Mayor of New York v. Miln

36 U.S. 102 | SCOTUS | 1837

36 U.S. 102 (____) 11 Pet. 102

THE MAYOR, ALDERMAN, AND COMMONALTY OF THE CITY OF NEW YORK, PLAINTIFFS
v.
GEORGE MILN.

Supreme Court of United States.

It was again argued by Mr. Blount and Mr. Ogden, for the plaintiffs; and by Mr. White and Mr. Jones, for the defendant.

Mr. Justice BARBOUR delivered the opinion of the Court.

This case comes before this Court upon a certificate of division of the circuit court of the United States for the southern district of New York.

It was an action of debt brought in that court by the plaintiff, to recover of the defendant, as consignee of the ship called the Emily, the amount of certain penalties imposed by a statute of New York, passed February 11th, 1824; entitled, An act concerning passengers in vessels coming to the port of New York.

The statute, amongst other things, enacts, that every master or commander of any ship, or other vessel, arriving at the port of New York, from any country out of the United States, or from any other of the United States than the state of New York, shall, within twenty-four hours after the arrival of such ship or vessel in the said port, make a report in writing, on oath or affirmation, to the mayor of the city of New York, or, in case of his sickness, or absence, to the recorder of the said city, of the name, place of birth, and last legal settlement, age and occupation, of every person who shall have been brought as a passenger in such ship or vessel, on her last voyage from any country out of the United States into the port of New York, or any of the United States, and from any of the United States other than the state of New York, to the city of New York, and of all passengers who shall have landed, or been suffered or permitted to land, from such ship, or vessel, at any place, during such her last voyage, or have been put on board, or suffered, or permitted to go on board of any other ship or vessel, with the intention of proceeding to the 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 every person neglected to be reported as aforesaid, and for every person whose name, place of birth, and last legal settlement, age, and occupation, or either or any of such particulars, shall be falsely reported as aforesaid, to be sued for and recovered as therein provided.

The declaration alleges that the defendant was consignee of the ship Emily, of which a certain William Thompson was master; and that in the month of August, 1829, said Thompson, being master of such ship, did arrive with the same in the port of New York, from a country out of the United States, and that one hundred passengers were brought in said ship on her then last voyage, from a country out of the United States, into the port of New York; and that the said master did not make the report required by the statute, as before recited.

The defendant demurred to the declaration.

The plaintiff joined in the demurrer, and the following point, on a division of the court, was thereupon certified to this Court, viz.

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

It is contended by the counsel for the defendant, that the act in question is a regulation of commerce; that the power to regulate commerce is, by the constitution of the United States, granted to congress; that this power is exclusive, and that consequently, the act is a violation of the constitution of the United States.

On the part of the plaintiff it is argued, that an affirmative grant of power previously existing in the states to congress, is not exclusive; except 1st, where it is so expressly declared in terms, by the clause giving the power; or 2dly, where a similar power is prohibited to the states; or 3dly, where the power in the states would be repugnant to, and incompatible with, a similar power in congress: that this power falls within neither of these predicaments; that it is not, in terms, declared to be exclusive; that it is not prohibited to the states; and that it is not repugnant to, or incompatible with, a similar power in congress; and that having pre-existed in the states, they therefore have a concurrent power in relation to the subject; and that the act in question would be valid, even if it were a regulation of commerce, it not contravening any regulation made by congress.

But they deny that it is a regulation of commerce: on the contrary, they assert that it is a mere regulation of internal police, a power over which is not granted to congress; and which therefore, as well upon the true construction of the constitution, as by force of the tenth amendment to that instrument, is reserved to, and resides in the several states.

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 states.

That the state of New York possessed power to pass this law before the adoption of the constitution of the United States, might probably be taken as a truism, without the necessity of proof. But as it may tend to present it in a clearer point of view, we will quote a few passages from a standard writer upon public law, showing the origin and character of this power.

Vattel, book 2d, chap. 7th, sec. 94. "The sovereign may forbid the entrance of his territory, either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state."

Ibid. chap. 8, sec. 100. "Since the lord of the territory may, whenever he thinks proper, forbid its being entered, he has, no doubt, a power to annex what conditions he pleases, to the permission to enter."

The power then of New York to pass this law having undeniably existed at the formation of the constitution, the simple inquiry is, whether by that instrument it was taken from the states, and granted to congress; for if it were not, it yet remains with them.

If, as we think, it be a regulation, not of commerce, but police; then it is not taken from the states. To decide this, let us examine its purpose, the end to be attained, and the means of its attainment.

It is apparent, from the whole scope of the law, that the object of the legislature was, to prevent New York from being burdened by an influx of persons brought thither in ships, either from foreign countries, or from any other of the states; and for that purpose a report was required of the names, places of birth, &c. of all passengers, that the necessary steps might be taken by the city authorities, to prevent them from becoming chargeable as paupers.

Now, we hold that both the end and the means here used, are within the competency of the states, since a portion of their powers were surrendered to the federal government. Let us see what powers are left with the states. The Federalist, in the 45th number, speaking of this subject, says; the powers reserved to the several states, will extend to all the objects, which in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state.

And this Court, in the case of Gibbons v. Ogden, 9 Wheat. 203, which will hereafter be more particularly noticed, in speaking of the inspection laws of the states, say; they 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 which respect turnpike roads, ferries, &c., are component parts of this mass.

Now, if the act in question be tried by reference to the delineation of power laid down in the preceding quotations, it seems to us that we are necessarily brought to the conclusion, that it falls within its limits. There is no aspect in which it can be viewed in which it transcends them. If we look at the place of its operation, we find it to be within the territory, and, therefore, within the jurisdiction of New York. If we look at the person on whom it operates, he is found within the same territory and jurisdiction. If we look at the persons for whose benefit it was passed, they are the people of New York, for whose protection and welfare the legislature of that state are authorized and in duty bound to provide.

If we turn our attention to the purpose to be attained, it is to secure that very protection, and to provide for that very welfare. If we examine the means by which these ends are proposed to be accomplished, they bear a just, natural, and appropriate relation to those ends.

But we are told that it violates the constitution of the United States, and to prove this we have been referred to two cases in this court; the first, that of Gibbons v. Ogden, 9 Wheat. 1, and the other that of Brown v. The State of Maryland, 12 Wheat. 419.

The point decided in the first of these cases is, that the acts of the legislature of New York, granting to certain individuals the exclusive navigation of all the waters within the jurisdiction of that state, with boats moved by steam, for a term of years, are repugnant to the clause of the constitution of the United States which authorizes congress to regulate commerce, so far as the said acts prohibit vessels licensed according to the laws of the United States for carrying on the coasting trade, from navigating said waters by means of steam. In coming to that conclusion, this Court, in its reasoning, laid down several propositions; such as, that the power over commerce included navigation; that it extended to the navigable waters of the states; that it extended to navigation carried on by vessels exclusively employed in transporting passengers. Now, all this reasoning was intended to prove that a steam vessel licensed for the coasting trade, was lawfully licensed by virtue of an act of congress; and that as the exclusive right to navigate the waters of New York, granted by the law of that state, if suffered to operate, would be in collision with the right of the vessel licensed under the act of congress to navigate the same waters; and that as when that collision occurred the law of the states must yield to that of the United States, when lawfully enacted; therefore, the act of the state of New York was in that case void.

The second case, to wit, that of Brown against The State of Maryland, 12 Wheat. 419, decided that the act of the state of Maryland, requiring all importers of foreign goods by the bale or package, and other persons selling the same by wholesale, bale or package, &c., to take out a license for which they should pay fifty dollars, and in case of neglect or refusal to take out such license, subjecting them to certain forfeitures and penalties, was repugnant, first, to that provision of the constitution of the United States, which declares that "no state shall, without the consent of congress, lay any impost, or duty on imports or exports, except what may be absolutely necessary for executing its inspection laws;" and secondly, to that which declares that congress shall have power "to regulate commerce with foreign nations, among the several states, and with the Indian tribes."

Now, it is apparent from this short analysis of these two cases, that the question involved in this case is not the very point which was decided in either of those which have been referred to.

Let us examine whether, in the reasoning of the Court, there is any principle laid down in either of them, which will go to prove that the section of the law of New York, on which this prosecution is founded, is a violation of the constitution of the United States.

In Gibbons against Ogden, the law of the state assumed to exercise authority over the navigable waters of the state; to do so, by granting a privilege to certain individuals, and by excluding all others from navigating them by vessels propelled by steam; and in the particular case, this law was brought to bear in its operation directly upon a vessel sailing under a coasting license from the United States.

The Court were of opinion, that as the power to regulate commerce embraced within its scope that of regulating navigation also; as the power over navigation extended to all the navigable waters of the United States; as the waters on which Gibbons' vessel was sailing were navigable; and as his vessel was sailing under the authority of an act of congress; the law of the state, which assumed by its exclusive privilege granted to others, to deprive a vessel thus authorized of the right of navigating the same waters, was a violation of the constitution of the United States, because it directly conflicted with the power of congress to regulate commerce. Now, there is not, in this case, one of the circumstances which existed in that of Gibbons v. Ogden, which, in the opinion of the Court, rendered it obnoxious to the charge of unconstitutionality.

On the contrary, the prominent facts of this case are in striking contrast with those which characterized that.

In that case, the theatre on which the law operated was navigable water, over which the Court say that the power to regulate commerce extended; in this, it was the territory of New York over which that state possesses an acknowledged and undisputed jurisdiction for every purpose of internal regulation: in that, the subject matter on which it operated, was a vessel claiming the right of navigation; a right which the Court say is embraced in the power to regulate commerce: in this, the subjects on which it operates are persons whose rights and whose duties are rightfully prescribed and controlled by the laws of the respective states within whose territorial limits they are found: in that, say the Court, the act of a state came into direct collision with an act of the United States: in this, no such collision exists.

Nor is there the least likeness between the facts of this case, and those of Brown against The State of Maryland. The great grounds upon which the Court put that case were: — that sale is the object of all importation of goods; that, therefore, the power to allow importation, implied the power to authorize the sale of the thing imported: that a penalty inflicted for selling an article in the character of importer, was in opposition to the act of congress, which authorized importation under the authority to regulate commerce: that a power to tax an article in the hands of the importer the instant it was landed, was the same in effect as power to tax it whilst entering the port; that, consequently, the law of Maryland was obnoxious to the charge of unconstitutionality, on the ground of its violating the two provisions of the constitution; the one giving to congress the power to regulate commerce, the other forbidding the states from taxing imports.

In this case, it will be seen that the discussion of the Court had reference to the extent of the power given to congress to regulate commerce, and to the extent of the prohibition upon the states from imposing any duty upon imports. Now it is difficult to perceive what analogy there can be between a case where the right of the state was inquired into, in relation to a tax imposed upon the sale of imported goods, and one where, as in this case, the inquiry is as to its right over persons within its acknowledged jurisdiction; the goods are the subject of commerce, the persons are not: the Court did indeed extend the power to regulate commerce, so as to protect the goods imported from a state tax after they were landed, and were yet in bulk; but why? Because they were the subjects of commerce; and because, as the power to regulate commerce, under which the importation was made, implied a right to sell; that right was complete, without paying the state for a second right to sell, whilst the bales or packages were in their original form. But how can this apply to persons? They are not the subject 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.

Whilst, however, neither of the points decided in the cases thus referred to, is the same with that now under consideration, and whilst the general scope of the reasoning of the Court in each of them, applies to questions of a different nature; there is a portion of that reasoning in each which has a direct bearing upon the present subject, and which would justify measures on the part of states, not only approaching the line which separates regulations of commerce from those of police, but even those which are almost identical with the former class, if adopted in the exercise of one of their acknowledged powers. In Gibbons against Ogden, 9 Wheaton, 204, the Court say, if a state, in passing laws on a subject acknowledged to be within its control, and, with a view to those subjects, shall adopt a measure of the same character with one which congress may adopt; it does not derive its authority from the particular power which has been granted, but from some other which remains with the state, and may be executed by the same means. All experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers are identical. Although the means used in their execution may sometimes approach each other, so nearly as to be confounded, there are other situations in which they are sufficiently distinct to establish their individuality.

In page 209, the Court say: — Since, however, in regulating their own purely internal affairs, whether of trading or of police, the states may sometimes enact laws, the validity of which depends on their interfering with, and being contrary to an act of congress passed in pursuance of the constitution; they would inquire whether there was such collision in that case, and they came to the conclusion that there was.

From this it appears, that 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: subject, only, say the Court, to this limitation, that in the event of collision, the law of the state must yield to the law of congress. The Court must be understood, of course, as meaning that the law of congress is passed upon a subject within the sphere of its power.

Even then, if the section of the act in question could be considered as partaking of the nature of a commercial regulation, the principle here laid down would save it from condemnation, if no such collision exist.

It has been contended, at the bar, that there is that collision; and in proof of it we have been referred to the revenue act of 1799, and to the act of 1819, relating to passengers. The whole amount of the provision in relation to this subject, in the first of these acts, is to require, in the manifest of a cargo of goods, a statement of the names of the passengers, with their baggage, specifying the number and description of packages belonging to each respectively: now it is apparent, as well from the language of this provision, as from the context, that the purpose was to prevent goods being imported without paying the duties required by law, under the pretext of being the baggage of passengers.

The act of 1819, contains regulations obviously designed for the comfort of the passengers themselves: for this purpose it prohibits the bringing more than a certain number proportioned to the tonnage of the vessel, and prescribes the kind and quality of provisions, or sea stores, and their quantity, in a certain proportion to the number of the passengers.

Another section requires the master to report to the collector a list of all passengers, designating the age, sex, occupation, the country to which they belong, &c.; which list is required to be delivered to the secretary of state, and which he is directed to lay before congress.

The object of this clause, in all probability, was to enable the government of the United States, to form an accurate estimate of the increase of population by emigration; but whatsoever may have been its purpose, it is obvious, that these laws only affect, through the power over navigation, the passengers whilst on their voyage, and until they shall have landed. After that, and when they have ceased to have any connexion with the ship, and when, therefore, they have ceased to be passengers; we are satisfied, that 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 into conflict with the law of a state, whose operation only begins when that of the laws of congress ends; whose operation is not even on the same subject, because although the person on whom it operates is the same, yet having ceased to be a passenger, he no longer stands in the only relation in which the laws of congress either professed or intended to act upon him.

There is, then, no collision between the law in question, and the acts of congress just commented on; and, therefore, if the state law were to be considered as partaking of the nature of a commercial regulation; it would stand the test of the most rigid scrutiny, if tried by the standard laid down in the reasoning of the Court, quoted from the case of Gibbons against Ogden.

But we do not place our opinion on this ground. We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a state has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation; where that jurisdiction is not surrendered or restrained by the constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a state, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive.

We are aware, that it is at all times difficult to define any subject with proper precision and accuracy; if this be so in general, it is emphatically so in relation to a subject so diversified and multifarious as the one which we are now considering.

If we were to attempt it, we should say, that every law came within this description which concerned the welfare of the whole people of a state, or any individual within it; whether it related to their rights, or their duties; whether it respected them as men, or as citizens of the state; whether in their public or private relations; whether it related to the rights of persons, or of property, of the whole people of a state, or of any individual within it; and whose operation was within the territorial limits of the state, and upon the persons and things within its jurisdiction. But we will endeavor to illustrate our meaning rather by exemplification, than by definition. No one will deny, that a state has a right to punish any individual found within its jurisdiction, who shall have committed an offence within its jurisdiction, against its criminal laws. We speak not here of foreign ambassadors, as to whom the doctrines of public law apply. We suppose it to be equally clear, that a state has as much right to guard, by anticipation, against the commission of an offence against its laws, as to inflict punishment upon the offender after it shall have been committed. The right to punish, or to prevent crime, does in no degree depend upon the citizenship of the party who is obnoxious to the law. The alien who shall just have set his foot upon the soil of the state, is just as subject to the operation of the law, as one who is a native citizen. In this very case, if either the master, or one of the crew of the Emily, or one of the passengers who were landed, had, the next hour after they came on shore, committed an offence, or indicated a disposition to do so; he would have been subject to the criminal law of New York, either by punishment for the offence committed, or by prevention from its commission where good ground for apprehension was shown, by being required to enter into a recognisance with surety, either to keep the peace, or be of good behaviour, as the case might be; and if he failed to give it, by liability to be imprisoned in the discretion of the competent authority. Let us follow this up to its possible results. If every officer, and every seaman belonging to the Emily, had participated in the crime, they would all have been liable to arrest and punishment; although, thereby, the vessel would have been left without either commander or crew. Now why is this? For no other reason than this, simply, that being within the territory and jurisdiction of New York, they were liable to the laws of that state, and amongst others, to its criminal laws; and this too, not only for treason, murder, and other crimes of that degree of atrocity, but for the most petty offence which can be imagined.

It would have availed neither officer, seaman, or passenger, to have alleged either of these several relations in the recent voyage across the Atlantic. The short but decisive answer would have been, that we know you now only as offenders against the criminal laws of New York, and being now within her jurisdiction, you are now liable to the cognisance of those laws. Surely the officers and seamen of the vessel have not only as much, but more concern with navigation than a passenger; and yet, in the case here put, any and every one of them would be held liable. There would be the same liability, and for the same reasons, on the part of the officers, seamen, and passengers to the civil process of New York, in a suit for the most trivial sum; and if, according to the laws of that state, the party might be arrested and held to bail, in the event of his failing to give it, he might be imprisoned until discharged by law.

Here, then, are the officers and seamen, the very agents of navigation, liable to be arrested and imprisoned under civil process, and to arrest and punishment under the criminal law.

But the instrument of navigation, that is, the vessel, when within the jurisdiction of the state, is also liable by its laws to execution. If the state have a right to vindicate its criminal justice against the officers, seamen, and passengers who are within its jurisdiction, and also, in the administration of its civil justice, to cause process of execution to be served on the body of the very agents of navigation, and also on the instrument of navigation, under which it may be sold, because they are within its jurisdiction and subject to its laws; the same reasons, precisely, equally subject the master, in the case before the Court, to liability for failure to comply with the requisitions of the section of the statute sued upon. Each of these laws depends upon the same principle for its support; and that is, that it was passed by the state of New York, by virtue of her power to enact such laws for her internal police as it deemed best; which laws operate upon the persons and things within her territorial limits, and therefore within her jurisdiction

Now in relation to the section in the act immediately before us, that is obviously passed with a view to prevent her citizens from being oppressed by the support of multitudes of poor persons, who come from foreign countries without possessing the means of supporting themselves. There can be no mode in which the power to regulate internal police could be more appropriately exercised. New York, from her particular situation, is, perhaps more than any other city in the Union, exposed to the evil of thousands of foreign emigrants arriving there, and the consequent danger of her citizens being subjected to a heavy charge in the maintenance of those who are poor. It is the duty of the state to protect its citizens from this evil; they have endeavoured to do so, by passing, amongst other things, the section of the law in question. We should, upon principle, say that it had a right to do so.

Let us compare this power with a mass of power, said by this Court in Gibbons against Ogden, not to be surrendered to the general government. They are inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, &c. To which it may be added, that this Court, in Brown against The State of Maryland, admits the power of a state to direct the removal of gunpowder, as a branch of the police power, which unquestionably remains, and ought to remain with the states.

It is easy to show, that if these powers, as is admitted, remain with the states, they are stronger examples than the one now in question. The power to pass inspection laws, involves the right to examine articles which are imported, and are, therefore, directly the subject of commerce; and if any of them are found to be unsound, or infectious, to cause them to be removed, or even destroyed. But the power to pass these inspection laws, is itself a branch of the general power to regulate internal police.

Again, the power to pass quarantine laws, operates on the ship which arrives, the goods which it brings, and all persons in it, whether the officers and crew, or the passengers; now the officers and crew are the agents of navigation; the ship is an instrument of it, and the cargo on board is the subject of commerce: and yet it is not only admitted, that this power remains with the states, but the laws of the United States expressly sanction the quarantines, and other restraints which shall be required and established by the health laws of any state; and declare that they shall be duly observed by the collectors and all other revenue officers of the United States.

We consider it unnecessary to pursue this comparison further; because we think, that if the stronger powers under the necessity of the case, by inspection laws and quarantine laws to delay the landing of a ship and cargo, which are the subjects of commerce and navigation, and to remove or even to destroy unsound and infectious articles, also the subject of commerce, can be rightfully exercised; then, that it must follow as a consequence, that powers less strong, such as the one in question, which operates upon no subject either of commerce or navigation, but which operates alone within the limits and jurisdiction of New York upon a person, at the time not even engaged in navigation, is still more clearly embraced within the general power of the states to regulate their own internal police, and to take care that no detriment come to the commonwealth.

We think it as 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 the physical pestilence, which may arise from unsound and infectious articles imported, or from a ship, the crew of which may be labouring under an infectious disease.

As to any supposed conflict between this provision and certain treaties of the United States, by which reciprocity as to trade and intercourse is granted to the citizens of the governments, with which those treaties were made; it is obvious to remark, that the record does not show that any person in this case was a subject or citizen of a country to which treaty stipulation applies: but, moreover, those which we have examined, stipulate that the citizens and subjects of the contracting parties shall submit themselves to the laws, decrees, and usages to which native citizens and subjects are subjected.

We are therefore of opinion, and do direct it to be certified to the circuit court for the southern district of New York, 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.

We express no opinion on any other part of the act of the legislature of New York; because no question could arise in the case in relation to any part of the act, except that declared upon.

Mr. Justice THOMPSON.

This case comes up from the circuit court for the southern district of New York, upon a certificate of a division of opinion of the judges upon a question which arose upon the trial of the cause.

The action is founded upon an act of the legislature of the state of New York, concerning passengers in vessels coming to the port of New York; and is brought against the defendant, being consignee of the ship Emily, to recover certain penalties given in the act for the neglect of the master of the ship to make a report to the mayor of New York, of the name and description of the passengers who had been brought in the ship on her last voyage.

The declaration sets out, in part, the law on which the action is founded; and avers, that on the 27th day of August, in the year 1829, William Thompson, being master or commander of said ship, did arrive with the said ship or vessel in the port of New York from a country out of the United States, to wit, from Liverpool in England, or from one of the United States other than this state (New York,) to wit, from the state of New Jersey, at the city and within the county of New York; and it is further averred, that one hundred persons were brought as passengers in said ship, on her last voyage, from a country out of the United States, to wit, from Liverpool aforesaid, into the port of New York, or into one of the United States, other than the state of New York, to wit, into the state of New Jersey, and from thence to the city of New York; and that the said master of the vessel did not, within twenty-four hours after the arrival of the ship in the port of New York, make a report in writing to the mayor or recorder of the said city, of the name, place of birth, and last legal settlement, age and occupation of the said several persons so brought as passengers in said ship, pursuant to the provisions of the act, in part herein before recited; but that a large number of the said persons, to wit, one hundred, were neglected to be reported, contrary to the directions and provisions of the said act, whereby an action hath accrued to the plaintiff, to demand and have from the defendant, the consignee of the said ship, the sum of seven thousand five hundred dollars. To this declaration there is a general demurrer and joinder.

The certificate then states, that the cause was continued from term to term until the last Monday in October, in the year 1829, at which term the following point was presented on the part of the defendant, viz. That the act of the legislature of the state of New York, mentioned in the plaintiff's declaration, assumes to regulate trade and commerce between the port of New York and foreign ports; and is unconstitutional and void. And upon the question thus occurring, the opinion of the two judges were opposed; and the point upon which the disagreement happened, is certified to this Court.

Although the point as here stated is general, and might embrace the whole of the act referred to in the plaintiff's declaration; yet its validity cannot come under consideration here, any further than it applied to the question before the circuit court. The question arose upon a general demurrer to the declaration, and the certificate under which the cause is sent here contains the pleadings upon which the question arose, and 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 requisition of the act. No other part of the act could have been brought under the consideration of the circuit court, or could now be passed upon by this Court, was it even presented in a separate and distinct point. For this Court will not entertain any abstract question, upon a certificate of division of opinion, which does not arise in the cause. The question must occur before the circuit court, according to the express terms of the act of congress, in order to come here upon such division of opinion. And if the only cause of action alleged in the declaration, was the neglect of the master to report his passengers to the mayor or recorder, no other part of the act could have been drawn in question; and although the question as stated, may be broader than was necessary, yet as the declaration and demurrer are embraced in the certificate, the question in the circuit court cannot be mistaken. The certificate might have been sent back for a more specific statement of the point; but as the breach is assigned under this part of the act only, and as we see that no other part of the act could have been drawn in question in the circuit court, it is not deemed necessary to send the cause back for a more specific statement of the point. I shall accordingly confine my inquires simply to that part of the act of the legislature of the state of New York, which requires the master, within twenty-four hours after the arrival of the vessel in the port of New York, to make a report in writing to the mayor or recorder, of the name, place of birth, and last legal settlement, age and occupation of every person who shall have been brought as a passenger in such ship or vessel on her last voyage. I do not mean, however, to intimate that any other part of the act is unconstitutional; but confine my inquiries to the part here referred to, because it is the only part that can arise in this case. And any opinion expressed upon other parts, would be extrajudicial.

This act is alleged to be unconstitutional, on the ground that it assumes to regulate trade and commerce between the port of New York, and foreign ports; and is a violation of that part of the constitution of the United States, which gives to congress the power to regulate commerce with foreign nations.

This clause in the constitution has repeatedly been drawn in question before this Court, and has undergone elaborate discussion, both at the bar and upon the bench; and so far as any points have been settled, I do not consider them now open for examination. In the leading cases upon this question, where the state law has been held to be unconstitutional, there was an actual conflict between the legislation of congress and that of the states, upon the right drawn in question: 9 Wheat. 195; 12 Wheat. 195; 12 Wheat. 446; 6 Peters, 515. And in all such cases the law of congress is supreme; and the state law, though enacted in the exercise of powers not controverted, must yield to it. But in the case now before the Court, no such conflict arises; congress has not legislated on this subject, in any manner to affect this question. By the 23d section of the duty act of 1799, 3 vol. L.U.S. 158; it is required that the manifest shall contain the names of the several passengers, distinguishing whether cabin or steerage passengers, or both, with their baggage, specifying the number and description of packages belonging to each, respectively; but this is a mere revenue law, having no relation to the passengers after they have landed. Nor does the act regulating passenger ships and vessels, 6 vol. L.U.S. 379, at all conflict with this state law. Its principal object is to provide for the comfort and safety of passengers on the voyage; it requires the captain or master of the vessel, to deliver a list or manifest of all passengers, with the manifest of the cargo; and the collector is directed to return, quarterly, to the secretary of state, copies of such list of passengers; by whom statements of the same is required to be laid before congress at every session: by which it is evident that some statistical or political object was in view by this provision.

It is not necessary, in this case, to fix any limits upon the legislation of congress and of the states, on this subject; or to say how far congress may, under the power to regulate commerce, control state legislation in this respect. It is enough to say that whatever the power of congress may be, it has not been exercised so as, in any manner, to conflict with the state law; and if the mere grant of the power to congress does not necessarily imply a prohibition of the states to exercise the power, until congress assumes to exercise it; no objection, on that ground, can arise to this law.

Nor is it necessary to decide, definitely, whether the provisions of this law may be considered as at all embraced within the power to regulate commerce. Under either view of the case, the law of New York, so far at least as it is drawn in question in the present suit, is entirely unobjectionable.

This law does not, in any respect, interfere with the entry of the vessel or cargo. It requires the report of the master to be made within twenty-four hours after the arrival of the vessel. In the case of Gibbons v. Ogden, 9 Wheat. 195, it is said, the genius and character of the whole government seems to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally, but not to those which are completely within a particular state, which do not affect other states: and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a state may then be considered as reserved for the state itself.

To test the present case by this rule. The duty here imposed arises after the master and passengers have arrived within the limits of the state, and is applied to the purely internal concerns of the state. This provision does not affect other states, or any subject necessary for the purpose of executing any of the general powers of the government of the Union. For although commerce, within the sense of the constitution, may mean intercourse, and the power to regulate it be co-extensive with the subject on which it acts, and cannot be stopped at the external boundary of a state, according to the language of this Court in the case of Brown v. The State of Maryland, 12 Wheat. 446; it cannot be claimed that the master, or the passengers, are exempted from any duty imposed by the laws of a state, after their arrival within its jurisdiction; or have a right to wander, uncontrolled, after they become mixed with the general population of the state; or that any greater rights or privileges attach to them, because they come in through the medium of navigation, than if they come by land from an adjoining state: and if the state had a right to guard against paupers becoming chargeable to the city, it would seem necessarily to follow, that it had the power to prescribe the means of ascertaining who they were, and a list of their names is indispensable to effect that object. The purposes intended to be answered by this law fall within that internal police of the state; which, throughout the whole case of Gibbons v. Ogden, is admitted to remain with the states. The Court there, in speaking of inspection laws, say, they 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 which respect turnpike roads, ferries, &c., are component parts of this mass. No direct general power over these objects is granted to congress: and, consequently, they remain subject to state legislation. If the legislative power of the state can reach them, it must be for national purposes; it must be when the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given. Again, in speaking of the law relative to the regulation of pilots, it is said, that when the government of the Union was brought into existence, it found a system for the regulation of its pilots in full force in every state; and that the adoption of these laws, as also the prospective legislation of the states, manifests an intention to leave this subject entirely to the states, until congress should think proper to interpose: but that the section of the law under consideration is confined to pilots within the bays, inlets, rivers, harbours, and ports of the United States, which are, of course, in whole or in part, within the limits of some particular state: and that the acknowledged power of a state to regulate its police, its domestic trade, and to govern its own citizens, may enable it to legislate on this subject to a considerable extent. But that the adoption of the state system, being temporary until further legislative provision shall be made by congress; shows, conclusively, an opinion that congress could control the whole subject, and might adopt the system of the states or provide one of its own. Here seems to be a full recognition of the right of a state to legislate on a subject coming confessedly within the power to regulate commerce, until congress adopts a system of its own.

And again, in the case of Brown v. The State of Maryland, the Court. in speaking of state laws in relation to gunpowder, say; the power to direct the removal of gunpowder is a branch of the police power, which unquestionably remains and ought to remain with the states. The state law here is brought to act directly upon the article imported, and may even prevent its landing, because it might endanger the public safety.

Can any thing fall more directly within the police power and internal regulation of a state, than that which concerns the care and management of paupers or convicts, or any other class or description of persons that may be thrown into the country, and likely to endanger its safety, or become chargeable for their maintenance? It is not intended by this remark to cast any reproach upon foreigners who may arrive in this country. But if all power to guard against these mischiefs is taken away, the safety and welfare of the community may be very much endangered.

A resolution of the old congress passed on the 16th of September, 1788, has an important bearing on this subject; 13 vol. Journals of Congress, 142. It is as follows: "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." Although this resolution is confined to a certain description of persons; the principle involved in it must embrace every description which may be thought to endanger the safety and security of the country. But the more important bearing which this resolution has upon the question now before the Court, relates to the source of the power which is to interpose this protection. It was passed after the adoption of the constitution by the convention, which was on the 17th of September, 1787. It was moved by Mr. Baldwin, and seconded by Mr. Williamson, both distinguished members of the convention, which formed the constitution; and is a strong contemporaneous expression, not only of their opinion, but that of congress, that this was a power resting with the states; and not only not relinquished by the states, or embraced in any powers granted to the general government, but still remains exclusively in the states.

The case of Wilson v. Blackbird Creek Marsh Company, 2 Peters, 251, is a strong case to show that a power admitted to fall within the power to regulate commerce, may be exercised by the states until congress assumes the exercise. The state law under consideration in that case, authorized the erection of a dam across a creek, up which the tide flows for some distance, and thereby abridged the right of navigation by those who had been accustomed to use it. The Court say, "The counsel for the plaintiff in error insist that it comes in conflict with the power of the United States to regulate commerce with foreign nations, and among the several states. 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, and which abound throughout the lower country of the middle and southern states; we should not have much difficulty in saying, that a state law, coming in conflict with such act, would be void. But congress has 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. We do not think that the act empowering the Blackbird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state; or as being in conflict with any law passed on the subject. The state law here operated upon the navigation of waters, over which the power to regulate commerce confessedly extends; and yet the state law, not coming in conflict with any act of congress, was held not to be unconstitutional; and was not affected by the dormant power to regulate commerce. By the same rule of construction, the law of New York, not coming in conflict with any act of congress, is not void by reason of the dormant power to regulate commerce; even if it should be admitted that the subject embraced in that law fell within such power. This principle is fully recognized by the whole Court, in the case of Houston v. Moore, 5 Wheat. 1. The validity of a law of the state of Pennsylvania, relative to the militia of that state, came under the consideration of the Court; and Mr. Justice Washington, who spoke for a majority of the Court, says: — It may be admitted at once, that the militia belongs to the states respectively in which they are enrolled; and that they are subject, both in their civil and military capacities, to the jurisdiction and laws of such state, except so far as those laws are controlled by acts of congress, constitutionally made. Congress has power to provide for organizing, arming, and disciplining the militia; and it is presumable that the framers of the constitution contemplated a full exercise of this power. Nevertheless, if congress had declined to exercise them, it was competent for the state governments to provide for organizing, arming, and disciplining their respective militia in such manner as they may think proper. And Mr. Justice Johnson, who dissented from the Court in the result of the judgment, when speaking on this point, says: — It is contended that if the states do possess this power over the militia, they may abuse it. This, says he, is a branch of the exploded doctrine that within the scope in which congress may legislate, the states shall not legislate. That they cannot, when legislating within that wide region of power, run counter to the laws of congress, is denied by no one. When instances of this opposition occur, it will be time enough to meet them. And Mr. Justice Story, who also dissented from the result of the judgment, is still more full and explicit on this point. The constitution, says he, containing a grant of powers in many instances similar to those already existing in the state governments; and some of these being of vital importance also to state authority and state legislation, it is not to be admitted that a mere grant of such powers, in affirmative terms, to congress, does, per se, transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the states; unless when the constitution has expressly, in terms, given an exclusive power to congress, or the exercise of a like power is prohibited to the states; or where there is a direct repugnancy, or incompatibility, in the exercise of it by the states. The example of the first class is to be found in the exclusive legislation delegated to congress over places purchased by the consent of the legislature of the state in which the same shall be, for forts, arsenals, dock-yards, &c.; of the second class, the prohibition of a state to coin money, or emit bills of credit; of the third class, as this Court has already held, the power to establish an uniform rule of naturalization, and the delegation of admiralty and maritime jurisdiction. In all other cases, not falling within the classes already mentioned, it seems unquestionable that the states retain concurrent authority with congress; not only upon the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principle of reasoning. There is this reserve, however, that in cases of concurrent authority, when the laws of a state, and of the Union, are in direct and manifest collision on the same subject; those of the Union, being the supreme law of the land, are of paramount authority; and the state laws so far, and so far only as such incompatibility exists, must necessarily yield."

Whether, therefore, the law of New York, so far as it is drawn in question in this case, be considered as relating purely to the police and internal government of the state, and as part of the system of poor laws in the city of New York, and in this view belonging exclusively to the legislation of the state; or whether the subject matter of the law be considered as belonging concurrently to the state and to congress, but never having been exercised by the latter; no constitutional objection can be made to it. Although the law, as set out in the record, appears to have been recently passed, 11th February, 1824, yet a similar law has been in force in that state for nearly forty years, 1 Rev. Laws of 1801, p. 556; and from the references at the argument to the legislation of other states, especially those bordering on the Atlantic, similar laws exist in those states. To pronounce all such laws unconstitutional, would be productive of the most serious and alarming consequences; and ought not to be done, unless demanded by the most clear and unquestioned construction of the constitution.

It has been argued at the bar, that this law violates certain treaties between the United States and foreign nations, and the treaties with Brazil, Prussia, and Austria, 8 vol. L.U.S. 910, 924, 946, have been referred to as being in conflict with it. It would be a sufficient answer to this objection, that the national character of the defendant, or of the master or vessel, do not appear upon the record accompanying the certificate, so as to enable the Court to inquire whether the law conflicts with any treaty stipulation. But there is nothing in the law, so far at all events as it relates to the present case, which is at all at variance with any of the treaties referred to. These treaties were entered into for the purpose of establishing a reciprocity of commercial intercourse between the contracting parties; but give no privileges or exemptions to the citizens or subjects of the one country over those of the other. But in some of them, particularly in the treaty with Brazil, it is expressly provided that the citizens and subjects of each of the contracting parties shall enjoy all the rights, privileges and exemptions in navigation and commerce, which native citizens or subjects do or shall enjoy; submitting themselves to the laws, decrees, and usages there established, to which native citizens or subjects are subjected. And the other treaties referred to, have substantially the same provision.

Whether the law of New York, so far as it applies to the case now before the Court, be considered as a mere police regulation, and the exercise of a power belonging exclusively to the state; or whether it be considered as legislating on a subject falling within the power to regulate commerce, but which still remains dormant, congress not having exercised any power conflicting with the law in this respect; no constitutional objection can, in my judgment, arise against it. I have chosen to consider this question under this double aspect, because I do not find, as yet laid down by this Court, any certain and defined limits to the exercise of this power to regulate commerce; or what shall be considered commerce with foreign nations, and what the regulations of domestic trade and police. And when it is denied that a state law, in requiring a list of the passengers arriving in the port of New York, from a foreign country, to be reported to the police authority of the city, is unconstitutional and void, because embraced within that power; I am at a loss to say where its limits are to be found. It becomes, therefore, a very important principle to establish, that the states retain the exercise of powers; which, although they may in some measure partake of the character of commercial regulations, until congress asserts the exercise of the power under the grant of the power to regulate commerce.

Mr. Justice STORY, dissenting.

The present case comes before the Court upon a certificate of division of opinion of the judges of the circuit court of the southern district of New York. Of course, according to the well known practice of this Court, and the mandates of the law, we can look only to the question certified to us, and to it, in the very form, in which it is certified. In the circuit court, the following point was presented on the part of the defendant, viz: that the act of the legislature of the state of New York, mentioned in the plaintiff's declaration, assumes to regulate trade and commerce between the port of New York and foreign ports, and is unconstitutional and void. And this point constitutes the matter of division in the circuit court; and that upon which our opinion is now required.

The act of New York, here referred to, was passed on the 11th of February, 1824, and is entitled, "an act concerning passengers in vessels coming to the port of New York." By the first section it requires the master of any ship arriving at the port of New York, from any country out of the United States, or from any other of the United States, than New York, within twenty-four hours after the arrival, to make a report in writing, on oath or affirmation, to the mayor of the city, &c., of the name, place of birth, and last legal settlement, age and occupation of every passenger brought in the ship on her last voyage from any foreign country, or from any other of the United States to the city of New York, and of all passengers landed, or suffered, or permitted to land at any place during her last voyage, or put on board, or suffered, or permitted to go on board of any other ship with an intention of proceeding to the said city, under the penalty of seventy-five dollars for every passenger not so reported, to be paid by the master, owner, or consignee. The second section makes it lawful for the mayor, &c. to require every such master to give bond, with two sufficient sureties, in a sum not exceeding three hundred dollars for each passenger, not being a citizen of the United States, to indemnify and save harmless the mayor, &c. and overseers of the poor from all expense and charge which may be incurred for the maintenance and support of every such passenger, &c. under a penalty of five hundred dollars. The third section provides, that whenever any person brought in such ship, and being a citizen of the United States, shall be by the mayor, &c. deemed likely to become chargeable to the city; the master or owner shall, upon an order for this purpose, remove every such person without delay to the place of his last settlement, and in default shall be chargeable with the expenses of the maintenance and removal of such person. The fourth section requires persons not citizens, entering into the city with the intention of residing there, to make a report prescribed by the act under the penalty of one hundred dollars. The fifth section provides for the manner of recovering the penalties. The sixth section makes the ship liable to attachment and seizure for the penalties. The seventh section repeals former acts; and the eighth and last section declares persons swearing, or affirming falsely, in the premises, guilty of perjury, and punishable accordingly.

Such is the substance of the act: it is apparent, that it applies to all vessels coming from foreign ports, and to all coasting vessels and steamboats from other states, and to all foreigners, and to all citizens, who are passengers, whether they come from foreign ports or from other states. It applies also, not only to passengers who arrive at New York, but to all passengers landed in other states, or put on board of other vessels, although not within the territorial jurisdiction or limits of New York.

The questions then presented for our consideration under these circumstances are, first, whether this act assumes to regulate trade and commerce between the port of New York and foreign ports. Secondly, if it does, whether it is unconstitutional and void. The counsel for the plaintiff, assert the negative; the counsel for the defendant, maintain the affirmative on both points.

In considering the first point, we are spared even the necessity of any definition or interpretation of the words of the constitution, by which power is given to congress "to regulate commerce with foreign nations, and among the several states;" for the subject was most elaborately considered in Gibbons v. Ogden, 9 Wheat. R. 1. On that occasion, Mr. Chief Justice Marshall, in delivering the opinion of the Court, said; "commerce undoubtedly is traffic; but it is something more. It is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches: and is regulated by prescribing rules for carrying on that intercourse;" 9 Wheat. R. 189. And 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;" 9 Wheat. R. 193, 194. "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, wherever 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;" 9 Wheat. R. 195. "The power of congress then 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;" 9 Wheat. R. 197. And again, "It is the power to regulate, that is, to prescribe the rule, by which commerce is governed;" 9 Wheat. R. 196. But what is most important to the point now under consideration, it was expressly denied in that case, that vessels engaged in carrying passengers were as much within the constitutional power of congress to regulate commerce, as vessels engaged in the transportation of goods. "Vessels (said the Chief Justice) have always been employed to a greater or less extent in the transportation of passengers, and have never been supposed to be 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 has never been suspected that the general laws of navigation did not apply to them." And again, "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 a cargo;" 9 Wheat. R. 215, 216. And this language is the more impressive, because the case, then before the Court, was that of a steamboat, whose principal business was the transportation of passengers. If then the regulation of passenger ships, be in truth a regulation of trade and commerce, it seems very difficult to escape from the conclusion, that the act in controversy is, in the sense of the objection, an act which assumes to regulate trade and commerce between the port of New York and foreign parts. It requires a report, not only of passengers who arrive at New York, but of all who have been landed at any places out of the territorial limits of New York, whether in foreign ports or in the ports of other states. It requires bonds to be given by the master or owner for all passengers not citizens; and it compels them to remove, or pay the expenses of removal of all passengers, who are citizens, and are deemed likely to become chargeable to the city, under severe penalties. If these enactments had been contained in any act passed by congress, it would not have been doubted that they were regulations of passenger ships engaged in foreign commerce? Is their character changed by their being found in the laws of a state?

I admit, in the most unhesitating manner, that the states have a right to pass health laws and quarantine laws, and other police laws, not contravening the laws of congress rightfully passed under their constitutional authority. I admit, that they have a right to pass poor laws, and laws to prevent the introduction of paupers into the state, under the like qualifications. I go further, and admit, that in the exercise of their legitimate authority over any particular subject, the states may generally use the same means which are used by congress, if these means are suitable to the end. But I cannot admit that the states have authority to enact laws, which act upon subjects beyond their territorial limits, or within those limits, and which trench upon the authority of congress in its power to regulate commerce. It was said by this Court in the case of Brown v. The State of Maryland, 12 Wheat 419, that even the acknowledged power of taxation by a state, cannot be so exercised as to interfere with any regulation of commerce by congress.

It has been argued, that the act of New York is not a regulation of commerce, but is a mere police law upon the subject of paupers and it has been likened to the cases of health laws, quarantine laws ballast laws, gunpowder laws, and others of a similar nature. The nature and character of these laws were fully considered, and the true answer given to them in the case of Gibbons v. Ogden, 9 Wheat. R. 1; and though the reasoning there given might be expanded, it cannot in its grounds and distinctions be more pointedly illustrated, or better expounded. I have already said that I admit the power of the states to pass such laws, and to use the proper means to effectuate the objects of them; but it is with this reserve, that these means are not exclusively vested in congress. A state cannot make a regulation of commerce to enforce its health laws, because it is a means withdrawn from its authority. It may be admitted that it is a means adapted to the end; but it is quite a different question whether it be a means within the competency of the state jurisdiction. The states have a right to borrow money; and borrowing by the issue of bills of credit, would certainly be an appropriate means: but we all know, that the emission of bills of credit by a state is expressly prohibited by the constitution. If the power to regulate commerce be exclusive in congress, then there is no difference between an express and an implied prohibition upon the states.

But how can it be truly said, that the act of New York is not a regulation of commerce? No one can well doubt, that if the same act had been passed by congress it would have been a regulation of commerce; and in that way, and in that only, would it be a constitutional act of congress. The right of congress to pass such an act has been expressly conceded at the argument. The act of New York purports on its very face to regulate the conduct of masters, and owners, and passengers, in foreign trade; and in foreign ports and places. Suppose the act had required, that the master and owner of ships should make report of all goods taken on board or landed in foreign ports, and of the nature, qualities, and value of such goods; could there be a doubt that it would have been a regulation of commerce? If not, in what essential respect does the requirement of a report of the passengers taken or landed in a foreign port or place, differ from the case put? I profess not to be able to see any. I listened with great attention to the argument, to ascertain upon what ground the act of New York was to be maintained, not to be a regulation of commerce. I confess that I was unable to ascertain any, from the reasoning of either of the learned counsel who spoke for the plaintiff. Their whole argument on this point seemed to me to amount to this: that if it were a regulation of commerce, still it might also be deemed a regulation of police, and a part of the system of poor laws; and therefore justifiable as a means to attain the end. In my judgment, for the reasons already suggested, that is not a just consequence, or a legitimate deduction. If the act is a regulation of commerce, and that subject belongs exclusively to congress; it is a means cut off from the range of state sovereignty and state legislation.

And this leads me more distinctly to the consideration of the other point in question; and that is, whether if the act of New York be a regulation of commerce, it is void and unconstitutional? If the power of congress to regulate commerce be an exclusive power; or if the subject matter has been constitutionally regulated by congress, so as to exclude all additional or conflicting legislation by the states; then, and in either case, it is clear, that the act of New York is void and unconstitutional. Let us consider the question under these aspects.

It has been argued that the power of congress to regulate commerce is not exclusive, but concurrent with that of the states. If this were a new question in this Court, wholly untouched by doctrine or decision; I should not hesitate to go into a full examination of all the grounds upon which concurrent authority is attempted to be maintained. But in point of fact, the whole argument on this very question, as presented by the learned counsel on the present occasion, was presented by the learned counsel who argued the case of Gibbons v. Ogden, 9 Wheaton, R. 1; and it was then 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 (as far as I know) to be 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. Full power to regulate a particular subject implies the whole power, and leaves no residuum; and a grant of the whole to one, is incompatible with a grant to another of a part. When a state proceeds to regulate commerce with foreign nations, or among the states, it is doing the very thing which congress is authorized to do; Gibbons v. Ogden, 9 Wheat. R. 198, 199. And it has been remarked, with great cogency and accuracy, that the regulation of a subject indicates and designates the entire result; applying to those parts which remain as they were, as well as to those which are altered. It produces a uniform whole, which is as much disturbed and deranged by changing what the regulating power designs to leave untouched, as that upon which it has operated; Gibbons v. Ogden, 9 Wheat. R. 209.

This last suggestion is peculiarly important in the present case; for congress has, by the act of the 2d of March, 1819, ch. 170, regulated passenger ships and vessels. Subject to the regulations therein provided, passengers may be brought into the United States from foreign ports. These regulations, being all which congress have chosen to enact; amount, upon the reasoning already stated, to a complete exercise of its power over the whole subject, as well in what is omitted as in what is provided for. Unless, then, we are prepared to say, that wherever congress has legislated upon this subject, clearly within its constitutional authority, and made all such regulations, as in its own judgment and discretion were deemed expedient; the states may step in and supply all other regulations, which they may deem expedient, as complementary to those of congress, thus subjecting all our trade, commerce and navigation, and intercourse with foreign nations, to the double operations of distinct and independent sovereignties; it seems to me impossible to maintain the doctrine, that the states have a concurrent jurisdiction with congress on the regulation of commerce, whether congress has or has not legislated upon the subject; but a fortiori when it has legislated.

There is another consideration, which ought not to be overlooked in discussing this subject. It is, that congress, by its legislation, has in fact authorized not only the transportation but the introduction of passengers into the country. The act of New York imposes restraints and burthens upon this right of transportation and introduction. It goes even further, and authorizes the removal of passengers under certain circumstances out of the state, and at the expense of the master and owner in whose ship they have been introduced; and this, though they are citizens of the United States, and were brought from other states. Now, if this act be constitutional to this extent, it will justify the states in regulating, controlling, and, in effect, interdicting the transportation of passengers from one state to another in steam boats and packets. They may levy a tax upon all such passengers; they may require bonds from the master that no such passengers shall become chargeable to the state; they may require such passengers to give bonds that they shall not become so chargeable; they may authorize the immediate removal of such passengers back to the place from which they came. These would be most burthensome and inconvenient regulations respecting passengers, and would entirely defeat the object of congress in licensing the trade or business. And yet, if the argument which we have heard be well founded, it is a power strictly within the authority of the states, and may be exerted at the pleasure of all or any of them, to the ruin and perhaps annihilation of our passenger navigation. It is no answer to the objection to say, that the states will have too much wisdom and prudence to exercise the authority to so great an extent. Laws were actually passed of a retaliatory nature by the states of New York, New Jersey and Connecticut during the steam boat controversy, which threatened the safety and security of the Union; and demonstrated the necessity, that the power to regulate commerce among the states should be exclusive in the Union, in order to prevent the most injurious restraints upon it.

In the case of Brown v. The State of Maryland, 12 Wheat. R. 419, the state had by an act required that every importer of foreign goods, selling the same by wholesale, should, before he was authorized to sell the same, take out a license for which he should pay 50 dollars; and in default, the importer was subjected to a penalty. The question was, whether the state legislature could constitutionally require the importer of foreign goods to take out such a license, before he should be permitted to sell the same in the imported package? The Court held that the act was unconstitutional and void, as laying a duty on imports, and also as interfering with the power of congress to regulate commerce. On that occasion arguments were addressed to the Court on behalf of the state of Maryland, by their learned counsel, similar to those which have been addressed to us on the present occasion; and in a particular manner the arguments that the act did not reach the property until after its arrival within the territorial limits of the state; that it did not obstruct the importation, but only the sale of goods after the importation. The Court said, "There is no difference, in effect, between the power to prohibit the sale of an article, and the power to prohibit its introduction into the country. The one would be a necessary consequence of the other. None would be imported if none could be sold." "It is obvious that the same power which imposes a light duty, can impose a heavy one, which amounts to a prohibition. Questions of power do not depend on the degree to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those in whose hands it is placed." "The power claimed by the state is, in its nature, in conflict with that given to congress (to regulate commerce); and the greater or less extent to which it may be exercised, does not enter into the inquiry concerning its existence." "Any charge on the introduction and incorporation of the articles into and with the mass of property in the country, must be hostile to the power given to congress to regulate commerce; since an essential part of that regulation and principal object of it is to prescribe the regular means of accomplishing that introduction and incorporation."

This whole reasoning is directly applicable to the present case; if instead of the language respecting the introduction and importation of goods, we merely substitute the words respecting the introduction and importation of passengers, we shall instantly perceive its full purpose and effect. 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 their arrival in port, interferes with the exclusive right of congress to regulate commerce.

Such is a brief view of the grounds upon which my judgment is, that the act of New York is unconstitutional and void. In this opinion I have the consolation to know that I had the entire concurrence, upon the same grounds, of that great constitutional jurist, the late Mr. Chief Justice Marshall. Having heard the former arguments, his deliberate opinion was, that the act of New York was unconstitutional; and that the present case fell directly within the principles established in the case of Gibbons v. Ogden, 9 Wheat. R. 1, and Brown v. The State of Maryland, 12 Wheat. R. 419.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the southern district of New York, and on the question and point on which the judges of the said circuit court were opposed in opinion, and which was certified to this Court for its opinion, agreeably to the act of congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this Court, 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. Whereupon, it is now here ordered and adjudged by this Court, that it be so certified to the said circuit court.

Case Details

Case Name: Mayor of New York v. Miln

Court Name: Supreme Court of the United States

Date Published: Feb 16, 1837

Citation: 36 U.S. 102

Court Abbreviation: SCOTUS