is no direct repugnancy or plain incompatibility with any law or treaty of the United States, and therefore no unconstitutional conflict. Indeed, it would be more than difficult to distinguish this law of Massachusetts, in its influence upon foreign commerce, from numerous police acts of the States.
If no other objection than collision can be found against the law of Massachusetts, it must remain in force. But other objections are raised. The right of the State to collect of the owners of a vessel two dollars for each alien passenger is denied, and this provision is supposed to furnish proof that the act is a regulation of commerce. It becomes necessary, therefore, to inquire what right a State has to impose taxes, and whether it is restrained from imposing this tax upon shipowners.
On this point I find the doctrines held by the court so precisely and clearly laid down, that I shall do little more than cite the language of the bench. In McCulloch v. Maryland, 4 Wheat. 425, the court declare; that the power of taxation is of vital importance to a State; that it is retained by the States; that it is not abridged by the grant of a similar power to the Union; that it is to be concurrently exercised; and that these are truths which have never been denied.
In 2 Story's Com. 410, § 937, the author says,—'That the power of taxation remains in the States, concurrent and coextensive with that of Congress, the slightest attention to the subject will demonstrate beyond controversy.'
In the License Cases, 5 How. 582, the chief justice says: 'The State power of taxation is concurrent with that of the general government, is equal to it, and is not bound to yield.' Same case, p. 588, Justice McLean says:—'The power to tax is common to the Federal and State governments, and it may be exercised by each in taxing the same property; but this produces no conflict.'
Most of these principles are fully recognized in Providence Bank v. Billings, 4 Peters, 561.
In McCulloch v. Maryland, in answer to a suggestion that the States might abuse so unlimited a power if the law of the United States is not supreme over it, the court say:—'This vital power may be abused, but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the States. . . .. The only security against abuse is found in the structure of the government itself.' Again, at page 428—'It is admitted that the power of taxing the people and their property is essential to the very existence of the government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it.' Again, at page 429,—'It is obvious that the right of taxation is an incident of sovereignty, and is coextensive with it.' The sovereignty is, therefore, the limit of the power.
In Weston v. City of Charleston, 2 Peters, 449, it is said, 'Where the right to tax exists, it is a right which acknowledges no limits. It may be carried to any extent within the jurisdiction of the State.'
In Providence Bank v. Billings,—'The power may be exercised on any object brought within the jurisdiction.'
The power, then is vital, essential to the existence of a State, unabridged, concurrent, coextensive with that of the United States, coextensive with the sovereignty of the State, applies both to persons and property, knows no supreme law over it, may reach any object brought within the jurisdiction, and may be carried in its application to any extent the government chooses.
This summary of the power is sufficient. It needs no commentary, being as broad, comprehensive, complete, and exclusive as can be desired; and yet we are asked if the State can tax a ship or a passenger. There is manifestly no limitation, except the prohibitions contained in the Constitution. The State may tax ships, wharves, warehouses, goods, men of every description, though engaged in commerce, unless restrained by positive prohibitions.
This brings me to inquire what the prohibitions are. In art. 1, § 10, is found the following language:—'No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except, &c. . . .. No State shall, without the consent of Congress, lay any duty of tonnage.' These constitute the only limits to the power of taxation. It is in all other things concurrent and equal.
The law of Massachusetts imposes no duty either on imports or tonnage, unless a charge upon the owner, master, or consignee for bringing in alien passengers is a duty on imports or a duty on tonnage. What are imports? Are persons imports?
In Brown v. Maryland, 12 Wheat. 437, Chief Justice Marshall, in delivering the opinion of the court, says,—'An impost or duty on imports is a custom or tax levied on articles brought into the country.'
Again, he say,—'If we appeal to usage for the meaning of the word [imports], we shall receive the same answer: they are the articles themselves which are brought into the country.'
The prohibition relates to imports and tonnage alone; imports are the articles of merchandise brought into the country. Men are articles neither of merchandise nor tonnage, and cannot be imports, in any known signification of the term. No one thinks of calling men imports or exports or cargo, but passengers. They are never included in the manifest, or deemed a part of the cargo, nor are they subjected to any of the regulations which belong to imports. In New York v. Miln, 11 Peters, 136, the court say that goods are the subject of commerce; persons are not, nor do they belong to commerce.
It is supposed that the ninth section of the first article of the Constitution gives some countenance to the opinion, that men are imports; but this clause manifestly relates to slaves and the foreign slave trade, and the right to tax those persons imported was doubtless given to discourage the traffic. As soon as the twenty years ran out, Congress suppressed the traffic, which indicates clearly the understanding in regard to the provision. Moreover, the whole history of immigration shows clearly that the framers of the Constitution never anticipated interposing obstacles to it.
While, however, it is admitted that men are not usually classed with imports, yet it is contended that, in the form of imports, or as a tax generally upon commerce, the requirement of two dollars for each alien passenger is unlawful. I deny that any such inference can be drawn, without manifest violation of the constitutional rights of the States.
If any proposition is proved by authority piled on authority, it is that the right of taxation is coextensive with the jurisdiction of the State,—that it reaches all objects within that jurisdiction,—is uncontrolled by any superior power in the United States, having no limitations upon it except the prohibitions contained in the Constitution. Every thing except duties on imports and tonnage is left open for the State to exercise their authority upon it, when and in what manner they see fit.
The right to tax every thing connected with foreign commerce save these two things is unquestionable. This right is the thing declared by the court to be vital, sacred, indispensable to the existence of a State,—a right which cannot be relinquished,—a right not bound to yield to any other authority. This vital, sacred, fundamental right, the relinquishment of which cannot be presumed, is not a matter to be impaired or frittered away by construction. It cannot be diminished or invaded without plain and manifest authority for it from the Constitution. The State has a right, by the terms of the Constitution, to tax passengers, or ship-owners, or ship-masters, or any other class of men, because it had this right before the Constitution was made, and has not granted it away, or been prohibited the use of it. This substantive right is not covered or embraced by the terms of the prohibition, is a thing separate and distinct from imports and tonnage, and was designed to be left to the use of the States, as much as land or money at interest.
If the prohibition was intended to cover more than what every body understands to be imports and tonnage; if it were intended to exempt men or property from taxation because employed in foreign commerce, then the framers of the Constitution have utterly failed to express their meaning in intelligible language, which is highly improbable.
But if they did intend to limit the prohibition to imports and tonnage, as the language implies, how unjust it would be to enlarge that meaning so as to cover other things, by a forced, unnatural construction of the language! Both justice to the States and the sacred character of this right forbid that it should be impaired by such a process.
It seems to be supposed by the plaintiff's counsel, that, if a tax has any bearing upon foreign commerce, this fact is proof that the State is regulating commerce, and has no right to maintain such a tax.
The fact, that taxes upon men or property employed in foreign commerce, or connected therewith, would have a bearing upon it, and tend to regulate it, was as well known when the Constitution was made as at this time, and yet the right to impose such taxes is manifestly left in the States.
It is said, nevertheless, that a tax upon commerce in any form tends just as much to regulate it as if it were upon imports or tonnage. This may be true; but as this power was purposely left in the States to this extent, the presumption is, that the makers of the Constitution intended they should have the power to regulate commerce to this extent.
But if the doctrine contended for be admitted, it would utterly defeat all right on the part of a State to tax any thing connected with foreign commerce, as the tendency of all taxation on such property or persons is to regulate it. Capital, ships, warehouses, goods, men, all would upon this principle, be exempt, and yet we know, not only by practice, but from authority, that this unabridged right does extend to all these objects.
In 5 How. 576, the chief justice says:—'Undoubtedly a State may impose a tax upon its citizens, in proportion to the amount they are respectively worth; and the importing merchant is liable to this assessment like any other citizen, and is chargeable according to the amount of his property, whether it consists of money engaged in trade, or of imported goods which he proposes to sell, or any other property of which he is the owner.'
Nothing can be given to the United States by construction, which is not taken from the States. The terms of the prohibition are plain. No State shall lay a duty on imports or tonnage. Is this a denial of right to tax men or any other thing? Is any thing reserved exclusively to the United States except imports and tonnage? And if not, how can a State be denied the right to its sources of revenue to the fullest extent?
We think the boundaries of jurisdiction are plainly marked by the language of the prohibition, and that it would be an unpardonable violation of the rights of the States to cover objects which are manifestly excluded.
But the case of Brown v. Maryland, 12 Wheat. 419, is much relied on to authorize a blow at the rights of the States. By this decision, two questions were raised and settled.
1. That a tax of $50 upon an importer, as such, for a license to sell, and making it penal to sell the goods imported by himself before he pays such tax, is tantamount to a duty on the goods imported, and therefore within the prohibition of the Constitution.
This case assumes that, if an importer is thus taxed, and denied the right to sell before he pays the tax, he is taxed because he is an importer and engaged in that business, and such a tax is evasive in form, for in substance it is a tax or duty on imports. The court take the ground, that what cannot be done directly cannot be done indirectly, but that the act, which, when done indirectly, is equivalent to its being done directly, must be clearly the same thing as that which is forbidden. In other words, it must be a manifest case of evasion,—one about which there can be no reasonable doubt. The court admit the right to tax classes of men, but deny the right to tax the importer because he imports, for that is equivalent to a duty on imports.
The decision of the first point comes to this and no more. The State may levy any tax which is not obviously a duty on imports, but it cannot, by indirection, do the precise thing forbidden. It seems to us very clear that men are not imports, nor were they ever thought of by the framers of the Constitution as reserved sources of revenue to the United States.
2. The court decided that such a tax upon the importer was a regulation of commerce, and therefore unconstitutional. The court maintained, that the importer who paid a duty to the United States was in fact the purchaser of a right to sell his goods, and they determined that this right was secured to him while the goods in the original bale remained in his hands, but no longer. The right, therefore, is limited to the importer, and to goods in the original bale in his hands.
The court were of opinion, that the right to tax imports in the original bale, if exercised by the States, might be carried so far as to defeat the sale, and in that case the tax would regulate the disposition of the goods by frustrating the trade. They therefore come to the conclusion, that the right to import implied the right to sell, under the limitations which have been stated.
This doctrine is probably pushed quite as far as the Constitution will bear. But passengers are not bales of goods, or articles of commerce, nor are they brought in to sell. No trade is defeated or frustrated by the law of Massachusetts, nor is any commerce by water or on land regulated. The doctrine, therefore, maintained on the second point decided can have no application to the case under consideration.
There is, then, I apprehend, nothing in Brown v. Maryland which tends to render the law of Massachusetts one of questionable authority. Men, I repeat, are not imports, or articles of trade or traffic. If they are, I would ask, Who is the importer? Who trades in them? Who claims the right to sell? Nor is there any thing in the more general view of the question which can support the view that they are constructively imports. Why do not the counsel contend that they are tonnage? This has been done in the progress of this case, though it now seems to be abandoned. It was said at one time, that one of the acts of the United States connects passengers with tonnage, as it forbids masters the right to bring more than two for each five tons of shipping, and hence the tax of Massachusetts was alleged to be a tonnage duty.
Nothing can illustrate more forcibly the danger of converting a tax upon a ship-owner or master for bringing in passengers into a duty on imports or a duty on tonnage than the fact, that ingenious minds hesitate and disagree as to which of two classes of things so utterly different in their character it shall be assigned. It proves, what is true, that there is no similarity to either, nor any congruity in the association. I trust, then, the power of the court will not be strained to diminish an obvious right of the State, in order to add to the increasing power of the United States.
I will now, without pursuing this inquiry further, return to an inquiry which I reserved in the outset. I have maintained that the law of Massachusetts is a police law, and although I have argued the two-dollar assessment as a revenue measure, yet I maintain that the police power carries with it a right to provide for the expense of executing any law which the public exigency demands.
Before considering the right of raising money, I will invite the attention of the court to the rights which the States are acknowledged to possess in regard to police authority, that we may see whether the law of Massachusetts oversteps the known limits of that power in dealing with individuals, or with the United States, or in raising money.
In 16 Peters, 625, it is said,—'We entertain no doubt whatever that the States, in virtue of their general police power, possess full jurisdiction to arrest and restore runaway slaves, and remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers.'
In 5 How. 629, License Cases, Mr. Justice Woodbury says,—'It is the undoubted and reserved power of every State as a political body to decide . . . who shall compose its population, who become its residents, who its citizens, who enjoy the privileges of its laws, and be entitled to their protection and favor, and what kind of business it will tolerate and protect. And no one government, or its agents or navigators, possess any right to make another State, against its consent, a penitentiary or hospital or poor-house farm for its wretched outcasts, or a receptacle for its poisons to health and instruments of gambling and debauchery.'
In New York v. Miln, 11 Peters, 141:—'There can be no mode in which the power to regulate internal police could be more appropriately exercised' (than in regard to paupers). 'It is the duty of the State to protect its citizens from this evil; they have endeavoured to do so by passing, among other things, the section of the law in question. We should upon principle say that it had a right so to do.' 'We think it competent and as necessary for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against physical pestilence, which may arise from unsound and infectious articles imported, or from a ship, the crew of which may be laboring under an infectious disease.' (p. 142).
In Holmes v. Jennison, 14 Peters, the same doctrine is maintained. Also in Groves v. Slaughter, 15 Peters, 516, per Mr. Justice Baldwin.
In 5 How. 629, License Cases, Mr. Justice Woodbury says,—'Who does not know that slaves [for sale] have been prohibited admittance by many of our States, whether coming from their neighbours or from abroad? And which of them [the States] cannot forbid their soil from being polluted by incendiaries and felons from any quarter?'
The constitutions of Kentucky, Mississippi, Alabama, Missouri, Arkansas,—all States admitted by the acts of Congress to the Union,—have provisions in their constitutions authorizing the legislatures to exclude slaves brought in for sale from other places. Nearly all the Slave States have laws upon this subject, forbidding the introduction of slaves as merchandise under penalties. The Free States go farther, and so do some of the Slave States, and emancipate the slaves thus brought in in violation of law. There have been, and probably now are, laws in force raising a revenue out of the sale of negroes brought from one State to another. An account of most of these constitutions and laws may be found in Groves v. Slaughter, 15 Peters, Appendix, 75.
A particular and even minute examination of the provisions of these acts, and the power claimed by the States on this head, might be both useful and instructive; but I have no time to do more than invite the attention of the court to the subject, and make a few very obvious suggestions.
If they may, as these authorities certainly authorize them to do, exclude from their territory convicts, felons, vagabonds, paupers, and slaves, and if, as the Slave States claim, they may exclude and expel free negroes without violating the commercial powers of the United States, may they not manifestly exercise the lesser power of regulating the admission of any of these or any other classes of persons, and may they not prescribe the conditions upon which they shall be permitted to come in? If they may shut out or expel, does it not follow that the power to do so implies the power to make conditions?
Yet this is all that Massachusetts does. She says to shipmasters, If you will bring among us the insane, the imbecile, the infirm, and such as are incapable of providing for themselves, I will receive even these. I will permit those sent from the poor-houses of Europe to find a refuge here, but you shall indemnify me to some extent for the expense which will be incurred. You shall in one class of cases give bonds, in another pay a very moderate sum of money. I make this a condition upon which I open my territory to you.
I am aware that the regulations to which I have referred in regard to slaves have been considered regulations of police, and not regulations of commerce, although slaves are held and treated as property, being bought and sold like merchandise. If slavery can upon this ground be withdrawn from the commercial power of the United States, and committed exclusively to the States, then, I ask, how can those who entertain this opinion hesitate for a moment in regard to paupers and pauperism, which in no respect belong to trade, traffic, or commerce, but are manifestly subjects for police regulation? How, in a matter so clear, can the power and right of the State to regulate be doubted?
The law of Massachusetts has no reference whatever to foreign commerce, except as the instrument employed to inflict an injury upon the State. It is the avenue through which these persons are introduced, and is controlled just so far as is necessary to mitigate the evil and make it endurable, but no farther. Can we not do this? Is our right doubted and denied? Then I ask those who concede the power to enforce penalties for a violation of non-intercourse laws in regard to slavery, and the right to raise revenue when sales are made of slaves from one State in another, on what ground these laws can be sustained. If the law of Massachusetts comes within the wide grasp of the commercial power of the United States, which goes, not only to foreign, but to commerce between the States, how are such laws to escape? How have they escaped hitherto? Have we no right to control the mercenary shippers, who, stimulated by the hope of gain, are struggling to empty both the prisons and poor-houses of Europe upon us? I have read the language of this bench, in which they concede the right, and declare it to be our duty, to exercise our police power by protective and preventive measures. We are warned that it is as much our duty to provide against the moral pestilence of pauperism as against infection. We have not overstepped this boundary a hair's breadth; on the contrary, we have not come fully up to the advice, for we do not shut out the pestilence.
What kind of measures are we authorized to adopt? We may, under the authority and sanction of this court, determine who shall reside with us; we may shut out or expel vagabonds and paupers; we may guard against moral and physical pestilence; we may protect life, health, and property; we may stop the approach of that foreign commerce which brings contagion; we may say to a ship-master, You shall take a pilot,—you shall anchor here, and deposit your ballast there. In a word, we may give as much direction to commerce as is necessary to accomplish these objects.
This is what we may do,—it is what is conceded to us by the highest authority. When we exact bonds of indemnity for lunatics, paupers, aged and infirm persons, and those incapable of supporting themselves, is it doing more than to protect ourselves by very reasonable measures? When we exact of masters two dollars for each alien brought in, to be expended in relieving these alien paupers, whom, if we receive, we must support, is this a measure outside of what is recommended?
How are we met when we attempt to exercise the power conceded to us? If we attempt to meet pauperism in the great highway of its introduction, we are rebuked for regulating foreign commerce, although every body can see that, if this privilege be denied to us, we can take no effective measures to prevent its introduction; for we must see the persons and know their condition before we can decide what is expedient. Moreover, nothing can be effectual that is not felt by those who are chiefly instrumental in the introduction of such persons.
We may protect ourselves, say the court; but when, how, where? These are pregnant inquiries. Can we deal with paupers and pauperism as with contagion or infection? Can we hold those who bring the calamity upon us accountable? Can we protect ourselves as we do against the dangers of gunpowder and explosive articles, which put in peril life and property? We lay the burden of protective measures upon those who bring in such merchandise or such diseases.
What can a State do to avert or prevent, after the paupers and vagabonds are landed and mixed with the population? Such an exercise of the power conceded to us would be barren and useless. We must meet it on shipboard, as we do disease and dangerous merchandise. There we can put our hands upon the lunatics, idiots, aged and infirm paupers, &c. There we can learn what the ship-owner, the master, and the agents for emigration are about. There we can detect their conspiracy with the parishes of Europe to transfer their poor and their culprits to this country, to poison our morals and increase our burdens. There is the place, and the only place, to apply the corrective, where the evidence can lead to no mistake.
If we cannot meet the evil here, and regulate it here, the power to expel and the power to prevent are empty and worthless. The result will be, that ship-masters and traffickers in emigration can and will force upon us paupers, vagabonds, felons, and infamous persons, though we have an admitted power to expel them.
The Constitution was never designed to work out such results, results which are as injurious to the United States as they are to the States. If we cannot meet and control by suitable regulations the introduction of such persons, on what principle can the laws expelling or forbidding the introduction of free negroes be sustained? Such laws exist, and I apprehend it will be found difficult to sustain them on the ground of color alone.
But I have dwelt, perhaps, sufficiently on this question of power to admit or deny to persons the right to live among us. A still more important inquiry, though secondary in principle, arises as to the power to exact two dollars for each alien, as a condition upon which he may come to abide here? I contend that this feature of the law (although, in reply to the arguments of counsel, it has been treated as a revenue measure) is, in fact, strictly a police measure.
The counsel deny that the State has a right to take any money in execution of the law. I trust we have vindicated the right, as belonging to the reserved power of the State to tax whatever is within its territory; but whether we have or not, there can be little doubt that police laws carry with them the inherent right to raise in some form sufficient funds to execute the law.
It is upon this ground that fees are paid to pilots, and that masters are compelled to pay, whether they take a pilot or not. It is on this ground that ship-owners are obliged to pay the expenses, often large, of quarantine and health laws. It is on this ground that ballast laws and harbour laws are enforced. All such acts subject the party, either to expense or to what is equivalent.
These police acts all stand on the firm basis of acknowledged right. The authority of a State to maintain and enforce them is admitted. They are mostly precautionary measures, found necessary for the public welfare. The principle running through them all is, that those who give occasion to resort to corrective legislation must bear the expense. It may be a great misfortune to have contagion on board of a vessel; but those who sail her bring it in, and must bear the expense of the measures necessary to preserve the public health. This right goes, not only to the requirement of money, but to the destruction of property, when safety demands it. This principle is inherent in the police system, and if it were not,—if the expense of executing such laws could not be exacted,—they could not be executed at all. The State manifestly ought not to be required to pay pilots, or for the expense of quarantine.
Is there any well-founded distinction between this mode of employing police power and that adopted by Massachusetts? Is not protection against paupers just as necessary and as completely police in its character as the preservation of health?
Let us look attentively at the law of Massachusetts in this particular. It manifestly cannot be executed without expense. Officers, boats, and boatmen are necessary, for vessels must be boarded. The passengers must be examined, and bonds, in some cases, required. These are admitted to be appropriate measures, but they cannot be executed without money. Those who can give no bonds must be sent back, and this is attended with large expenses.
It is obvious that the amount of expense can neither be foreseen nor accurately estimated. What rule could, under such circumstances, be adopted for raising funds? The legislature, being left at discretion, thought, in the then existing state of things, a scale equal to two dollars each for such aliens as gave no bonds would be adequate to the exigency, and accordingly required the master to pay that much. And the Supreme Court of Massachusetts say, that it little more than covered the actual expense at the time this suit was instituted. There has since been a great increase of the number of aliens arriving annually in Massachusetts, and this fact is employed to lead the court to erroneous conclusions. We believe, however, the case is to be decided by the record, and if so, it will be seen that the record does not object to the amount of money raised, but to the right to raise any. The objection is to the power of the State to demand any. We say we have a right to enough to meet all expenses, at least, under any view of constitutional power which may be taken, and that an excess cannot be noticed by the court unless the fact appears upon the record.
I have now chiefly gone over the material considerations connected with this case, and feel deeply conscious that I have but too imperfectly discharged the duty imposed upon me. I will, however, briefly recapitulate the positions which have been assumed, that the court may, at a glance, see in connection the grounds upon which we stand.
1st. I have maintained that the law of Massachusetts is a police act for the regulation of paupers and pauperism.
2d. That the State has a right to make such laws, which are but a modification of a system which has been maintained by her people for two hundred years, who have and do claim the right of unqualified sovereignty in this particular.
3d. That although the Constitution gives to Congress the power to regulate foreign commerce, yet this is not an exclusive but a concurrent power, and that, consequently, the State may, within its own limits, regulate foreign commerce, provided it does not make laws for that purpose which are repugnant to the laws of the United States.
4th. That no such conflict or repugnancy does exist between the law of Massachusetts and any law of the United States, and therefore the law of Massachusetts is valid.
5th. That two views might be taken of that provision of the law which required the master to pay after the rate of two dollars each for all alien passengers brought into port and landed.
First, the counsel for the plaintiff maintains that it is a tax for revenue, and as such is a regulation of commerce. We meet them on this ground by saying, that the provision can be and is maintained under the taxing power of the State, which, being concurrent and coextensive with that of the United States, and equal to it, necessarily confers the right to tax navigators, owners, passengers, or any other class of persons engaged in commerce, unless the State is restrained by the prohibitions in the Constitution; that these are limited to duties on imports and tonnage; that men are neither the one nor the other, nor are they the subjects of trade and commerce, as they are not bought, or sold, or brought into the country by any one for the purposes of trade. They are, therefore, excluded from the prohibitions, and are left to the State as a resource of revenue, and may be taxed.
The other view follows out the principle upon which we start, namely, that the law is strictly a police act made to correct an existing and growing evil, and stands upon the same basis as the quarantine and health laws of the States. In looking at the subject in this aspect, we contended that the States do, and always have, exercised an extensive concurrent jurisdiction over foreign commerce, and those employed in it; that the laws of the States which relate to shipping, wharves, docks, piers, harbours, and the men employed in foreign commerce, are innumerable, and, as was well said by Mr. Justice Catron, so numerous and diversified that Congress could not supply them in a century. I said that hence the necessity of a concurrent exercise of the power over foreign commerce was apparent. Our system, as a whole, is complicated; two governments spread over the same territory, but for different purposes, must impinge upon each other occasionlly. But the day has gone by when we need feel any alarm from the strength of individual States. Virginia once held a twelfth of the political power in the Senate; now, she holds but a thirtieth, and her relative importance to the Union has waned beyond that proportion. The States, at every advance of the power and strength of the Union by an increase of the members of the confederacy, lose something of their relative importance and comparative strength. They go backward in the process, while the confederacy goes forward. This is a warning to us to take nothing from the power of the States to add to the power of the Union, for in the States lies the strength of the Union. This Federal government is wholly incapable of managing the great and complicated affairs of this widespread country. It cannot legislate for the local wants of Maine and Texas. These are supplied by the local legislatures of the States, whose powers are so great, so diversified, and so comprehensive, that, if this government were suspended in its operations, our persons and property would remain secure. Justice would be administered, and good order just as well preserved as it is now. The only material derangement would be in the foreign trade and commerce. It is manifest that our strength, and the durability of our system, lie in the federative principle,—in the organization of States, whose powers embrace every thing except a very few national objects. The limitation of this government to such objects alone gives to it its strength and usefulness, and the most unwise, if not the most fatal, course it can take will be to arrogate to itself the power of the States, by taking from them what they have been accustomed to enjoy through the whole Federal history. The counsel say the power over foreign commerce is exclusive, and no doubt this doctrine extends also to commerce between the States. Commerce consists of every thing belonging to trade and navigation. It is manifest, however, that the States have managed, controlled, and regulated at all times nine tenths of this intercourse. Their laws prevail, not only in the ports, harbours, cities, &c., but I know of no attempt on the part of the United States to regulate in any way the trade between New Hampshire, Vermont, Rhode Island, and Massachusetts, or that between New Jersey, Connecticut, and New York. The great markets draw their daily supplies from the neighbouring States, which in turn supply their wants from those markets. Hitherto the United States have wisely left all these things undisturbed in the hands of the States; but if ever a contest grows up concerning this power, the decision must be that it is concurrent, as the United States are utterly incompetent to supply the necessary legislation. This is sufficiently manifest, if we take this District of Columbia as an example of the capacity and ability of Congress to administer to local wants.
Such are the grounds upon which I have endeavoured to place the merits of the questions involved. We are opposed at every step, and whatever position we assume, it is alleged to be within the supposed mischief complained of. We are denied the right to board a vessel for the purpose of examining the passengers. We were always till now denied by the counsel the right to exact, in any case, a bond of indemnity for alien paupers; and as a bond is a contingent liability to pay money, it is difficult to see how it can be lawful, though it is now conceded to be so, while a claim for money is denounced as unlawful. The one right stands upon no better foundation than the other.
We are denied the right to demand money for any purpose. We can do none of these things without regulating unlawfully foreign commerce. We cannot meet and correct the evil of pauperism. England, Ireland, and Germany may empty their poor-houses upon us, and compel us to assume their burdens and to perform their duties to humanity, because we are passive, powerless instruments in their hands.
We do not believe that the States are thus shorn of their authority, or that the Constitution of the United States was ever designed to cover such broad ground, and therefore we feel confident that the law of Massachusetts is constitutional.
SMITH v. TURNER.
Mr. Willis Hall, for the defendant in error.
On the former argument of this cause, the distinguished counsel who will conclude this discussion illustrated it by supposing a citizen of the United States coming from Charleston by water to arrive in the harbour of New York; it may be a member of Congress, on his way to discharge his legislative functions in the Capitol, or it may be one of this honorable court, proceeding to his seat in this august tribunal. His progress is arrested, and he is not allowed to proceed until he has paid a dollar to an official of the State or city of New York. This is true. Nor is this citizen allowed to enter the city at all, if infected with the yellow-fever or any other infectious disease. And if he approaches the city by land, he will not be allowed to enter the ferry-boat at Jersey City until he has paid the toll.
It would be a truer illustration to suppose a citizen or an alien,—no matter whom, the President of the United States or the humblest individual that ever entered the harbour,—any person capable of being the vehicle of infectious disease,—to approach our city, bringing infection, bearing death to thousands,—an approach more dreadful than that of an invading army. He is repelled,—justly repelled,—by the express authority of the law of nations. (Vattel, Book 2, ch. 9, § 123.)
By whom is he repelled? By the Federal government? Under what clause of the Constitution? Under which of its powers? Under its commercial power?—A traffic in contagion! a tariff upon disease! Under its war power?—A war with the king of terrors! No. The State, and the State alone, has the power, and alone is charged with the duty, of repelling disease, and of guarding its confines from the entrance of whatever might injure its citizens.
To turn away the stranger to perish was uncivilized and unchristian; but long experience proved that it was also unsafe. Men thus desperately situated would find means to communicate with their friends on shore, and thus the infection would be propagated in spite of all efforts at prevention.
The perception of this necessity, increasing wealth, a better civilization, and a larger infusion of the Christian maxim, 'Do as you would be done by,' at length erected a hospital on the coast, in connection with the quarantine, for the exclusive use of all persons entering our harbour from the sea, until they can safely be permitted to enter our thronged city.
How should the expenses of the quarantine and its appurtenances be defrayed? By the passenger, or by the State? The State did not invite the stranger to her shores. He did not come for her benefit. The misfortune which has fallen upon or threatens him is not of her procuring. Why should she divide the evil with him?
It is eminently proper that the passenger should pay all reasonable and proper expenses. He receives all the direct benefit, and the maxim applies, 'Qui sentit commodum debit et sentire onus.' Here the State is indirectly benefited. So it is by a turnpike; but the traveller, who receives the direct benefit, pays the toll. So in Europe it is supposed that the safety of society requires the adoption of a law in every nation that no one shall travel through the territory without a passport, but the traveller, and not the State, pays for the passport. The State is under no obligation to permit the passenger to enter her territory at all. Nothing can be more reasonable, therefore, than that she should make it the condition of his admission, that he should pay all the expenses which his admission occasions.
The record in this case shows, that, some time in 1841, the plaintiff, as master of the ship Henry Bliss, brought into the port of New York, from Liverpool, a foreign port, and landed, two hundred and ninety-five steerage passengers.
1 Revised Statutes, p. 436, § 7, requires 'the health-commissioner of the port of New York to demand, and, in case of refusal or neglect to pay, to 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.:—For the master and each cabin passenger in a vessel arriving from a foreign port, one dollar and fifty cents. For each steerage passenger, mate, sailor, or mariner, one dollar.'
The defendant, as health-commissioner, demanded of the plaintiff, as master, & c., the sum of two hundred and ninety-five dollars for the use of the quarantine, for that number of steerage passengers brought by him in his vessel as aforesaid. The master refused to pay, and the health-commissioner sued, as required by the statute.
The action is debt on the statute. The master demurred, on the ground that the State law is contrary to the Constitution of the United States, and void.
The Supreme Court of New York overruled the demurrer, denying that the State law is contrary to the Constitution of the United States, and declaring that the principle involved is essentially the same as that involved in the case of New York v. Miln, 11 Peters, decided by this court in favor of the State law.
The master appealed from this decision to the Court of Errors, the highest court in our State, and that court unanimously affirmed the decision of the Supreme Court. From that court the master has appealed to this high tribunal, and the only specification which he makes of the unconstitutionality which he alleges against the State law is, that it is a regulation of commerce over which the State has no jurisdiction.
This cause has already been once elaborately argued before the court. Cases involving analogous principles have since been fully discussed by very eminent counsel. This re-argument which has been ordered admonishes me that the case itself has been thoroughly investigated by the court, which, after viewing it in every aspect, by the light of all the arguments which have been suggested, still finds itself perplexed with doubt and surrounded with difficulties.
Under these circumstances, far abler counsel might well despair of being able to present a new view of the case, or a new argument; but if I cannot hope to enlighten, I will promise at least not to detain the court longer than is necessary to run rapidly over the brief which I have prepared.
I. Our quarantine, as now established, rests upon two laws, both passed on the same day, both having a common origin, both made with obvious reference to each other, although by different legislatures, and both forming in fact but one law.
The first was passed by the State on the 27th of February, 1799. The second was enacted by the Federal government on the same day. To be understood, they must be collated and traced historically.
Far removed from danger, we now coolly discuss the provisions of laws made in the very agony of fear. We must retrace our steps; we must catch the spirit of the times before we can understand or appreciate the various provisions of those laws.
The State law is the one establishing the quarantine and marine hospital at Staten Island, and which adopts the provision as to passengers substantially as it now exists.
The law which in these days of State rights is sought to be overthrown, as going too far in asserting the separate existence of the States, was passed in the heyday of Federalism and consolidation. It was passed by a Federal legislature, a Federal council of revision, and signed by John Jay, as Governor. If it is obnoxious to the objections now urged against it, the objectionable clauses have not crept in through any oversight or inadvertence on the part of its framers. No law was ever better considered, both as to its efficiency for the purpose intended, and as to its collision with any law of the United States.
This obnoxious law was reported by a joint special committee, of which Aaron Burr was a member and De Witt Clinton was chairman. For ten years prior, the yellow-fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non-intercourse between New York and Philadelphia. This may be thought to conflict strangely with the doctrine, that the Federal government alone has jurisdiction of commerce between the States, but it may serve as an illustration that the police laws of the States are paramount; that when men are trembling for their lives, no commercial regulations can oppose a moment's obstacle. Fasts were proclaimed in Connecticut and in the neighbouring cities, and when the pestilence had subsided, thanksgivings were proclaimed in this and the neighbouring States. Governor Jay called the attention of the legislature to the subject in his message, and they responded by appointing a joint special committee of the Senate and Assembly, at the head of which they placed De Witt Clinton, then a senator from the city of New York, just commencing that glorious career which has since rendered his name immortal. This act of raising a special joint committee of the two houses is as rare, and almost as significant of great danger impending over the republic, as that of appointing a dictator in ancient Rome. This joint committee reported the law of 1799 as a supplement to the law of 1798. This law contemplated, by an express provision, that the aid of the United States should be sought as far as deemed necessary, and another provision of the law imposed a light charge upon passengers, for the purpose of supporting the establishment.
The system then established has continued without material variation to this day. It seems to have had two objects in view:——
1st. To cut off completely all intercourse between persons under quarantine and the city.
To effect this, the law required that the quarantine should be removed from Governor's Island, which was within three quarters of a mile of the city, to Staten Island, which was more than nine miles distant. It also required a plot of forty acres of ground to be purchased, and a wall to be thrown around it as high and impassable as that of a state prison, that no one might enter or escape without the permission of the health-officer. It also directed that a marine hospital should be built within the wall, and adequate accommodations prepared for all who should be sent to quarantine.
2d. The second object of the law was to cut off all communication between the vessel and goods, and the city.
To do this, they must put an end to the practice of suspected vessels breaking bulk at the wharves. They doubted their constitutional right thus to interfere with the landing of goods. They were puritanically scrupulous as to their federal duties. But neither Jay, nor Clinton, nor Burr, ever doubted their entire right over persons, either to prohibit their landing or to prescribe such conditions as they saw fit.
To obviate this constitutional difficulty as to their interfering with the landing of goods, they determined to apply to the Federal government. Accordingly, a clause was introduced into the law directing the Governor to make the application if he saw fit. This was the origin of the Federal law. The court will perceive that it is directly connected with the State law, and obviously made with reference to it. Governor Jay had already applied to the Federal government. He induced his friend, John Adams, to advert to the subject as follows, in his message of December 8th, 1798:——
'While, with reverence and resignation, we contemplate the dispensations of Divine Providence in the alarming and destructive pestilence with which several of our cities and towns have been visited, there is cause for gratitude and mutual congratulations that the malady has disappeared, and that we are again permitted to assemble in safety at the seat of government for the discharge of our important duties. But when we reflect that this fatal disorder has, within a few years, made repeated ravages in some of our principal seaports, and with increased malignancy, and when we consider the magnitude of the evils arising from the interruption of public and private business, whereby the national interests are deeply affected, I think it my duty to invite the legislature of the Union to examine the expediency of establishing suitable regulations in aid of the health laws of the respective States.'
In the response, which was then customary, from the Senate, they reply to this recommendation as follows:——
'Sympathy for the sufferings of our fellow-creatures from disease, and the important interests of the Union, demand of the national legislation a ready co operation with the State governments in the use of such means as seem best calculated to prevent the return of this fatal calamity.' Senate Journal, p. 21.
Thus it appears that neither the President not the Senate contemplated the establishment of a complete system, but merely a law auxiliary to the State systems. Of course it became necessary to examine the State systems, to see what aid was required, and especially the New York system, with special reference to which this legislation was called for.
In compliance with this recommendation of the President, Congress passed the law of the 25th of February, 1799.
This law begins by requiring the collectors and revenue-officers to observe the restrictions imposed upon vessels by the State health laws, and to aid in their execution. It next provides for landing goods elsewhere than at the wharves of a city. It then requires the parties interested to pay for storage of goods 'landed elsewhere,' &c.
Of this law it is to be observed,——
1st. That it confines itself entirely to goods, over which it was supposed, under its commercial powers and its exclusive right to collect, duties, it must exercise an exclusive control.
2d. That it provides no means of supporting the quarantine. This is a universal charge throughout Europe wherever quarantines are established.
This was not an oversight, for the law provides for the expenses of purifying and storing goods, but says nothing of the expenses of purifying, healing, and maintaining passengers. This omission is fully accounted for by the fact, that all the State laws, and especially the laws of New York, had already provided for the general expenses of the quarantine, and Congress had knowledge of those laws, and was satisfied with them. Another inference from the omission of this essential provision is, that Congress doubted its power to lay a tonnage or other duty for any such purpose. It certainly has no such power except under the general welfare clause, which was then stoutly denied by a party which, two years afterwards, gained the ascendency, which it has subsequently maintained.
3d. A third observation is, that it was passed on the same day with the State law which suggested to the governor the propriety of calling on the Federal government for aid, and the perfect understanding which existed at that time between the two governments leaves no room to doubt that it was passed mainly at the instigation of Governor Jay,—that it was made especially with reference to the New York law,—that the two laws form, in fact, but one,—that to be understood they must be read together,—that the Federal law contains not only a general, but a particular sanction of every section in the State law.
In reliance upon these two laws thus established, New York has gone to great expense in forming an adequate establishment for our harbour,—one which has protected the city since its complete establishment in 1805. Of its efficiency, a distinguished physician of New Orleans thus speaks:—'If the disease is not communicable by infection, how can we account for the fact that in a few years five physicians, health-officers for the quarantine of New York, have fallen victims to it, while there has not been a case known in that city for twenty-two years?'
From the foregoing facts another conclusion arises worth noting. New York has acted in good faith. Under color of police regulations, she has not attempted to regulate commerce. In her legislation, she has had no object in view but protection from disease.
II. The charge which the State, by her law, exacts from passengers arriving in the port of New York to support her quarantine, is merely a common-law toll, and may be defended on the same principles as the ferriage from State Island to the city. All the rules of a toll apply to it.
1st. It is established by the State for the support of work done for the public good, to be paid by those only who are especially benefited by it. 1 Mod. 474; Cro. Eliz. 711.
2d. It is supported by a good consideration, which is necessary to a toll. 2 Wilson, 296; 4 Taunt. 520; 10 Barn. & Cres. 508.
Those who do not go to the hospital receive a consideration, as well as those who do. The probability of advantage is as good a consideration as the actual enjoyment of the consideration.
Ramsgate harbour is supported by a toll upon all vessels, whether they enter or not, which come into a situation from which they would be compelled to seek refuge there in case of a storm. 3 Wm. Bl. 714.
If a port of refuge is a proper subject of toll at a point where it becomes essential in case of a storm, much more is a hospital of refuge, at a point where there is peculiar danger of disease, and when, without it, disease would be death.
This principle of charging those who receive no actual benefit is very common. It is sufficient to instance pilotage. It is part of every system of pilotage, that, if a pilot offers, the vessel must pay pilotage whether she receives or rejects him.
3d. There is an essential difference between a toll and a tax. Tax comes from a word that means the arrangement of the items of the public account. It has long since come to mean the charge which the government exacts of its citizens for its support. A tax is public, a toll private. A toll rests upon a good consideration. A tax is irrespective of consideration; it rests upon the authority of government alone; it is as imperative in a bad government as a good. That the distinction is a substantial one appears from the fact, that in England a toll may be granted by the king, but a tax can be levied only by an act of Parliament. Cro. Eliz. 559; 3 Lev. 424; 2 Mod. 143; 4 ib. 323.
In this respect, this case differs from the Massachusetts case, which was argued at the last term, and is about to be re-argued. There the two dollars exacted of the passenger for the benefit of the almshouse is applied to a purpose in which the passenger has no particular interest. It might as well have been applied to any other, or be paid at once into the treasury of the State, for its use for all purposes. It is, therefore, a tax, and rests upon the authority of government alone; but for the New York charge there is a fair equivalent,—it rests upon a private consideration.
III. In all ports, quarantine (including lazarettos) is now one of the established charges. It is of modern origin. None prior to the plague in Marseilles in 1720. McCulloch's Dict., Art. Quarantine; Howard on Lazarettos, passim.
The charge in England is much higher than it is here; indeed, the charge here is less than in any other commercial nation. The necessity of these establishments is now universally admitted by all disinterested persons.
The laws relating to quarantine in all nations are usually classed among municipal regulations. They are so in France. (See Dict. de Jurisprudence, Arts. Autorit e Municipale, and Salubrit e Publique.) They are so in England. Evans, in his collection of statutes, places them among police and criminal laws. (6 Evans's Statutes, 142.)
For convenience, quarantine charges in England are collected at the custom-house; but they are carried to the consolidated fund. (45 Geo. III. c. 10, § 7.) This fund is devoted to the support of the king's household and the civil expenses of the internal government. 1 Bl. Com. 331.
They are so also in Denmark. A remarkable illustration of this fact appears in the recent discussion of the 'Sound dues.' In a communication on the subject from the Secretary of State, (the distinguished counsel who concludes this argument,) attached to President Tyler's inaugural message of June, 1841, the Sound dues were complained of as unreasonable. When the territory on both sides of the Sound (it is said) belonged to Denmark, there may have been some foundation for the charge; but the territory on the north of the Sound has, for several centuries, been an independent nation. There is, therefore, no longer a pretext for the exaction. The distinguished counsel admitted that the port charges which arose in consequence of being compelled to go into port to pay the dues were properly payable, for they rested upon an equivalent. By turning to our own State papers (2 Com. and Nav. 144), it will be seen that one of these port charges is for quarantine.
Again, all the maritime States of the Union have considered quarantines as an internal municipal regulation, entirely within their jurisdiction, and no one has ever thought of applying to the Union on the subject, except where they have attempted to defray the expense by a tonnage duty, which can be laid by a State only by consent of Congress.
Virginia has never applied to Congress on the subject. She requires the master or owners of the vessel to defray the expense.
Pennsylvania and Delaware have never asked the assent of Congress to any law. They defray expenses precisely as is prescribed by the New York law.
Maryland, South Carolina, and Georgia have established their own systems, but they have preferred to defray the expenses by a tonnage duty. To do this, they were of course compelled to get the permission of Congress.
New York has considered them as municipal regulations under every dynasty. The first law on the subject on her statute-book appears in 1758. (2 Liv. and Smith, Col. Laws, ch. 199. She was then a Colony. All her commerce was then regulated in London, as now in Washington. Yet the execution of this law was in the hands of the Colonial authorities. They prohibited the vessel from landing, until examined and purified, and charged all expenses to the master. This interference was not considered a regulation of commerce by the mother country.
The same law was re enacted verbatim in 1784. (1 Greenl. 117.) New York was then a separate and independent sovereignty, and had her own custom-house and revenue officers. Yet the execution of this law was given, not to her revenue officers, but to the master and wardens of the port.
The third law was passed in 1794. (3 Greenl. 146.) New York had then become a member of the Federal Union. This law assumed the whole subject of quarantine, and all its appendages, as being under the exclusive control of the State.
Thus quarantine laws passed in three widely different dynasties preserve to the quarantine of New York the same municipal character.
This slight review of the New York laws cannot fail to impress upon the court, not only that she has always considered them essentially police laws, but that the construction which New York has put upon her rights to impose quarantine charges upon master, owner, or passengers was contemporaneous with the Constitution, and has been continued without objection more than half a century. We claim, therefore, the application of the rule in Stuart's case, that 'a contemporaneous exposition of the Constitution of the United States, adopted in practice and acquiesced in for a number of years, fixes the meaning of it, and the court will not control it.' (1 Cranch, 299.)
IV. All the legislation of the United States on this subject has been in corroboration and recognition of the State quarantine and health laws, and whenever this court has adverted to them, it has been to approve of them, as within the State authority, notwithstanding their admitted interference with commerce. The United States have passed three laws on the subject.
The first was the law of May 27th, 1796. (1 Story's Laws, 432.) This law simply required the President to direct the revenue-officers to aid in the execution of quarantine, and also the health laws of the States.
Hypercriticism may contend that the establishment of a marine hospital on the quarantine grounds, for the exclusive reception of infected persons thrown upon our coast from the sea, has nothing to do with quarantine. But it is absurd to say that it is not a pertinent and appropriate part of our health laws, and under the express sanction and protection of the United States law of 1796.
The second law was passed on the 25th of February, 1799. This law we have already examined, and found that the whole purport of the law, as well as the proposition in the President's message, was to come in aid of the State laws.
The third law was passed on the 13th of July, 1832. It simply authorizes the Secretary of the Treasury to employ additional boats, if necessary, to aid State quarantines.
These laws sanction the whole system of State quarantines, and every thing appurtenant to quarantines, such as hospitals, and the means of purification, and the preventing the spreading of contagion. Of these laws Chief Justice Marshall has said,—'The laws of the United States expressly sanction the health laws of a State.' (12 Wheat. 444.)
Again, the decisions of this court, in harmony with the laws of the United States, have always spoken with approbation of the health laws of the States. In Gibbons v. Ogden, Chief Justice Marshall holds the following language:—'The inspection laws form a portion of that immense mass of legislation which embraces every thing within the territory of a State not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those with respect to turnpike-roads, ferries, &c. are component parts of this mass.' (9 Wheat. 203.)
In numerous subsequent decisions, this court have always adverted to this class of State laws in the same strain.
To this it will be said, in reply, This doctrine is readily admitted, but a marine hospital is no essential part of a system of health laws. We answer,——
First, a marine hospital or lazaretto is connected with the quarantine in every nation in Europe.
Secondly, nearly a century's experience in our own port, with and without a hospital, has demonstrated its necessity.
Thirdly, the State, which has the sole discretion in the matter, has deemed it a necessary part of her quarantine.
A quarantine regulation is not merely a detention of forty, or twenty, or any other number of days. Instead of a detention, it may be a deviation, a requiring of passengers to be landed at a particular point, or it may be an order that the sick shall be received into a hospital made for the purpose, and cared for.
V. It must be admitted that the States may pass quarantine and health regulations, that is, laws to prevent the introduction of infection into their harbours. Consequently, they may resort to such means for that purpose, and to defray the expense, as they judge expedient, and as are within their jurisdiction.
The possession of the power to establish embraces the power to support. For example, the Constitution gives the power to Congress to establish post-offices. Under that power they have always exercised the right, without dispute, to exact postages.
It is a maxim in this court, laid down in the case of Miln and in numerous other cases, that a State has jurisdiction of all means not prohibited to it by the Federal or State constitution. It is not pretended that the means resorted to in this case are prohibited by the State constitution; nor could such prohibition, if it existed, be the subject of inquiry in this court.
VI. The whole controversy, then, reduces itself to the single question, Is the means which has been resorted to by the State of New York to support its quarantine and health laws—that of exacting a toll or tax of passengers—prohibited to it by the Federal Constitution? We confidently aver that it is not.
1st. This power, which is included in the power to prohibit the entrance or exit to and from the territories of the States, is nowhere given to the Federal government. It is nowhere granted as a substantive power. The power to grant ingress and egress to and from its territory belongs to every sovereign State. (Vattel, Lib. 2, ch. 7, § 98; 2 Ruth. Inst. 476.) They may, therefore, attach what conditions they please to this privilege.
In the distribution of the substantive powers of government between the sovereignty of the United States and the State sovereignties, those only which were expressly granted fall to the share of the United States; all others remain with the States. In 4 Wheat. 195, this court say:—'It does not appear to be a violent construction of the Constitution, and is certainly a convenient one, to consider the power of the States as existing over such cases as the laws of the Union may not reach.'
By a substantive power is meant a power which may be exercised, not as a means, but an end. It must be expressly granted, either directly and distinctly by name, or indirectly, as included in and adhering to some other granted power. This power is nowhere granted by name, nor is included in any other grant of power.
First, it is not included in the ninth section of the first article of the Constitution:—'The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year 1808; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.'
This is a case of migration, not of importation. This section gives Congress no power over migration. It recognizes a pre existing right in the States to exclude it at all times, and says Congress shall not exclude it before 1808. Where does Congress get the power to exclude it after 1808? The prohibition of the exercise of a power for a limited time, which Congress did not possess before at all, cannot give it to them. Congress cannot take power, not as a means, but as an end, by implication. Such a conclusion is effectually excluded by the tenth amendment:—'The powers not delegated to the United States, nor prohibited to the States, are reserved to the States or the people.'
Again, this section at the time was explained, and has ever since been construed, as having no other effect than giving Congress power, after 1808, to prohibit the slave-trade.
Judge Iredell, the leading member of the Convention from North Carolina, thus explains this section when submitted to the State convention:—'The Eastern States, who long ago have abolished slavery, did not approve of the expression slaves. They therefore used another, which answered the same purpose. . . .. The word migration refers to free persons, but the word importation refers to slaves, because free persons cannot be said to be imported.' (3 Ell. Deb., 1st ed., p. 98.)
Judge Wilson, who had the largest agency in forming the Constitution of any man except Madison, thus explains this section to the convention of Pennsylvania:—'Under the present confederation, the States may admit the importation of slaves as long as they please; but by this article, after the year 1808 the Congress will have power to prohibit such importation, notwithstanding the disposition of any State to the contrary. . . .. The gentleman says that it means to prohibit the introduction of white people from Europe, as this tax may deter them from coming amongst us. A little impartiality and attention will discover the care that the Convention took in selecting their language. The words are, 'The migration or importation of such persons, &c., shall not be prohibited by Congress prior to the year 1808, but a tax or duty may be imposed on such importation.' It is observable here that the term migration is dropped when a tax or duty is mentioned, so that Congress have power to impose the tax only on those imported.'
Here we have the express authority of Judge Wilson, (and there is no higher on a question of constitutional interpretation,) that this ninth section does not give Congress the power to tax free emigrants or passengers. The advocates for this power in the Federal government must look for some other clause in which this power lies concealed.
Secondly, we are told it is part of the power contained in the grant to Congress 'to regulate commerce.'
The term 'regulation of commerce' had a very definite and well-understood meaning at and before the Revolution. The phrase had become popularized by the disputes between the Colonies and the mother country. It was not understood to embrace any of the offices between ship and shore, such as pilotage, wharfage, quarantine, &c., all of which were regulated by colonial, and not by the laws of the mother country. (See Colonial Laws, passim.) It was not understood to embrace the right to levy duties for revenue, either upon persons or things. The assumption of the right to levy duties upon tea, under the pretence of regulating commerce, produced the Revolution. But the right to regulate commerce was conceded to England. In the address of the Continental Congress to the people of Great Britain they say,—'The Colonies are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign: but from the necessity of the case, and a regard for the mutual intercourse of both countries, we cheerfully consent to the operation of such acts of the British Parliament as are bon a fide restricted to the regulation of our foreign commerce.' (1 Journal, 28, 29.)
The regulation of commerce was considered as something great and international,—almost synonymous with the Navigation Acts, acts intended by Great Britain to secure the benefits of the commerce of her Colonies to herself, and to regulate her commercial intercourse with foreign nations. In this popular sense it was used by the framers of our Constitution. The grant of the power to regulate commerce to Congress was intended merely to substitute in this respect the new government for the old,—the United States for England.
Passengers are not the subjects of commerce. The power to tax them, if it existed in the Federal government, would not be by virtue of the power to regulate commerce. They never have been treated as such by the Federal government. Duties have been levied upon goods from the first, but never upon passengers. Passengers may be landed anywhere, but goods only in ports of entry. The payment of passage-money gives no more control over them than the payment of board gives the hotel-keeper control over his boarders. If the power to tax them is placed upon the general taxing power of the United States, that is universally admitted to be common to the States. This law of New York is, therefore, as constitutional as any other of her tax laws, even although Congress may tax the same things.
Again, the grant to Congress of the metaphysical power to regulate commerce did not carry with it any of the physical means of its exercise. The power to regulate, &c., is a mere capacity, a jurisdiction, an authority to make rules or laws. For example, the State has power to lay a poll tax of five dollars a head on every resident of this State. But does any one suppose that, by virtue of this power, the citizen may be called upon by a tax-collector to pay this sum? Must there not be a law to that effect? A mere power in the Federal or State government is latent and dormant; like the electricity of the air, it is unfelt and unseen until its energies are concentrated into the thunderbolt of a law.
It is palpable that the grant of power to regulate commerce will not authorize the collector to exclude passengers from our soil, or levy a tax upon them. There must be some law to that effect before he can move.
If there is any thing or any measure attached to the mere grant of the power to regulate commerce, and which passes with it, it is the right to lay a duty on tonnage. If the grant to Congress would of itself exclude the States from any act, it would from this. Yet Marshall tells us that the States would have had this right, had they not been expressly excluded from it by another clause in the Constitution. (9 Wheat. 202.) If the right to lay a duty on tonnage is not taken from the States by the grant to Congress of the power to regulate commerce, with what propriety can it be said that this grant takes from them the right to tax passengers?
Again. Laying duties on imports belongs especially to commerce. Yet Hamilton says the States would have had this right had they not been expressly prohibited. (Federalist, No. 32, p. 169.) And in neither case does the collector derive his authority to collect duties from the grant in the Constitution, but from express laws.
A similar idea is conveyed by Marshall in the case of Sturges v. Crowninshield, 4 Wheat. 196:—'It is not the mere existence of the power, but its exercise,' &c. Two conclusions follow:——
1. The mere grant of the metaphysical power by the Constitution does not carry with it any of the physical means necessary for its execution. It does not execute itself.
2. That although the power be exclusive, the means are not so.
This idea, that an exclusive power seizes upon the appropriate means of its execution and makes them exclusive also, has been a fruitful source of error. The argument is, A tax upon passengers is an appropriate means of regulating commerce; therefore the power to regulate commerce seizes upon it and converts it to its own nature,—that is, makes it exclusive, if it is itself exclusive.
This notion of a grant of exclusive power, carrying with it the means of its own execution, and assimilating them to its own exclusive nature, is not a mere abstract speculation, but has often been attempted to be enforced, as in this case, in practice. Thus in 1824 an attempt was made to compel the boatmen on the Erie Canal to take out coasting licenses, on the fallacious idea that the exclusive power of Congress over commerce gave an exclusive control over all the means of commerce. (De Witt Clinton's Message of 1824.)
The same assumption led to the case of Wilson v. The Blackbird Creek Marsh Co., 2 Peters, 245. In that case the legislature of Delaware had incorporated a company, and authorized it to build a dam across a tide-water navigable creek, actually used for navigation. It was thought that this means of commerce pertained exclusively to the commercial power, and that any interference with it was of itself, without any act of Congress, an infringement of the power to regulate commerce. But Chief Justice Marshall held that the power, without a law made in pursuance thereof, was nothing; that the repugnance of the State law must be to an act of the United States made in exercise of such power.
A similar case aroce in the courts of the State of New York, The People v. The Saratoga Railroad Co., 15 Wend. 114. The railroad company built a bridge over the navigable waters of the Hudson, above any port of entry, and interfering with no law of the United States. The court held, that though Congress had the power, yet that there was no repugnance to make the State law void till Congress had exercised the power by passing a repugnant act.
Still, it is objected that the law of the State of New York laying a tax or toll upon passengers is a regulation of commerce, and that Congress alone has power to make a regulation of commerce. Admitting that Congress has the exclusive right to make such regulations, this is not a regulation of commerce. Does it purport to be a regulation of commerce? Does the State undertake to regulate commerce? No. It purports and has been used for half a century as a regulation of health or quarantine. Is it an appropriate regulation of health? Yes, unquestionably. Why, then, is it called a regulation of commerce? Is it because it interferes with commerce? All quarantines must interfere with commerce more or less; yet this court has repeatedly declared that they are not on that account unconstitutional. Is it because it may be used as a regulation of commerce? So may a duty on tonnage. Yet Chief Justice Marshall says the States might use it for revenue purposes. It therefore became necessary to prohibit it by a distinct clause.
This court has repeatedly held that the States and the Federal government may do the selfsame thing in the exercise each of its respective and acknowledged 'Whilst a State is acting within the legitimate scope of its power as to the end to be attained, it may use whatsoever means, being appropriate to that end, it may think fit; although they may be the same, or so nearly the same, as scarcely to be distinguishable from those adopted by Congress, acting under a different power.' (11 Peters, 137.)
To say that a tax upon passengers may be resorted to by the Federal government as a means is saying nothing. Every act which may be done by the States may be resorted to by the Federal government as a means, if 'necessary and proper' to the exercise of a granted power.
It has been shown that this power to prohibit the entrance of passengers, or place any conditions upon their entrance, has never been granted directly or indirectly, as a distinct substantive power or as adhering to any other power, to the Federal government.
2d. This power has nowhere been prohibited to the States. All the prohibitions upon the States are found in Art. 1, § 10. The only clause which is alleged to prohibit the States from the exercise of this power is,—'No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for the execution of its inspection laws.'
1. This is not an impost or duty. The lighter takes the goods from the ship to the wharf for so much a ton. This is an impost in one sense, but not in the sense in which the word is used in this section. 'Impost or duty,' as used in the Constitution, means such as is laid by virtue of sovereignty alone, irrespective of consideration. But we have seen that the tax laid upon passengers by the State is, in fact, a toll resting upon a private consideration, as much as pilotage or wharfage, both of which are regulated by statute.
2. Passengers are not imports. That term is applied properly to things or slaves brought into the country as property without their own volition.
'Immigration applies as properly to voluntary as importation to involuntary arrivals,' (9 Wheat. 216,) is the declaration of Chief Justice Marshall.
Judges Iredell and Wilson, active members of the convention which formed the Constitution, also declare that import or importation was intentionally used to avoid the idea of its application to passengers or emigrants. (3 Ell. Deb., 1st ed., 98 and 251.)
Judge Barbour, in delivering the opinion of the court in the case of The City of New York v. Miln, says,—'Passengers are not the subjects of commerce, and are not imported goods,' &c. (11 Peters, 136.)
3. But admitting, notwithstanding these authorities, that passengers are imports, this section does not prohibit the States from laying any duty or impost upon imports, but from laying more than is 'absolutely necessary for the execution of its inspection laws.'
If passengers are imports, the law in question is an inspection law. Infected or decayed goods are thrown into the sea. Infected passengers are sent to the hospital, and the necessary expenses are defrayed by a duty laid by the State, by express authority of the Constitution.
Inspection laws apply to imports as well as exports. The nucleus of this provision as to State inspection laws was introduced into the convention by Colonel Mason, and applied only to exports. (3 Madison Papers, 1568, 1569.) It was afterwards modified, the word imports introduced, and it took its present form. (Ibid. 1584.)
Inspection of imports must relate principally to health. If, then, this toll or tax upon passengers is a duty upon imports, it is exclusively for the execution of a State inspection law. But it is objected, that in this case more is taken than is 'absolutely necessary.' This is denied. The State has advanced from its treasury, for the support and execution of this inspection law, more than it has received,—from the adoption of the Constitution to 1799, from $1,000 to $5,000 per annum; in 1799, $15,000; in 1809, $6,000.
During the war and the previous non-intercourse and embargo laws, from 1809 to 1815, the quarantine establishment, including the marine hospital, was sustained almost exclusively by the State. And the same must again occur whenever a foreign war arises.
If, then, in time of peace, there is a surplus, (which is not the case,) is it not proper that it should be applied to pay the debts of the establishment, and provide for its future wants?
Again, admitting that more is exacted than is 'absolutely necessary,' the abuse cannot be corrected in this way. The fact does not appear in the case. The State has had no opportunity of contesting this point. This case comes up on demurrer. But suppose the record presented the question of excess properly to the court. It could not pronounce it, on any principle, a defence to a party refusing to pay at all.
Besides, the Constitution itself prescribes the appropriate remedy for the evil:—'And the net produce of all duties and imposts laid by any State on imports and 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.' Constitution, Art. 1, § 10. This clause in the Constitution supposes that the State law may collect more than is necessary for the purpose, and that it is not for that reason void. The action for excess must be brought by the United States, and Congress must correct the State law. This is the appropriate remedy, and this court has nothing to do with the matter.
The conclusion is irresistible. If this section includes a tax or impost upon passengers, it contains also an authorization of the State law.
3d. Not only does the Constitution not grant the power over passengers to the Federal government, and not prohibit it to the States, but, from the foundation of the government, this power has been exercised almost exclusively by the States, without objection.
First, that this power of admission to their territories was purely a State power was the doctrine of the founders of our republic.
Those who formed the articles of confederation inserted the following article:—'The people of each State shall have free ingress and egress to and from any other State.' (Confederation, Art. 4.) From which it is to be inferred, that the power over ingress and egress was purely a State power, and that this article was necessary to restrict this power, so far as the citizens of other States of the Union were concerned; but it did not attempt to interfere with its exercise in relation to aliens.
When, a few years after the Federal Constitution was formed, (which was intended as a revision of the articles of confederation,) this article had been found defective in overriding the health laws of the States,—in absolutely requiring the admission of the citizens of other States, although they might bring yellow-fever with them,—the article was modified as follows: 'The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.' (Constitution, Art. 4, § 2.)
This section was intended to authorize the exclusion of the citizens of other States, under the same circumstances under which they exclude their own. This section had no reference to aliens. The right of the State as to them remained as before. It is worthy of observation,——
1. That the New York law makes no distinction between its own citizens and all other persons.
2. That the case shows, and the fact is conceded, that all the persons on whom the tax was levied in this case were aliens.
Again, that the power over ingress and egress was not taken from the States by the new Constitution was the contemporaneous exposition.
In the first Congress after the adoption of the Constitution by the convention, in which were many members of that convention, the following resolution, of the date of the 16th of September, 1788, was passed:——
'Resolved, That it be, and it is hereby, recommended to the several States, to pass proper laws for preventing the transportation of convicted malefactors from foreign countries into the United States.' (Journal of Congress, Vol. 13.)
Laws were accordingly passed during that year and the next, and for five subsequent years after the Constitution went into operation, by most of the States; among which were Virginia, South Carolina, Georgia, New Hampshire, Massachusetts, and New York.
Secondly, not only were such the expressed opinions of the statesmen of that day, but ever since. It is believed that every State in the Union has practically guarded the gates of her own territory, and permitted the ingress and egress of such things and such persons only as she pleased.
1. As to the egress of persons. All the States of the Union constantly enforce the writ of ne exeat. Numerous States, since the adoption of the Constitution, have passed or enforced laws prohibiting the egress of debtors without the leave of their creditors.
2. As to the export of things. The statutes of New York declare, that 'no flour shall be exported from the State until it has been submitted to an inspector.' (1 Rev. Stat., 1st ed., p. 536, § 1.) Similar laws have been made as to beef and pork, and most of the productions of the State. Similar laws have also been passed in other States.
The State may lay an embargo absolutely prohibiting the export of any or all articles. Mr. Madison moved in convention to prohibit the States laying an embargo, but it was not though expedient, and the proposition was rejected. (3 Madison Papers, 1444.)
It is not intended to say that Congress may not resort to an embargo as a means. But it has no power to interdict the export of any article irrespective of the object. For example, it may perhaps resort to an embargo in the exercise of the war power, but it cannot do it to prevent a famine.
3. As to the ingress of persons. The State poor laws, settlement laws, laws prohibiting the entrance of paupers, convicts, infected persons, &c., are of this description.
The laws of most, if not all, of the slaveholding States prohibiting the entrance of free blacks, is another instance of the exercise of this power. Does any one suppose the same power could legally have been exercised by Congress?
4. As to the importation of things. Mississippi, and, it is believed, some other of the Southern States, have assumed the right to prohibit the importation of slaves as merchandise, and this right has been sanctioned by this court in the case of Groves v. Slaughter, 15 Peters, 449. The same right has been claimed and exercised by all the Free States.
In New York, the introduction of bank-notes under one dollar, and of lottery-tickets, is prohibited. (1 Rev. Stat., 1st ed., p. 666, § 29; p. 713, § 8.)
So the introduction of noxious or immoral articles, injurious to the health or morals of the people, is universally prohibited by the States, and not by the Federal government; such as licentious books, immoral paintings, articles of gaming, tainted food, dangerous preparations of gunpowder, and all nuisances.
The proposition, that the laying duties, or the right to regulate commerce, gives Congress the right to import what it pleases, is not true. The case of Brown v. Maryland, 12 Wheat. 419, by no means supports it. The whole doctrine of that case is, that Congress has a monopoly of duties on whatever articles the State permits to be landed.
Ellsworth held in the Convention, that taking from Congress the power to lay duties on exports did not take away from it the power to lay an embargo (3 Madison Papers, 1385) or prohibit exportation. On the same principle, giving the power to lay duties on imports does not give the power to import.
These examples show abundantly how extensively and constantly the States have exercised this power over ingress and egress,—over imports and exports. On the other hand, no instance is recollected of Congress exercising this power over persons, except in the case of what is known as the alien law of 1798. By this law power was given to the President, by his marshals, to remove certain aliens. (1 Story, 515, ch. 75.)
This law was bitterly censured at the time, and the right assumed by Congress denounced as unconstitutional. And it is now almost universally admitted that it was a violent and unconstitutional stretch of Federal power. Mr. Tazewell, a distinguished Senator from Virginia, said,—'But one power was given to Congress over aliens,—that of naturalizing them; and this did not authorize Congress to prohibit the migration of foreigners to a State, or to banish them when admitted. The States had not parted from their power of admitting foreigners to their society.' (Ell. Deb., 1st ed., 251; 2 Virginia Stat. at Large, New Series, 492.)
This assumption of power on the part of Congress greatly excited and aroused the country. The legislatures of Virginia and Kentucky denounced the law, and passed resolutions supposed to have been drawn by Jefferson and Madison, and which have ever since been considered as of incontrovertible authority in the construction of constitutional law.
The following is the fourth of the Kentucky resolutions: 'That alien friends are under the jurisdiction and protection of the laws of the State where they are; that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens, and it being true as a general principle, and one of the amendments to the Constitution having also declared, that the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or the people, the act of Congress of the United States passed 22d of June, 1798, entitled 'An act concerning aliens,' which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.'
VII. The law of the State of New York does not violate or contravene the provisions of any law or treaty of the United States. 'Laws made in pursuance of the Constitution, and all treaties made or to be made, or which shall be made under the authority of the United States, shall be the supreme law of the land.' (Constitution, Art. 6, § 2.)
1st. As to treaties. The vessel was an English vessel, and it is conceded that all the emigrants on whose account the toll was collected were British subjects. If the toll violates in letter or spirit any treaty with England, it is illegal and void. The treaties by which our intercourse is regulated with England are the treaties of 1794 and 1815. These treaties profess to place the two nations on terms of equal and reciprocal advantages.
1. Does it violate reciprocity? The New York law lays a tax or toll upon passengers to defray the selfsame expenses which England defrays by a tonnage duty. England collects four times as much from our vessels for the support of her quarantine and hospital as we do from hers. The expenses in England amount to nearly a dollar per ton for an ordinary vessel of three hundred or four hundred tons. We collect that amount only upon here and there a passenger vessel. If, therefore, there is any violation of the reciprocity stipulations of the treaties in the execution of quarantine or health laws, it is on the part of England. (2 State Papers, Com. and Nav., Mitchell's App., No. 9.)
2. This is a law regulating the internal police of the country; and it is a rule of international law, independent of treaties, 'that all foreigners are admitted into a country on condition of obeying its laws.' (Vattel, Lib. 2, ch. 8, § 101.) One of the laws which they are bound to obey is the payment of all reasonable tolls. (Ibid., Lib. 1, ch. 9, § 103.)
This principle of international law is incorporated in these treaties, which are made expressly subject to the laws and statutes of the country. (Treaty of November, 1774, art. 14; of July, 1815, art. 1; Ell. Dip. Code, 253-275.) It is immaterial, so far as treaties are concerned, whether laws be made by the States or the United States. If it were within its constitutional powers, indisputably Congress might lay such a tax, as well as add a new item to the tariff. The State law is not obnoxious to the objection of infringing any treaty.
2d. As to a law. There is no law of the United States taxing passengers. Even if they have the power, they have not used it. Nor can it fairly be said that there is a law regulating passengers. The law of 1819 (3 Story, 1722) relates to 'passenger ships and vessels.' It regulates the number of passengers who may be taken on board by the tonnage. It was made in the exercise of the undisputed police power of Congress over vessels on the ocean. There is nothing in it with which the State law interferes in the remotest degree.
But, it is replied, we do not contend there is any conflict with any written law, any actual regulation, but with 'a non-regulation.'
Congress, it is assumed, has legislated on the subject of passengers, and it is as much its will that what is not prohibited should remain as it is, as what is prohibited. In other words, that, by making one regulation on a subject, Congress takes possession of the whole subject as effectually as by making every possible regulation. This ingenious theory has never been applied in practice, and never can be.
1. None but 'laws made' are declared by the Constitution to be the supreme law of the land. Is this imaginary 'non-regulation' a law made by Congress? What are its terms, its provisos, and its exceptions,—its extent, its length, and its breadth? And who is to construe and apply it?
2. This inferential legislation is uncontrollable by Congress. A vast mass of means hitherto left exclusively to the States, as more advantageous to the country, will be immediately seized upon and appropriated by the Federal government, not by virtue of any new legislation, but by this court sanctioning the theory of 'non-regulation.' No discretion is left to the legislature. The Constitution becomes self-acting. It seizes, proprio vigore, when any power is put in action by the slightest act of legislation on the subject, upon all the means which might by any possibility be brought within its reach. The concurrence of State power becomes an empty sound.
The rule, in case of collision between Federal and State laws on a subject of concurrent jurisdiction, laid down by Marshall, is, that 'the State law, so far, and so far only, as that incompatibility exists, must necessarily yield.' (5 Wheat. 49, 50.) This is no longer the rule. The State laws must yield so far as the Federal power extends,—so far as the Federal government had power to pass incompatible laws.
Things which have hitherto been left to the States must be taken from them. Pilot laws, harbour regulations, laws respecting lighterage, wharfage, &c., must be abolished. Tide-mills, dams, bridges, &c., upon navigable tide-water, which line our coast, must be swept away. Under the doctrine of 'non-regulation,' Congress takes possession at once of all the remote as well as immediate means of executing its powers; e. g. the power to regulate commerce gives remote power over the ship-builder, the timber-merchant, the lumber-man, &c. The names of some of the titles in the French Code of Commerce may convey some idea of the extent of power which may be included in the power to regulate commerce:—Partnerships, Banks, Brokers, Carriers, Bills of Exchange, Vessels, Insurances, Bankruptcies, &c. Thus far Congress has left these subjects to the States; but if this doctrine of 'non-regulation' prevails, the matter is taken out of the hands of Congress, and all the regulations on these subjects which it was competent for Congress to make under its constitutional power are to be considered as made already. State power is in effect annihilated; if not at once, it is so crippled that it dies a lingering death.
This rule of construction will be found oppressive in the extreme, and impossible. Oppressive, because it requires men to obey laws which they cannot know; impossible, because the courts cannot apply it. The courts easily determine the limits of a written law, and their decisions are uniform; but it surpasses human knowledge to ascertain with precision the ramifications of a subject-matter.
Subjects intermingle. Commerce, manufactures, agriculture, are concerned in ship-building. Scarcely an act can be presented to the court which is not compound. How much of that subject, which carries with it the power of Congress, shall be necessary for that purpose?
It is to commerce particularly that this theory has been applied. 'Commerce,' it is said, 'is a unit, and what is not regulated is as much a part of the unit as what is.' We may admit that the power to regulate commerce is a unit, and is exclusive. We may admit that the regulations of commerce from one system, and are all exclusive. But the means employed or resorted to by these regulations are as diverse as nature, and as free to the States as to Congress. This case turns upon taking money as a tax or toll from passengers. This is not a regulation of any kind, but an act, a means.
These means are not permanently or necessarily attached to the regulation which adopts them. Granted that they may be resorted to to-day by a regulation of commerce, they are not inseparately attached to that regulation. They form no part of the unit. They may be resorted to to-morrow by a totally different regulation,—one of health or finance on the part of the States. The fallacy consists in confounding a regulation of commerce with the means which it adopts.
This idea of unity was first broached by Mr. Madison, who suggested that the right to regulate commerce was one and indivisible, and would exclude the States from the right to lay tonnage duty, and consequently that there was no necessity for any express prohibition in the Constitution upon the States. (3 Madison Papers, 1585.) The convention thought otherwise, and inserted the prohibitory clause, and Marshall intimates that it might have been resorted to by the States had it not been prohibited. (9 Wheat. 202.) The idea was again suggested by Mr. Webster in his argument in the case of Gibbons v. Ogden. (9 Wheat. 14.) 'Henceforth,' he says, 'the commerce of the State was to be a unit.' This view of the nature of the commercial power was afterwards referred to by Marshall as one having great weight. (Ibid. 209.)
The major proposition of these distinguished men, of the unity of the commercial power, is not contested, but merely its application to commercial means. The case of Gibbons v. Ogden was not decided against the State on the ground that the law of the State violated the commercial unity, or that the means employed by the State were not in themselves common to both governments, but because a law of the United States had already appropriated them to her use, and that the law of the State attempting to do the same was necessarily repugnant to the Federal law, and therefore void.
Marshall certainly did not intend, by the unity of commercial power, unity of commercial means, nor that the power of Congress to use the means of itself appropriated them, or that 'non-regulation' was equivalent to regulation, in any case.
In Sturges v. Crowninshield, his language is,—'It may be thought more convenient that much of it [any subject committed to Congress] should be regulated by State legislation, and Congress may purposely omit to provide for many cases to which their power extends.' (4 Wheat. 195.) It is obvious that he thought that the States might use any means whatever not prohibited to them, and which Congress had not by an actual law appropriated to itself.
Again, he says in Wilson v. The Blackbird Creek Marsh Co., 'If Congress had passed any act which bore upon the case, . . . we should feel not much difficulty in saying that a State law coming in conflict with such act would be void. But Congress has passed no such act.' True, says the objector, but Congress has power to pass such an act, and 'non-regulation' is equal to regulation. It is clear that Marshall gave no such efficacy to 'non-regulation.'The repugnance which makes a State law void must be to some actual existing law of the United States, and not to some non-existing inferential regulation.
I have attempted to prove that the power over passengers either to exclude or tax them has not been given to Congress, either directly or indirectly; that it has nowhere directly or inferentially been prohibited to the States; that in practice it has been used by the States exclusively since the foundation of the government; and that the law of the State of New York now in question, made in exercise of that power, does not, in the remotest degree, infringe any treaty or any law of the United States.
I cannot conclude this argument without calling the particular attention of this court to the case of The City of New York v. Miln. The Supreme Court of the State of New York held this case to be identical with that. In that case the State law required the master to deliver a manifest of his passengers to the mayor within twenty-four hours of his arrival; to give bond and security for $300 to the city to indemnify against expenses of maintenance; that the master shall remove such passengers as the mayor, &c., shall direct; that the vessel shall be liable for any penalties incurred by the master. That law, like this, was alleged to be a regulation of commerce. That law prohibited passengers from landing altogether. This allows them to land on condition of paying expenses. That law required the master to give bond and security in $300 for each passenger. This law allows each one to come on shore on payment of the expenses. That law, after two elaborate arguments, was held not to be a regulation of commerce. In what particular does it differ in principle from this? Both are made in the execution of police laws of the State. Neither assumes to regulate commerce, and both are interferences with it.
The gist of the argument of Mr. Justice Story in his dissenting opinion in that case is, that 'the States cannot resort to a regulation of commerce,' & c., &c. Certainly not. The very question in dispute was, whether that was a regulation of commerce. He assumes, without proving it, the whole question.
He speaks of exclusive means. Powers may be exclusive, regulations may be exclusive, but means cannot be so, unless the States are excluded from them by name in the Constitution, or unless the Federal government have appropriated them, by an express law, to their own use. No doubt, as the very learned judge says, if the same means had been resorted to by Congress, it would have been in the execution of a regulation of commerce, and when resorted to by the States, it is in the bon a fide execution of a police law.
The rule is very clearly and concisely laid down by Judge Johnson:—'Whenever the powers of the respective governments are frankly exercised with a distinct view to the ends of such powers, they may act upon the same means, and yet the powers be kept perfectly distinct. A resort to the same means, therefore, is no argument to prove the identity of their respective powers.' (9 Wheat. 239.)
This case cannot be decided for the plaintiff without overruling the case of Miln. This court, like all others, is presumed to be governed by the maxim, Stare decisis. For no court is it so important. Disrespect follows inconsistency, and woe to the Union when the decisions of this court shall cease to be respected. If the majority of to-day attempt to correct a supposed previous erroneous decision, the majority of to-morrow will certainly reinstate the old rule. This court remains, but its members change. Three of the five members who decided in favor of State rights in the case of Miln are gone. Where is Thompson? Where is Baldwin? Where is Barbour, who gave the opinion of the court in that case? Had these judges remained in the seats which they once adorned, this suit would never have been brought. Is it wise thus to invite speculation upon the sad changes which the inevitable doom that awaits us all must produce in this tribunal? If temporary majorities are to give the law of this court, its decisions, which should be as permanent as the republic, will become as fluctuating and mortal as its members.
The poor emigrants do not ask to be relieved of this tax. They do not bring this suit, nor is it brought for their benefit. The foreign agent, the rich shipper, is before this court striving, at the expense of these unfortunates, to swell their enormous gains. This toll is embraced in the price of passage. The emigrant knows nothing of it. If it is removed, he will know nothing of it, but that the home and the asylum that greeted him, and rescued him from disease and death on his arrival, are gone.
What cares the rich shipper of Liverpool, what cares his agent in New York, whether infection is brought to our shores, whether disease ravage our city? No ties bind him to the soil. No family or kindred to weep over. Wealth is at his disposal. He keeps aloof or flies from the pestilence which his accursed avarice has brought upon the devoted city.
But ask the emigrant, ask the destitute, ask the poor citizen, ask the thronging masses who make up the population of a great city, whom the strong bonds of poverty and affection chain to their homes, 'Come weal, come woe.' They will pray you to preserve unimpaired the health laws of the city, the quarantine, and its hospital, which have so long proved an efficient protection to them and their families. They will conjure you, with the agonizing earnestness of men who feel that their lives are concerned in what they ask.
Has this court listened to the suggestion, that, if this power is conceded to the States, it may be abused to the prejudice of commerce? Such a consideration is not for them. Let them close their ears, if they would not be betrayed into error.
Marshall has said,—'All power may be abused, and if the fear of abuse is to constitute an argument against its existence, it might be urged against the existence of that which is indispensable to the general safety.' (12 Wheat. 440.)
But the suggestion is absurd. There is no such danger. If the child may be trusted to its mother, the city may be trusted to the State. It forms its greatest pride, and dearest interest. The commerce of New York is its glory, and the great source of its prosperity. Will it be guilty of the suicidal folly of destroying or injuring it? No. The accommodations for the sick passenger form one of the attractions of its port. The emigrants flock to it in preference to any other. The past year, more than one hundred thousand have arrived. All the hospitals at the quarantine have been crowded, and yet no extraordinary fatality has prevailed.
On the other hand, the mortality among the emigrants who have arrived at Quebec has been frightful,—not less than one tenth of the whole number. The pestilence has been scattered through the country, and the whole province has been sorely afflicted.
What has occasioned the difference but the very hospitals supported by this tax, and which must fall with it? They have been the refuge, and have yearly saved the lives, of thousands of the emigrants, and nothing, save their religion, is more gratefully cherished by them than the hospital at the quarantine ground in New York.
Conceding for a moment, that, if the State institution is destroyed, the Federal government have power to replace it, will they do it? Will they continue to give it adequate support? Such is not the history of the past.
A few years before the close of the last century, Congress set on foot a marine hospital fund for the relief of sailors. In 1802, it had accumulated to more than ninety thousand dollars. At this time Massachusetts and Virginia governed the Union. They concluded to divide the fund between them. Fifteen thousand dollars were appropriated to build a sailor's hospital at Boston, and thirty-five thousand went to purchase an old hospital at Gosport, in Virginia.
Is it wise to leave an interest so local and so intensely interesting as that which concerns the lives of the citizens of New York to depend on the fluctuations of political influence? What do the Alleghanies or the Rocky Mountains know or care for the ravages of yellow-fever in the city of New York?
The island of New York will soon contain a million of people. When pestilence comes, it will sweep away thousands in a day. If she sees the necessary means of self-protection withheld or removed to more favored cities, what bonds will be strong enough to bind her to submission? When, the poisoned darts of death falling thick and fast around them, her citizens are called upon to wait the slow, reluctant movements of the Federal government, when, driven to desperation by the imminent danger impending over them, they see themselves cut off from reasonable succour by the selfish, unsympathizing legislation of a remote people, who send their exports to Hudson's Bay or the mouth of the Columbia, will they not be impelled to take the law into their own hands?
Our country is extending itself farther and farther to the south and west. Wisdom cries aloud, with a warning voice, to leave local interests as much as possible to local legislation, and attend only to those common and external interests for which the Union was formed. Let the States repose in the undisturbed exercise of the sovereignty which is left to them, and we may, with safety, extend our system to the extreme limits of the continent.
The State of New York asks the humble boon of being allowed to protect herself against an exclusively internal evil. Two thirds of the common revenue are collected in her harbour. She divides the annual millions which, but for the Union, would be poured into her own coffers, freely and ungrudgingly among her sisters. She calculates not the value of the Union. She glories in the honor and welfare of our common country. But she has deemed it not unreasonable that she should be allowed to protect herself against dangers to which this commerce, carried on for the common benefit, exposes her, and her alone.
SMITH v. TURNER.
Sketch of Mr. Van Buren's argument at the December term, 1845. The references to the excise cases decided since were made on the re-argument in 1847.
Mr. Van Buren referred to the printed points, and said the able argument submitted on them by his colleague would perhaps justify him in remaining entirely silent, but the importance of the questions presented to the court seemed to him to authorize some additional suggestions. He read the sections under which this suit was brought. (1 Rev. Stat. 445, §§ 7-9.) By them the health commissioner was authorized to collect, from the master of every vessel that should arrive from a foreign port at the port of New York, one dollar for each steerage passenger on board. The sum so received was devoted to the use of the marine hospital, and the master was authorized to sue for and collect from each of such passengers the sum paid on his account. The declaration contained two counts, the first alleging that the passengers were brought into the port of New York; the second, that they were landed in New York. The demurrer is to the whole declaration, on the ground that the law is repugnant to the Constitution of the United States. Of course, the facts alleged in both counts are to be taken as true. The question is not whether the law is wise or politic, but whether it is repugnant to the United States Constitution. This is the extent of the jurisdiction of this court, (Judiciary Act, 1789, § 25,) and the question is to be determined on this record. The court cannot legally know how much money has been received under this law, nor the use it has been put to, nor the extent of disease, nor the expenses of the hospital, nor when the fund falls short, nor when it overruns. If these facts are important, they should be determined by proof in a competent proceeding. On this record, the court are asked by the plaintiff in error to say that the sections referred to necessarily conflict with the United States Constitution. The tax which they impose was first laid on the 30th of March, 1798, (3 Greenl. 388,) and it will be conceded that, if it was constitutional then, it is constitutional now. It does not grow unconstitutional by age. The power to declare a State law unconstitutional is one of great delicacy, as this court have frequently said, and should never be exercised in cases of doubt. (6 Cranch, 128; 4 Wheat. 621.) As Mr. Ogden truly remarks, in New York v. Miln, 11 Peters, 122, 'it should be so clear as to secure the acquiescence of the people and of the States, and thus to retain the affection of the different members of the Union for the Union itself.' All the presumptions are in favor of the constitutionality of a law. Those who object to its unconstitutionality should be able to point to the provision of the United States Constitution with which it comes in collision, and the conflict should be so plain, that it could be immediately seen by comparing the two. The plaintiff in error says that this law conflicts with the eighth section of the first article of the Constitution; also with the tenth section of the first article; also with the ninth section of the first article, subdivisions fourth and fifth; also with the sixth article, subdivision second; and also with the general spirit of the Constitution. The general spirit of the Constitution is to be found in its letter. The sections of the Constitution referred to should be examined separately; it is neither intelligible nor safe to contrast the law with what may be deemed the blended effect of all; and in examining them it should be remembered that the States, at the adoption of the Constitution, were free, independent, and sovereign communities; that as such they formed, as such adopted, the Constitution; that the Constitution is a grant by them of certain enumerated powers. The language of the tenth article of the Constitution only defines for greater caution what would have been the legal and constitutional effect of the grant in the manner and form in which it was made, to wit, that 'the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' (Baldwin's Views of the Constitution, 29-32.) The strict observance of these principles, in construing the Constitution, is believed by a large portion of the American people to be the surest bond of the Union itself.
First, does the law in question conflict with the eighth section of the first article of the United States Constitution? This section provides, that 'the Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.' What is this power, and is it exclusive in Congress, or concurrent in Congress and in the States? The terms used are capable of indefinite extension in the hands of a skilful construer. Commerce, in an enlarged sense, covers nearly all the business relations of society. Every law that qualifies or affects its transactions or relations necessarily regulates it. Take the first clause,—'Congress shall have power to regulate commerce with foreign nations.' Pilot laws affect this commerce; they touch it on the open sea, they restrain those engaged in it, they regulate it; yet the States on the sea-board all have pilot laws. So too, inspection laws. It is said these are authorized by the United States Constitution. Not so. Duties and imposts are permitted to execute them, but the laws are enacted under the inherent power of the State. It is true, most inspected articles are intended for exportation to foreign ports. But commerce consists as much of exports as imports; restraints and regulations of one are as much regulation of commerce as the other. The States also pass quarantine laws, wreck laws, harbour regulations, &c., &c.
These would seem to show a concurrent power in the States over foreign commerce. Congress has power to regulate commerce among the States; yet the States establish ferries from one to the other. The court has held that the transportation of slaves from State to State is within the exclusive control of the States. (Groves v. Slaughter, 15 Peters, 449.) Congress has power to regulate commerce with the Indian tribes. Yet several States have habitually, since the adoption of the Constitution, passed laws regulating trade with the Indians. The New York constitution, article seventh, section twelfth, provides that no purchase of lands, or contract for purchase, made with Indians, within that State, subsequent to October, 1775, shall be valid, unless made by the authority and with the consent of the legislature. A comparison of this power in the Constitution with what it was in the Articles of Confederation, shows a much greater solicitude to make this exclusive than either of the others. The ninth article of the Confederation gave Congress power to regulate the trade and manage 'all affairs with the Indians, not members of any of the States; provided that the legislative right of any State, within its own limits, be not infringed or violated.' These restrictions were intentionally omitted in the Constitution. (See Federalist, No. 42, by Madison.) Yet the constitutionality of the laws and constitutions of the different States, regulating trade with the Indians, has never been questioned. The Constitution gives the same power to Congress over commerce among the States and with the Indian tribes that it gives over foreign commerce. If the latter is exclusive, the others are, and if the whole are exclusive, all the legislation thus briefly adverted to must be deemed void. It is submitted that the power is concurrent, subject to the positive inhibitions in the Constitution. It is the power to regulate commerce with foreign nations which demands particular attention. This law encroaches on that power or on none.
We contend respectfully, that the power to regulate commerce is only exclusive in those cases where the regulation is effected by the exercise of an authority specially given to Congress in exclusive terms in the Constitution, or specially prohibited to the States; and that the only other authority over the subject remaining in Congress is derived from the sixth article of the Constitution, which authorizes them to prostrate State laws and constitutions by their own conflicting legislation.
Mr. Hamilton, in the thirty-second number of the Federalist, says that there is an exclusive delegation or alienation of State sovereignty in three cases: first, where exclusive power is in terms given to Congress; second, where an authority is granted to the Union, and the States are prohibited from exercising a like authority; third, where an authority is granted to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant. As examples of the third class, he instances the power to establish uniform laws on the subjects of naturalization and bankruptcy.
This classification of the exclusive powers of Congress has been frequently referred to with approbation by this court. It is with extreme hesitation that a doubt is suggested as to its accuracy; but it is believed that a careful analysis of the Constitution authorizes the position, that the first two classes mentioned by Mr. Hamilton cover every case of exclusive delegation of power by the States, and that his third class of cases is covered by article sixth, subdivision second, which makes the laws of Congress, enacted in pursuance of the Constitution, the supreme law of the land.
This position is advanced with less hesitation, because, first, no case has ever been decided by the court which establishes such a classification; and secondly, the illustration given by Mr. Hamilton of the third class has been overruled. A single section gives the power to establish laws on the subject of naturalization and bankruptcy. They are to be alike uniform. Yet in Sturges v. Crowninshield, 4 Wheat. 122, it was expressly decided that the grant of power to Congress to establish uniform laws on the subject of bankruptcy did not alienate the power of the States. Why, then, should this effect follow the grant of power to establish uniform laws on the subject of naturalization? Each of the States, before the adoption of the Constitution, exercised this power of naturalization, and would now but for the action of Congress and the provisions of article fourth, section second. (Chirac v. Chirac, 2 Wheat. 269; Collett v. Collett, 2 Dall. 294.)
Mr. Van Buren then examined the various powers given to Congress by the Constitution, and endeavoured to show that, whenever the power granted was, or was intended to be, exclusive, it was either,——
1st. Granted in exclusive terms, or (what is synonymous) necessarily exclusive, from operating in two or more States, or without the territory of all the States; or
2d. Granted to the general government, and prohibited to the States.
In the first class he placed the power to borrow money on the credit of the United States, to establish post-offices and post-roads, to establish tribunals inferior to the Supreme Court, to define and punish piracies and felonies on the high seas, to exercise exclusive legislation over the District of Columbia, forts, magazines, arsenals, &c., and to make all necessary and proper laws to carry the foregoing powers into execution. In the second class he placed the power to lay duties, imposts, and excises, except to execute inspection laws, to coin money, regulate the value thereof and of foreign coin, to declare war, grant letters of marque, &c., to raise and support armies, to provide and maintain a navy, and make rules for the government of the army and navy.
The States are prohibited from entering into any agreement or compact with another State, or with a foreign power. Power to make treaties is given to the President and Senate. This classification leaves, of the general powers of Congress which it is believed are not exclusive, the powers,——
1st. To lay and collect taxes. This is admitted to be concurrent.
2d. Over naturalization and bankruptcy, already adverted to.
3d. To fix the standard of weights and measures. This has always been exercised by the States, and never by the general government.
4th. To punish counterfeiting. This is concurrent. (1 New York R. L. 466.)
5th. To promote science and the arts by copy and patent rights. This, to the extent of State limits, is believed to be concurrent. (1 Tucker's Black., App. D., 182, 265; Livingston v. Van Ingen, 9 Johns. R. 567, 568; Gibbons v. Ogden, 9 Wheat. 221.)
6th. Over the militia, which is concurrent, except so far as expressly distributed by the Constitution to the States and Congress respectively.
7th. Over commerce. (Houston v. Moore, 5 Wheat. 1.) It is submitted that this is a concurrent power, unless the regulation is one authorized in express terms by the Constitution, and falling under the first or second class before mentioned. For instance, commerce is usually provided for by treaties, coining money, &c., &c.; it is usually protected by armies and navies, and the punishment of crimes on the high seas; it is usually interrupted by war. The authority over all these great subjects is exclusively in the general government. If commerce is incidentally regulated in other modes, the powers of the States and the general government are concurrent with the safeguard, in case of conflict, that the authority of Congress is paramount. This definition of the grant avoids three difficulties which must always be encountered by those who claim that the power over commerce, in its most enlarged signification, is exclusive:——1. In Sturges v. Crowninshield, the court, in deciding a State insolvent or bankrupt law to be valid till Congress acts, says, 'It is not the grant of a power to the Union, but its exercise, that ousts the State of jurisdiction.' This, it is believed, cannot be true of an exclusive power. If such a power is granted to the Union, the State must necessarily be divested of it, whether Congress acts or not. The State is at the mercy of Congress, and helpless till it chooses to act.
2. In the argument of Gibbons v. Ogden, the distinguished counsel for the appellants contended (9 Wheat. 18), that regulation of any part made an entire system; that what was untouched was as much regulated as what was touched, and the court say there is great force in the argument, and that it has not been answered. (p. 209.) If this be so, a single commercial regulation by Congress would oust the States of authority, and leave their great interests to await the next movement of Congress.
3. In every argument and decision in favor of the exclusive power, counsel and court have been obliged to except from its operation pilot, health, inspection laws, &c. (9 Wheat. 18, 203-207; 12 Wheat. 444.) But these are nowhere excepted in the grant, and if it is exclusive it must cover them. Inspection laws are no exception. No authority is given to the States to pass them, but they are authorized to lay imposts to execute them.
This court has never held the power to be exclusive. In Gibbons v. Ogden, the regulations were held to be conflicting, and the case was decided on that ground. (9 Wheat. 200.) In New York v. Miln, 11 Peters, 146, the court decline deciding the question. In Groves v. Slaughter, 15 Peters, 508, it is left an open question. But in the License Cases, 5 Howard, a majority of the judges expressly hold the power to be concurrent. The plaintiff in error, then, to show the act now before the court an unconstitutional regulation of commerce, if we are correct, must point, either,——
1st. To the clause in the United States Constitution which delegates exclusively to the general government the authority to make this law.
2d. To the express prohibition on the States to make it.
Neither can be shown. If not, it remains with that mass of inherent power appertaining to State sovereignty which has never been alienated. All the States have passed laws similar to this for the last half-century. He should refer to them particularly hereafter, and show that all these laws arrested vessels on the high seas, inspected them, discharged, and destroyed their cargoes, forbade them to anchor, &c., &c., and charged the expense of executing the laws on the cargo, consignee, captain, or passenger, at discretion. The 'regulations of commerce,' if any, in the act before the court, were the control and direction exercised over the captain, passengers, ship, and cargo. The orders to them were where to stop, when to proceed, what should be destroyed, &c. Yet these acts were within the unquestionable power of the States, and were not even seriously disputed here. They were sanctioned in the case of New York v. Miln. They occurred always in the pilot, inspection, quarantine, and slave laws.
It seemed to him these considerations must dispose of the theory that commerce was a unit; that it included all intercourse; that the whole power over the subject of commerce, and its mode of prosecution, was surrendered to Congress; that what was untouched was as much regulated as what was touched, &c., &c.
But it was urged that, if this was a case of concurrent power, Congress had acted on the subject, and that there was a conflict of legislation; also, that the act before the court conflicted with treaties made by the United States. He examined these positions at length, and endeavoured to show that the legislation of Congress, so far from conflicting, was in aid and approbation of the law. He referred to the law of 1796, ch. 31, 1 Story, 432; Act of 1799, ch. 118, ib. 564; New York v. Miln, 11 Peters, 138, 139.
The treaties referred to were expressly subject to the laws of the two countries. If this law violated them, no tariff law, and certainly no law prohibiting the entry of colored persons into States, could be upheld. But it was urged that the tax of one dollar on each steerage passenger was 'a regulation of commerce.' This he denied. The taxing power and the commercial power were totally distinct. Even laying imposts is not a regulation of commerce. (9 Wheat. 201.) Chief Justice Marshall says,—'There is no analogy between the power of taxation and the power of regulating commerce.'
The tax in this case is laid on an inhabitant of New York, within her limits and jurisdiction. It is laid when the ship has arrived in the port of New York. As the record shows in this case, the passengers, as they are called, had landed. To deny the right of the State to do this is the most alarming proposition ever yet presented to this court. He contended,——
1st. That the State had the power altogether to forbid the landing on her shores of such persons as she chose to forbid, or to expel those who had entered, and, as a necessary consequence, she might dictate the terms on which they should be permitted to enter. This was vital to her self-preservation. And having this right, the manner of its exercise must, of necessity, be left to her discretion. It was to be presumed self-interest, if no higher motive, would induce a discreet exercise of this power. But if the State was unreasonable,—Stat pro ratione voluntas. This court had no power to supervise her conduct. In support of this he cited New York v. Miln, 11 Peters, 132, 136; 7 Statutes of South Carolina, 459; Aikin's Alabama Dig. 352; 1 Lislet's Dig. Lou. Laws, 499. He also cited laws forbidding or regulating the admission of free persons of color in fifteen different States,—non-slaveholding as well as slaveholding States. In Groves v. Slaughter, 15 Peters, it was held that the right to admit slaves from other States into Mississippi, or to forbid them to enter, rested exclusively with that State, and was unaffected by the authority of Congress to regulate commerce among the States. The argument that the general government, being charged with the foreign relations of the country, acquired the right to regulate the terms upon which aliens should be admitted into the States, could not be maintained. The States retain the right to prescribe who shall hold property within their jurisdiction, who shall vote, &c. The sole power given to Congress is to prescribe the terms of citizenship by means of naturalization laws. In support of these positions he cited Senator Tazewell's speech against the Alien and Sedition Law. (4 Ell. Deb., 2d ed., 453; 3 Madison Papers, 1385.) Also, the Virginia and Kentucky resolutions and reports on the same subject. (4 Ell. Deb., 566 to 608 inclusive.)
2d. That the right of a State to tax all persons and things within her jurisdiction was only limited by the express prohibitions of the United States Constitution, and that none of these prohibitions reached the tax in question. The power of taxation is vital to a State. The concurrent right of taxation given by the Constitution to the general government was one great objection to its adoption. It would never have received the sanction of the States, if they had not been satisfied that the right to raise money from persons and property within their limits was unrestricted except in specified particulars. (See Federalist, Nos. 32, 33, 34, 36.) The importance of this power to the State, and its unlimited character, have been frequently asserted by this court. (4 Wheat. 436; 6 ib. 429; 9 ib. 198; Providence Bank v. Billings, 4 Peters, 563.) The power not only extends to all the real and personal property of its citizens, but to that of non-residents, to the property of the general government (4 Wheat. 436), and to the United States stock (1 Nott & McCord, 527). Nor is there any such exemption as the plaintiff in error claims for the instruments of commerce. Importing merchants, ship-owners, and others, are taxable like all other inhabitants, for all their property, whatever it may consist of. (5 How. 576, 592.)
There are but two restrictions on the State power of taxation:——
1. No State shall, without the consent of Congress, lay any imposts except what may be absolutely necessary to execute its inspection laws.
2. No State shall, without the consent of Congress, lay any duty of tonnage. The tax in question is not a duty of tonnage. If a passenger-ship of five hundred tons comes into New York without passengers, the law imposes no tax. This is not an impost or duty on imports; a human being is not an import. (New York v. Miln, 11 Peters, 132, 136; 12 Wheat. 437.)
The authority of Congress over imports was carried to its utmost verge in Brown v. Maryland, 12 Wheat. 442. It was there held, that the right to sell articles imported and having paid duties could not be taxed while the articles remained in the original package; that the importer by paying duties acquired a right to sell; that they could not be specifically taxed till bulk was broken and they were mingled with the mass of property subject to State taxation. (See opinion of Chief Justice Taney, 5 How. 574, and of Justice McLean, ib. 587.) This reasoning is inapplicable to a free human being. If he is exempt from taxation when entering the State, he must remain so always. If he can once float on the waters of New York; or stand on her soil, exempt from taxation, no ingenuity can fix a time when he becomes subject to taxation. He is a perpetual exempt. Unless the plaintiff in error showed a prohibition on the State to lay this tax, it fell within the general taxing power of the State.
3d. The tax in question is an indispensable part of a health and quarantine system, which is the exclusive subject of State jurisdiction.
Under this head Mr. Van Buren traced minutely the history of the New York health and quarantine laws from their earliest institution. The tax in question was first laid in 1798, precisely as now. (3 Greenl. Laws of New York, 388.) The site of the marine hospital was purchased and the hospital built by the State; frequent appropriations had been made from the State treasury to meet deficiencies in the fund. It was now inadequate to defray the charges upon it. (3 Greenl. 305; ib. 455; Laws of New York, 1804, ch. 469, 1805, ch. 31, 1809, ch. 66; 2 Rev. Laws, 534.) The rates had been frequently adjusted so as to meet the expenditures with the least burden on the passengers. (Laws of New York, 1843, ch. 213; 1844, ch. 316.) The original and declared object of the tax was to pay the expense of guarding the city against infectious and pestilential diseases brought in from abroad. This object had been steadily adhered to. The occasional and temporary diversion of an accidental surplus furnished no exception. It was inevitable where claims were pressed on the legislature, and had been more than made good by advances from the State treasury. The fact that some might pay the tax who did not receive medical aid did not make the tax illegal. The same was true of all quarantine charges. A quarantine and health system could not be otherwise maintained. The pilot system was maintained in part by compulsory charges on those who refused to take a pilot. (Tate's Dig. Virginia Laws, p. 740, § 4; 1 Bullard and Curry's Dig. Louisiana Laws, 467-469.) Taxes on passengers for the support of hospitals were laid in Delaware, Pennsylvania, Maryland, and Louisiana. They had been levied ever since the adoption of the Constitution. (2 Laws of Delaware, 1357; 7 Smith's Laws of Pennsylvania, p. 20, § 21; Laws of Louisiana, 1842, No. 158, p. 458; Dorsey's Laws of Maryland, 1601.) It was not true that Congress exercised exclusive authority over the foreign transportation. Pennsylvania compelled German passenger-ships to keep a physician on board, to attend to passengers gratis, and to pay an interpreter to prove to its authorities a compliance with the law. (7 Smith, p. 29, ch. 4488.)
Mr. Van Buren then examined the quarantine laws of the Atlantic States, and showed that all of them arrested ships, discharged cargo, if necessary, and destroyed it, charging expenses on cargo, master, owner, and consignee, at discretion. He referred to the following statutes:—Rev. Stat. of Maine, p. 186, § 27; Rev. Stat. of Massachusetts, 212; Laws of 1816, ch. 44, §§ 6, 7; Rev. Stat. of Rhode Island, p. 264, §§ 5, 6; Statutes of Connecticut, p. 621, § 12; Elmer's Digest of the Laws of New Jersey, p. 133, § 3; Purdon's Digest of Pennsylvania Laws, 632; 2 Laws of Delaware, 1357; Laws of Maryland, 1793, ch. 56; 2 Rev. Stat. of Virginia, p. 297, § 13; 1 Rev. Stat. of North Carolina, 496; 6 Statutes at Large of South Carolina, 472; Law of Georgia of December 14, 1793; Aikin's Alabama Digest, 352; 1 Lislet's Digest of the Laws of Louisiana, 525.
To the argument that section ninth, article first, of the Constitution, prohibiting Congress from forbidding, prior to 1808, the migration or importation of such persons as the States shall think proper to admit, gives Congress exclusive jurisdiction over the admission of persons into the States, he replied, that this section applies exclusively to slaves. It was so understood by the framers of the Constitution. (Federalist, No. 42; 3 Mad. Papers, 1388, 1390, 1391, 1429.) It has been so held by this court. (9 Wheat. 206; 15 Peters, 513.) The section recognizes the right of the States to admit or forbid. If it gave Congress power to tax the admission of whites, it would not destroy the concurrent power of State taxation. The authority given to Congress to tax the importation of persons shows such a tax is not an impost. The power to lay imposts the general government has by another grant. To the argument that this tax violates subdivision sixth, section ninth, article first, of the Constitution, which forbids giving a preference through a regulation of commerce to the ports of one State over those of another, he replied, that the restrictions in section ninth were all imposed on Congress. He examined them to show that none referred to State legislation. State taxation was notoriously unequal. The Constitution of the United States in no degree forbids this. He instanced the rates of pilotage, wharf and harbour charges, personal taxes, &c. This tax was not 'a regulation of commerce.' It was a confusion of terms to complain of a tax as oppressive, and at the same time as giving a preference to one port over another. The preference, if any, was caused by the legislation of other States.
It was urged that New York might defray the expense of the hospital and health establishment from other sources within her undisputed control. This was true. But ought she to do so? Was it not just that this burden should be borne by those who created it? Beyond this, was it unconstitutional that the expense should be thus defrayed? The last was the only question which the court could pass upon. It was suggested that Congress should assume the charge of this subject. The powers of Congress are given to it as the legislature of the Union; in no other capacity can it act. (6 Wheat. 424.) The power of Congress to lay and collect taxes is limited to the objects of paying the debt and providing for the common defence and general welfare of the United States, and these objects are enumerated. (Federalist, No. 41.) Would this justify Congress in laying a tax to protect the health of New York and persons arriving there? The power over exports is confined to this State; jurisdiction over persons in our territory belongs to New York. Under such circumstances, with what wisdom, skill, or advantage could Congress interfere? (Baldwin's Views, 194-197.) The State legislation heretofore referred to shows, that, since the adoption of the Constitution, this whole subject has been exclusively controlled by State legislation. This is a practical construction of the Constitution of great weight. This court has said, a contemporary exposition of the Constitution of the United States, adopted in practice and acquiesced in for a number of years, fixes the meaning of it, and the court will not control it. (Stewart v. Laud, 1 Cranch, 309.)
Mr. Van Buren adverted to the printed points submitted to the court, and insisted, on the whole case,——
I. That, if the law in question be 'a regulation of commerce,' it is such a regulation as the State has a right to make. The right has never been granted exclusively to the Union or prohibited to the States. It rests with the State.
II. If Congress might legislate on the same subject, it has not done so in a manner conflicting with this law.
III. The tax laid is not an impost or duty of tonnage.
The court needed no assurance, he added, that the people of New York feel a deep interest in the decision of this question. The law has stood for half a century, has been adopted and approved by Congress; system has grown up under it; with an exposed situation, the health and lives of her citizens and of the whole people have been protected by it. Our State had not been a large claimant on either the justice or bounty of the Union; yet she is believed to have contributed something to its aggrandizement. The strength, the intellect, and the lives of her citizens have been freely tendered to its support. She has cheerfully poured into its lap, as her alma mater, the immense resources collected at her port. Her insolvent laws have been prostrated by the judgment in Sturges v. Crowninshield. This very power 'to regulate commerce,' under which her splendid schemes of internal improvement have been projected and executed, has not been wielded to dig her canals, or, to any considerable extent, to deepen her rivers or to protect her harbours. Nay, the effort of the State to aid them, and to encourage the brilliant but unrequited genius of one of her sons, was deemed by this court to conflict with this overreaching power of Congress, and fell a victim to judicial condemnation. She indulges the hope, at least, that it will not now be so construed as to prostrate her institutions of public health which have defied the constructions of half a century of time, and of transcendent ability. She saw with unaffected concern the prodigious strides made by this power to regulate commerce towards engrossing and consolidating the power of the Union. This may well be regarded as the mastodon of construction, starting from this bench, and in its giant strides trampling upon the rights of the States and their sovereignty. Fortunately, it is only known to the present day by its colossal bones, scattered through the reports of the early opinions of members of this court. Its march was arrested, its life terminated, in New York v. Miln. The noble ground then assumed was maintained in the License Cases. He had no right to advise the court, but, as an humble citizen contributing a mite towards public opinion, there could be no impropriety in alluding to the jealousy felt towards this branch of the government. The life tenure of its judges removes them from the direct effect of public opinion. Selected by the general government, they are yet in some sort arbiters between it and the States. It is desirable they should secure the affections of the people. Their recent decisions have largely effected this, and the prople regard these as indications that popular and liberal impulses have reached this bench. To confirm this, they have only to adhere to the just rules already laid down, to practise the great maxim which secures respect and renders certain the rights of property and life, Stare decisis. In the case at bar, New York asks nothing but justice at their hands. Granting much, yielding much, to the wealth, glory, and power of the Union,—a Union in which she feels a just pride, and the value of which she never stopped to calculate,—she does not feel that it is immodest to ask, (if it be considered asking,) that she may avail herself of her local position to sustain in part the expense to her citizens, and the danger to their health and lives, which attend her exposure and the Union's commerce, that she may arrest and purify the stream before it enters her veins, that the blood of life to the rest of the Union may not be infection and death to her.
NORRIS v. CITY OF BOSTON.
Mr. J. Prescott Hall, for the plaintiff in error.
The object of the writ of error in this case is to test the constitutionality of an act of the legislature of the State of Massachusetts, passed in the year 1837, entitled, 'An act relating to alien passengers.'
With the general question involved in the cause, this court is entirely familiar. It is a branch of constitutional law which has occupied its attention at intervals during the last thirty years.
The controversy with regard to the powers of the several States over commerce and navigation, and their authority to control these and analogous subjects, supposed to be beyond their jurisdiction, began as far back as the year 1819, with the case of McCulloch v. Maryland (4 Wheat. 316), when it was here decided, that the act of Congress establishing a bank of the United States was not only constitutional, but that the States had no warrant for taxing its branches, or power, by these or other means, to impede their action, or drive them beyond their territorial limits.
In strict analogy with this case was that of Weston v. The City of Charleston (2 Peters, 449), in the year 1829, when this court held that a tax imposed by a State on stock issued for loans to the United States was unconstitutional, and could not be collected.
The question as to the power of the States over commerce and navigation was directly presented by Gibbons v. Ogden, in the year 1824, when it was held that the State of New York could not grant to any of its citizens an exclusive right to traverse the great bays and navigable waters of that State with vessels propelled by steam, to the exclusion of those from other States, licensed or enrolled under acts of Congress.
These discussions led to another, in the year 1827, when this court decided that the State of Maryland could not compel merchants, engaged in the business of importing and selling foreign goods by the bale or package, to take out licenses for the same, and to pay a sum of money, or tax, for the privilege. (Brown v. State of Maryland, 12 Wheat. 419.)
Then followed, after an interval of ten years, the case of The City of New York v. Miln (11 Peters, 102), which is supposed to control the present controversy and recognize the power of a State to regulate, in some degree, the commerce and navigation of the whole country, even on the tide-waters which wash our shores.
Nor will such controversies cease, perhaps, until other kindred subjects have been explored and examined; for New York claims now, and exercises, the power of imposing burdens upon the disposition of foreign merchandise in its original condition as imported, when sold in a particular manner, that is, by auction.
The recent decisions of this court upon the license laws of New Hampshire, Massachusetts, and Rhode Island may be, also, referred to, as bearing materially upon the reasoning we must employ, in expressing our views upon the subject now under consideration; but as they will undergo a critical examination in the progress of the argument, they are here merely glanced at, in passing.
This brief statement of the course of legislation and decision upon these subjects brings us back to the case now before the court. It arises under the act of Massachusetts before referred to, passed in the year 1837, shortly after the case of The City of New York v. Miln had opened the eyes of her legislators to this new source of revenue.
This law provides, that, upon the arrival of a vessel in the waters of Massachusetts with alien passengers on board, an officer of the city or town where such passengers are to be landed shall stop the vessel, and examine into the condition of its passengers.
If any lunatics or infirm persons, incompetent to maintain themselves, are found, they cannot be permitted to land till security is given against their becoming chargeable within ten years; and no other alien passenger shall be permitted to land until two dollars are paid for each, to be appropriated for the support of foreign paupers.
By another provision of the same law, the State pilots are required to anchor vessels at particular places, suitable for the examination of such passengers; and all this may be done while the ship is yet, comparatively, at sea,—more than a cannon-shot from the shore, and beyond the jurisdiction of Massachusetts. The examination may be made, and the tax is exacted, before the passage-money is earned; before the voyage is completed; while the insurance is running; before the passenger touches the soil of the State; while all is in itinere.
The validity of the act is defended upon the ground that it is a poor-law; that it is a police regulation; that the State has a system of pauper laws, of which this is a part; that the money, when collected, is expended in the support of foreign paupers; and that, as the means are appropriate to the end, the law itself may be upheld as valid.
The States have the power, beyond doubt, to pass poor-laws and make police regulations. But the question is, Can they provide for paupers, foreign or domestic, by a tax upon the commerce or navigation of the United States? Can they levy contributions upon aliens and citizens of other States, on shipboard, for the support of their police regulations and pauper systems? Are they not forbidden the exercise of this power by the Constitution of the United States. which is the paramount law of the land? The means may be appropriate to attain the end, if the State has the power to use them; but have they any such power? And that is the whole question before the court.
If the tax were imposed upon merchandise imported from foreign countries, the means to accomplish the object would be as appropriate as any other; and Massachusetts, were she an independent nation, might employ them at her discretion. But when she came into the Union, in 1789, she gave up, in express terms, all control over foreign commerce, although she was more interested in it at that time than any other State.
But she never did tax foreign commerce, be it observed, when she had the power to do so, for the support of paupers; on the contrary, for more than half a century, she maintained her own system by her other means. The tempting bait was first thrown out in the year 1837, by the case of Miln v. New York, and she seized it with avidity.
In our view of the law in question, it imposes a tax on the commerce of the country for the benefit of Massachusetts and its treasury. We consider it as a direct invasion of the power of Congress to regulate navigation and trade, and therefore as unconstitutional and void.
It is not an inspection law, nor a quarantine or police regulation; and if it were, the States cannot lay taxes on the commerce of the country, or any part of it, to build up and support police or quarantine establishments, although we admit the incidental expenses and ordinary fees of inspection belonging to sanatory regulations may be exacted by the States.
But the law in question imposes a duty on imports without the assent of Congress; for there may be importations of men as well as merchandise. The ninth section of the first article of the Constitution of the United States, when speaking of 'the migration or importation' 'of persons,' is not restricted to any particular class of persons. The words are general. They are applicable to all persons, bond or free, and show that the whole power over such importations is confided to Congress.
Nor is the use of the word 'importation,' when connected with 'persons,' peculiar to the Constitution. An act passed by Congress in 1793 is entitled, 'An act to prevent the importation of certain persons into certain States where, by the laws thereof, their admission is prohibited.' And Judge Marshall held, in the case of the Brig Wilson (1 Brockenbrough, 437), that the prohibition of the law comprehended freemen as well as slaves. Various English statutes, applicable to the British Isles, where slavery does not exist, have been passed to regulate or impede or prohibit the importation of persons, free in their own countries, and who would be so in England. (Stat. 1 and 2 P. & M., c. 4; 5 Eliz., c. 20; Jacob's Law Dict., Art. Egyptians.)
And it may be remarked here, that the very act of Congress before referred to proves that the whole power of regulating or prohibiting the importation of persons is vested exclusively in the general government. It was passed upon a petition from North Carolina, setting forth that the French had set free their slaves in Guadaloupe, and the aid of Congress was invoked to protect the institutions of the South from the dangerous contact of free persons of color. The State felt its want of power over the subject. She knew it was vested in Congress alone, and to Congress she turned for relief. That body immediately prohibited the 'importation' of 'negroes, mulattoes, and persons of color,' free as well as slaves, into any State which by law had prohibited or should prohibit the importation of any such person or persons. And this act sanctioned to this day the legislation of the Southern States, to a great extent, upon this very subject.
The act of the State of Massachusetts now under examination might also be regarded, were it necessary, as imposing a duty on tonnage; being a tax on passengers by the poll. The number of passengers to be taken on board, or imported, in ships of the United States, is limited by law to a fixed relation, or ratio, with the tonnage of the vessel; and as only two passengers are allowed for every five tons, a tax of two dollars on each person is a tax on the vessel of eighty cents a ton.
The question before the court is a question as to power, and of power alone. It is a question as to the power on the part of a State to tax the commerce of the Union, to raise a revenue for her own uses. Give Massachusetts the authority to collect money from passengers for the support of paupers, and see how quickly she will extend the system. If it is advisable to support emigrants when in a State of destitution, it is also desirable to educate their children, so that they may not become a burden upon the Commonwealth at a future day. The expense of free schools is far beyond that of pauper asylums; and if Massachusetts has the power to raise revenue by these means for one purpose, so may she for the other.
It is true Chief Justice Shaw, in this very case of Norris v. The City of Boston, now before the court, restricts the power of the State to the object for which the tax is laid. He supposes that the States may impose small burdens of this kind, but are prohibited from their extension. He says (4 Met. 297),—'If, under the form of pilotage, a large sum of money should be demanded of any inward-bound vessel, the effect of which would be to raise a revenue from foreign commerce, the pretence of its being pilotage would not make it legal. And this suggestion answers an argument much pressed, that if the State could demand two dollars in respect to each passenger, it could demand two hundred, or two thousand, and so raise a large revenue for any and all purposes. We think it is plain, that, if any such large sum were exacted of passengers, it would indicate the real purpose and design of the law to be to raise revenue, and not in good faith to carry into effect a useful and beneficent poor-law,—useful and beneficent to such aliens themselves; and therefore it would be in contravention of the Constitution and laws of the United States, and void.'With great respect, we submit that these reasons for the decision of the Supreme Court of Massachusetts are not strong enough to sustain it. No court can determine the constitutionality of a law by the extent to which its purposes are carried; for if a State has the power to pass a law, she alone can limit its exercise. The courts cannot regulate or control the discretion of legislators; and if their power be once admitted, all control over them is surrendered up. The chief justice of this court has said, in express terms, that 'upon this question the object and motive of the State are of no importance, and cannot influence the decision. It is a question of power.'
Can the Supreme Court of Massachusetts say that its legislature may impose a tax of two dollars upon each alien passenger, but cannot increase it to five? Can the court inquire into the condition of the treasury, count foreign paupers, ascertain the extent of their wants, and so determine whether the tax was designed for constitutional purposes or not? Is there any limit in the power of a State to tax the property of its own citizens in any way and to any extent it may see fit? Must not the same authority which selects the objects of taxation determine its extent also? Where is the limit? Who can define its bounds? Surely the courts cannot, and it has always been held that the power to tax is a power to destroy. (2 Peters, 467; 4 Wheaton, 431.)
The money to be derived from the tax in the present case is not devoted to the use of those particular aliens who pay it, but to all aliens subsequently to arrive. The strong are to pay for the feeble, the rich for the poor. Passengers arrive at Boston, New York, and New Orleans, who have no purpose of remaining in those places. Their destination is westward, towards the interior States, who have no soil touching upon that ocean which, by the Constitution, is as free to them as to the States which are washed by its waves.
Emigration is encouraged by the Constitution of the United States. Its prohibition and impediments in its way were subjects of complaint in the Declaration of Independence. The laws of Congress encourage and protect emigration. The condition of mankind solicits it; ships are given up entirely to the importation of passengers, their decks being loaded with responsible beings instead of merchandise. Steam has added its power to that of the winds, and vessels propelled by its energies will be hereafter exclusively devoted to this great branch of commerce.
New York and Boston and New Orleans have almost a monopely of this business, and they seize the occasion to raise revenue from it. It may be well to regulate this matter; it may be expedient to raise a fund for paupers; it is kind and benevolent to do so: but the question is, How can it be lawfully done? Who shall make this regulation of commerce,—Congress or the States? Congress has the power to make the burden uniform; the States cannot. Massachusetts taxes the passenger two dollars; New York but one. Those who arrive in Boston, for the most part, pay through to other States. Those who come to New York, oftentimes without touching at the city, ascend the Hudson, and continue their progress without ceasing, until they reach the great prairies of the West. Yet each and all of these countless thousands leave a portion of their property, destined for their own use in other States, in the treasuries of these two ocean powers, and for the benefit of persons other than themselves. The Norwegian is taxed for the Frenchman, the Dane for the Irishman, the German for the Englishman, and all for the benefit of New York and Massachusetts. If these two States have the burdens of foreign pauperism, so have they also the benefits of foreign commerce. The sails of their ships whiten every sea, while the internal States, shut out from the ocean, have no such benefits in the same degree.
The tax of Massachusetts is not applicable to such paupers as arrive at the same time with the rich and the healthful. Her laws guard the Commonwealth sedulously against this burden, by requiring those who are in the condition of becoming a charge upon the State to give ample security for ten years against such charge before they are permittd to land. The pauper gives security; those who are above his condition pay a tax,—not for themselves, but for others.
The law of Massachusetts discriminates, taxing aliens alone. If it may do this, it may discriminate among nations. Treaties would have nothing to do with the subject, for the States cannot make them; nor could Congress restrain them, if the power in question is a mere police regulation or sanatory measure. Congress cannot regulate or restrain the States in matters of police and health, as each State has unlimited power over these subjects, to be exercised according to its own discretion.
If States may tax those who arrive by sea, they may tax those who travel by land. They may favor the North and burden the South; and New York, in her laws, does discriminate, in relation to this very subject, favorably to New Jersey, Connecticut, and Rhode Island, and adversely towards the other States. She takes upon herself to say, that coastwise passengers shall all be taxed; but that those from contiguous States, because of the frequency of intercourse, shall not be burdened to the same degree as those who are more remote.
With entire confidence, we submit that this cannot be done. New York cannot discriminate between the Southern and the Eastern States in favor of the latter and against the former. She has no power over the subject. Citizens of one State have the privileges and immunities of citizens in all the other States, and they cannot be limited or curtailed in their rights by State authority. Even Congress could not do this, as its legislation must be uniform throughout the nation.
But the act of Massachusetts taxes aliens who come here for temporary purposes of business. Alien passengers in steamers and ships of war, whether foreign or domestic, are brought within its terms. The packets which ply constantly, in all seasons of the year, between Boston and Liverpool, are subject to its demands, and must obey them.
The comity of nations forbids the exercise of this power to this extent, for the very idea of taxation includes, or implies, that of reciprocal rights and duties; of allegiance on one side, and protection on the other.
'The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. This is an original principle, which has its foundation in society itself.' 'All subjects over which the sovereign power of a State extends are objects of taxation; but those over which it does not extend are, upon the soundest principles, exempt from taxation.' 'The sovereignty of a State extends to every thing which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think not.' (2 Peters, 563, 564; 4 Wheat. 429.)
Aliens and merchandise are not 'introduced' into Massachusetts by her 'permission,' nor do commerce and navigation exist by her 'authority.' The persons and property of aliens do not belong to the 'body politic' of that State, and her 'sovereignty' does not extend to commerce and navigation, nor to aliens before they come within her jurisdiction. Until landed, they are under the jurisdiction of the United States, covered and protected by their laws.
It will not be denied that Congress may impose taxes or duties at pleasure on men and merchandise, upon their importation, (within the limits of treaties,) without any objection as to its constitutional right to do so. But suppose the power were exercised by Congress; from whence would such authority be derived? Obviously, from the power 'to lay and collect taxes, duties, imposts, and excises,' and 'to regulate commerce.' The control of Congress over foreign commerce is unlimited, while that of the States has been given up to the general government.
Massachusetts cannot raise a fund for her pauper system by taxing the property of aliens on shipboard before it is landed or made subject to her jurisdiction. She could lay no duty, for instance, under the tariff of 1842, on 'wearing apparel and other personal effects, not merchandise, professional books, instruments, implements and tools of trade, occupation or employment of persons arriving in the United States,' because this law declared that those articles should be exempt from duty. And upon this subject Congress has legislated from the beginning to the same effect.
Has not the general government, then, interposed its authority and prescribed the terms under which aliens shall come into the ports of the United States,—not the ports of Boston and New York, but the ports of the nation at large, each and all of them, from the St. John's to the Rio Grande? Congress has said that the personal effects, not merchandise, of aliens shall be admitted exempt from duties. It has nowhere taxed their persons, but has permitted them, so far as their legislation is concerned, to come in free of charge. If the States cannot tax the personal effects, not merchandise, of aliens because Congress has permitted them to be free, how can they tax their persons, which, by clear implication, are to be free also?
Congress as often regulates commerce by permitting it to go untrammelled as it does by direct action. If that power were to impose taxes upon specific articles enumerated in a tariff, and omit all others, the latter would be free; for all articles not directly charged with duty by some act of Congress are undoubtedly exempt therefrom. (The Liverpool Hero, 2 Gall. 188.)
No State can, without the consent of Congress, lay any duty on imports except to carry out, as far as may be necessary, their inspection laws; and this by the express words of the tenth section of the first article of the Constitution. But suppose that section had been omitted; could the States then impose duties upon imports while the eighth section remains, which gives to Congress the entire control over the subject?
'From the vast inequality,' says Chief Justice Marshall, 'between the different States of the confederacy as to commercial advantages, few subjects were viewed with deeper interest, or excited more irritation, than the manner in which the several States exercised, or seemed disposed to exercise, the power of laying duties on imports. From motives which were deemed sufficient by the statesmen of that day, the general power of taxation, indispensably necessary as it was, and jealous as the States were of any encroachment on it, was so far abridged as to forbid them to touch imports or exports, with the single exception which has been noticed. Why are they restrained from imposing these duties? Plainly because, in the general opinion, the interests of all would be best promoted by placing the whole subject under the control of Congress.'
It is obvious that the same power which imposes a light duty can impose a very heavy one; one which amounts to a prohibition. Questions of power do not depend on the degree to which it may be exercised at all; it must be exercised at the will of those it whose hands it is placed.' (4 Wheat. 438, 439.)
It is not denied by the plaintiff in error, that States can establish systems of pauper laws, which may include aliens as well as natives; but they cannot tax commerce or navigation in order to procure the means for their support. For this purpose they must assess their own property and their own constituents, and not assume a power to tax, because of the benevolent objects for which the revenue is to be raised. If the end will sanction the means, then all power of restraining taxation is at an end.
We do not complain of any just exercise of a police power, nor of inspection laws, nor demands for lists of passengers, nor of acts to keep out pestilence or regulate the introduction of persons burdensome to the Commonwealth, nor of the stopping of ships for examination merely. All these things may be done, and yet no authority found in the States to tax passengers, brought into the country in the due course of commerce and navigation, for the purpose of supporting these measures.
If the States may impose these burdens, they may exclude passengers altogether. If they can tax aliens as such, they may expel them, when landed, by an oppressive exercise of the power. If they tax on arrival, they may tax on departure, and there is no limit to the power.
It is supposed that this case is governed by that of The City of New York v. Miln; but upon examination it will be found that the action in that case was not founded upon any section of the passenger law which imposed a tax upon them. It was an action of debt, for the recovery of a penalty for not reporting the names of the passengers. The declaration averred that a certain vessel arrived in the port of New York from Liverpool, with passengers on board, and that the master did not make a report in writing to the mayor of the city of the name, place of birth and last legal settlement, age, and occupation of the several persons brought as passengers on the ship, contrary to the provisions of the act of the State of New York, (partly recited in the declaration,) whereby an action accrued to the plaintiff to demand from the defendant, the consignee of the ship, the sum of seven thousand five hundred dollars. To this declaration there was a demurrer and joinder.
The decision of the court was therefore confined to that part of the act which requires the master, within twenty-four hours after the arrival of his vessel, to make report of his passengers, but the question as to the power of taxation did not arise. It is true there were many general remarks upon constitutional law, made by the judges who gave opinions; but the points before the court and the questions passed upon were those above referred to.
Chief Justice Taney, in remarking upon this case of New York v. Miln, observes, that 'the question as to the power of the States upon this subject was very fully discussed at the bar. But no opinion was expressed upon it by the court, because the case did not necessarily involve it, and there was great diversity of opinion on the bench. Consequently the point was left open, and has never been decided in any subsequent case in this court.' (5 How. 584.)
But can the maritime States, by their own acts, prohibit the importation of settlers for the public lands, or their migration to those unoccupied regions of the interior which are ready to welcome their approach? Congress has legislated upon the subject of emigration and naturalization, the exclusive power over which is given to that body by the Constitution. It has also legislated concerning the carrying of passengers, prescribing the space they shall be entitled to occupy on shipboard, the food and water with which they shall be supplied, and the privileges they shall enjoy.
The institutions and laws of the United States encourage the emigration of foreigners, and our untilled soil requires the stimulating power of their industry. Can the maritime States, then, by their own legislation, restrain or destroy that commerce which relates to the importation of passengers, and their migration to other States open for their reception? The law of Massachusetts prescribes some of the terms upon which aliens may land upon her shores. If it can prescribe some, it can prescribe others. It may establish burdensome or impossible conditions, and so shut out emigrants altogether. Let it not be forgotten that this is a question of power exclusively. Emigrants arrive in Boston destined for Iowa. This convenient eastern port is selected as a place of disembarkation, the ultimate purpose being a permanent settlement elsewhere. The passengers are not, as a matter of course, either diseased, decrepit, or infirm. They may be young, above want, adventurous, and determined. Upon approaching the shores of their first western port they are met by the tax-gatherer, who demands two dollars from each man, each woman, and each child. Having submitted to this exaction, the emigrants pass immediately on towards their long-sought home in the fertile regions of the West. When they arrive at the boundary of New York another tax-gatherer may meet them, and, under the pretence of pauperism and the burdens of poverty, he may demand two dollars also from each emigrant, for the privilege of crossing the borders of another State. For, if Massachusetts can tax them as they come in by sea, New York may tax them also as they journey through her territory by land; and this may be repeated in every State through which they may desire to pass.
It is submitted to the court, that the States have no such power. We repeat, that although the States may pass poorlaws, establish sanatory regulations, and provide for inspections, yet they cannot tax any branch of the foreign commerce of the country, to aid them in their projects, be they charitable or not. The power cannot be derived from the subject to which the money is to be applied, but must exist, if it exist at all, altogether independently of such objects.
The whole subject of emigration, so far as it is connected with commerce and navigation, is under the control of Congress, and there it should remain. That body can exercise the power wisely, discreetly, and disinterestedly, for the benefit of the whole country, without permitting any improper burden to be placed upon the maritime States. Their laws will be uniform; those of the States must necessarily be diverse,—the tax in Massachusetts being two dollars, while in New York it is but one. The sovereign power may annex what conditions it pleases to the admission of foreigners within its jurisdiction, or prohibit it altogether. But that sovereign power, in this country, is in the United States, and the whole subject is committed, with great propriety, by the Constitution, to the Congress of the whole people, and not to the States in their corporate capacities.
But the passengers referred to are not in all cases emigrants, coming here for permanent settlement. In many cases there are merchants, visiting our shores for purposes of commerce merely, and we submit that to tax them is to tax the commerce of the country, which cannot be done by the States.
The act of Massachusetts is also open to another objection, which is obvious. The tax is not specifically on the alien passengers themselves, although it may be so indirectly. It forbids the landing of any such persons until the master, owner, consignee, or agent shall have paid two dollars for each passenger so landing.
We submit that this is a direct impost upon the masters or owners, in direct relation to their commercial avocations; it is a tax upon the master as master, upon the owner because he imports emigrants rather than merchandise. Massachusetts cannot compel a merchant to pay two dollars for each chest of tea he may import into Boston; and to impose upon him a duty of two dollars upon each person he may import is as direct an interference with the commerce of the country as a tax upon baggage or personal effects would be. Passengers are brought in as freight; they take the place of cargo, and occupy all the decks of the ship. To tax the passengers is to tax the freight; and if the latter cannot be done, the former cannot. The business of importing emigrants has become a matter of great importance to the merchants of New York and Boston, who derive large emoluments from this employment of their ships, the receipts for passage-money being counted by millions instead of thousands. Passage-money and freight are in law identical, and are governed by the same rules. (1 Pet. Adm. 123-125.)
The navigation of the country is under the exclusive control of Congress; and if it were under that of the States, what would be the consequence? Massachusetts, having power over the subject, might impose a tax of five dollars upon each emigrant imported in ships other than her own, and by this means secure a monopoly, as far as this could be done by legislation, for the vessels belonging to her own citizens. Uniformity in the laws of commerce and navigation would be destroyed, and we should go back in effect to the old Confederation. Jealousies would spring up, and retaliation begin, and this entire branch of the commerce of the country would fall into chaos. Thirty years ago, during the steamboat controversy, Connecticut passed retaliatory laws against New York; and if the States can regulate the conditions upon which passengers may land, these conditions may and would vary in all the maritime States.
They do so now. In this respect there is no uniformity in the State laws; and hence the whole subject should be and is referred to Congress. That body has the entire control over our foreign relations, which are wisely placed by the Constitution beyond State interference.
If Massachusetts can tax passengers arriving within her jurisdiction before they come under the control of her laws, so may New Mexico and California, when States. These latter would have a strong temptation to exercise the right at this time, and might make New York herself feel the weight of State power. For if States can lay an impost upon aliens, they may also upon natives, as New York herself now does.
She does not discriminate between citizens of the United States and foreigners, but imposes the same tax upon both. Neither is she particularly nice as to the objects to which the revenue thus raised is appropriated.
To support an establishment for the reform of young offenders she gives eight thousand dollars per annum; a large donation is bestowed upon her hospitals and dispensaries; and finally, should there be a surplus of revenue thus derived, the State treasury itself becomes the depository of all balances which remain. If she has the power to impose the tax, and raise the revenue, she doubtless has the power to dispose of it in any way she may see fit. She may defray out of it all the expenses of her civil list, maintain her schools, and support her paupers. The ease with which revenue may be raised by means of imposts upon commerce presents great temptations to State power. The convenience of the system is obvious. If it can be upheld under the Constitution of the United States, it will be resorted to by every State upon the Atlantic and the Pacific, and indirectly a large portion of the revenues of the States will be derived from commerce and navigation. The temptation would not be resisted, and hence those who framed the great charter under which the States are restrained wisely took the power to regulate commerce from these sovereignties, and bestowed it upon Congress.
We submit to the court, that the law of Massachusetts now under consideration is unconstitutional and void.
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 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 any one 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 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 Peters, 570, the chief justice, in giving his own and the opinion of three of his brethren, says:—'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. 574.)
In Houston v. Moore, 5 Wheat. 23, the court say:—'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, say, 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 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 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. The State of Maryland, 12 Peters, 446, the court say,—'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 Peters, 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 Peters, 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 fulness 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.'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.
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 say,—'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 completly 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. The 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 neighbourhood. 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 neighbourhood, 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 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.
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 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. The 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 any thing 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.
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 say,—'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 say, 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 refererred 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 the 7th of August, 1789, it is provided,—'That all pilots in the bays, inlets, rivers, harbours, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States, respectively, wherein such pilots may be, or with such laws as the States 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.
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 inswer, that Congress has no such power. The United States cannot use any one of these works without paying the customary tolls. The tolls are imposed, not as a tax, in the ordinary sens 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 The City of New York v. Miln, 11 Peters, 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, 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 say,—'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.
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 ship-owner 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.' (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 any one 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 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 any one suppose that Congress can ever revive the slave trade? And if this were possible, slaves thus introduced would be free.
As early as May 27th, 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 25th, 1799, which repealed the above act, more enlarged provisions were enacted, requiring the revenue-officers of the United States to conform 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 non-intercourse 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. The State of Maryland, 4 Wheat. 431, this court say,—'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.'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 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 20th of April, 1837, by the legislature of Massachusetts, contains the following provisions:——
'§ 1. When any vessel shall arrive at any port or harbour 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 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 any one 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; 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 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. The 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 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, 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, harbours, 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 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 treaty-making 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 treaty-making 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 any one 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 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. It 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 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, p. 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 every thing 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 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, 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 any one 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 treaty-making 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 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 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 politica 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 any one 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 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 harbour, 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 every thing 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 tranquillity 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 exterritorially (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.'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 25th, 1799, (1 Stat. at Large, 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 suitable warehouses, with wharves and inclosures 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, p. 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 embarcation 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 treaty-making 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 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 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.
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. The 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 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 extremoe 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 any thing 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 any thing 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 The City of New York v. Miln, reported in 11 Peters, 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.' (11 Peters, 143.) But as to all besides in that opinion as to the constitutional power of Congress to regulate commerce,—except 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 the reason given by Mr. Justice Thompson, as it appears in his opinion. That reason was, that the question arose upon a general demurrer to the declaration, and that the certificate under which the cause was sent to this court contains the pleadings upon which the question arose, which show that no part of the act was drawn in question, except that which relates to the neglect of the master to report to the mayor or recorder an account of his passengers, according to the requisitions of the act. In the discussion of the case, however, by the judges, the nature and exclusiveness of the power in Congress to regulate commerce was much considered. There was a divided mind among us about it. Four of the court being of the opinion, that, according to the Constitution and the decisions of this court in Gibbons v. Ogden and in Brown v. Maryland, the power in Congress to regulate commerce was exclusive. Three of them thought otherwise. And to this state of the court is owing the disclaimer in the opinion, already mentioned by me, that the exclusiveness of the power to regulate commerce was not in the case a point for examination.
But there was another point of difference among the judges in respect to what was commerce under the constitutional grant to Congress, particularly whether it did not include an intercourse of persons and passengers in vessels. Two of the court—the report of the case shows it—thought, in the language of the opinion, that 'persons are not subjects of commerce.' Mr. Justice Thompson declined giving any opinion on that point, and repeated it in the opinion published by him. Four of the justices, including Mr. Justice Baldwin, thought that commerce did comprehend the intercourse of persons or passengers. For this statement I refer to the opinion of Mr. Justice Thompson, to the dissenting opinion of Mr. Justice Story, to the opinion of Mr. Justice Baldwin, to the constantly avowed opinion of Mr. Justice McLean, and to what has always been known by the justices of this court to be my own opinion upon this point.
In this state of the opinions of the court, Mr. Justice Thompson was designated to write an opinion,—that the law in question was a police regulation, and not unconstitutional. He did so, and read to the court the opinion, which he afterwards published. It was objected to by a majority of the court, on account of some expressions in it concerning the power of Congress to regulate commerce, and as our differences could not be reconciled, Mr. Justice Thompson said he would read it as his own.
Then, Mr. Justice Barbour was asked to write an opinion for the majority of the court. He did so, and read that which is printed as such, in our last conference of that term, the night before the adjournment of the court. The next day it was read in court, all of the judges being present when it was read, except Mr. Justice Baldwin. In the course of that morning's sitting, or immediately after it, Mr. Justice Baldwin, having examined the opinion, objected to its being considered the opinion of the court, on account of what was said in it concerning the power of Congress to regulate commerce, and what was commerce. He sought Mr. Justice Barbour, with the view of having it erased from the opinion, declaring, as all the rest of us knew, that his objection to the opinion of Mr. Justice Thompson was on account of what it contained upon the subject of commerce; that his objection to the reasoning upon the same matter in Mr. Justice Barbour's opinion was stronger, and that the had only assented that an opinion for the court should be written, on the understanding that so much of the act of New York as was in issue by the pleadings should be treated as a regulation, not of commerce, but police. Without his concurrence, no opinion could have been written. Unfortunately, Mr. Justice Barbour had left the court-room immediately after reading his opinion, already prepared to leave Washington in a steamer which was in waiting him. Mr. Justice Baldwin did not see him. The court was adjourned. Then there was no authority to make any alteration in what had been read as the opinion of the court. Mr. Justice Baldwin wished it, but, under the circumstances of preparation which each judge was making for his departure from Washington, nothing was done, and Mr. Justice Baldwin determined to neutralize what he objected to in the opinion by publishing in the reports his own opinion of the case. That was not done, but he did so contemporarily with the publication of the reports, in his View of the Constitution. There it is, to speak for itself, and it shows, as I have said, that so much of the opinion in the case of New York v. Miln as related to commerce did not have the assent of Mr. Justice Baldwin, and therefore not the assent of a majority of the court.
How, then, did the case stand? Mr. Justice Thompson gave his own opinion, agreeing with that of Mr. Justice Barbour, 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 section is constitutional, but giving his own views of the commercial question as it stood in relation to the case. The attitude of Mr. Justice Baldwin with respect to the opinion has just been told. Mr. Justice Story dissented from every part of the opinion, on the ground that the section of the act in controversy was a regulation of commerce, which a State could not constitutionally pass. Mr. Justice McLean is here to speak for himself, and he did then speak as he has done to-day in these cases concerning the power in Congress to regulate commerce being exclusive, and held that persons are the subjects of commerce as well as goods, contrary to what is said in the opinion (136th page), that persons are not. I certainly objected to the opinion then, for the same reasons as Mr. Justice McLean. Thus there were left of the seven judges but two, the Chief Justice and Mr. Justice Barbour, in favor of the opinion as a whole.
I have made this narrative and explanation, under a solemn conviction of judicial duty, to disabuse the public mind from wrong impressions of what this court did decide in that case; and particularly from the misapprehension that it was ever intended by this court, in the case of New York v. Miln, to reverse or modify, in any way or in the slightest particular, what had been the judgments and opinions expressed by this court in the cases of Gibbons v. Ogden and Brown v. Maryland. And I am happy in being able to think, notwithstanding the differing opinions which have been expressed concerning what was decided in those cases, that they are likely to stand without reversal.
The chief justice, the morning after I had read the foregoing statement in the case of New York v. Miln, made another to counteract it, in which he says his recollections differ from mine in several particulars. I do not complain of it in any way. But it enables me to confirm my own in some degree from his, and in every other particular in which it does not give such assistance, the facts related by me are indisputable, being all in the report of the case in Peters, from which I took them. They are in exact coincidence, too, with my own recollections.
The only fact in my statement not altogether, but in part, taken from the record, is Mr. Justice Baldwin's discontent with the opinion written by Mr. Justice Barbour, and his wish that it might not as a whole be published in our volume of reports as the opinion of the court. The chief justice admits that Mr. Justice Baldwin did apply to him after the adjournment of the court, and before they left Washington, for that purpose. Now if, by mistake or oversight, a judge shall fall into an admission, which more care afterwards enables him to recall and correct before the judgment has been published, but after it has been read, whatever may be the operation of the judgment, does it follow that the argument in the opinion in which the judgment is given continues to be the law of the court? And if the same judge, after more careful and matured thought, publishes contemporarily his opinion, differing from the dictum which had escaped his notice, will that make it law? Is it not plain that it is a case of mistake, which cannot make the law? And if his co operation is essential to the validity of the original opinion, from those who may advocate it being thrown into the minority by his withdrawal, and his declaration that he never meant to co operate in it in the particular objected to, can it be said that it ever was the law of the court? Is it at all an uncommon thing in the English and American law reports, that a case is published as law which is deemed afterwards not to be so, on account of error in its publication, from its not having been really the opinion of the court when it was published? Mistake in all cases restores things to the correct condition in which they were before the mistake was made, except where the policy of the law has determined that it shall be otherwise. A single mistaken and misstated case is not within that policy. Long acquiescence, or repeated judicial decisions, may be, and then only because the interests of society have been accommodated to the error.
But the chief justice says that he has the strongest reason to suppose that Mr. Justice Baldwin became satisfied, because, in his opinion in the case of Groves v. Slaughter, he quotes the case of New York v. Miln with approbation, when speaking in that case of the difference between commercial and police powers.
I certainly cannot object to the opinion of Mr. Justice Baldwin in Groves v. Slaughter being a test between the chief justice and myself in this matter; for Mr. Justice Baldwin's opinion in that case is the strongest proof that could have been given four years afterwards, by himself, that he never was reconciled to the opinion of Mr. Justice Barbour in Miln's case as a whole. For instance, in that opinion he does not leave the exclusive power of Congress to regulate commerce to the disclaimer in Miln's case, that it was not the intention of the judges to decide that point in that case. He says,—'That the power of Congress to regulate commerce among the States is exclusive of any interference by the States has been, in my opinion, conclusively settled by the solemn opinions of this court in Gibbons v. Ogden, 9 Wheat. 186-222; and in Brown v. Maryland, 12 Wheat. 438-446. 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, nor can there be any adjudications of this court which must be considered as authoritative upon any question, if these are not to be so on this.' And the learned judge goes on to say,—'Cases may indeed arise, wherein there may be found difficulty in discriminating between regulations of commerce among the several States and the regulation of the internal police of a State, but the subject-matter of such regulations of either description will lead to the true line which separates them, when they are examined with a disposition to avoid a collision between the powers granted to the Federal government by the people of the several States and those which they reserved exclusively to themselves. commerce among the States, as defined by this court, is trade, traffic, intercourse, and dealing in articles of commerce between States by its citizens or others, and carried on in more than one State. Police relates only to the internal concerns of one State; and commerce within it is purely a matter of internal regulation, when confined to those articles which have become so distributed as to form items in the common mass of property. It follows, that any regulation which affects the commercial intercourse between any two or more States, referring solely thereto, is within the powers granted exclusively to Congress, and that those regulations which affect only the commerce carried on within one State, or which refer only to subjects of internal police, are within the powers reserved.' And then it is that the sentence follows cited by the chief justice to show that he had reason to suppose that Mr. Justice Baldwin had become satisfied. The citation made by me from his opinion shows what his opinion was in respect to the power of Congress to regulate commerce, confirming what I have said in my statement, that four of us were of the same opinion when that point was touched upon in the case of Miln, and that Mr. Justice Baldwin refused to sanction what was said by Mr. Justice Thompson in respect to it in the opinion written by him for the court in Miln's case. And that he was not satisfied as to that sentence of Mr. Justice Barbour's opinion in which it is said that persons are not the subjects of commerce, is manifest from that part of his opinion in Groves v. Slaughter in which he says that commerce is 'trade, traffic, intercourse';—intercourse, in the sense of commerce, meaning, as it always does, 'connection by reciprocal dealings between persons and nations.' But, further, the chief justice says that Mr. Justice Baldwin called upon him and said there was a sentence or paragraph in the opinion with which he was dissatisfied, and wished altered, thus confirming all that I have said in respect to the case in what is in it concerning persons not being the subjects of commerce, that being the only declaration in the opinion relating to commerce, it having been previously declared that the exclusiveness of the regulation of commerce in Congress was not to be decided. All that was meant to be decided in Miln's case was, that the regulation stated in the certificate of division of opinion between the judges in the Circuit Court was not a regulation of commerce, but one of police. In respect to our lamented brother Barbour not knowing the dissatisfaction of our brother Baldwin and other members of the court with the opinion, I know that he did know it. In regard to the chief justice's declaration, that he had never heard any further dissatisfaction expressed with the opinion by Mr. Justice Baldwin, and never at any time, until this case came before us, heard any from any other member of the court who had assented to or acquiesced in the opinion; while, of course, that must be taken to be so, as far as the chief justice is concerned, I must say that I have never, in any instance, heard the case of Miln cited for the purpose of showing that persons are not within the regulating power of Congress over commerce, without at once saying to the counsel that that point had not been decided in that case. I have repeatedly done so in open court, and, as I supposed, was heard by every member of it. I have only said, in reply to the chief justice's statement, what was necessary to show that it was not decided in Miln's case, by this court, that persons are not within the power of Congress to regulate commerce.
Indeed, it would be most extraordinary if the case of Gibbons v. Ogden could be considered as having been reversed by a single sentence in the opinion of New York v. Miln; upon a point, too, not in any way involved in the certificate of the division of opinion by which that case was brought to this court. The sentence is, that 'they [persons] are not the subjects of commerce; and, not being imported goods, cannot fall within a train of reasoning founded upon the construction of a power given to Congress to regulate commerce, and the prohibition to the States from imposing a duty on imported goods.'
In the case of Gibbons v. Ogden the court said,—'Commerce is traffic; but it is something more. It is intercourse. It describes the commercial intercourse between nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse.'
Again:—'These words comprehend every species of commercial intercourse between the United States and foreign nations. No sort of trade can be carried on between this country and any other to which this power does not extend.' 'In regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. It would be a very useless power if it could not pass those lines.' 'If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State.' 'The power of Congress comprehends navigation within the limits of every State in the Union, so far as that navigation may be connected with commerce with foreign nations, or among the several States.' 'It is the power to regulate; that is, to prescribe the rule by which commerce is governed.' 'Vessels have always been employed to a greater or less extent in the transportation of passengers, and have never been supposed, on that account, withdrawn from the control or protection of Congress. Packets which ply along the coast, as well as those which make voyages between Europe and America, consider the transportation of passengers as an important part of their business. Yet it never has been suspected that the general laws of navigation did not apply to them. A coasting-vessel employed in the transportation of passengers is as much a portion of the American marine as one employed in the transportation of cargo.'
In my opinion, the case of Gibbons v. Ogden rules the cases before us. If there were no other reasons, with such an authority to direct my course, I could not refrain from saying that the acts of Massachusetts and New York, so far as they are in question, are unconstitutional and void.
The case of Gibbons v. Ogden, in the extent and variety of learning, and in the acuteness of distinction with which it was argued by counsel, is not surpassed by any other case in the reports of courts. In the consideration given to it by the court, there are proofs of judicial ability, and of close and precise discrimination of most difficult points, equal to any other judgment on record. To my mind, every proposition in it has a definite and unmistakable meaning. Commentaries cannot cover them up or make them doubtful.
The case will always be a high and honorable proof of the eminence of the American bar of that day, and of the talents and distinguished ability of the judges who were then in the places which we now occupy.
There were giants in those days, and I hope I may be allowed to say, without more than judicial impressiveness of manner or of words, that I rejoice that the structure raised by them for the defence of the Constitution has not this day been weakened by their successors.
Mr. Justice CATRON.
SMITH v. TURNER.
The first question arising in this controversy is, whether the legislation of New York, giving rise to the suit, is a regulation of commerce; and this must be ascertained, in a great degree, from a due consideration of the State laws regulating the port of the city of New York in respect to navigation and intercourse. They are embodied in a system running through various titles in the Revised Statutes. The sections on which the action before us is founded will be found in Vol. I. pp. 445, 446. Title fourth purports to treat of the marine hospital and its funds, then, in 1829, erected on Staten Island, under the superintendence of a health-officer, who is to be a physician, and certain commissioners of health. By section seventh, 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 every cabin passenger, one dollar and fifty cents; and for each steerage passenger, mate, sailor, or marine, 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.'
'Sec. 8. The moneys so received shall be denominated 'hospital moneys,' and shall be appropriated to the use of the marine hospital, deducting a commission to the health-commissioner of two and one half per cent. for collection.'
Turner, the health-commissioner, sued Smith, as master of the ship Henry Bliss, a British vessel, coming from Liverpool, in England, for the amount of money claimed as due from the defendant under the above provisions, because he brought in two hundred and ninety-five steerage passengers, who were British subjects, immigrating into the United States, and intending to become inhabitants thereof.
By section ninth, the master paying the hospital money may recover from each person for whom it was paid the sum paid on his account, in case of a foreign vessel; and by section tenth, the master of a coasting-vessel shall pay the tax in twenty-four hours after the vessel arrives in port, under the penalty of one hundred dollars.
The eleventh section directs the health-commissioners annually to account to the Comptroller of the State for the moneys received by them by means of the tax for the use of the marine hospital, and if such moneys shall in any one year exceed the sum necessary to defray the expenses of their trust, including salaries, &c., they shall pay over such surplus to the Society for the Reformation of Juvenile Delinquents in the city of New York, for the use of that society.
By the act of April 25th, 1840, the Comptroller of the State was authorized to draw on the treasurer, annually, for twenty years, a sum not exceeding fifteen thousand dollars in each year, for the benefit of the State hospital in the city, and a sum of eight thousand dollars is there recognized as payable to the Society for the Reformation of Juvenile Delinquents; and the city hospital is bound by the act to support at least twenty indigent persons from any part of the State. Thus a State hospital is also supported out of the fund, as well as an institution for young culprits, imposing an annual charge on the fund of twenty-three thousand dollars, having no necessary connection with commerce; and, by the act of 1841, three medical dispensaries are endowed out of the fund to an amount of four thousand five hundred dollars.
The ship Henry Bliss was engaged in foreign commerce when she arrived in the port of New York, and when the tax was demanded of Smith, the master, by Turner, the health-commissioner. The baggage of passengers was on board, and also their tools of trade, if they had any, and of course the passengers were on board, for the master is sued, in one count, for landing them after the demand. The tax of two hundred and ninety-five dollars was therefore demanded before the voyage was ended, or the money earned for carrying passengers and their goods. The vessel itself was undoubtedly regulated by our acts of Congress, and also by our treaty with Great Britain of 1815,—the national character of the vessel being British. She had full liberty to land, and so the goods on board belonging to trade and coming in for sale stood regulated, and could be landed and entered at the custom-house. And by the same treaty, passengers on board coming to the United States in pursuit of commerce in buying and selling were free to land. The master and crew were of the ship and navigation, and stood equally regulated with the ship. The property of passengers could not be taxed or seized, being expressly and affirmatively protected by the act of 1799. It was an import, and whilst it continued in form of an import, could be landed and transferred by the owners inland. This is the effect of the decision in Brown v. The State of Maryland. As the State power had nothing left to act upon but the person simply, nor any means of collecting the tax from passengers, it was levied on the master, of necessity, in a round sum.
As the ship was regulated, and was free to land all the property on board, the question arises, whether these immigrant passengers were not also regulated, and entitled by law to accompany their goods and to land, exempt from State taxation.
The record states, that 'the two hundred and ninety-five passengers imported in the ship Henry Bliss belonged to Great Britain, and intended to become inhabitants of the United States.'
By the laws of nations, all commerce by personal intercourse is free until restricted; nor has our government at any time proposed to restrain by taxation such immigrants as the record describes.
Our first step towards establishing an independent government was by the Declaration of Independence. By that act it was declared that the British king had endeavoured to prevent the population of the colonies by obstructing the laws for the naturalization of foreigners, and refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands. During the Confederation, the States passed naturalization laws for themselves, respectively, in which there was great want of uniformity, and therefore the Constitution provided that Congress should have power 'to establish a uniform rule of naturalization.' In execution of this power, Congress passed an act at its second session, (March 26th, 1790,) providing that any alien, being a free white person, who shall have resided in the United States two years, and in any one State one year, may become a citizen by taking an oath to support the Constitution in a court of record, and such step shall naturalize all the children of such person under twenty-one years of age. In 1795, another act was passed (ch. 20), requiring five years' residence; and on the 26th of April, 1802, (ch. 28,) the naturalization laws were amended. This act is now in force, with slight alterations. Under these laws have been admitted such numbers, that they and their descendants constitute a great part of our population. Every department of science, of labor, occupation, and pursuit, is filled up, more or less, by naturalized citizens and their numerous offspring. From the first day of our separate existence to this time has the policy of drawing hither aliens, to the end of becoming citizens, been a favorite policy of the United States; it has been cherished by Congress with rare steadiness and vigor. By this policy our extensive and fertile country has been, to a considerable extent, filled up by a respectable population, both physically and mentally, one that is easily governed and usually of approved patriotism. We have invited to come to our country from other lands all free white persons, of every grade and of every religious belief, and when here to enjoy our protection, and at the end of five years to enjoy all our rights, except that of becoming President of the United States. Pursuant to this notorious and long established policy, the two hundred and ninety-five passengers in the Henry Bliss arrived at the port of New York.
Keeping in view the spirit of the Declaration of Independence with respect to the importance of augmenting the population of the United States, and the early laws of naturalization, Congress, at divers subsequent periods, passed laws to facilitate and encourage more and more the immigration of Europeans into the United States for the purpose of settlement and residence.
The twenty-third section of the general collection act of the 2d of March, 1799, requires that every master of a vessel arriving in the United States shall have on board a manifest, in writing, signed by such master, of the goods, wares, and merchandise on board such vessel, 'together with the name or names of the several passengers on board the said ship or vessel, distinguishing whether cabin or steerage passengers, or both, with their baggage, specifying the number and description of packages belonging to each respectively.'
The twenty-fifth section of the same act makes it the duty of the master to produce, on his arrival within four leagues of the coast, such manifest to such officer or officers of the customs as shall first come on board his said ship or vessel; and by the twenty-sixth section, a fine of five hundred dollars is imposed on the master for not producing such manifest.
By the thirtieth section of the same act, the master is required, within twenty-four hours after his arrival from a foreign port, to repair to the office of the collector and make report of the arrival of his ship; 'and within forty-eight hours after such arrival, shall make a further report in writing to the collector of the district, which report shall be in the form, and shall contain all the particulars, required to be inserted in a manifest'; and he is required to make oath or solemn affirmation to the truth of such report. But the material section of that act is the forty-sixth. That section declares, that 'the wearing apparel, and other personal baggage, and the tools or implements of a mechanical trade only, of persons who arrive in the United States shall be free of duty.' The same section prescribes a form of declaration, that the packages contain no goods or merchandise other than the wearing apparel, personal baggage, and tools of trade belonging to the person making the declaration, or his family. Before the property exempt from duty is allowed to be landed, a permit to do so must be obtained from the collector of the port, and each owner is bound to pay a fee for such privileges, for the support of the revenue-officers.
It is quite obvious, from these proceedings, that the passengers who were thus in the contemplation of Congress were, for the most part, immigrants, or persons coming to settle in the United States with their families. The act of the 27th of April, 1816, section second, re enacts, in substance, that part of the forty-sixth section of the act of the 2d of March, 1799, above quoted. Exemptions and privileges in favor of passengers arriving in the United States are carried still further, by the provisions of the fourth subdivision of the ninth section of the duty act of the 30th of August, 1842. Among articles declared by that act to be free of duty are 'wearing apparel in actual use, and other personal effects, not merchandise, professional books, instruments, implements and tools of trade, occupation, or employment, of persons arriving in the United States.' This provision is very broad. It not only exempts from duty tools of mechanical trades, but all instruments and implements of occupation and employment, and also all professional books, without limitation of value or numbers.
A still further enlargement of these privileges and exemptions is contained in the duty act of the 30th of July, 1846; for the eleventh section of that act (schedule 1), in addition to the passengers' articles made free by the act of 1842, declares free from duty 'household effects, old and in use, of persons or families from foreign countries, if used abroad by them, and not intended for any other person or persons.'
Now, is it possible to reconcile State laws, laying direct and heavy taxes on every immigrant passenger and every member of his family, with this careful, studied, and ever-increasing security of immigrants against every legal burden or charge of any kind? Could Congress have done more than it has done, unless it had adopted what would have been justly regarded as a strange act of legislation, the insertion of passengers themselves in the list of free articles?
The first and one of the principal acts to be performed on bringing ships and goods from foreign countries into the United States is the production of a manifest; and in such manifest, along with the specifications of the cargo, the names and description of the passengers, with a specification of their packages of property, are to be inserted. Then comes a direct exemption of all such property from duties. All agree, that, if Congress had included the owners, and declared that immigrants might come into the country free of tax, these State laws would be void; and can any man say, in the face of the legislation of Congress from 1799 to 1846, that the will of Congress is not as clearly manifested as if it had made such a direct declaration? It is evident that, by these repeated and well-considered acts of legislation, Congress has covered, and has intended to cover, the whole field of legislation over this branch of commerce. Certain conditions and restraints it has imposed; and subject to these only, and acting in the spirit of all our history and all our policy, it has opened the door widely and invited the subjects of other countries to leave the crowded population of Europe and come to the United States, and seek here new homes for themselves and their families. We cannot take into consideration what may or may not be the policy adopted or cherished by particular States; some States may be more desirous than others that immigrants from Europe should come and settle themselves within their limits; and in this respect no one State can rightfully claim the power of thwarting by its own authority the established policy of all the States united.
The foregoing conclusions are fortified by the provisions of the act of March 2d, 1819. It provides that not more than two passengers shall be brought or carried to each five tons' measure of the vessel, under a severe penalty; and if the number exceeds the custom-house measure by twenty persons, the vessel itself shall be forfeited, according to the ninety-first section of the act of 1799. The kind and quantity of provisions are prescribed, as well as the quantity of water, and if the passengers are put on short allowance, a right is given to them to recover at the rate of three dollars a day to each passenger, and they are allowed to recover the same in the manner seamen's wages are recovered, that is, in a summary manner, in a District Court of the United States. The master is also required, when the vessel arrives in the United States, at the same time that he delivers a manifest of his cargo, and if there be none, then when he makes entry of the vessel, to deliver and report to the collector, by manifest, all the passengers taken on board the ship at any foreign port or place, designating age, sex, and occupation, the country to which they severally belong, and that of which it is their intention to become inhabitants; which manifest shall be sworn to as manifests of cargo are, and subject to the same penalties. These regulations apply to foreign vessels as well as to our own, which bring passengers to the United States.
1. By the legislation of Congress, the passenger is allowed to sue in a court of the United States, and there to appear in person, as a seaman may, and have redress for injuries inflicted on him by the master during the voyage.
2. The passenger is allowed to appear at the custom-house with his goods, consisting often of all his personal property, and there, if required, take the oath prescribed by the acts of Congress, and get his property relieved from taxation. The clothes on his person, and the money in his purse, from which the tax is sought, may freely land as protected imports; and yet the State laws under consideration forbid the owner to land; they hold him out of the courts, and separate him from his property, until, by coercion, he pays to the master for the use of the State any amount of tax the State may at its discretion set upon him and upon his family; and this on the assumption that Congress has not regulated in respect to his free admission.
And how does the assumption stand, that a poll-tax may be levied on all passengers, notwithstanding our commercial treaties? By the fourteenth article of the treaty of 1794 (known as Jay's treaty), and which article was renewed by our treaty with Great Britain of 1815, it was stipulated that reciprocal liberty of commerce should exist between the United States and all the British territories in Europe:—'That the inhabitants of Great Britain shall have liberty freely and securely to come with their ships and cargoes to our ports, to enter the same, and to remain and reside in any part of our territories; also, to hire and occupy houses and warehouses for the purposes of their commerce.' And that no higher or other duties should be imposed on British vessels than were by our laws imposed on American vessels coming into our ports from Great Britain, and that our people should have reciprocal rights in the British ports and territories.
The taxes under consideration are imposed on all persons engaged in commerce who are aliens, no matter where they are from. We have commercial treaties of the same import with the one above recited with almost every nation whose inhabitants prosecute commerce to the United States; all these are free to come and enter our country, so far as a treaty can secure the right. Many thousands of men are annually engaged in this commerce. It is prosecuted, for a great portion of the territory of the United States, at and through the two great ports where these taxes have been imposed; and it is a matter of history, that the greater portion of our foreign commerce enters these ports. There aliens must come as passengers to prosecute commerce and to trade, and the question is, Can the States tax them out, or tax them at all, in the face of our treaties expressly providing for their free and secure admission?
It is thus seen to what dangerous extents these State laws have been pushed; and that they may be extended, if upheld by this court, to every ferry-boat that crosses a narrow water within the flow of tide which divides States, and to all boats crossing rivers that are State boundaries, is evident.
These laws now impose taxes on vessels through their masters, in respect to the masters and crews, and all passengers on board, when the vessel commences and ends its voyage within sight and hearing of the port where the tax is demandable, making no distinction between citizens and aliens. They tax, through the masters, all American vessels coming from other States (including steamboats) protected by coasting licenses, under United States authority, and also exempt by the Constitution from paying duties in another State. They tax, through the masters, foreign vessels protected by the Constitution from tonnage duties, save by the authority of Congress, and who are also protected by treaty stipulations. They tax passengers who are owners and agents of the vessel, and accompany the ship. They tax owners, agents, and servants who accompany goods brought in for sale, and who are by our treaties at full liberty freely to come and reside in any part of our territories in pursuit of foreign commerce.
The tax is demandable from the master on entering the port, and the law provides that, when he pays the money to the State collector