Lead Opinion
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 heálth-cómmissioner 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.
“ % From the master of each coasting-vessel, for each person
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 jthe 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
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 tie-, cessary to.preserve the fruits of the Revolution. ■ This led to the adoption of the Federal Constitution.
It isiadmitted 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 móney,” “ 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,
In Houston v: Moore,
The court, again, in treating, of the commercial power, say, in Gibbons v. Ogden, 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
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,
Mr. Justice Story, in the case of New York v. Miln,
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 ail 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, arid, it was answered‘by the allegation, that tlje 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 hot found in the Constitution. If such power exist, it may be exercised independently of the federal authority.
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. Crpwninshield,
The case of Wilson v. The Blackbird Creek Marsh Company,
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 neighbour-hood, 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 abject of which was to control State legislation over those small navigable creeks into which the tide flows,” &c., “we should feel not
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 beiore 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 l een 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 prooer 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 á commercial power: In this whole case, nothing more is found than a forbearance to exejcise power over a doubtful object, which should ever characterize the judicial branch of the government.
But thé 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
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 ovérthrow 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 ta,x it. But if Congress should impose a tonnage duty on vessels which' ply between ports Avithin 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 com-, merce. 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 caiitious 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 relationto 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 add intercourse.” .That the transportation of passengers is a part of commerce is not how 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 refer
.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 putuic service. Pilot laws were in force in .every commercial State on the seaboard when the Constitution was adopted; and on the introduction of sa 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 circumstancés 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 S'tate. 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 á ship regulates commerce. And yet, in both instances, the tax on the property in some degree affects its use.
■ 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 aré 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 á 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 t fund, pe withih the power of the Státe, 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,
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 welf 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. Thé 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 nower of the Union.
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 migM, under the power to tax, have levied “duties on imports or exports.” (
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 csf the Constitution. The want of it produced collisions in the commercial regulations of the States. But if, as is contended, these
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 po'wer with which it is classed in thé '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. Biit does not all experience sustain, the argument ? A large amount of foreign articles brought: into this country for several yearn 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 authqrity 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 thé 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 aet of February 25th, .1799, which repealed the above act, more "enlarged provisions were enacted/ requiring the- revenue-officers of the United States to conform-
A proviso limits the provisions of the act into which it is introduced. But this proviso may he considered as hot 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 oh the intelligence of Congress.
If this power to tax passengers from a foreign country be-io'ngs 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 Y ork; 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,
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 sulv ject. They aré, in effect, repugnant to the act of New York.
It is pot 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 pealing 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
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 tor 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, arrive ing 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, tti recover back this
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.
Norris v. City of Boston, and Smith v. Turnek.
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 iri question in these cases, aré 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 lavf, 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 judgpient ■ has been formed, except in one particular," in no way at variance with our united Conclusion;
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,
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 inter--
■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 be.en 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 G|ier, 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
_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 arid 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 samé, 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,
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 t,o destroy such equality bjr 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 th’e Constitution, which enjoins that all duties, imposts, and excises shall be uniform throughout tbp 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
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 iised 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.
■ 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 ill 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 thé 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 v/here 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
. 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
cifically 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 inay 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 G ttsent 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,
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 navi-' gation, 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
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 5and the equality is destroyed. In. such a case the Constitutidh 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 dpop 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 fax 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 óf a regulation of commerce, acting upon navigation. It is not a dispn-
The power, then, tq 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 persqps 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'
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
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 voypgé, 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 mindfe of those who made it. What is the supreme police power pf 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 cage of transgression they cannot be punished like native or temporary subjects of the state.”
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
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 uRMiln’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 á list of passengers, notwithstanding the passenger laws of the United States, is put upon the ground that those laws “ aifect 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 embarcatioñ 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
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-cherishéd 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 tránsportation óf 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 \yhere 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 right
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 j 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 óf 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,
A'll 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 case of Prigg v. The Commonwealth of Pennsylvania is inapplicable to the cases before us, except in tjie 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 suspecte'd 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 insti.tutions 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.
Is it 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
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 haye a guard against it in the Constitution, making it altogether unnecessary for them to resort to the casus gentis extraordinarias, the casus extremes neces-sitatis 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
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.” (
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 plaintiffs 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. Pour of the
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
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 attitudé 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.
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 enable's me to confirm my own in some degree froin 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 cooperation 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 cooperate 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
But the chief justice says that he has the strongest reason to suppose that Mr. Justice Baldwin became satisfied, because, in his opinión in the case of Groves v. Slaughter, he quotes the case of New York v. Miln with approbation, whep 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,
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 ther’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 Cón-gress 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
In my opinion, the case of Gibbons v. Ogden rules the cases before uá.' 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 defenc’e of the Constitution has not this day been weakened by their successors.
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 Yol. 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
“ 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 heal ,h-commissi oner, 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 süm 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
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 alfeo 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 . passengeis 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 ac-. company 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.
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 fón the purpose of settlement and residence.
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 impbsed 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 repprt 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 mak'ing 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 thüs 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, reenacts, 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
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 Ms 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 braneh 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
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 mauner 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 wken 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 per-sondas'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.
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, Gan 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 exte> "’ed, 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 master's 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 Constitu
The tax is demandable from the master on entering the port, , and the law. provides that, when hé pays the. money to the State collector, the master may, by way of remedy over, recover by suit from each passenger the sum paid on his account. • And it is. insisted that the master had still a better remedy in the carrier’s lien- on goods of passengers, which he might detain, and by this means coerce payment at once before the vessel landec].
Plainly, this latter was the principal mode, of distress contemplated by the State- authorities, as wives and children could . not be sued, nor have they any property, and therefore proper- ■ ty of heads of families could only be reached on their account.
Now what do these laws require the master to do ? As- the-agent of New York, and as her tax-collector, he is required to levy the tax on goods of passengers, and make it out of. property which is beyond the.reach of the State laws; and yet the . thing is to be done by.force of thése same State laws. Sup-, pose it to be true, that this forcing the master, to levy a distress on protected goods is yet no tax on him or his vessel, and therefore, in that respect, the law laying the tax does not violate the Constitution ; all this would only throw the tax from one protected subject to another, — it would shift the burden from the master and vessel on to the goods of the passenger, which.are as much protected by the Constitution ■ and acts-of • Congress as the toaster and vessel.
And how would this assumption, that a State law may es- - cape constitutional invasion, by giving a remedy over, operate in practice ?
Béfore; the Constitution existed, the States taxed the commerce and intercourse of each other. This was the leading cause of abandoning" the Confederation and forming the Constitution, —more than all other causes it led to the result; and. the provision prohibiting the States from laying any.duty on imports or exports, and the one which declares that vessels bound to or from one' State shall not be obliged to enter, clear, or pay duties in another, were especially intended to prevent the evil. Around our extensive seaboard, on our gréat lakes, and through our great rivers, this protection is relied on against State assumption and State interference. Throughout' the'
If the first part of the State law is void, because it lays a duty on the vessel, under the disguise of taxing its representative, the mastér, how can the after part, giving the master a remedy over against passengers, be more valid than its void antecedent ? All property on board belonging to passengers is absolutely protected from State, taxation. And how can a State be heard to say, that truly she cánnot make distress on property for want of power, but still that she can create the power in the master to do that which her own officers cannot do ?
In the next place, the Constitution, by article first, section eighth, provides, that “ the Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common' defence and general welfare of the United States.”
Such taxes, may be laid on foreign commerce-as regulations of revenue ; these regulations are the ordinary ones to which the Constitution refers. Congress has no power to lay any but uniform taxes when regulating foreign commerce to the end of revenue, — taxes equal and alike at all the ports of entry, giving no one a preference over another. Nor has Congress power to lay taxes to pay the debts of a State, nor to provide by taxation for its general welfare. Congress may tax for the treasury of the Union, and here its power ends.
The question, whether the power to regulate commerce and navigation is exclusive in the government of the United States, or whether a State may regulate within its own waters and ports in particular cases, does not arise in this cause. The question here is, whether a State can regulate foreign - com
. Again: give the argument all the benefit.that it claims; concede the full municipal power in the State to tax all persons wiithn her territory, as a general rule, whether they have been there a year or an hour; and still she could not impose a capitation tax on these passengers by the hand of her own-tax-collector. The tax was demanded whilst they were on board. All the property they brought with them, the clothes and moneys on their persons, were imports ; that is, “ property imported or brought into this country from another country.” No duty could be laid on it by the State; as, until it was separated from the ship, it belonged to foreign commerce, and was' an import. Had the tax been imposed directly on the passengers, as a poll-tax is on land, and had the heads of families been bound to pay for their wives, children, and servants, and had the collector, with-the tax-list in his hand (which was an execution in fact), gone on .board, he woúldhave found no property that was not protected, which he could touch by way of distress to make the money. The passengers could defy him, could turn about, go to another port in the next State, land, and go their way. Here, then, a demand was made for a most stringent tax, which could not- be enforced at the time and place of demand from anybody, without violating the Constitution, various acts of Congress, and a most important commercial treaty.
It has also been urged on the court, with great earnestness, that, as this tax is levied for the support of alien paupers and purposes of eity police, and as the police power has not been taken from the States, that the “ object ” for which it was imposed brings it within the State power. City police is part of the State police, and on this assumption a poll-tax on foreigners might be ■ imposed to maintain almost the entire municipal power throughout the State, embracing the administration of justice in criminal cases, as well as numerous city expenses, together with the support of the poor. The objects
The passengers in this instance were not subjects of any police power, or sanatory regulation-, but healthy persons of good moral character, as we are bound to presume, nothing appearing to the contrary ; nor had the State of New York mani-tested by her legislation any objection to such persons entering the State.
Again: it was urged that the States had the absolute power to exclude all aliens before the Constitution was formed, and that this power remained unsurrendered and unimpaired; that "it might be exercised in any form that the States saw proper to adopt; and having’the power to admit or reject at pleasure, the States might, as a condition to admission, demand from all aliens a.-sum of money, and if they refused to pay, the States might keep them out, nor could.Congress or a treaty interfere. If such -power existed in the State of New York, it has not been exerted in this instance. That it was intended .to impose a condition hostile to the admission of the passengers, in respect to whom the master was sued, is without the slightest foundation^ They were.not hindered or interfered with in any degree by the State law. It is a general revenue measure, and declares that the health-commissioner shall demand, and be entitled to receive, and in case of neglect or refusal shall sue. for and recover, from the master of every vessel from a foreign port that shall arrive' in the port of New York, for himself and each cabin passenger, one dollar and fifty cents; and for each steerage passenger, ’ mate,., .sailor, or marine, one dollar; and from the master of each coasting-vessel, for each person on board, twenty-five cents. No restraint is imposed on passengers', either of foreign vessels or of coasting-vessels. In the one case, as. in the other, the merchants, traders, and visitors in the cabin, and the immigrants in the steerage, were equally free to
For the reason just stated, I had not intended to examine the question presenting the State right claimed, but it has become so involved in the discussions at the bar and among the judges, that silence cannot be consistently observed. The assumption is, that .a State may enforce a non-intercourse law excluding, all aliens, and having power to do this, she may do any act tending to that end, /but short of positive prohibition. If the premises be true, the conclusion cannot be questioned.
The Constitution was a compromise between all the States of conflicting rights among them. They conferred on one government all national power, which it would be impossible to make uniform' in a process of legislation by several distinct and independent State governments; and in order that the equality should be preserved as far as practicable and consistent with justice, two branches of the national legislature were created. In one, the States are represented* equally, and in the other, according to their respective populations. As part of the treaty-making power, the States are equal. The action of the general .government by legislation or by treaty is the action of the States and of their' inhabitants; these the Senate, the House of Representatives, and the President represent. This is the federal power. In the exercise of its authority over foreign commerce it is supreme. It may admit or it may refuse foreign intercourse, partially or entirely.
The Constitution is a practical instrument, made by practical men, and suited to the territory and circumstances on which it was intended to operate. To comprehend its whole scope, the mind must take in the entire country and its local governments. There were at the time of its adoption thirteen States. There existed a large territory beyond them already ceded by Virginia,-and other territory was soon expected' to be ceded, by North Carolina and Georgia. New States were in contemplation, far off from ports on the ocean, through which ports aliens must come to oür vacant territories and new State», and through these ports foreign commerce must of necessity be carried on by our inland population. We had several thousand miles of sea-coast; we adjoined the British possessions on the east and north for several thousand miles, and were divided from them by lines on land to' a great extent; and on the west and south we were bounded for three thousand miles and more
Provision had to be made for foreign commerce coming from Europe and other quarters, by navigation in pursuit of profitable merchandise and trade, and also to regulate personal intercourse among aliens coming to our shores by navigation in pursuit of trade and merchandise, as well as for the comfort and protection of visitors and travellers coming in by the ocean.
Then, again, on our inland borders, along our extensive lines of separation from foreign nations, trade was to be regulated ; but more especially was personal intercourse to be governed by standing and general rules, binding the people of each nation' on either side of the line. This could only be done by treaty of nation with nation. If the individual States had retained national power,' and each might have treated for itself, any one might have broken its treaty and given cause of war, and involved other States in the war ; therefore all power to treat, or have foreign intercourse, was surrendered by the States; and so were the.powers to-make war and to naturalize aliens given up. These were vested in the general government for the benefit of the whole. This became “the nation.” known to foreign governments, and was solely responsible to them for the acts of all the States and their inhabitants.
The general government has the sole power by treaty to regulate that foreign commerce which consists in navigation, and in buying and selling. To carry on this commerce, men must enter the United States (whose territory is a unit to this end) by the authority of the nation-; and-what may be done in this respect Avill abundantly appear .by what has been done from our first administration under the Constitution to the present time, without opposition from State authority, and without being questioned, except by a barren and inconsistent. théory, that admits exclusive power in the general government to let in ships and goods, but denies its authority to let in the men who navigate the vessels, and those who come to sell the goods, and purchase our productions" in return.
Our first commercial treaty with Great Britain was that of 1794, made under the sanction of President Washington’s administration. By the fourteenth article, already referred to, the inhabitants of the king of Great Britain, coming from his Majesty’s territories in Europe, had granted to them liberty, freely and securely, and without hindrance or molestation, to come with their ships and cargoes to the lands, countries, cities, ports, places, and rivers within our territories, to enter the same, to resort there, to remain and reside there, Without limi
And as respects intercourse across our line of separation from the British possessions in America, it is agreed, by the third article of the treaty of 1794, “that it shall at all times be free to his Majesty’s subjects and to the citizens of the United States, and also to the Indians dwelling on either side of said boundary-line, freely to pass and repass, by land or inland navigation, into the respective territories and countries of the two parties on the continent of America, (the country within the limits of the Hudson’s Bay Company only excepted,) and to navigate all the lakes, rivers, and waters thereof; and freely to carry on trade and commerce with each other.” Tolls and rates of ferriage are to be the same, on either side of the line, that natives pay on that side.
Although this treaty was abrogated by the war of 1812, still I understand that it was intended to be renewed, so far as it regulated intercourse at our inland borders, by the second article of the treaty of 1815.
Thus have stood fact and practice for half a century, in the . face of the theory, that individual States have the discretionary power to exclude aliens, because the power was reserved to the States, is exclusively in them, and remains unimpaired by the Constitution.
In short* when the tax- in question was demandable by the State law, and demanded, the ship rode in the harbour of New York; with all persons and property on board, as a unit, belonging to foreign commerce. She stood as single as when ■on the open ocean, and was as exempt from the State taxing power.
For the reasons here given, I think the judgment of the State court should be reversed because that part of the State law on which it is founded was void.
Concurrence Opinion
I concur with this opinion of my brother Catron.
Note. — I here take occasion to say, that the State police power was more relied on and debated in the cause of Norris v. The City of Boston than in this cause. In that case I had prepared an opinion, and was ready to deliver it when I delivered this opinion in open court. But being dissatisfied with its composition, and agreeing entirely with my brother Grier on all the principles involved in both causes, and especially on the State power of exclusion in particular instances, I asked him to write out our joint views in the cause coming up from Massachusetts. This he has done to my entire satisfaction, and therefore I have said nothing here on the reserved powers of the States to protect themselves, but refer to that opinion as containing my views on the subject, and with which I fully concur throughout.
Norris v. City of Boston and Smith v. Turner.
I have examined the opinions .of Mr. Justice McLean and Mr. Justice Catron, and concur, in the whole reasoning upon the main question, but wish to add, succinctly, my own views upon a single provision of the Constitution.
The first clause of the ninth, section and first article of the
On the last argument of this cause, no reference was made to this clause of the Constitution ; nor have I ever heard a full arid satisfactory argument on the subject. Yet on a frill ex-aminatiop of this clause, connected with other provisions of .the Constitution, it has had a controlling influence on my mind in the détermination of the case before us. Some of my brethren have insisted that the clause here. quoted applies exclusively to the importation of slaves. If the phrasp, i“ the migration or importation of such persons,” was intended by the Convention, to mean slaves only, why, in the assertion of the taxing power, did they, in the same clause, separate migration frorn importation, and use the following language: — “ But a tax or duty may be imposed on such importation, not exceeding ten dollars'for each person”? All will admit, that, if the word migration were excluded from the clause, .it would apply to slaves only. An unsuccessful attempt was made in the Convention to amend this clause by striking out the word migration, and thereby to make it apply to slaves exclusiyely. In the face of this fact, the debates in the Convention, certain numbers of the Federalist, together with Mr. Madison’s report to the legislature of Virginia in 1799,; — eleven years after the adoption of the Constitution, —' are relied on to prove that the words migration and importation are synonymes, within the true intent and meaning of this clause. * The acknowledged accuracy of language and clearness of diction in the Constitution would seem to forbid the imputation of so gross an error to the distinguished authors of that instrument.
I háve been unable to find any thing in the debates of the Convention, in the Federalist, or the report of Mr. Madison, inconsistent with the construction here given. Were they, however, directly opposed to it, they could not, by any known rule of construction, control Or modify the plain and unambiguous language -of the clause in question. The conclusion, to my mind, is therefore irresistible, that there are two separate and distinct classes of persons intended to be provided for by this clause.
Although they - are both subjects of commerce, the latter class only is the subject of trade and importation. The slaves are not immigrants, and had no exercise of volition in their transportation from Africa to the United States.
' The owner was bound to enter them at’the custom-house as
Having thus shown that there are two separate and distinct classes included in, and provided for by, the clause of the Constitution referred to, the question arises, how .far the persons of the first class are protected, by the Constitution and laws of the United States, from the operation of the statute of New York now under consideration. The power was conferred on Congress to prohibit migration and importation of such persons into all the new States, from and after the time of their admission into the Union, because the exemption from the prohibition of Congress was confined exclusively to the States then existing, and left the power to operate upon all the new States admitted into the Union prior to 1808. Four new States having been thus admitted within that time, it follows, beyond controversy, that the power of Congress over the whole subject of hiigration and importation was complete throughout the United States after 1808.
The power to prohibit the admission of “all such persons” includes, necessarily, the power to admit them on such conditions as Congress may think proper to impose; and therefore, as a condition, Congress has the Unlimited power of taxing them. If this reasoning be correct, the whole power over the subject belongs exclusively to Congress, and connects itself indissolubly with the power to regulate commerce with foreign nations. How far, tíren, are these immigrants protected, upon their arrival in the United States, against the power of State statutes ? The ship, the cargo, the master, the crew, and the passengers are all under the protection of the laws of the United States, to the final termination of the voyage; and the passengers have a right to be landed and go on shore, under the protection and subject to these laws only, except so far as they may be subject to the quarantine laws of the place where they axe landed; which laws are not drawn in question in.this controversy. The great question here is,. Where does the power of the United States over this subject end, and where does the
A similar question arose in the case of Brown v. The State of Maryland,
The clause of the Constitution already referred to m this case, taken in connection with the provision which confers on Congress the power to pass all laws necessary and proper for carrying into effect the enumerated and all other powers granted by the Constitution, seems necessarily to include the whole power over this subject; and the Constitution and laws of the United States being the supreme law of the land, State power cannot be extended over the same subject. It therefore follows, that passengers can never bé subject to State laws until they become a portion of the population of the State, temporarily or permanently; and this view of the .subject seems to be fully sustained by the case above referred to. Were it even admitted that the State of New York had power to pass the statute. under consideration, in the absence of legislation by Congress on this subject, it would avail nothing in this case,. because the whole ground had been occupied"by Congress before that act was passed, as has been fully shown by the preceding Qpinion of my brother Catron. The laws referred to in that opinion show conclusively that the passengers, their moneys, their clothing, their baggage, their tools, their-implements, &c., are permitted to land in the United States without tax, duty, or impost.
I therefore concur in the opinion, that the judgment of the court below should be reversed.
Mr. Justice Catron concurs in the foregoing opinion, and adopts it as forming part of his own, so far as Mr. Justice McKinley’s individual' views are expressed, when taken in connection with Mr. Justice. Catron’s opinion.
Norris v. City of Boston.
As the law of Massachusetts which is the subject of consideration in this case-differs in some respects from that of New York, on which the court have just passed in the case of Smith v. Turner, I propose briefly to notice it. In so doing, it is not
The plaintiff in this case is an inhabitant of St. John’s, in the Province of New Brunswick and kingdom of Great Britain', He arrived at the port of Boston in June, 1837, in command of a schooner belonging to the port of St. John’s, having oh board nineteen alien passengers. Prior to landing, he was compelled 'to pay to the city of Boston the sum of two dollars each for permission to land said passengers. This sum of thirty-eight dollars was paid under protest, and this suit instituted to recover it back.
, The demand was made, and the money received from the plaintiff, in pursuance of the following act of the legislature of Massachusetts, passed on the 20th of April; 1837, and entitled, “ An act relating to alien passengers.”
“ § 1. When any vessel shall arrive at any port or harbour within this State, from any port or place without the same, with alien passéngers 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 passengérs, are hereby authorized and required tó appoint, shall go on board such vessels and examine into the condition of such 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, ór 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 surety, 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 passengers, 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.
“ <§> 4. The officer or officers required in the first section of this act to be appointed by the mayor and aldermen, or the select
u <§> 5. 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 where life is in danger.”
It must be borne in mind (what has been sometimes forgotten); that the controversy in this case is not with regard to the right claimed by the State of Massachusetts, in the second section of this act, to repel from her shores lunatics, idiots, criminals, or paupers,, which any foreign country, or even one of her. sister States, might endeavour to thrust upon her; nor the right of any State, whose domestic security might be endangered by the admission of free, negroes, to exclude them from her borders. .This right of the States has its foundation in the sacred law of self-defence, which no power granted to Congress can restrain or annul. It is admitted by all, that those powers which relate to merely municipal legislation, or what may be more properly called internal police, ar.e not surrendered or restrained ; and that it is as competent and necessary for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds, and convicts, as it is to guard against the physical pestilence which may arise from unsound and infectious articles imported. The case' of New York v. Miln asserts this doctrine, and no more. The law under consideration in that case did not interfere with passengers as such, either directly or indirectly, who were not paupers. It. put, forth no claim to tax all persons for leave to land and pass through the State to other States, or .a right to regulate the intercourse of foreign nations with the United States, or to control the policy of the general government with regard to immigrants.
But what is the claim set up in the third section of the act under consideration, with which alone we have now to deal ?
It is not the exaction of a fee or toll from passengers for some personal service rendered to them, nor ■ from the master of the vessel for some inspection or other service rendered', either to the vessel or its cargo. It is not a fee or tax for a
It is not an exercise of the police power with regard to paupers, idiots, or convicts. The second section effectually guards against injury from, them. It is only after the passenger has been found, on inspection, not to be within the description whose crimes or poverty require exclusion, that the master of the vessel is taxed for leave to land him. Had this act commenced with the third section, might it not have been truly entitled, “ An act to raise revenue off vessels engaged in the transportation of passengers V? Its true character cannot be changed by. its collocation, nor can it be termed a policé regulation because it is in the same act which contains police regulations.
In its letter and its spirit it is an exaction from the master, owner, or consignee of á vessel engaged in the transportation of passengers, graduated on the freight or passage-money' earned by the vessel. It is, in fact, a duty on the vessel, not measured by her tonnage, it is true, but producing a like result, by merely changing thé ratio. It is a taxation of the master,, as representative of the vessel and her cargo.
It has been argued that this is not a tax on the master or the véssél, because in effect it is paid by the passenger having enhanced the price of his passage. Let us test the value of this argument by its application to other cases that naturally suggest themselves. If this act- had, in direct terms, compelled the master to pay a tax or duty levied or graduated on the ratio of the tonnage of his vessel, whose freight was earned by the transportation of passengers, it might have been said, with equal truth, that the duty was paid by the passenger, and not .by the vessel. And so, if it had .laid an impost on the goods of the passenger imported by the vessel, it might have been said, with equal reason, it .was only a tax on the passenger at last, as it comes out of his pocket, and, graduating it by the amount of his goods, affects only the modus or ratio by which-its amount is calculated. In this' way, the most stringent enactments may be easily evaded.
It is a just and well-settled doctrine established by this court, that.a State cannot do that indirectly which she is forbidden by the Constitution to do directly. If she cannot levy a duty or tax from the master or owner of a vessel engaged in commerce graduated on the tonnage or admeasurement of the vessel, she cannot effect the same purpose by merely changing the ratio, and graduating it on thé number of masts, or of ihariners,
The Constitution of the United States, and the' powers confided by it to the general government, to be exercised for the benefit of all the States, ought not to be nullified or evaded by astute verbal criticism, without regard to the grand aim and object of the instrument, and the principles on which it is based. A constitution must necessarily be an instrument which enumerates, rather than defines, the powérs granted by it. .While we are not "advocates for a latitudinous construction, yet “we know of no rule for construing the extent of such powers other'than is given by the language of the instrument which confers them, taken in connection with the purpose for which they are conferred.”
Before proceeding to examine the more prominent and plausible arguments which have been urged in support of the power now claimed by the Stafe of Massachusetts, it may be proper to notice some assumptions of fact which have been used for the purpose of showing the necessity of such a power, from the hardships which it is supposed would' otherwise be inflicted on those States which claim "the right to exercise it.
. It. was assumed as á fact, that all the foreigners who arrived at the ports of Boston and New York, and afterwards became paupers, remained in those cities, and there became a public charge ; and that, therefore, this tax was for their own benefit, or that of their class. But is this the fact?' Of the many ten thousands who yearly arrive at those ports, how small a proportion select their residence there! Hundreds are almost daily transferred from the vessels in which they arrive to the railroad-car anc| steamboat, and proceed immediately on their journey to the Western .States. Are Boston, New York, and New Orleans, through which they are compelled to pass, the only cities of the Union which have to bear the burden of supporting such immigrants as afterwards become chargeable as paupers? It may well be questioned whether their proportion of this burden exceeds the ratio of their great wealth and population. But it appears by the second section of the act now before us, that all persons whose poverty; age, or infirmities render them
The arguments in support of this power in a State to tax vessels employed in the transportation of passengers assume, — 1st. That it is a tax- upon passengers or persons, and not upon vessels. 2d. That the States are sovereign, and -that “ the sovereign may forbid the entry of his territory either to foreigners in general or in particular cases, o&for certain purposes, according as he may think - it advantageous to the State ; and since the lord of the territory may, whenever he thinks proper, forbid its being entered, he has power to annex what conditions he pleases to the permission to enter ”; that the State of Massachusetts, having this power to exclude altogether, may therefore impose as a condition for a license to pass through her territory any amount of tax she may see fit; and this is but the exercise of the police power reserved to the State’s, and which cannot be controlled by the government of the Union. 3d. That it is but an exercise of the municipal power which every State has, to tax persons and things within her jurisdiction, and with which other States have no conéern.
Let us assume, for the- sake of argument, that this is not a duty on the vessel, nor an interference with commercial regulations made by Congress, but a tax on persons transported in the vessel, and .carry out the propositions based on this hypothesis to their legitimate results.
It must be admitted that it’ is not an exercise of the usual power to tax persons resident within a State, and their property ; but is a tax on passengers qua passengers. It is a condition annexed to a license to them to pass through the State, on their journey to other States’. It is founded on a claim by a
It is true, that, if a State has such, an absolute and uncontrolled right 'to exclude, the inference that she may prescribe the conditions of entrance, in the shape of a license or a tax, must necessarily follow.. The' conclusion cannot be evaded if the premises be proved. A right to exclude is a power to tax; and the converse of the proposition is also true, that a power to tax is a power to exclude.; and it follows, as a necéssary result, from this doctrine, that those States in which are situated the great ports or gates of commerce have a right tó exclude, if they see fit, all immigrants from access to the interior States, and to prescribe the conditions on which they shall be allowed to proceed on .their journey, whether it be the payment of two or of two hundred dollars. Twelve States of this Union are without a seaport. The United States have, within and beyond the limits of these States, many millions of acres of vacant lands. It is the cherished policy of. the general government to encourage and invite Christian foreigners of our own race to seek an asylum within our borders, and to convert these waste lands into productive farms, and thus add to the wealth,, population, and power of the nation. Is it possible that the framers of our Constitution have'committed such an oversight, as to leave it to the discretion of some two or three States to thwart the policy of the Union, and dictate the terms upon which foreigners shall be permitted to gain access to the other States ? Moreover, if persons migrating to the Western States' may be compelled to contribute to the revenue of Massachusetts, or New York, or Louisiana, whether for the support of paupers or penitentiaries, they may with equal -justice be subjected to the same exactions in every other city or State through which they are compelled tó pass; and thus the unfortunate immigrant, before he arrives at his destined home, be made a pauper by oppressive, duties on his transit. Besides, if a State may exercise this right of taxation or exclusion on a foreigner, on the pretext that he may become a pauper, the same doctrine wül apply to citizens of other States of this Union; and thus the citizens of the interior States, who have no ports on the ocean, may be made tributary, to those who hold the gates of exit and entrance to commerce. If the bays and harbours in the United States are so exclusively the property of the States within whose boundaries they lie, that, the moment a ship comes within them, she and all her passengers become the subjects of unlimited taxation before they can- be permitted to touch the shore, the assertion, that this is ¿ question with which the citizens of other States have no
To guard against the recurrence of these evils, the Constitution has conferred on Congress the power to regulate commerce with foreign nations, and among the States. . That, as regards our intercourse with other nations and with one another, we might be one people, — not a mere confederacy of sovereign States for the purposes of defence or aggression.
Commerce, as defined by this court, means something more than traffic, — it is intercourse; and the power committed to Congress to regulate commerce is exercised by prescribing rules for carrying on that intercourse.' “ But 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. ■ The commerce of the United States with foreign nations is that of the whole United States. Every district has a right to participate in it. The deep streams which penetrate our country in every direction pass through the interior of almost every State in the Union, and furnish the means for exercising this right. 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.” (Gibbons v. Ogden,
The. question, whether this power is exclusive, is one on which the-majority of this court have intimated different opinions, at different times; but it is one of little practical importance in the present case, for this power has not lain dormant, like those for enacting a uniform bankrupt law, and for organizing the militia. The United Statés have made treaties, and have regulated our .intercourse with foreign nations by prescribing fits conditions. No single State has, therefore, a right to change them. To what purpose commit to Congress the power of regulating our intercourse with foreign nations and among the States, if these regulations may be changed at the discretion of each State? And to what weight is that argument entitled which assumes, that, because it is the policy of Congress to leave* this intercourse free, therefore it has not been regulated, and each State may put as many restrictions upon it as she pleases.?.
It has been argued, also', that, as. the jurisdiction of-the State extends over the bays and harbours within her boundaries for the' purpose of punishing crimes committed thereon, therefore her jurisdiction is absolute for every purpose to’the sairie extent; and that, as she may tax persons resident on land and their ships engaged in commerce, she has an equal right to tax the- persons or property of foreigners or citizens of other States, the moment th.eir vessels arrive within her jurisdictional limits. But this argument is obnoxious to the imputation of proving too much, and therefore not to be relied on as proving any thing. For if a State has ari absolute right to tax vessels and persons coming from foreign ports, or those of other States, before they reach the .shore' and .as a condition for license to land in her ports, she may tax to any amount, and neither Congress nor this court can restrain her in the exercise of that' right; it follows, also, as a. necessary Consequence, that she may exclude all vessels but her own from entering her .ports, and may grant monopolies of the navigation of her bays and rivers. This the State of New York at one time attempted, but was .restrained by the decision of this court in the case of Gibbons v. Ogden.
In conclusion, wc are of opinion, —
1st. That the object of- the constitutional prohibition to the States to lay duties' on tonnage and imposts -.on imports was to protect both vessel and. cargó frorn State, taxation while in transitu; and this prohibition cannot be evaded, and, the same result effected, by calling it a tax on the master or passengers.
2d. That the power exercised in these cases to prohibit the
3d. That the power to tax this intercourse necessarily challenges the right to exclude it altogether, and thus to thwart the policy of the other States arid the Union.
4th. That Congress has regulated commerce and intercourse with foreign nations and between the several States, by willing that it shall be free, and it is therefore not left to the discretion of each State in the Union either to refuse a right of passage to persons or property through her territory, or to exact a duty for permission to exercise it.
Concurrence Opinion
I concur with the foregoing opinion of Mr. Justice Grier. .
Norris v. City of Boston, and Smith v. Turner.
I do not concur in the judgment of the. court in these two cases, and proceed to state the grounds on which I dissent.
The constitutionality of the laws of Massachusetts and New York in some respects depends upon the same principles. There are, however, different questions in the two cases, and. I shall make myself better understood by examining separately one of the cases, and then pointing out how far the same reasoning applies to the other, and in-what respect there is a difference between them; and, first, as to the case from Massachusetts.
This law meets the vessel after she has arrived in the har-bour, and within the territorial limits of the State, but before the passengers have landed, and while, they are still afloat on navigable water. It requires the. State officer to go on board and examine into the condition of the passengers, and provides that, if any lunatic, idiot, maimed, aged, or infirm person, incompetent, in the opinion of the examining 'officer, to maintain themselves, or who have been paupers in any other country, shall be found on board, such alien passenger shall , not be permitted to land until the master, owner, consigriee, or agent of the vessel shall give bond, with sufficient security, that no such-lunatic or indigent person shall become a city, town, or State charge within ten years from the date of the bond. These provisions are contained in the. first two sections. It is the third section that has given rise to this -controversy, and which
This law is a part of the pauper laws of the State, and the provision in question is intended to create a fund for' the support of alien paupers, and to prevent its own eitizens from being burdened with their support.
I do not deem it material at this time to inquire whether the sum demanded is a tax or not. Of that question I shall speak hereafter. The character of the transaction and the. meaning of the law cannot be misunderstood. If the alien chooses to remain on board, and to depart .with the ship, or in any other vessel, the captain is not required to pay the money. Its payment is'the condition upon Avhich the State permits, the alien passenger to come on shore and mingle with its citizens, and to rer side among them. • He obtains this privilege from the State by the payment of the money. It is demanded of the captain, and not from every separate passenger, for the convenience of collection. But the burden evidently falls on the passenger; and' he in fact pays if,, either in the enhanced price of his passage, or directly to the captain, before he is allowed to embark for the voyage. The nature of the transaction and the ordinary course of business show that this must be the case; and the present claim, therefore, comes before the court without any equitable. considerations to recommend it, and does not call upon us to restore money to. a party from whom it has been wrongfully exacted. If the plaintiif recovers, he will -^st probably' obtain from the State the money which, he has doubtless already received from the passenger, for the purpose of being, paid to the State; and which, if the State is not entitled to it, ought to be refunded to the passenger. The writ of error, however, brings up nothing for revision here but the constitutionality of the law under which this .money was' demanded. and paid, and that question I proceed to examine.
And the first inquiry is, whether, under the Constitution of the United- States, the federal government has the power to compel the several States to receive, and suffer to remain in association with its citizens, every person or class of persons whom it may be the policy or pleasure of the United States to admit. In my. judgment, this question lies at the foundation of the controversy in this case. I do not mean to say that the general government have, by treaty or act of Congress, required the State of Massachusetts to permit thealiens in question to land.
I had supposed this question not now open to dispute. It was distinctly decided in Holmes v. Jennison,
If these cases are to stand, the right of the State is undoubted. And it is equally clear, that, if it may remove from among its citizens.any person or description of persons whom it regards as injurious to their welfare, it follows that it • may meet them- at the threshold and prevent them from entering. For it will-hardly be said that the United States may permit them to enter, and compel the State to receive them, and that the State may immediately afterwards expel them. There could be no reason of policy or humanity for compelling the States, by the power of Congress, to imbibe the poison, and then leaving them to find a remedy for it by their own exertions and at their own expense. Certainly no such distinction can be found in the Constitution, and such a division of power would be an inconsistency, not to.say an absurdity, for which I presume no one will contend. ■ If the State has the power to determine whether the persons objected to shall remain in the State in association with its citizens, it must, as an incident inseparably connected with it, have the right also to determine who shall enter. Indeed, in the case of Groves v. Slaughter, the Mississippi constitution prohibited the entry of the objectionable persons, and the opinions of the court throughout treat the exercise of this power as being the same with that of expelling them after they have entered.
Neither can this be a concurrent power, and whether it belongs to the general or to the State government, the sovereignty which possesses the right must in its exercise be altogether independent of the other. If the United States have the power, then any legislation by the State in conflict with a treaty or act of Congress would be void. And -if the States possess it,
Again if the State has the right to exclude from its borders any person or persons whom it may regard as dangerous to the safety of its citizens, it must necessarily have the right to decide when and towards whom this power is to be exercised. It is in its nature a discretionary power, to be exercised according to the judgment of the party which possesses it. And it must, therefore, rest with the State to determine whether any particular class or description of persons are likely to produce discontents or insurrection in its territory, or to taint the morals of its citizens, or to bring among them contagious diseases, or the evils and burdens of a numerous pauper population. For if the general government can in any respect, or by any form of legislation, control or re '-ain a State in the exercise of this power, or decide wheth It has been exercised with proper discretion, and towards proper persons, and on proper occasions, then the real and substantial power would be in Congress, and not in the States. In the cases decided in this court,-and herein before referred to, the power of determining who is or is. not dangerous to the interests and well-being of the people of the State has been uniformly admitted to reside in the State.
I think it, therefore, to be very clear, both' upon principle and the authority of adjudged cases, that the several States have a right to remove from among their people, arid to prevent from entering the State, any person, or class or description of persons, whom it may deem dangerous or injurious to the interests and welfare of its citizens; and that the State has the exclusive right to determine, in its sound discretion, whether the danger does or does not exist, free from the control of the general government.
• This brings me to speak more particularly of the Massachusetts law, now under consideration. It seems that Massachusetts deems the introduction of aliens into the State from foreign countries likely to produce in the State a numerous pauper population, héavily and injuriously burdensome to its citizens. It. would be easy to show, from the public history of the times, that the apprehensions of the State are well founded; that a fearful amount of disease and pauperism is daily brought
Massachusetts, then, having the right to refuse permission to alien passengers from foreign countries to land upon her territory, and the right co reject them as a class or description of persons who may prove injurious to her interests, was she bound to admit or reject them without reserve? Was she bound either to repel them altogether, or to admit them absolutely and unconditionally ? And might she not admit them upon such securities'and conditions as she supposed would protect the. interest of her own citizens, while it enabled the State to extend the offices of humanity and kindness to the sick and helpless stranger ? There is certainly no provision in the Constitution which restrains the power of the State in this respect. And if she may reject altogether, it follows that she may admit upon such terms and conditions as she thinks proper, and it .cannot be material whether the security required be a bond to indemnify or the payment of a certain sum of money.
In a case where a party has a discretionary power to forbid or permit an act to be done, as he shall think best for his own interests, he is never bound absolutely and unconditionally to forbid or permit it.' He may always permit it upon such terms'and conditions as he supposes will make the act compatible with his own interests. I know no exception to the rule. An individual may forbid another from digging a ditch through his land to draw off water from the property, of the party who desires the permission. Yet he may allow him to do it upon such conditions and terms as, in his judgment, are sufficient to protect his own property from overflow; and for.this purpose he may either take a bond and security, or he may accept a sum of money in lieu of it, and take upon himself the obliga-
I do not undérstand that the lawfulness of the provision for taking bond, where the emigrants are actual paupers and unable to gain a livelihood, has been controverted. That question, it is true, is_not before us in this case; but the right of the State to protect itself against the burden of supporting those who come to ús from European almshouses seems to be conceded in the argument. Yet there is no provision in the Constitution of the.United States which makes any distinction between different descriptions of aliens, or which reserves the power to the State as to one class and denie's it oyer the other. And if no such distinction is to be found in the Constitution, this court cannot engraft one upon it.. The power of the State sis to these.two classes of aliens must be regarded here as standing upon the same principles. It is in its nature and essence a discretionary power, and if it resides in the State as to the poor and the diseased, it must also reside in it as to all.
In both cases the power depends upon the same .principles, and the same construction of the Constitution of the United States,; it results from the discretionary power which resides in a State to determine from what person or description of persons the danger of pauperism is to be apprehended, and to provide the necessary safeguards against it. Most evidently this court cannot supervise the exercise of such a power by the State, nor control or regulate it, nor determine whether the occasion called for it, nor whether the funds raised have been properly administered. This would be substituting the discretion of the court for .the discretionary power reserved to the State.
Moreover, if this court should undertake to exercise this-supervisory power, it would take upon itself a duty which it is utterly incapable of discharging; For how could this court ascertain whether the persons classed by the boarding officer of the State as paupers belonged to that denomination or not ? How could it ascertain what had been, the pursuits, habits, and mode of life of every emigrant, and how' far he was liable to lose his health, and become, with a helpless family, a charge-upon, the citizens of the State ? -How could it determine who was sick and who was well ? who was rich and who was' poor ? who was likely to become chargeable and who not ? ■ Yet all
I can, therefore, see no ground for the exercise of this power by the government of the United States or any of its tribunals. In my opinion, the clear, established, and safe rule is, that it is ■reserved to the several States, to be exercised "by them according to their own sound discretion, and according to their own views of what their interest and safety require. It is a power of self-preservation, and was never intended to be Surrendered.
But it is argued in support of the claim of the plaintiff, that the conveyance of passengers from foreign countries is a branch of commerce, and that' thé provisions of the Massachusetts law, which meet the ship on navigable water and detain her until the'bond is given and the money paid, are a regulation of commerce; and that the grant to Congress of the power to regulate commerce is of itself a prohibition to the States to make any. regulation upon the subject. The construction of this article of the Constitution was fully discussed in the. opinions delivered in the License Cases, reported in 5 Howard. I do not propose to repeat here what I then said, or what was said by other members of the court with whom I agreed. It will appear by the yeport of the case, that five of t-he justices of this court, being a majority of the whole bench, held that the■ grant of' the power to^ Congress was not a prohibition to the States to make such regulations as they deemed necessary, in their own ports and harbours, for the convenience of. trade or the- security of-health; and that such regulations were valid, unless they came in conflict with an act of Congress. After such opinions, judicially delivered, I had supposed that question to be settled, so fa¿ as' any question upon the construction'of the Constitution ought to be regarded as closed by the decision of this court. I do not, however, object to the revision of it, and am quite willing- that it be regarded hereafter as the law of this court, that its opinion upon the construction of the Constitution is always open to discussion .when it is supposed to have been founded- in error, and that its judicial authority should hereafter- depend altogether on the force of the reasoning by which it is supported. Referring to my opinión on that occasion, and the reasoning, by which it is maintained, as showing what I
But I pass from this objection, which was sufficiently discussed in the License Cases, and come to the next objection founded on the same clause. It is this: that the law in question is a regulation of commerce, and is in conflict with the regulations of Congress, and with treaties, and must yield to the paramount authority over tliis subject-granted to the United States.
It is a sufficient answer to this argument-, to say, that no treaty or act of Coiigress has been produced which gives, or attempts to give, to all aliens the right to land in a, State. The act of March 2, 1799, ch. 23,. <§. 46, has been referred ter, and much pressed in the argument. But this law obviously does nothing more than exempt certain articles belonging to a passenger from the duties which the United States had a right to éxact, if they thought proper. Undoubtedly the law presupposes that the passenger will be permitted to land. But it does not attempt to confer on him the right.. Indeed, the construction contended for'would be a startling one to the States, if Congress has the power now claimed for it. For neither this nor any other law of Congress prescribes the character or condition of the persons who may be taken on board in a foreign port to be brought to the United States. It makes no regulations upon the subject; and leaves the selection altogether to the discretion and pleasure of the ship-owner or ship-master. ■The .ship-owner, as well as the ship-master, is in many cases a foreigner, acting’ sometimes, perhaps, under the influence of foreign governments or foreign cities, and having no common interest or sympathy with the people of the United States; and he may be far more disposed to bring away the worst and most dangerous portion of the population rather than the moral and industrious citizen. And as the act of 1799 speaks of pas
It is impossible, upon any sound principle of construction, so to interpret this law of Congress. Its language will not justify it, nor can such be supposed to have been' the policy of the United States, or such its disposition towards the States. The general government merely intended to exercise its powers in exempting the articles mentioned from duties, leaving it to the States to determine whether it was compatible with their interest and safety to permit the person to land. And. this power the States have always exercised before and since the passage of this act of Congress.
The same answer may be given to the argument on. treaty stipulations. The treaty of 1794, article 4, referred to and re-, lied on is no longer in force: But the same provision is, however, substantially contained in the first article of the convention with Great Britain of July 3, 1815, with this exception, that it puts British.subjects in this respect, on the same footing with other foreigners. But the permission there mutually giv-pn, to reside and hire hopses and warehouses, and to trade and traffic, is in express term's made subject to the laws of the two countries respectively. Now, the privileges here given within the several States are all regulated by State laws, and the reference to the laws of this country necessarily applies to them, and subjects the foreigner to their decision and control. Indeed, the treaty may be said to disavow the construction now attempted to be given to ■ it. Nor do I see how any argument against the validity of the State law can be drawn from the aet of Congress of 1819. On. the contrary, this act seems accurately to mark the line of division between the powers of the general and State governments over this subject; and the powers of the former have been exercised in the passage of this law without encroaching on the right's of the latter. It regulates
I forbear to speak of other laws and treaties referred to.
. They are of the same import, and are susceptible of the same answer: There is no conflict, therefore, between the law of Massachusetts and any treaty or law of the United States.
Undoubtedly, vessels engaged in the transportation of passengers from foreign countries may be regulated by Congress, and are á part of the commerce of the country. Congress may prescribe how the vessel shall be manned and navigated and equipped, and how many passengers she may'bring, and what provision shall be made for them, and what tonnage she shall pay. But the law of Massachusetts now in question does not in any respect attempt to regulate this trade or. impose burdens upon it. I do not speak of the duty enjoined upon the pilot, because that provision is not now before us, although I see no objection to it. But this law imposes no tonnage duty on the ship, dr any tax upon the captain or passengers for entering its waters. It merely refuses permission to the passengers to land until the security demanded by the State for the protection of its own people from the evils of pauperism has been given. If, however, the treaty of act of Congress above referred to had
But there is another clause in the Constitution which it is said confers the exclusive power over this subject upon the general government. The ninth section of the first article declares that the migration or importation of such persons as any of the States then existing should think proper to admit should not be prohibited by the Congress prior to the year 1808, but that a tax or duty might be imposed on such importation, not exceeding ten dollars for each importation. The word migration is supposed to apply to alien freemen voluntarily migrating to this country, and this clause to place their admission or migration entirely in the power of Congress.
At the time of the adoption of the Constitution, this clause was understood by its friends to apply -altogether to slaves. The Madison Papers will show that it was introduced and-adopted solely to prevent Congress, before the time specified, from prohibiting the introduction of slaves from Africa into such States as should think proper- to admit them. It was discussed on that ground in the debates upon it in the Convention ; and the same construction -is given to it in the forty-second number of the Federalist, which was written by Mr. Madison, and certainly nobody could háve understood the object and intention of this clause better than he did.
I admit that the word migration in this clause of the Constitution has occasioned some difficulty in its construction; yet it was, in my judgment, inserted' to prevent doubts or. cavils upon its meaning; for as the words imports and importation in the English laws had always been applied to property and things, as contradistinguished from persons, it seems to have been apprehended that disputes might arise whether these words covered the introduction of men into the country, although these men were the property .of-the persons who brought them in. The framers of the Constitution were unwilling to use the word slaves in the instrument, and described them as persons; and so describing them, they employed a word that would describe them as persons, and which had uniformly been used when persons were spoken of, and also the word which was always applied to matters of property. The whole context of the sentence, and its provisions and limitations, and. the construction given to it by those whe-assisted in framing the clause in question, show that it was intended to embrace those persons only who were brought in as property.
But apart from these considerations, and- assuming that the word migration was intended to describe those who voluntarily came into the country, the power granted is merely a power to prohibit, not a power to compel the States to admit.
And it is carrying the powers of the general government by construction, and without express grant or necessary implication, much farther than has- ever heretofore been done, if the former is to be construed to carry with it thé latter. The powers are totally different in their nature, and totally different in their action on the States. The prohibition could merely retard the growth of population in the States. It could bring upon them no danger, nor any new evil, moral or physical.
But the power of compelling them to receive and to retain among them persons whom the State may deem dangerous to its peace, or who may be tainted with crimes or infectious
It would require very plain-and unambiguous words to convince me that', the States had consented • thus ,to place themselves at the feet of the general government; and if this power is granted in regard to voluntary immigrants, it is-equally granted in the case of slaves. The grant of power is the same, -and in the same words, with respect to migration and to .importation, with the exception of the right to impose a tax upon the latter; and.if the States have granted this great power in one case,' they have granted it in the o'ther; and-every State maybe, compelled to. receive' a cargo , of slaves from Africa,, whatever danger it may bring upon the State, and however earnestly it may desire to prevent it. If the word migration is supposed to include voluntary immigrants, it ought at least to be confined to the power granted, and not extended by construction to another power altogether unlike in its character and consequences, and far more formidable to the States.
But another clause is relied on by the plaintiff to show that this law-is unconstitutional. It is said that passengers are imports, and that-this charge is therefore an impost or duty on imports, and prohibited to the States by the second clause of the tenth section of the first article. This objection, as well as others which I have previously noticed, is in direct conflict with decisions heretofore made by this court. The point was directly presented in the case of Miln v. The City of New York,
The members of the Convention unquestionably used the words they inserted in the Constitution in the same sense in which they-used them in their debates. It was their object to-be understood, and not to mislead, and they ought not to be supposed to have used familiar words in a new or unusual sense. And there is no reason to suppose that they did not
But if the plaintiff could succeed in maintaining that passengers were imports, and that the money demanded was a duty on imports, he would át the same time prove that it belongs to the United States, and not to him, and, consequently, that he is not entitled to recover it. The tenth section of the first article prohibits a State from laying .any duty on imports or exports except what may be. absolutely necessary for the execution of its inspection laws. 'Whatever -is necessary for that purpose may therefore be laid by the State without the previous consent of Congress.
If passengers are imports, then their condition may be examined and inspected by an officer of the State like any other import, for.the purpose of ascertaining whether they may not when landed bring disease or pauperism into the State ; for if the State is bound to permit them to land; its citizens have yet the right to know if there is danger, that they may endeavour to avert it, or to escape from it. They have, therefore, under the clause of the Constitution above mentioned, the power to lay a duty on this import, as it is called, to pay the necessary expenses of the inspection. It is, however, said, that more than sufficient .to pay.the necessary expenses of the inspection was-collected,■'and that the duty was laid also for other purposes. This is true. But it does not follow that the party who paid the money- is entitled to recover it back from the State. On ■the contrary, it is expressly, provided in the clause above mentioned, that the-net' produce of all'"duties and imposts laid by any State on'imports- or- 'exports shall-be for the use of the treasury of the United States. - If, therefore, these passengers were imports, within the meaning of this clause of the Constitution, and the money in question,-a duty'on imports, then the net produce or surplus, after paying the necessary expenses of inspection, belongs to the treasury of the United States.' The plaintiff has no right to it, and cannot. maintain a shit for, it. It is appropriated by the express -words of the Cor ctitution to the United States, arid they/and .they alone, would have a right to claim it from the State. The argument-, however, that passengers. are imports,-is, in" my judgment, most evidently . without any reasonable foundation.
The only remaining topio which seems to require examina
This argument,-1 think, is sufficiently answered by what I have already said as to the real and true character of the transaction, and the relative powers of the Union and the States. But I proceed to inquire whether, if the law of Massachusetts be a tax, it is-not a legitimate exercise of its taxing powér, putting aside for the present the other considerations herein before mentioned, and which I think amply sufficient to maintain its validity.
Undoubtedly the ship, although engaged in the transportation of passengers, is a vehicle of commerce, and within the power of regulation granted to the general government; and I assent fully to the doctrine upon that subject laid down in the case of Gibbons v. Ogden. But it has always been held that the power to regulate commerce does not give to Congress the power to tax it, nor prohibit the States from taxing'it in their own ports, and within their own jurisdiction. The authority of Congress to lay taxes upon it is derived from the express grant of power, in the eighth section of the first article, to lay and collect taxes, duties,' imposts, and excises, and the inability of the States to tax it arises from the express prohibition contained in the tenth section of the same article.
This was the construction of the Constitution at the time of its adoption, the construction under which the people of the States adopted it, and which has been affirmed in the clearest terms by the decisions of this court.
In the thirty-second number of the Federalist, before referred to, and several of the preceding numbers, the construction, of the Constitution as to the taxing'power of the general government- and of the States is very fully examined, and with all that clearness and ability which everywhere mark the labors of its distinguished authors; and in these numbers, and more especially in the one above mentioned, the construction above stated is given to the Constitution, and supported by the most conclusive arguments. It maintains that no right of taxation which the States had previously enjoyed was surrendered unless expressly prohibited; that it was not impaired by any affirmative grant of power to the general government; that duties on imports were a part of the taxing power, and that the States would have had a right, after the adoption of the Constitution, to lay duties on imports and exports, if they had not been expressly prohibited.
The grant of the power to regulate commerce, therefore, dia not, in the opinion of Mr. Hamilton, Mr. Madison, and Mr. Jay, prohibit the States from laying imposts and duties upon
This construction, as given by the Federalist, was recognized as the true one, and affirmed by this court, in the case of Gibbons v. Ogden, 9 .Wheat. 201. The passage upon this subject is so clear and forcible, that I quote the words used in the opinion of the court, which was delivered by Chief Justice Marshall.
■ “In a separate clause,” he says, “ of the enumeration, the power to regulate commerce is given, as being.entirely distinct from the right to levy taxes and'imposts, and as being a new power not before conferred.. The Constitution then considers those powders as substantive and distinct from each other, and so places them in the enumeration it contains. The power of imposing duties on imports is classed with the power to levy taxes, and that seems to be its natural place. But the power to levy taxes could never be considered as abridging the right of the States on that subject;- and they, might, consequently, have exercised it by levying-duties on imports or exports, had the Constitution contained no -prohibition upon the subject. This prohibition, then, is an exception from the acknowledged power of the States to levy, taxes, not from "the questionable power to regulate commerce.”
With such authorities to support me, so clearly and explicitly stating the. doctrine, it cannot be necessary to pursue the argument further.
I may therefore safely assume, that, according to the true-construction of the Constitution, the power granted to Congress to regulate commerce did not in any degree abridge the power of taxation in the States; and that they would at this day have, the .right to tax the merchandise brought into their ports and harbours by the authority and under the regulations of' Con- ' gress, had they not been expressly prohibited.
They are expressly prohibited from laying any duty on imports-or exports, except.what may be absolutely necessary for executing their inspection laws, and also from laying any tonnage,duty. So far, their taxing power over commerce is re-, strained, but no farther. They retain all the rest; and if the money demanded is a tax upon commerce, or the instrument or vehicle of commerce, it furnishes no objection to it unless it is a duty on imports or a tonnage duty, for these aloné are forbidden. .
It is said that this is a tax upon the captain, and therefore a tax upon an instrument of commerce. According to the authorities before- referred to, if it were a tax on the captain it would be no objection to it, unless it were indirectly a duty on imports or tonnage.
Unquestionably a tax on the captain of a ship, bringing in merchandise, would be indirectly a tax on imports, and consequently unlawful; but his being an instrument of commerce and navigation does not make it so; for a tax upon the instrument of commerce is not forbidden. Indeed, taxes upon property in ships are continually laid, and their validity never yet doubted. And to maintain that a tax upon him 'is invalid,- it must first be shown that passengers are imports or merchandise, and that the tax was therefore indirectly a tax upon imports.
But although this money is demanded of the captain, and required to be paid by him or his owner before the passenger is landed, it is in no proper and legitimate sense of the word a tax on him. Goods and merchandise cannot be landed by the captain until the duties upon them are paid or secured. He may,, if he pleases, pay the duty without waiting for his owner or consignee. So here the captain, if he chose, might pay thfe money and obtain the privilege of landing his passengers without waiting for his owner or consignee. But he was under no obligation to do it. Like the case of a cargo, he could not land his passengers until it. was done. Yet the duties demanded in the former case have never been supposed to be a tax on the captain, but upon the goods imported. And it would be against all analogy, and against the ordinary construction of all statutes, to call this demand a tax on the captain. The amount demanded depends upon the number of passengers who desire to land. It is not a fixed amount on every captain or every ship engaged in the passenger trade; nor upon her amount of tonnage. It is no objection, then, to the Massachusetts law fo say, that the ship is a vehicle or the captain an instrument of commerce.
The taxing power of the State is restrained only where the
I conclude the subject by quoting the language of Chief Justice Marshall in the case- of Billings v. The Providence Bank, in 4 Peters,--561, where, speaking upon this subject, he says: — “ That the taxing power is of vital importance, that it is essential to the • existence of government, are truths which it cannot be necessary to reaffirm. They are acknowledged and assented to by all. It would seem that the relinquishment of such a power is never to be assumed.. We will not say that a State may not relinquish it, — that a consideration sufficiently valuable to induce a partial release of it may not exist; but as the whole community is interested in retaining.it- undiinin-ished, that community has a right.to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandoiRit does not appear.”
Siich has heretofore been the .language of this court, and I can see nothing in the power granted to Congress to regulate 'commerce that shows a deliberate purpose on the part of the States who adopted the Constitution to abandon any right of taxation except what is directly prohibited. The contrary appears in the authentic publications of the time.
It cannot be necessary to' say any thing upon the article of the Constitution which gives to Congress the power to establish a uniform rule of naturalization. The motive and object of this provision are too plain to be misunderstood. Under the Constitution of the United States, citizens of each State are entitled to the privileges and immunities of citizens in the several States; and no State would be willing that another State should determine for it what foreigner should become one of its citizéns, and be entitled to hold lands and to vote at its elections. For, without this provision, any one State could have given the right of citizenship in every other State; and, as every citizen of a State is also a citizen of the United States,
The nature of our institutions under the Federal government made it a matter of absolute necessity that this power should be confided to the government of the Union, where all the States were represented, and where all had a voice; a necessity so obvious that no statesman could have overlooked it. The article has nothing to do with the admission or rejection of aliens, nor with immigration, but with the rights of citizenship. Its sole object was to prevent one State from forcing upon all the others, and upon the general government, persons as citizens whom they were unwilling to admit as such.
It is proper to add, that the State laws which were under examination in the License Cases applied altogether to merchandise of the description mentioned in those laws, which was imported into a State from foreign countries or from another State; and as the States have no power to lay a tax or duty on imports, the laws in question were subject to the control of Congress until the .articles had ceased to be imports, according to the legal meaning of the word. And it is with reference to such importations and regulations of Congress and the States concerning them, that the paramount power of Con-gross is spoken of - in some of the opinions then delivered.
The questions as to the power of a State to exclude from its territories such aliens as it may deem unfit to reside among its citizens, and to prescribe’the conditions on which they may enter it, and as to the power of a State to levy a tax for rever míe upon alien passengers arriving from foreign ports, were neither of them involved m those cases, and were not considered or discussed in the opinions.
I come now to the case from New York.
The object of this law is to guard its citizens, not only from the burdens and evils of foreign paupers, but also against the introduction of contagious diseases. It is not, therefore, like the law of Massachusetts, confined to aliens, but the money is required to be paid for every passenger arriving from a foreign. port. ' The tax is imposed on the passenger in this case clearly and distinctly; for although the captain who lands them is made liable for the collection, yet a right is expressly, secured to him. to recover' it from the passenger. There can be no objection to this law upon the ground that the burden is imposed upon citizens of other States, because citizens of New York are equally liable ; but embracing, as it does, its own citizens and citizens of other States, when they arrive from a
” It will be admitted, I understand, that New York has the right to protect herself from contagious diseases, and possesses the right to inspect ships with cargoes, and to determine when it is safe to permit the vessel to come to the wharf, or the cargo to be discharged, in other words, it may establish quarantine laws. Consequently the State may tax the ship and cargo with the expenses of inspection, and with the costs and expenses of all measures deemed necessary by the State authorities. This is uniformly the case in quarantine regulations ; and although there is not the least appearance of disease in the crew, and the cargo is free from taint, yet if the ship comes from a port where a contagious disease is supposed to exist, she Is always placed under quarantine, and subjected to the delay and expenses incident to that condition, and neither the crew nor cargo suffered to land until the State authorities are satisfied that • it may be' done without danger. The power of deciding from what port or ports there is danger of disease, and what ship or crew shall be made subject to ■quarantine, on account of the-port from which she sailed, and what precautions and securities are required to guard against it, must Of necessity belong to the State authorities; for otherwise the power to direct the quarantine could not be executed. And this power of a State has been constantly maintained and affirmed in this court whenever the subject has been under consideration. And whén the State authorities have directed the quarantine, if proof should be offered showing that the foreign ports to which it applied were free from disease, and that there was no just ground for apprehension, this court would hardly, upon that ground, feel itself authorized to pronounce the expenses charged upon the vessel to be unconstitutional, and the law imposing them to be void.
Upon every principle of reason and justice, the same rule must be applied to passengers that us applied to ships and cargoes. If, for example, while rumors were recently prevailing that the cholera had shown’ itself in the principal seaport towns of Europe, New York had been injudicious enough to embarrass her own trade by placing at quarantine all vessels and persons coming from those ports, and burdened them with the heavy expenses and ruinous delays incident to that measure* —
If the State has.the same right to guard itself from persons from whom infection is feared that it has? to. protect itself against the danger arising-from ships with cargoes, it follows that it may exerciser the same power in regard to the former that it exercises in relation to the latter, and' may tax them with the expense of the sanatory measures which' their arrival from a foreign port is supposed to render necessary or prudent.
For the expenses imposed on ships with cargoes, or on thé captain or owner, are as much a tax as the demand of a particular sum to be paid to the officer of the State; to be expended for the same purpose.- It is in truth always the demand of a sum of money to indemnify the State for the expense it incurs. And, as I have already said, these charges are not always made, and enforcéd against ships actually infected with disease, but frequently upon a- particular class of vessels; that is to say, upon all ships coming from ports from which danger • is apprehended, — upon the sound and healthy as well as the infected. The charge is not made, upon those ships alone which bring disease with them, but upon all that come from a port or ports from which it is feared disease may be brought. It is true. the expenses may and do differ in amount, according to the condition of the ship and cargo. Yet all aré subjected to the tax, to the amount of the charges incurred by the State.
Now, in the great commercial emporium of New York, hundreds are almost daily arriving from? different parts of the world, and that multitude of strangers (among whom are always many of the indigent and infirm) inevitably produces a mass of pauperism which, if not otherwise provided for, myst press heavily on the industry of its citizens ; and which, moreover, constantly subjects them to the danger of infectious diseases. It is to guard them against these dangers that the law in question was passed. The apprehensions which appear to have given rise to it may be without foundation as to some of the foreign ports from which passengers have arrived, but that
The danger arising from passenger ships cannot be provided against, with a .due regard to the interests and convenience of trade and' to.the calls of humanity, by precisely'the same means that are usually employed in .cases of ships with cargoes. In the latter case, you may act without difficulty upon the particular ship, and charge it with the expenses which are incident to the quarantine regulations. But how are you to provide for hundreds of sick and suffering passengers ? for infancy and age? for those who havepo means, — who are not objects of taxation, but of charity ? You must have an extensive hospital, suitable grounds about it, nurses and. physicians, and provide food and medicine for them: Arid it is but just that these expenses should be borne by the class of persons . who make them necessary; that is to say, the passengers from foreign ports. It is from them, as a class, that the danger is feared, and they 'occasion the expenditure. They are all entitled to share in the relief which is 'provided,, and the State cannot foresee which of them will require it and which will not. It is provided for all that need it, and all should therefore contribute. You must deal with, them as you do with ships with merchandise and crews arriving from ports where;infectious diseases are supposed to exist; when, although the crew are in perfect health, and the ship and cargo free from infection, yet the -ship-owner must bear the expense óf the sanatory precautions which are supposed to be necessary on account of the place from which the vessel comes.
The State, might, it is true, have adopted towards the passenger ships the quarantine regulations usually applied to ships with merchandise. It might have directed that the passenger ships from any foreign port should be anchored in the stream, and the passengers not permitted to land for the period of time deeiried prudent. And if this had been done, the ship-owner would have been burdened with the support of his numerous passengers, and his ship detained for days, or even weeks, after the voyage was ended. And if a contagious .disease had broken out on the passage, or appeared after the vessel arrived in port, the delay arid'expense to him would have been still more serious.
The sanatory measures prescribed by this law are far more favorable to the passengers' than the ancient regulations, and
I had not intended to say any thing further in relation to the case of New York v. Miln, but the remarks of one of my breth
The question which the court determined to leave open was, whether regulátions of commerce, as such, by a State within its own territories, are prohibited by the grant of the power to Congress. This appears in the. opinion itself, and the law of New York was maintained on Avhat was called, the police power of the State. I ought to add, as Mr. Justice Baldwin has been particularly referred to, that the court adjourned on the day the opinion was. delivered, and on the next day he called on me and said there was a sentence, or a paragraph, I do not remember which, that had escaped his- attention, and which he was dissatisfied with, and wished altered. Of course nothing could be done, as the court had separated, and Mr.
I have deemed it my duty to say this much, as I am one of the three surviving judges who sat in that case. My silence would justly have, created the belief that I concurred in the statement which has been made in relation to the case of which I am speaking. But I do not concur. My recollections, on the contrary, differ from it in several particulars. But it would be out of place to enter on such a discussion here. All I desire to say is, that I know nothing that, -in my judgment, ought to deprive the case of-New York v. Miln of its full judicial weight as it stands in the official report. Mr. Justice Barbour delivered the opinion. Mr. Justice Thompson’s opinion maintains, in the main, the same principles; Mr. Justice Baldwin, four years afterwards, quoted it with approbation; and I certainly assented to it, —making a majority of the whole court. I speak of the opinion of my deceased brethren from their public acts. Of the opinions of those who sit beside me I have no right to speak, because they are yet here and have spoken for themselves. But it is due to myself to say, that certainly, at the time the opinion was delivered, I had no reason to suppose that they did not both fully concur in the reasoning and principles, as well as in the judgment. And if the decision now made is to come in conflict with the principles maintained in that case, those who follow us in these seats must hereafter decide between the two cases, and determine which of them best
But if this law is held to' be invalid, either because it is a regulation of commerce, or because it comes in conflict with a law of Congress, in what mode can the State protect itself? How can it provide against the danger of pestilence and pauperism from passenger ships? It is admitted that it has a right to do so; that want and disease are not the subjects of commerce, and not within the power granted to Congress. They do not obey its laws. Yet, if the State has the right, there must be a remedy, in some form or other, in its own hands, as ■there is in the case of ships with cargoes. The State can scarcely be required to take upon itself, and impose upon the industry of its citizens, the duty of supporting- the immense mass of poverty and helplessness which is now pressing so heavily upon property in Europe, and which it-is endeavouring to throw off. It cannot be expected that it should take upon itself the burden of providing buildings, grounds, food, and all the necessary comforts for the multitude of helpless and poor passengers who are daily arriving from foreign ports. Neither, I presume, will it be(. expected that' the citizens of New York should disregard the calls of sympathy and charity, and repulse from their shores the needy and wretched who are seeking an asylum amongst them. Those who deny the legality of the mode adopted would seem .to be called upon to point out another consistent with .the rights and safety of the State, and with the interests of commerce in the present condition of the commercial world, and-not inconsistent with the obligations of humanity. I have heard none suggested, and I think it would be difficult to devise one on the principles on which this' case is decided, unless, the health and the lives of the citizens of every State are made altogether dependent upon the protection of the Federal government, and the reserved powers of the States over this subject, which were affirmed by this court in Gibbons v. Ogden and Brown v. The State of Maryland, are now to be denied.
With regard to the taxing power.in the State, the case of Brown v. The State of Maryland, referred to in the argument, does not apply to it. The rights of the ship-owner or the captain were in no degree involved in that suit: Nor was there
' But here there .is no owner. It is the case of passengers, — .freemen. It is admitted that they are not exempt from taxation after they are on shore. And the question is, When was the voyage or passage ended, and when did the captain and passengers pass from the jurisdiction and protection of the general government and enter into that ‘ of the. State. The act of 1819 regulated and prescribed the duties of the shipowner and captain during the voyage, and until the entry was made at the custom-house and the proper list delivered. It makes no further provision in relation to any.of the parties. The voyage was evidently regarded as then completed, and the captain and passengers as passing from the protection and regulations of Congress, into the protection and exclusive jurisdiction- of the State. The passengers were ho longer under the control of the captain. They might have landed where and when they' pleased, if the State law permitted it, and the captain had no right to prevent them. If he attempted to do so, there was no law of Congress to afford redress or to-grant relief. They must have looked for protection to the State law and the _ State authorities. If a murder had been committed, there was no law of Congress to pnmsh it. The personal safety of the passengers and the captain, and their rights- of property, were exclusively under the jurisdiction and protection of the State. If the right of taxation did not exist in this case in return for the protection afforded, it is, I think, a new exception to the general rule upon that subject. For all the parties, the captain as. well as the passengers, were as entirely dependent for the protection of their rights upon the State authorities, as if they were dwelling in a house in one of its cities; and I cannot, see why they should not be equally liable to be taxed, when no clause can be found in the Constitution of the United States which prohibits it.
The different provisions of the two laws, and the different circumstances of the two cases, made it necessary to say this much concerning the case from New York. In all other rfe-
In speaking of the taxing power in this case, I must, how-ever, be understood as speaking of it as it is presented in the record, — that is to say, ns the case of passengers from a foreign port. The provisions contained in that law relating to American citizens who are passengers from the ports of other States is a different, question, and involves very different, considerations. It is not now before us; yet, in order to avoid misunderstanding, it is proper to say, that, in my opinion, it cannot be maintained. Living as we do under a common government, charged with the great concerns of the whole Union, every citizen of the United States, from the most remote States or Territories, is entitled to free access, not only to the principal departments established at Washington, but also to its judicial tribunals and public offices in every State and Territory of the Union. And the various provisions in the Constitution of the United States — such, for example,'as the right to sue in a fedéral court sitting in another State, the right to pursue, and reclaim one who has escaped from service, the equal privileges and immunities secured to citizens of other States, and the provision that vessels bound to or from one State to another shall not be obliged to enter and clear or pay duties — all prove that it intended to secure the- freest intercourse between the citizens of the different States. For all the great purposes for which the Federal government was formed, we áre one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States. And a tax imposed by a State for entering its territories or harbours is inconsistent with the rights which belong to the citizens of other States as members of the Union, and with the objects which that Union was intended to attain. Such a power in the States could produce nothing but discord and mutual irritation, and they very clearly do not possess it.
But upon the question which the record brings up, the judgment in the New York case, as well as that from Massachusetts, ought, in my opinion, to be affirmed.
Note. —It has been said in the discussion of these cases, by those who maintain that the State laws are unconstitutional, that commerce means intercourse ; and that the power granted to regulate it ought to' be construed' to include intercourse. I have never been able to see that any argument which need
It has always been admitted, in the discussions upon this clause of the. Constitution, that the power to regulate commerce includes navigation, and ships, and crews, because they •are the ordinary means of commercial intercourse ; and if it is intended by the introduction of the word intercourse merely to say that the power to regulate commerce includes.in it navigation, and the vehicles and instruments of commerce, it leaves the question in dispute precisely where it stood before, and requires no further answer.
But if intercourse means something more than commerce, and would give to the general government a wider range of power over the States, no one, I am sure, will claim for this court -the power to interpolate it, or to construe the Constitution as if it was found there. And if, under the authority to regulate commerce, Congress cannot compel the States to admit or reject aliens or other persons coming from foreign ports, but would possess the- power if the word intercourse is, by construction, substituted in its place, every one will admit that a construction which substitutes a word of larger meaning than the word used,in the Constitution could not be justified or defended upon any principle of judicial authority.
The introduction of the word intercourse', therefore, comes to this: if it means nothing more than the. word commerce, it is" merely the addition of a word without changing the argument ; ‘but if it is a word of larger meaning, it is sufficient to say that then this court cannot substitute it for the word of more limited meaning contained in the Constitution. In either view, therefore, of the meaning to be attached to this word intercourse, it can form- no foundation for an argument to support the power now claimed for the general government.
And if commerce with foreign nations could be construed to include the intercourse of persons, and to embrace travellers and passengers, as well as merchandise and trade, Congresos would also have the power to regulate this intercourse between the several States, and to exercise this power of regulation over citizens passing from one State to another. It, of course, needs no argument to prove that such a power over the intercourse of persons passing from one State to another is not granted to the Federal government by the power to regulate commerce among the several States. Yet, if commerce does not mean the intercourse of persons between the several States,
Allusion has been made in the course of these discussions to the exclusive power of the Federal government in relation to intercourse with foreign nations, potentates, and public authorities. This exclusive power is derived from its power of peace and war, its treaty-making power, its exclusive right to send and receive ambassadors and other public functionaries ; and its intercourse in exercising this power is exclusively with governments and public authorities, and has no connection whatever with private persons, whether they be emigrants or passengers, or travellers by land or water from a foreign country. This power over intercourse with foreign governments and authorities has frequently been spoken of, in opinions delivered in this .court, as an exclusive- power. And I do not suppose that any of these opinions have been alluded to in this case, as furnishing any argument upon the question now before us. For an argument drawn from a mere similitude of words, which are used in relation to a subject entirely different, would- be a sophism too palpable to need serious reply.
Norris v. City of Boston, and Smith v. Turner.
Of the decision of the court just given, a solemn sense of duty compels me to declare my disapproval. Impressed as I am with the mischiefs with which that decision is believed to be fraught, trampling down, as to me it seems to do, some of the strongest defences of the safety and independence of the States of this confederacy, it would be worse than a fault in me could I contemplate the invasion in silence. I am unable to suppress my alarm at the approach- of power claimed to be uncontrollable and unlimited. My objections to the decision of the court, and the grounds on which it is rested, both at the bar and by the court, will be exemplified in detail in considering the case of Smith v. Turner, arising under the statute of New York. The provision of the statute in question is in the following words: —
It is wholly irrelevant to the case before us to introduce any other provisions of this statute; such provisions have no connection with this cause, which originated in the single provision just cited ; the intrusion of other provisions of the. law of New York can tend only to confusion, and to the effect of diverting the mind from the only proper question for our decision.
Under this provision of the statute, an action was brought by the defendant, in error, as health-officer of New York, against the plaintiff in error, to recover the amount authorized by the statute to be demanded of him for bringing within the port of the city of New York, from a foreign country, two hundred and ninety-five alien passengers. It is deemed necessary particularly to state the character of the persons with respect to whose entrance the demand originated and was made, with' the view to anticipate objections which might be founded on a supposed invasion of the right of transit in American'citizens from one portion of the nation to another. Tc/raise such an objection would be the creation of a mere rnan of straw, for the quixotic parade of being tilted at and demolished. This case involves no right of transit in American citizens or their property ; it is a question raised simply and entirely upon the right of the State to impose conditions on which aliens, or persons from foreign countries, may be introduced within her territory. When a case of a different character, touching the right of transit in citizens, shall arise, it will then, and not till then, be proper to consider it. We cannot properly take cognizance of matters existing only in imagination. Whether this statute of New York and those which have preceded it in pari materia, be wise, or beneficent, or equitable, or otherwise, in their provisions,— whether,"Under color of those statutes, more may have been'collected than either justice or prudence, or the objects professed in those laws, would require, — whether the amounts collected have been diverted to purposes, different from those alleged in excuse for such collection, — are not questions adjourned hither for adjudication upon this record. The legitimate and only regular inquiry before the oourt is this,— whether the authority claimed and exerted by New York, and
The legislation of New York, and the proceedings adopted to enforce it, are assailed as violations of the Constitution, first, as being repugnant to, and an interference with, the power delegated to Congress to regulate foreign commerce. And this general proposition has been divided into two m'ore specific grounds of objection: —
1st. The-prohibition to the States to levy taxes or.imposts on imports.
2d. The alleged right of Congress- to regulate exclusively the admission of aliens, — a right insisted on as falling by construction within' the commercial power, or within some other implication in the Constitution.
As guides in the examination of these objections, I will take leave to propound certain rules or principles regarded by myself, at least, as postulates, and conceded to be such, perhaps, by every expositor of the Constitution and. of the powers of the State governments.
1st. Then, Congress have no powers save those which are expressly delegated by the Constitution, and such as are necessary to the exercise of powers expressly delegated: (Constitution, art.l, sec. 8, clause 18, and Amendments, art. 10.)
2d. The necessary adxiliary powers vested by art. 1, sec. 8, of the Constitution cannot be correctly interpreted as conferring powers which, in their own nature, are original, independa ent substantive powers; they must be incident to. original substantive grants, ancillary in their nature and -objects, and controlled by and limited to the original, grants themselves.
3d. The question, whether a law be void for its repugnancy to the Constitution, ought seldom, if ever, to be decided in the affirmative in a doubtful case. It is not on slight implication and vague conjecture, that a legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the Constitution and. the law should be such, that the judgé feels a clear and strong- conviction of. their infeompátibility with each other. (
To collate or comment upon these various opinions would here be a work of detail and curiosity rather than of utility. .A reference to them is no further necessary than to remark, that their preponderance is against the position of exclusiveness in the sense above mentioned, or in any acceptation beyond an actual interference or an unavoidable and essential repugnance in the nature of the separate State, and Federal action.
And still more would an examination of these opinions be useless, if, indeed, it would not be irregular, since the decision at the last term but one of this court, upon the license laws'of Massachusetts, Rhode Island, and New. Hampshire, reported in
Again: the very language of the Constitution may be appealed to for the recognition of powers to be exercised by the
In opposition to the opinion of Mr. Justice Baldwin, I will place the sounder and more orthodox views of Mr. Justice Story upon this claim to exclusive power in Congress, as expressed in the case of Houston v. Moore,
As the case of Gibbons v. Ogden has been much relied on in the argument of these cases, and is constantly appealed to as the authoritative assertion of the principle of exclusiveness in the power in Congress to regulate commerce, it is proper here to inquire how far the decision of Gibbons v. Ogden affirms this principle, so often and so confidently ascribed to it; and after all that has been said on this subject, it may be mat
I now proceed to inquire whether the exaction of one dollar by New York from aliens arriving within her limits from abroad by sea, can be denominated a regulation of commerce, either according to the etymological meaning of the.-word commerce, or according to its application in common parlance.
Does the law of New York operate either directly or necessarily upon any one of these ingredients of commerce ? Does it look to them at all ? With regard to the emigrant, this law institutes no inquiry either as to his pursuits, or his intentioiis, or his property. He may be a philosopher, an agriculturist, a mechanic, a merchant, a traveller, or a man of pleasure; he may be opulent, or he may be poor; — none of these circumstances affect his admission. It is required, upon his entering the State, that there be paid by or for him a given sum, graduated upon a calculation of benefit to himself and to others similarly situated with himself, — or, if you choose, upon a calculation of advantage to the State ; but, under whatever aspect it is viewed, wholly irrespective of property or occupation. So far, then, as the emigrant himself is considered, this imposition steers entirely clear of regulating commerce, in any conceivable sense; it is literally a tax upon a person placing himself within the sphere of the taxing power, and the nature and character of the proceeding are in no wise changed where payment shall be made by the master of the vessel acting as the agent and on behalf, of the emigrant. It would still be purely an exercise of the great, indefeasible right of taxation, which, it has been explicitly said by this court, would extend to every subject but for the restriction as to imports and exports imposed by the Constitution; a right, too, expressly declared to belong to a branch of power wholly different from the power to regulate commerce, and forming no part of that power. Thus, in the case of Gibbons v. Ogden,
The inquiry next in order, and growing out of -the aforegoing views, is this: —Can the •' emigranh or passenger on whom the tax is assessed, on his arrival within the State be properly denominated an import? It has been contended that he may, bécause, according to the classical derivation of the term from importare, or in and porta, he has, like every thing else in the ship, been brought in. The advocates of this etymological interpretation should be cautious of adopting it, since it might imply too much, may lead to strange confusion, and ultimately to conclusions directly adverse to those they would deduce .from it. Thus, if the alien passenger is an import, simply from the fact of being brought into the State, will not ithe master and mariners also be imports, precisely for the same reason, although they may be natives and ^inhabitants of, and merely returning to, the country and port at which the. vessel arrives, and thus, if imported, must be imported home, having equally, sustained, a short time previously, when temporarily leaving; that home, the character also of exports ? Again: under this interpretation a dilemma might arise as to whether the ship, as she had been brought in, would not likewise be .an import, or whether the ship had imported the crew, or the crew, the ship; for although the latter would have been conducted into port-by the former, it would be literally true that they would have-been brought in by her. These departures from • the common and received acceptation of language may give, rise'to distinctions as astute as those in Scriblerius upon the famous bequest of Sir John Swale of all his black and white horses, and equally useful with those either in the development of truth or the-establishment of justice. But the strict etymologists have this, further difficulty to encounter. It is said by Livy, and by Tarro, in his book De Lingua Latina, that the'Romans when? they laid out a town, as a religious ceremony observed on such, occasions, delineated its boundaries with a plough; and that wherever they designed there should be á gate, they took up the plough and left a space. . Hence the word porta, a gate, a portando aratrum. Those, then, who will insist upon etymological acceptation, necessarily place themselves, as imported, within the gate; in other words, within the municipal authority of the State, and by consequence within the acknowledged operation of its laws. But such critical derivation cannot be admitted as accordant either with common acceptation or general experience; by these the term imports is justly applicable to articles of trade proper, —goods, chattels, property, subjects in their nature passive and having no volition, — not to
The láw of New York has been further assailed in argument, as being an infraction of the fourteenth article of the treaty of amity and commerce negotiated between Great.Britain and the United States in the year 1794, by which article it is provided that “ there shall be between all the dominions of his Majesty in Europe, and the territories of the United States, a reciprocal and perfect liberty of commerce and navigation. The people and the inhabitants of the two countries shall have liberty freely and securely, and without hindrance and molestation, to come with their- ships and cargoes to the' lands, countries, cities, ports, places, and rivers within the dominions and territories aforesaid, and to enter into the same; to resort there, and to remain and reside there without any limitation of time ; also to hire and possess houses and warehouses for the purposes of their commerce; and generally the merchants and traders on each side shall enjoy the most complete protection and security for their commerce, but subject always, as to what respects this article, to the laws and statutes of the two countries respectively.”
It has been insisted that the article of the treaty just cited, having stipulated that British subjects shall have liberty freely and securely, and without hindrance, to come with" their ships- and cargoes to the lands, countries, cities, ports, &c., and to remain and reside for the purposes of their commerce ; and the second clause of the sixth article of the Constitution having declared the Constitution and the laws of the United States, made in pursuance thereof, and treaties made under the authority of the United States, to be the supreme law of the land, the laws of New York, being in derogation of the fourteenth article of the treaty of .1794, are unconstitutional and void. The fourteenth article of the treaty of 1794, having expired by limitation of time anterior 'to the enactment of the statutes complained- of, it cannot in' terms, as a part of that compact, be brought'.tofbear upoh this case. The same-provision, however, with the single variation that British subjects are placed orí the same footing with, other foreigners who-.shall be admitted- to enter American-ports,, was renewed by the first article of the treaty of 1815, and by the third article of the same treaty was
“ This provision of the Constitution, it is to be. feared, is sometimes expounded without those qualifications which the character of the parties' to that instrument, and its adaptation to the purposes for which it was created, necessarily imply. Every power delegated to the Federal government must be expounded in coincidence with a perfect right in the States to all that they have not delegated; in coincidence,- too, with the possession of every power and right necessary for their existence and preservation; for it is impossible to believe that these ever were, either in intention or in fact, ceded' to the general government. Laws of the United States, in order to be binding,, must be within the legitimate powers vested , by the Constitution. Treaties, in order to be valid, must be made within the scope of the same powers; for there can be no authority of the United States, save, what is derived mediately or immediately, and regularly and legitimately, from the Constitution. A treaty no more than an ordinary statute can arbitrarily cede away any one right of a State, or of any citizen of a State.” (
Admitting'this fourteenth article of the treaty to be in full force, and that it purported to taire from the State of New York the right to tax aliens coming and commorant within her territory, it would be. certainly incompetent for such a purpose, because there is not, and never could have been, any right in any other agent than her own government to bind her by such a stipulation. In the next place, the right of taxation claimed by New York can by no rational construction of it be made to conflict with a correct comprehension of the treaty stipulations in question. These neither express nor imply any thing more
The argument constructed by counsel and by some of the judges upon the provisions of the act of Congress authorizing the importation of the tools of mechanics, their clothing, &c., free from duties, presents itself to my mind as wanting in logical integrity, and as utterly destructive of positions which those \Vho urge- this argument elsewhere maintain. The exemption allowed by Gongress can correetly be made to signify nothing more'than this: that the general government will not levy duties on thé private effects of certain classes of persons who may be admitted into the country. But, by any rule of common sense, can this exemption be made to signify permission to those persons to land at all events in the States ? It asserts or implies no such thing; much less does it convey a command, or the power to issue a command, to the States to admit them. Must not this benefit of exemption from duties be always in enjoyment subordinate to and dependent upon the right of ..the owner of the property exempted to enter the cóun-try ? This is inevitable, unless, it be contended that a mere forbearance tó exact duties on the property is identical with
I will now consider the' second head of objection to the legislation of New York, as - propounded in the division stated in the commencement of this opinion, namely, the alleged right of Congress to regulate exclusively the admission of aliens, as a right comprehended within the commercial power, or within •some other implication in the Constitution.
Over aliens, qua aliens, no direct authority has been delegated to Congress by. the Constitution. Congress have the right to declare war, and they are bound to the duty of repelling invasions. They have the power, too, to establish a uniform rule of naturalization. By an exercise of the former, power, Congress can place in the condition of alien enemies all who are under hllegiance to a nation in open war with -the United States; by an exercise of the second, they can extend to alien friends the common privileges of citizens. Beyond these predicaments put by the Constitution, and arising out of the law of nations, where is the power in Congress to deal with aliens, as a class, at all ? and much more the power, when falling with
The power to regulate the admission, as implied in the right of banishment or deportation, of aliens, not the citizens or subjects of nations in actual war with the United States, was at one period of our history assumed by the Federal government; and a succinct review' of the arguments by which this pre--tension was sought to be sustained must expose its absolute fallacy.
Congress, it was insisted, could exert this power under the law of nations, to which aliens are properly amenable. To this it was answered, that, under the law of nations, aliens are responsible only for national offences,.— offences in which their nation bears a part; they are then alien enemies. That alien friends, on the other hand, owe a temporary allegiance to the government under which they reside, and for their., individual offences committed against the laws of that government they are responsible, as other members of the community, to the municipal laws. • ■
Again, it was asserted that the right was vested in Congress under the power to make war, and under the power and the duty to prevent invasion. The obvious refutation of this argument was furnished in the reply, that alien friends could not be the subjects of war (public national conflict), nor in any sense the instruments of hostile- invasion, such invasion being an operation of wax. Neither could they fall within the. power vested by the Constitution to grant letters of marque and reprisal, as an equivocal authority partaking of the characters of war and peace; “ reprisal being a seizure of foreign persons and property, with a view- to obtain that justice for injuries done by one state or its members,-for which-a refusal of the aggressors requires such a resort to force under the law of nations. It must be considered as an abuse of words to call the removal of persons from a. country a seizure or a reprisal on them; nor is the distinction to be overlooked between reprisal on persons within the country, and under the faith oF its laws, and on persons out of .,the country.” (Madison’s Report.) It may, then, be correctly-affirmed, that by no direct delegation of
Before proceeding farther with the history of this article, it will be well to contrast the view of its scope and objects, as given in the quotation’ just made from'the Federalist, ’with the
If the history of the ninth section of article fourth be traced, in the proceedings of the Convention, from its introduction into that body until finally moulded and engrafted upon the Constitution (3 Madison Papers, from p. 1388 to p. 1673), it will be found that not one member of the Convention ever treated this section in other terms, or as designed for any other purpose, than as a power specially given to Congress by that section alone to abolish the foreign slave-trade from the period limited by that section, with the exception of a single observation of Colonel Mason of Virginia, that the provision as it stood might be necessary in order to prevent the introduction of convicts; but not pretending to extend the power of Congress beyond these and the foreign slave-trade.
This authority over alien friends belongs not, then, to the general government, by any express delegation of power, nor by necessary or proper implication from express grants. . The claim to it is essentially a revival of what public sentiment so generally and decisively condemned as a usurpation in the alien law of 1798 ; and however this revival may at this time be freed from former imputations of foreign antipathies or par-tialities, it must, nevertheless, be inseparable from — nay, it must be the inevitable cause of far greater evils — jealousy, ill-feeling, and dangerous conflict between the members of this fconfederacy and their common agent.
Thus far I have preferred to consider this case as depending rather Upon great fundamental ■ principles, inseparable from-the systems of government under which this country is placed,' than' as dependent upon forms of pleading, and. conclusions deducible from those forms. But judging of the case in the latter aspect as moulded by those forms,.it seems to fall directly within the operation of a precedent settled by this court, which must, if regarded, decide the law to be with the defendant in error. By the}'-second'.count in the declaration, 'it is averred that the defendant below (the plaintiff in error), being the master of the ship Hen’ry Bliss, in violation of the -laws of New York, brought into the port of New York, and.there actually landed the same, two hundred and ninetyTfive passengers; the demurrer to the declaration, admitting the truth of these aver-ments^ places the locale of the origin, as well as the infraction
Between this case .and that of Norris v. The City of Boston, there are some shades of difference ; they are such, however, as by me are not regarded as essential; both the cases rest in reality upon the right of taxation m the States, and as the latter case has been examined with so much more of learning and ability than I could haye brought to its investigation, by his Honor the Chief Justice, I shall content myself with de daring my entire concurrence in his reasonings and conclusions upon it.
It is my opinion that the judgment' of the Court for the Trial of Impeachments and Correction of Errors in New York, and the judgment of the Supreme Judicial Court of Massachusetts, should be affirmed.
Note. — In'the opinions placed on file by some of the justices constituting the majority in the decision of this casé, there appearing to be positions and arguments which" are not recollected as having been propounded from the bench, and which are regarded as scarcely reconcilable with the former then examined and replied to by the minority, it becomes an act of justice to the minority that those positions and arguments, now for the first time encountered, should not pass with-otit comment. Such comment is. called for, in order to vindicate the dissenting justices, first, from the folly of combating reasonings and positions which do not appear upon the record and, secondly,.from the. delinquency of seéming to recoil from exigencies, with which, however they may be supposed to have existed, the dissenting justices never were in fact confronted. It is called for by this further and- obvious consideration, that, should the modification or retraction of opinions delivered in court obtain in practice, it would result in this palpable irregularity; namely, that opinions, which, as those of the
Examples of diversity between the opinions in this cause, comprehended as they were delivered in court, and as subsequently modified,' will now be adverted to. The first is found in the solecism, never propounded, perhaps, from any tribunal, — one, indeed, which it might have been supposed no human imagination, not the most fruitful in anomalies, could ever conceive, — “that the action of the Federal government by legislation and treaties is the action of the States and their inhabitants.” If this extraordinary proposition can be taken as universally or as generally true, then State sovereignty, State' rights, or State existence even, must be less than empty names, and the Constitution of the United States, with all its limitations on Federal power, and as it has been heretofore generally understood to be .a special delegation of power, is a falsehood or an absurdity. It must be viewed as the creation of a power transcending that which called it into existence ; a power single, universal,- engrossing, absolute. Every thing in the nature of civil or political right is thus ingulfed in Federal legislation, and in the power of negotiating treaties. History tells us of an absolute monarch who characterized himself and his authority by the declaration,- “ I am the State.” This revolting assertion of despotism was, even in. the seventeenth century, deemed worthy of being handed down for the reprobation of the friends of civil and political liberty. What, them must be thought in our day, and in future time, of a doctrine, which, under a government professedly one of charter exclusively, claims beyond the terms of that charter, not merely th£ absolute control of civil and political rights, but the pow^r to descend to and regulate ad libitum the private and personal concerns of life. Thus the ground now- assumed in terms for the Federal government is, that the power to regulate commerce means still “ more especially ” the power to regulate “ personal intercourse.” Again, it is asserted that the Federal government, in the regulation of commerce, “ may admit or may refuse foreign intercourse partially or entirely.” If those who resort to this term intercourse mean merely commercial transactions as generally understood, their argument is an unmeaning variation of words, and is worth nothing. They obtain by the attempt
Norris v. City of Boston, and Smith v. Turner.
I have examined particularly the opinion of the Chief Justice delivered in these cases of Smith v. Turner, and Norris v. The City of Boston, and have concurred, not only in its conclusions, but in the grounds and principles upon whiclf it is arrived at; and am in favor of affirming the judgments in both cases.
Norris v. City of Boston, and Smith v. Turner.
In relation to the case-df Turner v.- Smith, from New York, I wish merely to express my non-concurrence with the opinions pronounced by the' majority of this court. But standing more intimately connected, with the case of Norris v. Boston, by my official duties in the First Circuit, I feel more obliged to state, in some detail, the reasons for my opinion, though otherwise content to acquiesce silently in the views expressed by the Chief .Justice ; and though not flattering myself with being able, after the elaborate discussions we have just heard, to present much that is either novel or interesting., ■ '
The portion of the statute of Massachusetts which in this case is assailéd, as most questionable in respect to its conformity with the Constitution, is the third section. The object of that is to forbid alien passengers to land in any port in the State, until the master or owner of the vessel pays “ two dollars for each passenger so landing.” The provisions in the other sections, and especially the second one, requiring indemnity for the support of lunatics, idiots, and infirm persons on board of vessels before they are landed, if they have been or are paupers, seetn admitted by most persons to be a fair exercise of the police powers of a State.
This claim of indemnity is likewise excused or conceded as a power which has long been exercised by several of the Atlantic States in. self-defence against the ruinous burdens, which would otherwise be flung upon them by the incursions of paupers from abroad, and their laws are often as stringent against the introduction of that class of persons from adjoining
Such legislation commenced in Massachusetts early after our ancestors arrived at Plymouth. It first empowered the removal of foreign paupers. (See Colonial Charters and. Laws, 1639, p. 173, and 1692, p. 252.) It extended next to the requisition of indemnity from the master, as early as the year 1701. '(See Statute of 13 ffm. III., Ibid. 363.) But while it embraced removals of paupers not settled in the Colony, and ihdemnity required from the master for the support of foreigners iñtro-duced by sea, I do not think it assumed the special form used in the third section of this statute, until the year 1837, after the decision in the case of The City of New York v. Miln,
■ It will be remembered that this third section imposes a condition on landing alien passengers, or, in' 'pther words, levies a toll or fee on the master for landing them, whether then. paupers or not, and that the present action is to recover back the money which has been collected from the master for landing such passengers.
■ After'providing, in the following words, that, “when any vessel shall arrive at any port or harbour within the 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 vessel and examine into the' condition of said passengers.” . The third section of the statute declares that “ 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.” -
It is conceded that the sum paid here on account of “ alien passengers ” was demanded of them, when coming in some “ vessel,”, and was collected after she arrived at a “ port or har-bour within the State.” Then, and not till then, the master was required to. pay two dollars for each before landing, “ to be.
. By a subsequent law, as the foreign paupers had been made chargeable to the State treasury, the balances' of this fund in the different towns were required to be transferred to that treasury.
After careful examination, JLam not satisfied that this exercise of power by a State is incapable of being sustained as a matter of right, under one or all of three positions.
1st. That it is a lawful exercise of the police power of the State to help to maintain its foreign paupers.
2d. If not, that it may be regarded as justified by the sovereign power which ever]’- State possesses to prescribe the conditions on which aliens may enjoy a residence within, and the protection of, the State. .
3d. Or it may be justified under the municipal power of the State to impose taxes within its limits for State purposes. I think, too, that this power has never been ceded to the general government, either expressly or by implication, in any of the grants relied on for that purpose, such as to lay duties on •imports, or to.prohibit the importation of certain persons after the year 1808, or to regulate commerce.
Under the first ground of vindication for the State, the whole statute was most probably enacted with the laudable design to obtain some assistance in maintaining humanely the large number of paupers, and persons likely soon to become paupers, coming to our shores by means furnished by the municipal authorities in various parts of Europe. (See 3 Ex. Doc. of 29th Congress, 2d Session, No. 54.) Convicts were likewise sent, or preparing to be sent, hither from some cities on the Continent. (Ibid.)
A natural desire, then, would exist, and would appear by some law, to obtain, first, indemnity against the support of emigrants actually paupers, and likely at once to become chargeable ; and, secondly,-funds to maintain such as, though not actually paupers, would probably become so, from this class of aliens.
It is due to the cause of humanity, as well as the public economy of the State, that-..the maintenance of. paupers, whether of foreign or domestic origin, should be well provided for. Instead of being whipped or carted back to their places of abode or settlement, as was- once the practice in England and this -country in respect to them; or, if aliens, instead of being reshipped over a desolate waste of ocean, they axe to be treated with kindness and relieved or maintained. But still, if feasible, it should, in justice, , be at the
, But those persons affected by the third section not being at the time actual paupers, but merely alien passengers, the expediency or right to tax the master for landing them does not seem so clear, in a police view, as it is to exact indemnity against the support of those already paupers. Yet it is "hot whollyAvithout good reasons, so far as regards the master or owner who makes a profit by-bringing into a State persons having no prior rights there, and likely in time to add something to its fiscal burdens and the number of its unproductive inhabitants.. He who causes this danger, and is the willing instrument in it, and profits by it, cannot, in these views, object to the condition or tax imposed by the State, who may not consider the benefits likely to arise from such a population a full counterbalance to all the anticipated disadvantages and contingencies. But the aspect of the case is somewhat different, looking at the tax as falling wholly on the passenger. It may not be untrue) generally, that some portion of a burden like this rests eventually on the passenger, rather than the master or owner. (Neil v. State of Ohio,
Were its expediency álone the question before us, some, and among them myself, would be inclined to doubt as to the expediency of such a tax on alien passengers in general, not paupers or convicts. Whatever may be their religion, whether Gatholic or Protestant, or their occupation, whether laborers, mechanics, or farmers, the majority of them are believed to be useful additions to the population of the New World, and since, as weii as before our Revolution, have deserved encouragement in their immigration by easy terms of naturalization, of voting, of holding office, and all the political and civil privileges which their industry and patriotism have in so many instances shown to be usefully bestowed. (See Declaration of Independence ; Naturalization Law; 1 Lloyd’s Debates, Gales and Seaton’s ed., p. 1147; Taylor v. Carpenter, 2 Woodbury & Minot.) If a design existed in any statute to thwart this policy, or if
. The conduct of the State, too, in this measure, as a matter of rightr is the oply question to he decided by us, and may be a’ very different one from its expediency. Every sovereign State possesses the right .to decide this matter of expediency for itself, provided it has the power to control or govern the subject. Our inquiry, therefore, relates merely to that power or right in a State ; and the grbdnd now under consideration to support the exercise of it is her authority to prescribe terms, in a police view, to the entry into'her boundaries of persons who are likely to become .chargeable as paupers, and who are aliens.
In this view, as connected with hér police over pauperism, and as a question of mere right, it may be fairly.done by imposing terms which,, though incidentally making .it more expensive for aliens to come here, are designed to maintain such of them and. of their class as are likely, iri many instances,, ere long to become paupers in a strange country, and usually without- sufficient means for support in case either of sickness, or áccident, or reverses in business. So it is not without justification that a class of passengers from whom much expense arises in supporting paupers should, though not at that moment chargeable, advance something for this purpose- at a time when they are, able to contribute, and when alone it can with certainty be collected. (See New York v. Miln,
The tax is now transferred to the State treasury, when.collected, for the reason that the support of foreign paupers is transferred there; and this accords with an honest design to collect the money only lor that object.'
There are many other reasons showing , that this is legitimately a police measure, and, as such,-competent for the State to adopt. It respects the' character of those pérsons to come within the limits of the.. State, —- it looks to the benefits and burdens deemed likely to be connected with their presence, — it regards the privileges they .may rightfully claim of relief, whenever sick or infirm, though on shipboard, if within the boundaries of the State, — it has an eye to the protection they will humanely receive if merely in transitu through the State to other governments, and the burdens which, in case of disease or accidents, without much means, they may thus throw upon the State. And the fund collected is expressly and wholly applied, after deducting the expenses óf its collection, to “ the support of foreign paupers.”
A police measure, in common parlance, ofteh relates to something connected with public morals; and in that limited view would still embrace the subject of pauperism, as this court held in
The police of the ocean belongs to .Congress and the admiralty powers of the general government; but not the police of the land or. of harbours. (Waring v. Clarke,
Nor is it any less a police measure because money, rather than a bond of indemnity, is required as a condition of admission to protection and privileges. ’The payment of money is sometimes imposed in the nature of a toll or license fee, but it is still a matter of police. It is sometimes demanded in the nature of charges to cover actual or anticipated expenses. Such is the case with, all quarantine charges. Substantially, too, it is demanded under the indemnity given by the second section, if the person becomes chargeable; and if that be justifiable, so must be this ; the fact that one is contingent and the other absolute cannot affect their constitutionality. Neither is it of consequence that the charge might be defrayed- otherwise, if the State pleased, as from other taxes or other sources. This is a matter entirely discretionary with the State. This might - be done with respect to quarantine expenses or pilotage of vessels ; yet the State, being the sole judge of what is most expedient in respect to this, can legally impose it on the vessel, or
Even to exclude paupers entirely has been held to be a police measure, justifiable in a State. (Prigg v. Pennsylvania,
Viewed as a mere police regulation, then, this statute does not conflict with any constitutional provision. Measures which are legitimately of a police character are not pretended to be ceded anywhere iii the Constitution to the general government in express terms; and as little can it be argued that they are impliedly to be considered as ceded, if they be honestly and truly police measures. Hence,, in all the decisions of this tribunal on the powers granted to the general government, either expressly or by implication, measures of that character have been regarded as 'not properly to be included. (License Cases,
Thus viewed, the case also comes clearly within the principles settled in New York v. Miln,
But if this justification should fail, there is anottier favorable view of legislation such as that of the third section of the statute of Massachusetts, which has already been suggested, and which is so important as to deserve a separate consideration. It presents a vindication for it different from that of a-'mere police regulation, connected with the introduction or support of aliens, who are or may afterwards become paupers, and-results from the po.wer of every sovereign State to impose such' terms as she pleases on the admission or continuance of for
First, then, as to its existence. The best writers on national law, as well as our own decisions, show that this power of excluding emigrants exists in all states which are sovereign. (Vattel, B. 1, ch. 19, §. 231;
Those coming may be voluntary emigrants from other nations, or. travelling absentees, or refugees in revolutions, party exiles, compulsory victims of power, or they may consist of cargoes of shackled slaves, or large bands of convicts, or brigands, or persons with incendiary purposes, or imbecile paupers, or those suffering from infectious diseases, or fanatics with principles and designs more dangerous than either, or under circumstances of great ignorance, as liberated serfs, likely at once, or soon, to make them a serious burden in their support as paupers,' and a contamination of public morals. There can be no doubt, on principles of national law, of the right to prevent the entry of these, either absolutely or on such conditions as the State may deem it prudent to impose. In this view, a condition of' the kind here imposed, on admission to land and enjoy various privileges, is not so unreasonable, and finds vindication in the principles of public law the world over, (Vattel, B. 1, ch. 19, §§ 219, 231, and B. 2, ch. 7, §§ 93, 94.)
In this aspect it may be justified as to the passengers, on the ground of protection and privileges sought by them in the State, either permanently or transiently, and the power of the State to impose conditions before and while yielding it. Wheu we speak here or elsewhere of the right of a State to decide and regulate who shall be its citizens, and on what terms, we mean, of course, subject to airy restraint on her power which she herself has granted to the general government, and which, instead of overlooking, we intend to examine with care before closing.'
It having been, then, both in Europe and America, a matter of municipal regulation whether aliens shall or shall not 'reside in any particular state, or even cross its borders, it follows
Even the old Congress, September 16th, 1788, recommended to the States to pass laws excluding convicts; and they did this, though after the new Constitution was adopted, and that .fact announced to the country. “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 for 1788,’p. 867.)
. But the principle goes further, and extends to the right to exclude paupers, as well as convicts, by the States (Baldwin’s Views, 188, 193, 194); and. Mr. Justice Story, in the case of New York v. Miln,
Many of the States also exercised this power, not only during the Revolution; but after peace ; and Massachusetts especially did, forbidding the return of refugees, by a law in 1783, ch. 69. Several of the States had done the same as to refugees. (See Federalist, No. 42.)
The first naturalization laws by Congress recognized this old right in the States, and expressly provided that such persons could not become naturalized without the. special consent of those States which had prohibited their return. Thus in the first act: — “ Provided, also, that no person heretofore proscribed by any State shall.be admitted a citizen as aforesaid, except by an act of the' legislature of the State in which such person was proscribed.” .(March 26, 1790, 1 Stat. at Large, 104. See a similar proviso to the third section of' the act of 29th January, 1795, I Stat. at Large, 415.)
The power given to Congress, as to naturalization generally, does not conflict with this question of taxing or excluding alien passengers, as acts of náturalization apply to those aliens only who have already resided here from two to five years, and not
And it is not a little remarkable, in proof that this power of exclusion still remains in the States rightfully, that while, as before stated, it has been exercised by various. States in the Union, — some as to paupers, some as to convicts, some as to refugees, some as to slaves, and some as to free blacks, — it never has been exercised by the general government as to mere aliens, not enemies, except so far as included in wbat are called the Alien and Sedition Laws of 1798. By the former, being “ An act concerning aliens,” passed June 15th, 1798, (1 Stat. at Large, 571,) power was assumed by the general government, in time of peace, to remove or expel them from the country ; and that act, no less than the latter,-passed about a month after, (Ibid. 596,) was .generally denounced as unconstitutional, and suffered to expire without renewal; on the ground, among others assigned for it, that, if such a power existed at' all, it was,in the States, and not in the general government, nnless under the war power, and then against alien enemies alone. (4 Elliot’s Deb. 581, 582., 586 ; Virginia Resolutions of 1798.)
It deserves special notice, too, that, when it was exercised on- another occasion by the general government, not against aliens as such, but slaves imported from abroad, it was in aid of State laws passed before 1808, and in subordination to them, The only act óf.Congress on this subject before 1808 expressly recognized the power of the State alone then to prohibit the introduction or importation “ of any negro, mulatto,, or other person of color,” and punished it only where the States had. (See act of Feb. 28, 1803, 2 Stat. at Large, 205.) In further illustration of this recognition and cooperation with the States, it provided, in the third section, that all officers of the United States should “ notice and be governed by the provisions of the laws now existing in the several States, prohibiting the admission or importation of any negro, mulatto, or other person of color as aforesaid; and they are hereby enjoined vigilantly to-carry into effect said laws,” i. e. the laws of the States. (See 1 Broekenbrough, 432.)
The act of March 2d, 1S07, forbidding the bringing in of slaves, (2 Stat. at Large, 426,) was to take effect on the 1st of . January, 1808, and was thus manifestly intended to carry into operation the admitted power of prohibition by Congress, after that date, of certain persons contemplated in the ninth section of the first article, and as a branch of trade or commerce which Congress, in other parts of the Constitution, was empowered to regulate. That act was aimed solely at the foreign slave-
' It will be seen also in. this, that the power of each State to forbid the foreign slave-trade was expressly recognized as existing since, no less than before, 1808, being regarded as a concurrent power, and that by this section no authority was conferred on Congress over the domestic slave-trade, either before or since 1808,
If the old Congress did not suppose it was right and proper for the States to act in this way on the introduction of aliens, after the new Constitution went into operation, why did they, by their resolution of 1787, recommend to the States to forbid the introduction of convicts from abroad, rather than recommend it to be done by Congress under the new Constitution ?
It is on this principle that a State has a right, if it pleases, to remove foreign criminals from within its limits, or allow them to be removed by others. (Holmes v. Jennison,
Again : considering the power to forbid as existing absolutely in a State, it is for the State where the power resides to decide on what is sufficient, cause for it, — whether municipal or economical, sickness or crime ; as, for example,"danger of pauperism, danger to health, danger to morals, danger to property, danger to public principles by revolutions and change of government, or danger to religion. This power over the person is much less than that exercised over ships and merchandise under State quarantine laws, though the general government regulates, for duties and commerce, the ships and their
It is well considered, also, that if the power to forbid or expel exists, the power to impose conditions of admission is included as an incident or subordinate. Yattel (B. 2, ch. 8, <§, 99) observes, that, “ 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.” (Holmes v. Jennison,
The usage in several States supports this view. Thus the State of Maryland now, of Delaware since 1787, of Pennsylvania since 1818, if not before, and of Louisiana since 1842, besides New York and Massachusetts, pursue this policy in this form. (7 Smith’s Laws of Pennsylvania, 21; 2. Laws of Delaware, 167, 995; 1 Dorsey’s Laws of Maryland, 6, 10.) And though it is conceded that laws like this in' Massachusetts are likely, in excited tinges, to become of a dangerous character, if perverted to illegitimate purposes, and though it' is manifestly injudicious to push all the powers possessed by the States to a harsh extent against foreigners any more than citizens, yet, in my.view, it is essential to sovereignty to be able to prescribe the conditions or terms on which aliens or their property shall be allowed to remain under its protection, and enjoy its municipal privileges. (Vattel, B. 1; ch. 19, §§ 219, 231.)
As a question of international law, also, they could do the same as to the citizens of other States, if not prevented by other clauses in the Constitution reserving to them certain rights over the whole Union, and which probably protect them from any legislation which does not at least press as hard on their own citizens as on those of other States. Thus, in article fourth, section second: — “ The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” And the old Confederation (article fourth) protected the ingress and egress of the citizens of each State with others, and made' the duties imposed on them the same. • -
Such is th'e case of Turner v. Smith, considered in connection with this, collecting the same of its own citizens as of others ; and to argue that States may abuse the power, by taxing citizens of other States different from their own, is a fallacy, because Congress would also be quite as likely to abuse’ the power, because an abr.se would react on the State itself, and lessen or destroy this business through it, and because the abuse, instead of being successful, would probably
With such exceptions, I am aware of no limitations-on the powers of the. States, as a matter, of right, to go to the extent indicated in imposing terms of admission within their own limits, unless they be so conducted as to interfere, with some other power, express or implied, which has been clearly granted ito Congress, and which will be considered hereafter.
The last ground of vindication of this power, as exercised by Massachusetts in the third section, is under its aspect.as imposing a tax ,
Considering this, the inquiry may be broad enough to ascertain whether the measure is not constitutional, under the taxing power of the State generally, independent of its authority, already examined, as to a police, over" the support of paupers, and, as to municipal regulations, over the admission of travellers and non-residents.
It deserves remark, in the outset, that such a. tax, under the name of a toll or passport fee, is not uncommon in foreign countries, on alien travellers when passing their frontiers. In that view it would be vindicated under long usage and numerous precedents abroad, and several in this country,, already referred to.
It requires notice, also, that this provision, considered as a license fee, is. not open to the objection of not being assessed beforehand.at stated periods, and collected,at the time of other taxes. When fees of a specific sum are exacted for licenses to sell certain goods, or exercise certain trades, or exhibit something rare, or for admissions to certain privileges, they are not regarded so much in the light of common taxes as of fees or tolls. They resemble this payment required here more than a tax on property, as they are not always annual, or collected at stated seasons ; they are not imposed on citizens only, or permanent residents, but frequently are derpanded as often as an event happens, or a certain act is done, and at any period, and from any visitor or transient resident. But fees or tolls thus collected are still legitimate taxes.
Another view of it as a tax is its imposition on the master of the vessel himself, on account of his capital or "business in trade, carrying' passengers, and not a tax on the passengers themselves. The master is often a. citizen of the State where he arrives with a cargo and passengers. In such a' case, he might be taxed on account of his business, like other citizens; and so, on other general principles, might masters of vessels who are not citizens, but who come within the limits and jurisdiction and protection of the State, and are hence, on that account,
States, generally, have the right also to impose poll-taxes, as well as those on property, though they should be proportionate and moderate in amount. This one is not much above the usual amount of poll-taxes in New England. Nor need they require any length of residence before a person. is subject to such a tax; and sometimes none is required, though it is usual to have it imposed only on a fixed day.
The power, of taxation, generally, in all independent states, is unlimited as to persons and things, except as they may have been pleased, by contract or otherwise, to restrict themselves. Such a power, likewise, is one of the most’ indispensable to their welfare, and even their, existence.
On the extent'of the cession of taxation to the general government,. and its restriction on the States, more will be presented, hereafter.: but in all cases of doubt, the leaning may well be towards the States, as the general government has ample means ordinarily by taxing imports, and the States limited means, after parting with that great and vastly increased source of revenue connected with imposts. The States may, therefore, and do frequently, tax every thing but exports, imports, and tonnage, as such. . They daily tax things connected with foreign commerce as well as domestic trade. .They cap. .tax the timber, cordage, and iron of which the 'vessels for foreign trade are made; tax their cargoes to the owners as stock in trade; tax the vessels as "property, and tax the owners’and crew per head for their polls. Their power in this respect travels over water as well as land, if only within their territorial' limits.
It seems conceded, that, if this tax, as a tax, had not been imposed till the passenger had reached the shore, the present objection must fail. But the power of the State is manifestly as great in a harbour within her .limits to tax men and property as it is oh shore, and can no more be abused there than on shore, and can no more conflict there than on shore with any authority of Gongress as a taxing power not on imports As imports. . Thus', ’ after emigrants have landed, and are on the wharves, or on public roads, or in the public hotels, or in" private dwelling-houses, they could all be taxed, though with less ease; and they could all, if the State felt so .disposed to abuse the power, be taxed out of their limits as quickly and efleetu
To argue, likewise, that the State thus undertakes to assess taxes on persons not liable, and to control what it has not got, is begging the question, either that these passengers were not within its limits^ or that all persons actually within its limits are not liable, to' its laws and not within its control. To contend, also, thát this payment cannot be exacted, on the ground that the great Correction of excessive taxation is its oppression on thé constituent, which causes a reaction to reduce it (4 Wheat/316,, 428), and in this case the tax does not operate on a constituent; is another fallacy, to some extent. For most taxes operate on some classes of people who are not voters, as, /or example, women, and especially'resident aliens ;■ and if this reasoning would exempt these passengers, when within the limits of the State, it would also exempt all aliens, and others not voters, however long resident there, or however much property they possess.
It seems likewise well settled, that, by the laws of national intercourse and as a consequence of the protection and hospitality yielded to aliens, they are subject to ordinary reasonable taxation in their persons and property, by the government where they reside, as fully as citizens. (Vattel, B. 2, ch. 10, § 132, p. 235; Taylor v. Carpenter, 2 Woodbury & Minot.) But I am not aware of the imposition of such a tax in this form, except as a toll or a passport; it being; when a poll-tax, placed on those who have before acquired a domicile in the State, or have come to obtain one animo manendi. Yet, whatever its form, it would not answer hastily to denounce it as without competent authority, when imposed within the usual territorial limits of the State.
In short, the States evidently meant still to retain all power of: this kind, except where, for special reasons at home, neither government was to tax. exports, and, for strong reasons both at home and abroad, only the general government was to tax imports and tonnage.
Having explained what seem to me the principal reasons in favor of a power so vital to the States as that exercised by Massachusetts in this statute, whether it be. police or municipal, regulating its residents or taxing them, I shall proceed to the last general consideration, which is whether this power has in any way been parted with to Congress entirely, or as to certain objects, including aliens.
Jt is not pretended that there is eo nomine any express delegation of this power to Congress, or any express prohibition of it' to the States. And yet, by the tenth amendment of the
In relation, first, to the most important of- these objections, regarding the statute in the light of a tax, and as such supposed to conflict with the general power of taxation conferred on Congress, as well as the exclusive power to tax imports, I would remark, that the very prohibition to the States, in express terms, to tax imports, furnishes'additional proof that other taxation by the States was not meant to be forbidden in other cases and as to other matters. Expressio unius, exclusio est alterius.. It would be very extraordinary, also, that, when expressly ceding powers of taxation to the general government, the States should refrain from making them exclusive in terms, except as to imports and tonnage, and yet should be considered as having intended, by mere implication, there or elsewhere in the instrument, to grant away all their, great birthright over rill other taxation, or at least some most important branches of it. Such has not been the construction or practical action of the two governments for the last half-century, but the States have continued to tax all the sources of revenue ceded to Congress, when not in terms forbidden. This was the only safe course. (Federalist, No. 32.)
One of the best tests that this kind of tax or. fee for admission to the privileges of a State is permissible, if not expressly forbidden, is the construction in two great cases of direct taxes on land imposed by Congress, in 1798 and 1813. The States, on both of those occasions, still continued to impose and collect their taxes on lands, because not forbidden expressly by the Constitution to do it. And can any one doubt, that, so far as regards taxation even of ordinary imports, the States could still exercise it if they had not been expressly forbidden by this clause? (Collet v. Collet,
This furnishes a striking illustration of the true general rule of construction, that, notwithstanding a grant to Congress is
It has been conceded by most American jurists, and, indeed, may be regarded as settled by this court, that this concurrent power of taxation, except on imports and exports and tonnage, (the last two specially and exclusively resigned to the general government,) is vital to the States, and still clearly exis.ts in them. In support of this may be seen the following authorities:— McCulloch v. State of Maryland,
Nor is the case, of Brown v. Maryland, so often referred to, opposed to this view. It seems to have been a question of taxation, but the decision was not that, by the grant fr> the general government of the power to lay taxes and imposts, it must be considered, from “the nature of the power,” “that it [taxation generally] should be exercised exclusively by Congress.” On the contrary, all the cases before and hereafter cited, bearing on this question, concede that the general power of taxation still remains in the States ; but in that instance it was considered to be used so as to amount to a tax on imports, and, such a tax being expressly prohibited to -the States, it was adjudged there that for this reason it was unconstitutional. Under this head, then, as to taxation, it only remains to ascertain whether the toll or tax here imposed on alien passengers can be justly considered a tax on imports, as it was in the case of Brown v. Maryland, when laid on foreign goods. If so considered, it is conceded that this tax has been expressly forbid-den to be .imposed by a State, unless with the consent of Congress, or to aid in enforcing the inspection laws of the State. Clearly it does not come within either of those last exceptions,
‘ Now there is no pretence that mere passengers in vessels' are of this character, or are property; otherwise they must be valued, and pay the general ad valorem duty now imposed orb non-enumerated articles. They are brought in by no owner, like property generally, or like slaves. They are not the subject of entry or sale. The great objection to the tax in Brown v. Maryland was, that -it clogged the sale of the goods. They are not like merchandise, too, because that may be warehoused, and reexported or-branded, or valued by an invoice. They may go oh shore anywhere, but goods cannot. A tax on them is not, then, in any sense, a tax on imports, even in the purview of Brown v. Maryland. There it was held not to be permitted until .the import in the original package or cask is broken up, which it is difficult to predicate of a man or passenger. The definition there, also, is.“imports are things imported,” not persons, not passengers; or they are “ articles brought in,” and not freemen coming of their own accord. (
But, so- far from this being the view as to free passengers taxed in this statute, —that they are merchandise or articles of commerce, and so considered in any act since 1808, or before, — it happens that, while the foreign import or trade as to slaves is ábolished, and is made a capital offence, free.passengers are not prohibited, nor their introduction punished as a crime. (4'El-liot’s Deb. 119.) If “ importation ”- in the ninth section applied to one class of persons; and “ migration ” to another, as has been argued, then allowing a tax by Congress on. the “ impor
Indeed, if passengers were “imports” for the .purpose of revenue by the general government, then, as was never pretended, they should and can now be taxed by our collectors, because they are not enumerated in the tariff acts to be admitted “ free ” of duty, and all v on-enumerated imports have a general duty imposed on them at the end of the tariff; as, for instance, in the act of July 30, 1846, section third,, “ a duty of twenty per cent, ad valorem ” is laid “ on all goods, wares, and merchandise imported, from foreign countries, and not specially provided, for in this act.”
To come within the scope of a tariff, and within the principle of retaliation by or towards foreign powers, which was the cause.of the policy of making imposts on imports exclusive in Congress, the import must still be merchandise or produce, some rival fruit of industry, an article of trade, a subject, or at least an instrument, of commerce. Passengers, being neither, come not within the letter or spirit or object of this provision in the Constitution.
It is, however, argued, that, though passengers may not be imports, yet the-carrying of them is a branch of commercial business, and a legitimate and usual employment of navigation.
Grant this, and still a tax on the passenger would not be laying a duty on “ imports ” or on “ tonnage ”; but It might be supposed to affect foreign commerce at times, and in some forms and places, and thus interfere with the power to regulate that, though not with the prohibition to tax imports and tonnage. Consequently, .when hereafter considering the meaning of the grant “ to regulate commerce,” this view of the objection will be examined.
But there seems to be another exception to this measure, as conflicting with the powers of-the general government, which partly affects the question as a tax, and partly as a regulation of commerce. It is, that the tax was imposed on a vessel before the'passengers were landed, and while under the control of' the general government. So far as it relates to the measure as a tax, the exception" must be regarded as applying to the particular place where it is collected, "in a vessel on the water,
It will be sfeen, that, if the first.exception be valid,'it is not one connected with the Constitution of the United States, and hence not revisable here. It was not, and could not properly be, set up as a defence in the court .of a State, except under its own constitution, and hence not revisable in this court by this writ of error. But as it may be supposed to have some' influences on the other and commercial aspect of the objection,, it may be well to ascertain whether, as a general principle, a vessel in a port, or its occupants, crew, or passengers,, are in fact without the limits and jurisdiction of a State, and thus beyond its taxing power, .and are exclusively for all purposes under the government of the United States. One of the errors in the argument of this part of the cause has been an apparent as-' sumption that this tax — considered as a tax — was collected at sea, before the .voyage ended,"and was not collected within the limits and jurisdiction of the State. ’ But, ex concesso, this vessel then was in the harbour of Boston, some miles within the limits of the State, and where this court itself has repeatedly decided that Massachusetts, and not the general government, has jurisdiction. First, jurisdiction to punish crimes. (See in Waring v. Clarke,
The tax in this case does not touch the passenger in transitu on the ocean, or abroad, — never till the actual arrival of the vessel with him in port. An arrival in port, in other acts of Congress using the term, is coming in, or anchoring within, its limits, with a view to discharge the cargo. (2 Sumner, 419;
It is true there are exceptions as to taxation which do not affect this question; 'as where something is taxed which is held under the grants to the United-States, and the grants'might be defeated if taxed by the State. That was the point in McCulloch v. Maryland,
These powers exist in the two governments for different purposes, and are not at all inconsistent or conflicting. The general government may collect its' duties, either on the water or the land, and still the State enforce its own laws without any collision, whether they are made for local taxation, or military duty, or the collection of debts, or the punishment of crimes. There being no inconsistency or collisión, no. reason exists to hold either, by mere construction, void. This is the cardinal test.
So the master may not always deliver merchandise rightfully, except on a wharf; 'nor be always entitled to freight till the goods are on shore ; .yet this depends on the usage, or contract, or nature of the port, and does not affect the question of .jurisdiction. (Abbott on Shipping, 249; 4 Bos. & Pul. 16.) On the contrary; some .offences may be completed entirely oh the water, and yet the State jurisdiction on land is conceded. (United States v. Coombs,
So a contract with the passenger may or may not be completed on arriving in port, without landing, according as the parties may have been pleased to stipulate. (Brig Lavinia, 1 Peters; Adm. 126.)
So the insurance on a cargo of a ship may not in some cases terminate till it is-landed, though in others it may, depending on the language used. (Reyner v. Pearson, 4 Taunton, 662, and Levin v. Newnham, Ib. 722.) But none of these show that the passengers may not quit the vessel outside the harbour in boats or other vessels, and thus go. to the land, or go to other ports. Or that, if not doing this, and coming in the same vessel within. the State limits, they may not be subject to arrests, punishments, and taxation or police fees, or other regulations of the State, though still on board the vessel. Nor do any of them show that the vessel and cargo, after within the State limits, though not on the shore, aré not within the jurisdiction of the State, and liable, as property of the owner, to be taxed in common with other stock in trade.
If taking another objection to it as a tax, and arguing against the tax imposed on the vessel, because .it may be abused to injure emigration and thwart the general government-, it would still conflict with no particular clause in the Constitution or acts of Congress. It should also.#**» remembered that this was one objection to the license law's in 5 Howard, and'that the court held unanimously they were constitutional, though they evidently tended to diminish importations of spirituous liquor and lessen the revenue of the general government from that source. But that being only an incident to them,- and not their chief design, and the chief design being within the jurisdiction of the 'States, the laws. Were upheld.
It is the purpose which Mr.' Justice Johnson thinks may show that -no collision was intended or effected. “.Their different purposes mark the distinction between the powers brought into action, and while frankly exercised they can produce no serious collision.” (Gibbons v. Ogden,
The next delegation' of .powér to Congress, supposed by some to b'e inconsistent with' this statute, is argued.to be involved in the ninth, section of the first article of the Constitution. This they consider as a grant of power to Congress to prohibit the migration from-abroad of all persons, bond or freé, after the year 1808, and to tax their importation at once and for ever, not exceeding ten dollars' per head. (See
If to be implied elsewhere, it is from the grant to regulate commerce, and by the idea that slaves are subjects of commerce, as they often are. Hence, it can go no further than to imply it as to them, and not as to free passengers.
Or if to “regulate commerce ” extends also to the regulation of mere navigation, .and hence to the business of carrying passengers, in which it may be employed, it is confined to a forfeiture of the vessel, and does not legitimately involve a prohibition of persons, except when articles of commerce, like slaves. (1 Brockenbrough, 432.) Or finally, however far the power may extend under either view, it is still a power concurrent in the States, like most taxation and much local legislation as to matters connected somewhat'with commerce, and is well exercised by them when Congress does not, as here, legislate upon the matter either of prohibition or of taxation of passengers. It is hence that, if this ninth section is a grant of the power to prevent the migration or importation of other persons than slaves, it is not an exclusive one, any more than that to regulate commerce, to which it refers; nor has it ever been exercised so as to donflict with State laws, or with the statute, of Massachusetts now under consideration. This clause itself recognizes an exclusive power of prohibition in the States until the year 1808. And a concurrent and subordinate power on this by the States, after that, is nowhere expressly forbidden in the Constitution, nor is it denied by any reason or necessity for such exclusiveness. The States can often use it more wisely- than Congress in respect to their own interests and' policy. They cannot protect their police, or health, ór public morals without the exercise of-such a power at times and under certain exigencies, as forbidding the admission of slaves and certain other persons within their borders. One Stats, also, may require its exercise, from its exposures and dangers, when .another may not. So it may be said, as to the power to tax importation, if limited to slaves, the .States could continue to do the same when they pleased if men are not deemed “ imports.”
If Congress, without a coordinate- or concurrent power in the States, can prohibit other persons as well as slaves from coming into States, they can of course allow it, and hence can permit and demand the admission of slaves, as well as any kind of free person, convicts or. paupers, into any State, and enforce the demand by all the overwhelming powers of the Union, however obnoxious to the habits and wishes of the people of a •particular State. In view of an inference like this, it has therefore been said that., under this section, Congress cannot admit persons whom a State pleases to exclude. (
Besides this, the ten dollars per head' allowed here specially to be collected by Congress on imported slaves is not an exclusive power to tax, and would not have been necessary or inserted, if Congress could clearly already- impose such a tax on them as •“ imports,” and by a “ duty ” -on imports. It would be not a little extraordinary to imply by construction a power in Congress to prohibit the coming into' the States of others than slaves, or of mere aliens, on the principle of the alien part of the Alien and Sedition Laws, though it never has been exercised as, to others permanently; but the States recommended to exercise it, and seventeen of them nqw actually doing it. And equally extraordinary to imply, at this late day, not only that Congress possesses the power, but that;' though not exercising it, the States are incapable of exercising it concurrently, or even in subordination to Congress'. . But beyond this, the States have exercised it concurrently as to slaves, no Less than exclusively in respect to certain free- persons, since as well “as before 1808,. and this as to their admission from neighbouring States no less'than from abroad. (See cases before cited, and Butler v. Hopper,
" The word “ fnigration ” was probably added to “ importation ” to cover slaves when' regarded as persons rather than property, as-they are for some purposes.. Or if to .cover others, such as convicts and redemptioners, it was those only who caine against their will, or in a quasi servitude. And though the expression maybe broad-enough to cover emigrants, generally, (3 Madison State Papers, 1429;
In the Constitution, in other parts as in this, the word “per-sons ” is used, not to embrace others as well as slaves, but slaves alone. Thus, in the second section of the tirst article, “ three fifths of all other persons ” manifestly means slaves; and in the third section of the fourth article, “ no person held to service or labor in one State,” &c., refers to slaves. The word slave was avoided, from a sensitive feeling; but clearly no others were intended in the ninth section. Congress so considered it, also, when it took up the subject of this section in 1807, just before the limitation expired, or it would then probably have acted as to others, and regulated the migration and importation of others as well as of slaves. . By forbidding merely “ to import'or bring into the United States, or territories thereof, from any foreign kingdom, place, or country, any negro, mulatto, or person-of color, with intent to hold, sell, or dispose of such negro, mulatto, or person of color as a slave, or to be held to service or labor,” it is manifest that Congress then considered this clause in. the Constitution as referring to slaves alone, and then as a matter of commerce; and it strengthens this idea, that Congress has never since attempted to extend this clause to any other persons, while the States have been in the constant habit of prohibiting the introduction of paupers, convicts, free blacks, and persons, sick with contagious diseases; no less than slaves; and this from ■ neighbour-ing States as well as from abroad.
There, was no occasion for that express grant, or rather recognition, of the power to forbid the entry of slaves by the general government, if Congress could, by other clauses of the Constitution, for what seemed to it good cause, forbid the entry of évery body, as of aliens generally; - and if Congress could
Again, if the States had not such power under the Constitution, at least concurrently, by what authority did most of them forbid the importation of slaves from abroad into their limits between 1789 and 1808 ?- Congress has no power to transfer such rights to States. And how came Congress tp recognize their right to do it virtually by the first article and ninth section, and also by the act of 1803 ? It was becáusé.the States originally had it as sovereign States, and had never parted with it exclusively to Congress. This court, in Groves v. Slaughter,
■From the very nature of State sovereignty over what is not granted to Congress, and the power of prohibition, either as to persons or things, except slaves after the year 1808, not being anywhere conferred .on, or- recognized as in, the general government, no good, reason seems to exist against the present exercise of it by the'States', unless where it may clearly conflict with other clauses in the Constitution. In fact, every Slave State in the Union, long before 1808, is believed to have pro-nibited the further importation of slaves into her territories from abroad (Libby’s Case, 1 Woodb. & Min. 235; Butler v. Hopper,
Coming by land or sea to be sold, slaves are equally articles of commerce,-and thus bringing them in is an “importation or migration of persons and if the power over that is now exclusive in Congress, more than half the States in the Union have violated it. If a State can do this as to slaves from abroad or. a contiguous State, why not, as has often been-the casé, do it in respect to any other person deemed dangerous or hostile to the stability and prosperity of her institutions ? They can, because they act on these persons when within their limits, and for objects not commercial, and doing this is not disturbing the voyage, which brings them in as passengers, nor
But the.,final objection'made to the collection'of this money, by a State is a leading and difficult one. It.consists in this view, that, though called either a police regulation, or a municipal condition to admission into a State, or a tax on an alien visitor, it is in substance and in truth a regulation of foreign commerce, and, the power to make that being exclusively vested in Congress, no State can- properly exercise it.
If - both the points involved in this position could be sustained, this proceeding of the State might he obliged to yield. But there are two. answers to it. One of them is, that this statute is not a regulation of commerce ; and the other is, that the power to regulate foreign commerce is not made exclusive in Congress.
As te the first, this statute does not eo -nomine undertake “ to regulate Commer.ee,” and its design, motive, and object were entirely different.
At'the formation of the Constitution, the power to. regulate commerce attracted but little attention, compared with that to impose duties on imports and tonnage ; and this last had caused so much difficulty, both at home and abroad, that it was expressly and entirely taken away from .the States, but the former was not .attempted to be., The former, too, occupies scarce a page in ' the Federalist, while the latter engrosses several numbers. A like disparity existed in the debates -in the Convention, and; in the early legislation, of Congress. Nor did the former receive much notice of the profession in construing the Constitution ■ till after a quarter of a century; and then, though considered in the case of Gibbons v. Ogden (
The regulation and support of paupers and convicts, as well as their introduction into a State through foreign intercourse, by vessels, are matters of this character. (New York v. Miln,
A uniform rule by Congress not being needed on this particular point, nor being just, is a strong proof that it .was not. intended Congress should exercise power over it; .especially when paupers, or aliens likely to become paupers, enter a State that .has not room or business for them, but they merely pass through to other places, the tax would. not be needed to
“ To regulate ” is to prescribe rules, to control. But the State by this statute prescribes no rules for the- “ commerce with foreign nations.” It does not regulate the vessel or the. voyage while in progress. On the contrary, it prescribes rules for a local matter, one in which she, as a State,"has the deepest interest, and one arising -after the voyage fes ended, and not a matter of commerce, or navigation, but rather of police, or municipal, or taxing supervision.
Again, it is believed that in Europe, in several instances-of. border states,'so far from the introduction of foreigners who are paupers, or likely soon to be so, being regarded as a question of commerce, it is deemed one qf police merely; and the expenses of alien paupers áre made a subject of reclamation from the contiguous government to-which they belong;
This view, showing that the regulation of this matter is not in substance more than in words to regulate foreign commerce, is strengthened by various other matters, which have never been regarded as regulating commerce, though nearer connected in some respects with that commerce than this is. But like -this, they are all, when provided for. by the States,'regulated only witnin their own limits, and for themselves, and not without their-limits, as of a foreign matter, nor for other States, Such are the laws of the States which have ever continued to regulate several matters in harbours and ports where foreign vessels enter and unload. (Vanderbilt v. Adams,
The States also h^tve and can exercise there, not only their just .territorial jurisdiction over persons and-things, but make special officers and special laws for regulating there in their limits -various matters of a local interest and bearing, in connection with all the commerce, foreign as well as domestic, which is there gathered. They -appoint and pay harbour-masters, and officers' to regulate .the deposit' of ballast, and anchorage of vessels, (
These State officers have the power to direct where vessels shall anchor, and the precautions to be Used ¡against fires on board; and all State laws in regard to such matters -must doubtless continue in force till conflicting with some express legislation" by Congress. (1 Bl. Com., by Tucker, 252.) I allude to these with the greater particularity, because they are so directly connected "with foreign commerce, and are not justified more, perhaps, under police, or sanatory, , or moral considerations, than under the general principle of concurrent authority in the States on many matters granted to Congress, —
It follows from what has been said, that this statute of Massachusetts, if regarded as a police measure, or a municipal regulation as to residents or visitors within its borders, or -as a tax •or any local provision for her own affairs, ought not to be considered as a regulation of commerce ; but it .is one of those other measures still author od in the States, and still useful and appropriate to them. Such measures, too, are usually-not conflicting with that commerce, but adopted entirely diverso in-tuitu, and so operating.
Conceding, then, that the power to regulate foreign commerce may include the regulation of the vessel as well as the cargo, and the manner of’using the vessel in that commerce, yet the statute of Massachusetts does neither. It merely affects the master or passengers after' their arrival, and for some further act than’ proposed to be done. And though vessels are instruments. of commerce, passengers are not. And though regulating the mode of carrying them on the ocean may be to regulate commerce and. navigation, yet to tax them after their arrival here is not. Indeed,' the regulation of any thing is not naturally or generally to tax it, as that usually depends on another power. It has been- well held m this court, that under the Constitution the taxing of imports is not a regulation of commerce, nor to be sustained under that grant, but under the grant as to taxation. (Gibbons v. Ogden,
Again, if any decisive indication, independent of general - principles, exists as • to which government shall exercise the taxing power in respect to the support of paupers, it is that the States, rather than the general government, shall exercise it (
These affairs are a part of the domestic economy of States,
The fair exercise of such powers rightfully belonging to a State, though connected often with foreign commerce and indirectly or slightly affecting it, cannot therefore be considered, in any point of view, hostile, by their intent or origin, as regulations of such commerce. See in point, Gibbons v. Ogden,
' In this view, it is immaterial whether this tax is imposed on the passenger while in the ship, in port, or when he touches the wharf, or reaches his hotel. All these places, being within the territory, are equally within the jurisdiction of the State for municipal purposes such as these’, and not with a view to regulate foreign commerce; it being conceded that a tax may f>e imposed on a passenger after quitting the vessel and on the land, why may it not before, when he is then within the limits of the State ? In either instance, the tax has no concern with the foreign voyage, and does not regulate the foreign commerce ; whereas, if otherwise, it might be as invalid when imposed on land as on water.
Much of the difficulty in this case arises, I apprehend, from a misconception, as if this tax was imposed on the passenger at sea and before within the territorial limits of the State. But. this, as before suggested, is an entire misapprehension of the extent of those limits, or of the words and meaning of the law.
If, then, as is argued, intercourse by merchants in person, and by officers in their vessels, boats, and wagons, is a part of commerce, and the carrying of passengers is also a branch of navigation or commerce, still the taxing of these after the arrival in port, though Congress there has power to collect its duties as it has on land, is not vested at all in Congress; or, if at all, not exclusively.
Who can point to the cession to the United States of the jurisdiction, by Massachusetts or New York, of their own ports and harbours for purposes of taxation, or ány other local and municipal purpose ?
So far from interfering at all here with the foreign voyage, the State power begins when that ends and the vessel has entered the jurisdictional limits of the State. Her laws reach the consequences and results of foreign commerce, rather than the commerce itself, They touch not the tonnage of the vessel, nor her merchandise, nor the baggage or tools of the aliens; nor do they forbid the vessels carrying passengers.
So Chief, Justice Marshall, in
The measures of the general government amount to a regulation of the traffic, or trade, or business, of carrying passen
As we have before explained, then, if granting that the bringing of passengers. is a great branch of the business of navigation, and that to regulate commerce is to regulate navigation, yet this' statute of Massachusetts neither regulates that navigation employed in carrying passengers, nor the passengers themselves, either while abroad in foreign ports, or while. on the Atlantic Ocean, but merely taxes them, or imposes conditions on them, after within- the State. These things are done, as Mr. Justice Johnson said in another case, “with-a distinct view.” And it is no objection that they “act on the same subject ” (
In cases like this, if, amidst the great complexity of human affairs, and in the sh,adowy line between the two governments over the same people, it is impossible for their mutual rights and powers -not to infringe occasionally upon each other, or cross a little the dividing line, it constitutes no cause for denouncing the acts on either side as being exercised under the same power or for the same purpose, and therefore unconstitutional and void. When, as is seldom likely, their laws come in direct and’ material collision, both being in the exercise of distinct powers,, which belofig to them, it is wisely provided, by the Constitution itself, and consequently by the States and the people themselves, as they framed it, that the States, being the granting power, must recede. (
There are'other cases of seeming opposition which are reconcilable, and not conflicting, as to the powers exercised both by the States and the general government, but for different purposes. Thus hides may be imported under the acts of • Congress taxing imports and regulating commerce; but this does not deprive a State of the right, in guarding the public health, to have them destroyed if putrefied, whether béfore they reach the land or after. So as to the import of gunpowder by the authority of one government, and the prohibition'
In short, it has been deliberately held by this court, that the laying a duty on imports, if this was of that character, is .an exercise of the taxing power, and not of that to regulate commerce. (Gibbons v. Ogden,
But if the power exercised in this law by Massachusetts could, by a. forced construction, be tortured into a regulation of foreign commerce, the next requisite to make the law void is not believed to exist in the fact that the States (Jo not retain some concurrent or subordinate powers, such as were here exercised, though connected jn certain respects with foreign commerce. • Beside the ■ reasons already assigned for this opinion, it is not opposed to either the languagé or the spirit of the Constitution in connection with this particular grant. Accompanying it are no exclusive words, nor is the further ¿ction of the States, or any thing concerning commerce, expressly forbidden in any other way .in the Constitution. But both of these are done in several other cases, such as “no State shall coin money,” or no State “ engage in war,” and these are ordinary modes adopted in' the Constitution to indicate that a power granted is exclusive, when it was meant to be so.
If this reasoning be not correct, why was express prohibition to the States used on any subject where authority was granted to Congress ? The only other mode to ascertain whether a power thus granted is exclusive “ is to look at the nature of each grant, and jf that does not clearly show the power to be exclusive, not to hold it to be so.” We have' seen that was the rulé laid down by one .of the makers and great expounders of the instrument. (Federalist, No. 82. See also
It held out this as an inducement to the States to adopt the Constitution, and was urged by all.'the logic and eloquence of Hamilton. It was, that a grant of power to Congress, so far from being ipso facto exclusive, never ousted the power' of the Stateá previously existing, unless “where an exclusive authority is in express terms granted to the Union, or where, a particular authority is granted'to the Union and the exercise
This rule has been recognized in various decisions on constitutional -questions by many of-the judges of this court. 2Cranch, 397;
In other cases it is apparently contravened.
But this is often in appearance only, and not in reality.- It is not a difference as to what should be the true rule, but in deciding what cases fall within it, and especially the branch of it as to what is exclusive by implication and reasoning from the nature of the particular grant or case ; or in the words of Hamilton, “where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible.”
Thus, in the celebrated case of Sturges v. Crowninshield, the rule itself is laid down in the same way substantially as in the Federalist; namely, that the power is to be taken from the State only when expressly forbidden, or where “the terms - in which a power is granted to Congress, or the nature of the power, require that it should be exercised exclusively by Congress.” (
And Chief Justice Marshall on another occasion considered this to be the true rule. .That was in the case of Wilson v. Blackbird Creek Marsh Company,
There are still other grants, in language like this, which never have been considered exclusive. Even the power to -pass uniform naturalization laws was once considered by this court as not exclusive (Collet v. Collet,
So, it is well settled that no grant of power to Congress is exclusive, unless expressly so, merely because it may be broad enough in terms to cover a power which cleárly belongs to the State; e. g. police, quarantine, and license laws. They may relate to a like place and subject, and by means somewhat alike, yet, if the purposes of the State and of 'Congress are different and legitimate for each, they are both permissible and neither exclusive. (See cases before cited,
This very grant of the power “ to regulate commerce ” has also been held by this court not to prevent bridges or ferries by the States where waters are navigable. (Wilson v. Blackbird Creek Marsh Company,
Nor has it ever been seriously contended, that, where Congress has chosen to legislate about commerce and navigation on our navigable waters as well- as the'sea-coast, and to introduce guards against steam explosions and dangers, in steam vessels, the law is not to be enforced as proper under thé power to regulate commerce, and when not in conflict with any State legislation. . This power in Congress .is at least concurrent, and extends to commerce on rivers, and even on land, as well as at sea, when between our own States or with foreign countries. Whether this could be done as to vessels on waters entirely within any one State is a .different question, which need not be here considered. (See Waring v. Clark,
As a general rule of construction, then, the grants to Congress should never be considered as exclusive, unless so indicated expressly in the Constitution by the nature or place of the thing granted, or by the positive prohibition usually resorted to when that end is contemplated, as that “ no State shall enter int'o any treaty,” or “ coin money,” &c.; “no State shall, without the consent of Congress, lay any imposts or duties on imports,” &c. (Art. 1, § 9. United States v. New Bedford Bridge, 1 Woodb. & Min. 432.)
It is also a strong argument, after using this- express- prohibition in some cases, that, when not used in others, as it is not here, it is not intended. Looking at the nature of this grant, likewise, in order to see if it can or should be entirely exclusive, we are forced to the same conclusions.
There is nothing in the nature of much which is here connected with foreign commerce that is in its character foreign, or appropriate for the action of a central and single government; on the contrary, there, is matter 'which is entirely local,— something which is seldom universal, or required to be
It was a difference between the States as to imposts or. duties on imports and tonnage which embarrassed their intercourse with each other and Avith foreign nations, and Avhich mainly led to the new Constitution, and not the mere regulation of commerce. (
Congress, in this way, resorted to a special ¿prohibition where they meant one (as to taxes on * imports); but where they did nc t, as, for' example, in other taxation or regulating commerce, they introduced no such special prohibition, and left the States to act also on local and appropriate matters, though connected in some degree Avith commerce. Where, at any time, Congress had' not legislated or preoccupied that particular field, the States acted freely and beneficially, yielding-, hoAvever, to Congress when it does act on the same particular matter, unless both act for different and. consistent objects. (Gibbons v. Ogden,
■ The. provisions in the State laws in 1789, on these and kindred matters, did not therefore drop dead on the adoption of the Constitution, but only those relating to duties expressly prohibited to the States, and to foreign and general matters which were then acted on by Congress. Chief Justice Marshall, in Sturges v. Crowninshield, (
So far as reasons exist to make the exercise of the commercial power exclusive, as on matters of exterior, general, and uniform cognizance, the construction may be proper to render it exclusive, but no further, as the exclusiveness depends in this case .wholly on the reasons, and not on any express prohibition, and hence cannot extend beyond the reasons themselves. Where they disappear, the exclusiveness should halt. In such case, emphatically, cessante ratione, cessat et ipsa lex.
It nowhere seems to have been settled that this power is exclusive in Congress, so. that the States can enact no laws on any branch of the subject, whether conflicting or not with any acts of Congress. But, ca the contrary, the majority of the court in the License Cases (
Indeed, besides these cases, and on this very subject of commerce, a construction has at times been placed, that it is not exclusive in all respects, as will soon be shown, and- if truly placed, it is not competent to hold that the State legislation on such incidental, subordinate, and local-matters is utterly void when it does not conflict with some actual legislation by Congress. For the silence of Congress, which some seem to regard "as more formidable than its action, is, whether in full-' or in part, to be respected and obeyed only where its power is exclusive, and the States are deprived of all authority over the matter. The power must first be shown to be exclusive before any inference can be drawn that the silence of Congress
Such, in my view, is the true rule in respect to the commercial grant of power over: matters not yet regulated by Congress, and which are obviously local. In the case of Wilson v. The Blackbird Creek Marsh Co., Chief Justice Marshall not only treated this as the true rule generally, but held it applicable to the grant to Congress of the power “to regulate commerce,” and, that this • grant ■ was not exclusive nor prohibitory on the action of the States, except so far as it was actually exercised by Congress, aqd thus came in conflict with the laws of the States. These are some of his words: — “ 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 Chief Justice in -another case held that a power being vested in Congress was not enough to bar State action entirely, and that it did not forbid by silence as much as by action. He says, — “ It is not the mere existence-of the power, but its exercise, which is incompatible with the exercise of the same power by the States. It is not the right to establish these uniform laws, but their actual establishment, which is inconsistent with the partial acts of the States.” (Sturges v. Crowninshield,
Hence, if the power “ to regulate commerce ” be regarded by us as exclusive, so far as respects its operations abroad, or without the limits of the country, because the nature of the grant requires it- to be exclusive there, and not exclusive so far as. regards, matters consequent on it which are within the limits o-f a State, and not expressly prohibited to it nor conflicting with any thing done by Congress, because the nature of the grant does not require it to be so there, we exercise
Necessities for a different course have existed, and ever must exist, in the complex movements of a double set of legislators for one and the same people.
They -may crowd .against éach other, in their measures slightly and doubtingly, but that, as before shown, is ■ not sufficient to annul and override those of the States, as there must be for that disagreeable consequence a direct conflict, á plain incompatibility. (3 Stor. Com. on Const. 434; New Bedford Bridge Case, 1 Woodb. & Min. 417, 418;
_ ' -This. circumstance shows, also, that the argument to avoid State legislation is not sufficient when it discovers some differ
If it did, a law by a State to favor the consumption of its own products would be pronounced void, and so would be a high tax by a State on wharves or stores, as all these would somewhat ■ embarrass and render more expensive the business connected with foreign commerce. So this condition imposed on passengers after their arrival might in some degree affect the business and' commerce of carrying them to that State,' when the alien passengers are taxed before they are permitted to land.
There are -two classes of grants to which this rule now under consideration is applicable, and the force of it will be .more striking when they are examined separately. One includes grants where Congress has acted, and continues to act, in relation to them; and the other, where it. has never acted, or, if it has once acted, has ceased to do so.
Now, the vindication for the States to act in the last class is, that, unless each State is considered authorized still to legislate for itself, the subject-matter- will be without any regulation ■ whatever, and a lawless condition of things will exist within the heart of the community, and on a matter vital to its interests. Such is now the case as to weights and measures, Congress never having legislated to produce uniformity concerning thpm, though the power is expressly granted to it in the Constitution.
Now, on the construction that such a grant of power is exclusive, and, whether' exercised or not, it is unconstitutional for any State to legislate on the subject for itself; and, moreover, that Congress does in truth regulate by its silence as mutib as. by its action, and when doing nothing about it virtually enacts that nothing shall be' done about it by any of the States, it will follow that not only all the legislation by the States on weights and measures since 1789 is illegal and void, but all
On this exclusive principle, though the action of the States on them i§ not forbidden expressly in the Constitution, nor impliedly beyond what grows out of any express grant, all the States in the Union are disarmed from any action whatever on such matters, and all their laws on these topics, so essential to their domestic industry and trade, their public security and political existence by means of revenue, are to be considered null and void.
The catastrophe which would follow on such a construction has led this court, as heretofore explained, to hold that the States still possess a concurrent power to act on matters of bankruptcy, the discipline of the militia, taxation of land, and some subjects of commerce; and like considerations would undoubtedly lead them, when the cases arise, to hold, that, notwithstanding such grants, the laws of the States, not conflicting with any passed by the general government on many other such topics, must be considered valid. Indeed, it seems conceded by some of the members of the court in this case, that the States are, by some power coordinate or subordinate, rightfully legislating on weights and measures, pilots, bankruptcy, the militia, &c. But if they have not this power without any grant or license by Congress, they cannot have it"by any such grant, because Congress is not empowered by the Constitution to grant away powers vested in it by the people and the States; and how can it hereafter, by legislation, give any power to them over this subject if not having it now ?
Again, in the other class of cases, where Congress has already legislated," and still legislates, some time elapsed before it passed laws on any subject, and years before it acted at all on . some of them; and in almost the whole, its first legislation was only a beginning and in part, doing more and more from time to time, as experience and the exigencies of the country seemed to require. It is not necessary to repeat here several detailed illustrations and cases on this collected in the case of the United States v. New Bedford Bridge, 1 Woodb. & Min. 430. In the mean time, the States continued to exercise their accustomed powers, and have ever since dope it on all matters not forbidden expressly.in the Constitution, not exclusive in
To-show, further, that these grants of power are not always and necessarily exclusive, and that legislation on them by Congress to any extent is not as prohibitory on • the States where it is silent as where it enacts, the States have not only continued to punish crimes which Congress could punish; but they have, in numerous instances, regulated matters connected, locally at least, with commerce abroad, and bétween the States, and with the Indians.
In so large a territory as the jurisdiction, of the general government embraces, in so many and so diversified topics as come before it, and in the nature of its supervisory powers on certain subjects, requiring action only on what is general and foreign, and to produce uniformity merely as to that, it becomes- almost inevitable that many local matters and details roust be left to be regulated by some local .authorities. Yet, as explained in the License Case;, like the by-laws of corporations, made by them and not the. legislature, they must not conflict with the general regulations or laws prescribed by the paramount power. But,, so far from being exclusive, even while it is exercised., and much less while it is dormant or unexercised, the paramount power summons to its aid, in order to be effective, the contemporaneous and continued action of others. Thus not only moneyed corporations, but towns and cities, must make numerous by-laws- in order to enforce the general provisions laid • down by the legislation of the State. Thus, too, this court must make numerous rules to carry into effect the legislation of Congress in respect to it; and the War and the Navy Departments must compile and enforce volumes of regulations of a like kind and for a like purpose, taking care, as all subordinate power in such cases- must) not to violate any general law prescribed on the subject. (See 1 Woodb. & Min. 423.)
The condition of this whole country when colonies of England furnishes another illustration of the. relation and character of such powers. The parent government at home was sovereign, and provided general regulations, either in acts of Parliament or charters, but 'still left the several colonies (and surely our States have as much power as they) to legislate as to details, and introduce any regulations'suited to their own condition and interests, not conflicting with the general provisions made by the paramount power at home. .(1 Bl. Com., by Tucker, App.109, 110.
Indeed, what becomes of the whole doctrine of concurrent ’ powers on this hypothesis of exclusiveness in all mere grants,
Nor do I understand the words of Mr. Justice Johnson, in the case of Gibbons v. Ogden, in the sense attributed to them by some. “ The practice of our government,” says he, “ has been, on many subjects, to occupy so much only of the field open to them as .they think the public interests require.” (
They have regulated also their naturalization in this country, but not under the grant of the power “ to regulate commerce,” or impose imposts on imports; but, knowing it was not involved in either, a separate and express grant-was wisely inserted in the Constitution to empower Congress to make uniform rules on this subject.
It will be seen, that, where Congress legislates about foreign commerce or passengers as connected with it, that legislation need not,, and does not, forbid the States to legislate on other matters not conflicting. Thus all will harmonize, unless we interpolate, by mere-construction, a prohibitory clause either in the law or in the Constitution. You may, if you please, call the power so exercised by Congress exclusive in one sense or
Again, Congress nowhere stipulates or enacts, or by the Constitution can do it, probably, as before suggested, that passengers shall. not in their persons be .taxed on their arrival within a State, nor terms be made as to their residence within-them. Again,-the objection to this view'involves another apparent absurdity, — that, though the regulation of commerce extends to passengers, it is not entirely exclusive in the general government if they come with yellow-fever and the cholera, and that they are then subject to State, control and its quarantine expenses and fees ; but are not, if they come with what the State deems equally perilous. That is, if they .endanger the health of the body, the power over them is not exclusive in Congress, but if they endanger only the police of the State, its pauper securities, and its economy, morals, and public peace., the power is exclusive in Congress, and goes to strip the State of all authority to resist the introduction of either convicts, slaves, paupers, or refugees. If -these last only come in the tracks of commerce in vessels from abroad, and are enrolled as passengers, the. States cannot touch them, but may seize on them at once if their bodies are. diseased. It would be useful to have that clause in the Constitutiori pointed out which draws such a novel line of discrimination.
In holding this measure to be a regulation of commerce, and exclusive, and hence void, wherever the power of Congress over commerce extends, a most perilous principle is adopted in some other respects; for that power extends over the land as well as water, and to commerce among the States and-with the Indian tribes, no less than to foreign commerce. (See art. 1, § 8.) And if. it can abrogate a tax or terms imposed by States in harbours over persons there, it may do so whenever the power over commerce goes into the interior, and as tó matters connected with it, and also between States..
Congress has sanctioned at least five constitutions of States exercising a power to exelude slaves, and the. introduction of them as merchandise and for' commerce. And how can this be reconciled by those who would, reverse the judgments below, on the ground that the commercial power is exclusive in Congress, and not'either concurreñt in one view or independa ent in another, in some particulars, in the States.
Another consequence from the opposite doctrine is, that, if Congress by regulating commerce acts exclusively upon'it, and can admit whom it pleases as passengers, independent of State. wishes,' it can forcé upon the States slaves or criminals, or political incendiaries of the most dangerous character.' And furthermore, that it can do this only by admitting their personal baggage free, as doing that, it is arguéd here by some, shows the owner must come" in free, and neither be excluded nor taxed by the State after within her limits.
This makes the owner of thé personal baggage a mere incident or appurtenant to the baggage itself, and renders, by analogy, any legislation as to taxing property more important than taxing the person, and, indeed, overruling- and governing the person as subordinate and inferior. So, if Congress by. making baggage free exonerates passengers from a State tax, it exonerates all the officers and crews of vessels from State taxes; for their personal baggage is as free as that of passengers. They, too, are as directly connected with commerce as the passengers; and by a parity of reasoning, the absurdity follows, that, by admitting American vessels free of tonnage duties, the owners of them are also made free from State taxes.
Every person acquainted with the tariff of the general government knows that specially declaring a box or chest of apparel “ free ” does not exonerate any thing else or any other article, much less can it any person, if taxed by a State law. On the contrary, all things' not. specially taxed, nor specially declared “free,” have a duty imposed, on them by-Congress as non-enumerated articles, and- so would passengers, if imports, and if Congress had a right to tax them. ■ And if saying, nothing about passengers would imply .that they' were free from.
An<i while all the legislation of Congress as to passengers operates on thenuat sea during the voyage, except imposts being forbidden on their baggage, which is solely within the jurisdiction of Congress, all the legislation of Massachusetts operates on them after their arrival in port, and without any attempt then to. impose any duty on their baggage. The for- ■ mer legislation by Congress, regulating their number in proportion to the tonnage, is, as it should be, extra territorium'; the latter, as it should be, infra territorium; and thus both are proper, and the jurisdiction over either is not exclúsfve of that exercised by the other, or.conflicting materially with it.
Having considered the different general grounds which can be urged in support of this statute, and the objections made in opposition to them, I shall procéed, before closing, to submit a few remarks on some miscellaneous topics relied on to impeach its provisions. One is a supposed conflict between this statute and some treaties of the general government.
. I am aware .that a tax or fee on alien passengers, if large, might possibly lead to collision with those foreign governments,- such as Great Britain and Prussia, with whom We have ’ treaties allowing free ingress and egress to our ports. (See 8 Stat. at Large, 116, 228, 378.) But neither-of them complains in this instance, and I do not consider this law as conflicting with .any such provisions in treaties, since none of them profess to exempt their people or their properly from State taxation after they arrive here.
If such a stipulation were made by the general government, it would be difficult to maintain the doctrine, that, by an ordinary treaty, it has power to restrict the rights and powers of the several States any further than the States have by the Constitution authorized, and that, this has ever been authorized, But it has not here been attempted-; and these particular treaties are subject to the ordinary laws of the States, as well as of the general government, and enable the citizens of those countries merely to have free ingress-and egress here for trade, (see Treaty of 1794, art. 3; 8 Stat. at Large, 117,) having no relation to their, coming' here as passengers to reside or for'pleasure. Nor can they apply in the present case at all, as the record now stands, finding only that the mastet was a British -subject or his vessel British, but not-that-his passengers belonged to Great. Britain.
And who ever thought that these treaties were meant tó ■ empower, or could in any moral or political view empower, Great Britain to ship her paupers to Massachusetts, or send her free blacks from the West Indies, into the Southern States or into Ohio, in contravention of their local laws, or force on the ■ States, so. as to enjoy their protection and privileges, any persons from abroad deemed dangerous,"such as her . felon convicts and the refuse of her jails? 'Again, so far, as regards the liberty of commerce secured to. British subjects in Europe-by the fourteenth article of the treaty of 1794, it .does not apply to those coming from the British Provinces in America, as did this vessel, (8 Stat. at Large, 124,) and by the eighteenth article of that treaty was to last only ten years (p. 125). And while it did last, it was expressly mada “ subject always, as to what respects this article, to the laws and statutes of the two countries respectively ” (p. 124).
Besides this, the whole of the treaty of 1794, including the. third article, probably was suspended by the war of 1812, and exists now. only as modified in that of 1815, which gives to British subjects no higher rights -than “other foreigners.”' (Art. 1, 8 Stat. at Large, 228.) • The old Articles of Confederation contained a.clause which indicated in a.different form like view's as to what was proper in -treaties, and indicates a wise jealousy, of power exercised in hostility to the : policy of a State. That policy is never intended to be thwarted by any arrangements with foreign nations by reciprocal treaties, as they relate merely to the imposts on tonnage and cargoes by the national governments, requiring them to be equal, and do riot concern the. port and harbour fees or expenses imposed by the local authorities for local purposes. The. best security that these fees and taxes, will never be unreasonably high and in- . jurious to' foreigners is the tendency they would then have to drive trade to other ports or countries contiguous, where' they might' be lower.
The same right exists also in states to impose conditions on the selling of certain articles by foreigners and others within their'limits, as a state may prefer to encourage its own products, dr may deem the use of some foreign articles of bad influence in other respects. (Grotius on the Rights of Peace and War, B. 2, ch. 2, § 20; License Oases, 5 Howard.)
Nor can I see,' as has been urged, any collision between this statute and- the act of Congress to carry into effect our com-.
A few remarks .as to some objections urged against the large amount and the motive of this tax, and I have done.
If the payment was to be vindicated under the general taxing power alone, it is clear that the amount could not affect the. question' of the constitutionality of the tax. And if it was very high, considering its- professed object “for the support of foreign paupers,” and was applied in part to other objects, that is a matter within the discretion of the State, and if it proved oppressive, and thus diverted this kind of business ,to the ports of other States, it would, like all high taxes, react, and be likely in time to remedy in a great degree the evil. But viewed as a ..police measure, the amount of the payment and the application of it may, in my view, have an important bearing. .
. Thus a State is authorized to impose duties on imports sufficient to defray the expenses of her inspection laws, but not an amount disproportionate to them, nor to app'ly the money thus collected to other purposes.
It would seem that the same rule would govern her assess^ ments, to enforce her quarantine laws, and it could hardly be tolerated, under the right to enforce them and demand sufficient to-defray their'charges, that they should be justified to' collect enough more for other purposes, and thus apply the quarantine funds to make roads or maintain schools.
In such events in these cases, either this court would be obliged to declare void assessments which were clearly perverted and improperly collected and applied, or Congress could direct the excess to be paid iuto the treasury.of the general government. (3 Elliot’s Deb. 291.) Congress is in the Constitution expressly empowered to revise and control' the sums collected by the States ;to defray the expenses of their inspection laws. (Art. 1, § 10 )
A mere pretext in a law colorably for one object, but really for another, as in condemning lands for public purposes when the true object was different, though not to be presumed to be done by any sovereign states must, if clearly proved, be difficult
It is, therefore, too broad in some cases to say that the object and motive of the State in requiring the payment, or the amount demanded, is of no importance; because, though the great question is a question of power, yet the object and motive may bring it within some existing power, when a different Object or motive would not. The different purpose iñ a State often shows that there is no collision or wrong, and justifies the measure. (
So, as to the amount demanded, it might be sufficient only for a legitimate State object, and hence might be constitutional, as,, for instance, to pay the expenses of inspection laws, when a much larger amount would not be permissible, if too much for the particular object deemed constitutional. But in this case, as no excess is shown on the record, a conclusive opinion on this .point is unnecessary.
This construction of the Constitution, upholding concurrent laws by a State where doubts exist and it is fairly open for adoption, has much to commend it in. this instance, as the States, which singly become feebler and weaker daily as their number and the whole Union increases, being now thirty to one, instead of thirteen to one, will hot thus be rendered still feebler, and the central government, daily becoming more powerful and strong, .will not thus be rendered still stronger. So the authority of the latter will not thus, by mere construction, be made to absorb and overwhelm the natural and appropriate rights of sovereign States, nor mislead them by silence.- Leaving this matter also to each will not conflict with any existing action of the general government, but promote and sustain the peaceful operations of both in their appropriate spheres.
A course of harshness towards the States by the general government, or by any of its great departments, — a course of prohibitions and nullifications as to their domestic policies in doubtful cases, and this by mere implied power, — is a violation of sound principle, will alienate and justly offend, and tend ultimately, no less than disastrously, to dissolve the bands of that Union so useful and glorious to all concerned.
“libertas ultima mundi,
Quo steterit, ferienda loco.”
In conclusion, therefore, I think that,.in point of law, the conduct of the State in imposing this condition or payment on alien passengers can be vindicated under its police rights to provide for the maintenance of paupers, and under its authority as a sovereign State to decide on what conditions or terms foreigners, not citizens of any of the' United States, shall be allowed to enjoy its protection and privileges, and under its con-" current powers of taxation over every thing but imports and tonnage. I think, too, that this power in the State is not taken away by the authority ceded to Congress, either to tax imports and tonnage, or to prohibit the importation of persons (usually limited to slaves), or to regulate commerce.
Orders.
Smith v. Turner.
This cause came on to be heard on the transcript of the record of the Court for the Trial of Impeachments and the Correction of Errors of the State of New York, and was argued by counsel. On consideration whereof,' it is the opinion of this court, that the statute law of New York, by which the health-commissioner of the city of New Yorlt is declared entitled to demand and receive, from the master, of every vessel from- a foreign port that should arrive -in the port of said city, the sum' of one dollar for each steerage passenger brought in such vessel,' is repugnant to the Constitution, and laws of the United ' States, and therefore void. Whereupon, it is now here ordered
Norris v. City of Boston.
This cause' came on to be heard on the transcript of the record of the Supreme Judicial Court of Massachusetts, and was argued by counsel. On consideration whereof, it is the opinion of this coúrt, that the third section of the' act of the legislature of the Commonwealth of Massachusetts of the 20th of April, 1837, entitled, “ An act relating to, alien passengers,” under which the money mentioned in the record and pleadings was demanded of the plaintiif in.error,, and paid by him, is repugnant to the Constitution and laws of the United States, and. therefore void. Whereupon, it is now here ordered and adjudged by this court, that the judgment _of the said Supreme Judicial Court .of Massachusetts be and the same is hereby reversed, with costs, and that this, cause be and the same is hereby remanded to the said Supreme Judicial Court, in order that further proceedings may be had therein in conformity to the aforesaid opinion and judgment of this court.
Notes
Commerce, from con and mera, which Yossius derives from the Hebrew, to divide a part of his own for a part of another’s, to exchange, to bargain and sell, to trade or traffic, to have intercourse for purposes of traffic. Merchand, or merchant, from merx or meres, contracted from mereis, is by some derived from mercari, by others from the Greek pepos, pars, quia res per partes venditur. To merchand, to buy, to trade, to traffic. — Richardson’s Dictionary.
3 Madison Papers, August 21st, 1787. 1. Proposition by Mr, Martin against article 7. Motion to exclude slave-trade' (Vol. III. p. 1388). Mr. Rutledge, Mr. Ellsworth, and Mr. Pinckney, all opposed to Mr. Martin’s motion (pp. 1388 and 1389). August 22. — Mr. Sherman, though against slave-trade, was opposed to taking it from the States (p. 1390). Colonel Mason thought it immoral and dangerous, and was for its immediate abolition (pp. 1390, 1391). Mr. Ellsworth opposed to interference; if it was so immoral as to require interference, they ought to abolish it, and free all slaves (p. 1391); that slaves were necessary, and must be imported for use in the si.ckly riee-swamps of South Carolina and Georgia (p. 1392). Mi-. Pinckney, General Pinckney, Mr. Baldwin, Mr. Wilson, Mr. Gerry, Mr. Dickinson, Mr. Williamson, Mr. Rutledge, Mr. Sherman, (Vol. III. pp. 1392-1397,) all treat of this article as applicable only to the slave-trade.