GEORGE SMITH, PLAINTIFF IN ERROR,

v.

WILLIAM TURNER, HEALTH-COMMISSIONER OF THE PORT OF NEW YORK; JAMES NORRIS, PLAINTIFF IN ERROR, V. THE CITY OF BOSTON

Mr. Justice McLEAN.

Smith v. Turner. Under the general denomination of health laws in New York, and by the seventh section of an act relating to the marine'hospital, it is provided, that “the 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 on board, twenty-five cents; but no coasting-vessel from the States of New Jersey, Connecticut, and Rhode Island shall pay for more than one voyage in each month, computing from the first voyage in each year.”

The eighth section provides that the money so received shall be denominated “hospital moneys.” And the ninth section gives “ each master paying hospital moneys a right to demand and recover from each person the sum paid on his account.” The tenth section declares any master, who shall fail to make the above payments within twenty-four hours after the arrival of his vessel in the port, shall forfeit the sum of one hundred dollars. By the eleventh section, the commissioners of health are-required to account annually to the Comptroller of the State for all moneys received by them for the use of the marine hospital; .“and if such moneys shall, in any one year, exceed the sum necessary to defray the expenses of their trust, including their own salaries, and exclusive of such expenses as are to be borne and paid as a part of the contingent charges of the city of New York, they shall pay over such surplus to the treasurer of the Society for the Reformation of Juvenile Delinquents in the city of New York, for the use of 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 interfere with any stipulations in treaties entered into by the United States in Congress assembled”; and this was the only commercial restriction orf State power. As might have been expected, this independent legislation*, being influenced by local interests and policy, became conflicting and hostile, insomuch that a change of the system was 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, 14 Peters, 570, .the chief justice, in giving his own and the opinion of three of his breth-> ren, says: — “ All the powers which relate to our foreign inter?, course are confided to the general government. Congress have the power to regulate commerce, to define and punish piracies,” &c. “ Where an authority is granted to the Union, to which a, similar authority in the States would be absolutely and totally contradictory and repugnant, there the authority to the. Federal government, is; necessarily exclusive, and the same power cannot be constitutionally exercised by the States.” (p. 574.)

In Houston v: Moore, 5 Wheat. 23, the court say: — “ We are altogether incapable of comprehending, how two distinct, wills can, at the same timé, be exercised in relation to the same! subject, to be effectual, and at the same time compatible with one another.’?

The court, again, in treating, of the commercial power, say, in Gibbons v. Ogden, Wheat. 196;; — “ It is the power.to? regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress* is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are-prescribed in the Constitution.” “ The sovereignty of Congress, though limited to specified objects, is plenary as to those objects.” “ The power over commerce with foreign nations and among the several States is vested in Congress as absolutely as it would be in a single government having in its constitution the same restrictions,” &c.. And in the same case, page 199: — “Where, then', each government exercises the power of taxation, neither is exercising the power of the other'; but when a State proceeds to regulate commerce with foreign nations, or among the several. States, it is exerbising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do.”

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

In Brown v. The State' of Maryland, 12 Peters, 446, the court say, — “It is not, therefore, matter of surprise that the grant of commercial power should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the States.” This question, they remark, “was considered in the case of Gibbons v. Ogden, in which it was declared to be complete in itself, and to acknowledge no limitations,” &c. And Mr. Justice Baldwin, in the case of Groves v. Slaughter, 15 Peters, 511, says, — “ That the power of Congress to regulate commerce among tp.e several States is exclusive of any interference by the States has been, in my opinion, conclusively settled by the solemn opinions of this court,,” in the two cases above cited. And he observes, — “ If these' decisions are not to be taken as the established construction of this clause of the Constitution, I know of none which are not yet open to doubt.”

Mr. Justice Story, in the case of New York v. Miln, 11 Peters, 158, in speaking of the doctrine of concurrent power in the States to regulate commerce,' says, that, in the case of Gibbons v. Ogden,- “ it was deliberately examined and deemed inadmissible by the court.” “ Mr. Chief Justice Marshall, with his accustomed accuracy and fulness of illustration, reviewed, at that time, the whole grounds of the controversy; and from that time to the present, the.question has been considered, so far as I know, at rest. The power given to Congress to regulate commerce with foreign nations and among thé States has been deemed exclusive, from the náture and objects of the power, and .the necessary implications growing out. of its exercise.” When the commercial power was under discussion in the convention which formed the Constitution, Mr. Madison observed, that “ he was more and more convinced that the regulation of commerce was in its nature' indivisible, and ought to be wholly under one authority.” Mr. Sherman said, — “The power of the United States to regulate trade, being supreme, can Control interferences of the State regulations vvhen such-interferences happen; so that there is no danger to be apprehended .from a concurrent jurisdiction.” Mr. Langdon “ insisted that the regulation of-tonnage was an essential part of the regulation of trade, and that the States ought to have nothing to do with it.” And the motion was carried', “ that no State shall lay any duty on tonnage without the consent of Congress.” (3 Madison Papers, 1585, 1586.)

The adoption of the above provision in the Constitution, and also the one in the same'section, — “ that no State shall, without the assent of the Congress, lay any imposts or duties on imports or'exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts shall be for the use of the treasury of the United States; and 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. It does not follow,-as is often said, with little accuracy, that, when a State law shall conflict with an act of Congress, the former must yield. On the contrary, except in certain cases named in the Federal Constitution, this is never correct when the act of the State is strictly within its powers.

I am aware this court have held that a State may pass a bankrupt law, which is annulled when Congress shall act on the same subject. In Sturges.v. Crpwninshield, 4 Wheat. 122, the court say, — “ Wherever the terms in which a power is granted by the Constitution to Congress, or wherever the nature of the power itself, requires that it shall be exclusively exercised by Congress, the subject is as completely taken away from State legislatures as if they had been forbidden to act upon it.'” But they say, — “ The power granted to Congress of establish^-ing uniform laws-on the subject of bankruptcy is not of this description.”

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

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

A company was incorporated and authorized to.construct a dam over Blackbird Creek, in the State of Delaware, below where the tide ebbed and flowed, in order to drain the' marsh,, and by that means improve the health of the neighbourhood. The plaintiffs, being desirous of ascending the creek, with their vessel^ above the dam, removed a part of it as an obstruction,, for which the company recovered damages. The chief justice-in speaking of .the structure of the dam, the drainage of the marsh, and the improvement of the health of the 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 much difficulty in saying that a State law coming in conflict with such act would he voidi But Congress had passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations, aod among the several' States, — a power which has not been so exercised as to affect the question.”

The language of the chief justice must be construed in reference to the question before the court; to suppose that he intended to lay down the general proposition, that a State might pass any act to obstruct or regulate commerce which did not come in conflict with an act of Congress, would not only be unauthorized by the language used, and the facts of the case 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. A-concurrent power excludes the idea of a dependent power. :The general government and a State exercise concurrent powers in'taxing the people of the State. The objects of taxation may be the same, but the motivés and policy of the tax are different, and the powers are distinct and independent. A concurrent power in two distinct sovereignties to regulate the same thing is as inconsistent in principle as it is impracticable in action. It involves a moral and physical impossibility. A joint action is not supposed, and two independent wills cannot do the same thing. The action of one, unless-there be an arrangement, must necessarily precede the action of the other 5 and that which is first, being competent, must establish the rule. If the powers be equal; as must be the case, both being, sovereign, one may'undo'what .the other does, and this must be the result of their action.

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

That it is inconsistent with the exclusive power will be admitted ; but the exercise of a subordinate commercial power by a State is contended for. When this power is exercised, how can it be known that the identical thing has not been duly considered by Congress ? And how can Congress, by any legislation, prevent this interference ? A practical enforcement of this system-, if system it may be called, would 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 inspection laws of a State apply chiefly to exports, and. the State may lay duties and. imposts on imports or exports to pay the expense of executing those laws. But a State is limited to what shall he ‘‘ absolutely necessary*” for that-purpose. And still further to guard against the abuse of this power, it is declared that “ the net produce of all duties and imposts laid by a State on imports or exports-shall be for the use of the Treasury of the United States ; and all such laws shall be subject to the revision and control of Congress.”

The 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 red to as commercial regulations. That these laws do regulate commerce, to a certain extent, is admitted ; but from what authority do they derive their force ? Certainly not from the States. By the fourth section of the act of the 7th of August, 1789, it is provided, — “ That all pilots in the bays, inlets, rivers, harbours, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States, respectively, wherein such pilots may he, or with such laws as the States may-respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress.” These State , laws, by adoption, are the laws of Congress, and as such effect is given to them. So the laws of the States which'regulate the practice of their courts, are adopted by Congress to regulate, the practice of the Federal' courts. But these laws, so far as they gre adopted, are as -much the laws of the United States, and it has often been so held, as if they had been specially enacted by Congress. A repeal • of them by the State, unless future changes in the act's be also adopted, does not affect their force in regard to Federal action.

.In the above instances, it has been deemed proper for Congress to legislate by adopting the law of the States. And it is not doubted that this has been found convenient to the 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. An inquiry is made whether Congress, under “the power to regulate commérce among the several States,” can impose a tax for the use of canals, railroads, turnpike roads, and bridges, constructed by a State .or its citizens ? I xnswer, that Congress has no such power. The United States .cannot use. any one of these works without paying the customary tolls. The tolls are imposed, not as a tax, in the ordinary senso of that term, but ag compensation for the increased facility afforded by the improvement.

The act of New York now under consideration is called a health law. It. imposes a tax on the master and every cabin passenger of a vessel from a foreign port, of one dollar and fifty cents; and of one dollar On the.mate, each steerage passenger; sailor, or mariner. And the master is made responsible for the tax, he having a right to exact it of the others, The funds so collected are denominated hospital moneys, and 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, 11 Peters, 102, is relied on with great confidence as sustaining the act in question. . As I assented to the points ruled in that cage, consistency, unless convinced of having erred, will compel me to support the law now before us, if it be the same in principle,-. The law in Miln’a case required that “ the master or commander of any ship or other Vessel arriving, at the port of New York shall, within twenty-four hours after his arrival, make -a report, in writing, on oath or affirmation, to the mayor of the city of New York, of the name, place of birth and last legal settlement, age, and occupation of every person brought as a passenger; and of all persons permitted to land at any place during the voyage, or go on board of some other vessel, with the intention of proceeding to said city; under the penalty on such master or commander, and the owner or owners, consignee or consignees, of such ship or vessel, severally and respectively, of seventy-five dollars for each individual not so reported.” And the suit was brought against Miln as consignee of the ship Emily, for the failure of the master to make report of the passengers on board of his vessel.

In their .opinion this court say, — “The law operated on the territory of New York, over which that State possesses an acknowledged and undisputed jurisdiction for every purpose of internal regulation”; and “on persons' whose 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 money, against the city of Boston, in the Court of Common Pleas, under the instructions of the court, the jury found a verdict for the defendant, on.which judgment was entered; and which was affirmed on a writ of error to the'Supreme Court.

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

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

Mr. Justice WAYNE.

Norris v. City of Boston, and Smith v. 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; and that is, that a majority of us do hot think it necessary in these cases to reaffirm, with our brother McLean, what this court has long since decided, that the constitutional power to' regulate “commerce with foreign nations, and among the several States, and with the Indian tribes,” is exclusively vested in Congress, and that no part of it can be exercised by' a State.

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

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

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

His leading positions are, that the acts of Massachusetts and New York are tax or revenue acts upon the commerce of the United States, as that commerce has been regulated by the legislation of Congress and by treaty stipulations,- that the power to regulate commerce having been acted upon by Congress indicates how far the power is to be exercised for the United States as a nation, with which there can be no inter-- ference by any State legislation; that a treaty permitting the ingress of foreigners into the United .States, with or without any other stipulation than a reciprocal right of ingress for our people into the territories of the nation with which the treaty may be made, prevents a State from imposing a poll-tax or personal impost upon foreigners, either, directly or indirectly, for any purpose whatever, as a. condition for being landed in any part of the United States, whether such foreigners shall come to it for commercial purposes, or as immigrants, or for temporary visitation.

Those of us who are united with Mr. Justice Catron in giving the judgments in these cases concur with him in those opinions. Mr. Justice McKinley and Mr. Justice Grier have just said so, my own concurrence has 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 in these cases conflict with treaty stipulations existing between the United States and Great Britain, permitting the inhabitants of the two countries “ freely and securely to come, with their ships and cargoes, to all places, ports, and rivers in the territoriés of each country to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of said territories, respectively; also, to hire and occupy house's and warehouses for the purposes of their' commerce, and generally the merchants and,, traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce, but subject, always, to. the laws . and statutes of the two countries, respectively ”; and that said laws are therefore unconstitutional and void.

_4. That, the Congress of the United States having by sundry acts passed at different times admitted foreigners into the United States with their personal luggage 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, as well as the importation of slaves, and in terms recognizes - that other persons as well as slaves may be the subjects of importation aiid commerce.

6. That the .fifth clause of the ninth section of the first article of the Constitution, which declares that “ no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another State; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another,” is a limitation upon the power of Congress to regulate commerce for the purpose, of producing entire commercial equality within the United States, and also a. prohibition upon the States 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 any violation of the power in Congress to regulate commerce, exact from the owner or consignee of a quarantined vessel, and from the passengers on board of her, such fees' as will pay to the State the cost of their detention and of the purification of the vessel, cargo, and apparel of the persons on board.

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

In the consideration, too, of the power in Congress to regulate commerce, I shall not rely, in the first instance, upon what may be constitutionally done in many commercial particulars, as well under the treaty-making power as by the legislation of Congress. My • first object is to show the plenitude of the power in Congress from the grant itself, without aid from any other clause in the Constitution. The treaty-making power for commercial purposes, however, and other clauses in the Constitution relating to commerce, may afterwards be 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. of nations permit the former to monopolize — we have nothing to do upon this occasion.

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

Commerce between nations or among states has several branches. Martens, in his Summary of the Laws of Nations says, — “ It consists 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 one of them; and if, in virtue of the power to lay taxes, the United States and-the States may act in that way.concurrently upon foreigners when they reside in a State, it does not follow that the States may impose a personal impost upon them, as the condition of their being permitted to land in a port of the United States. “ Duties on the ent y of merchandise are to be paid indiscriminately by foreigners as well as subjects. Personal imposts it is customary not to exact from foreigners till they have for some time been inhabitants of the state.” (Martens, p. 97.).

. Keeping, then, in mind what commerce is, and how far a nation may legally limit her own commercial transactions with another state, we cannot be at a loss to determine, from the subject-matter of the clause in the Constitution, that the meaning of the terms used in it is to exclude the States from regulating commerce in any way, except their own internal trade, and to' confide its legislative regulation completely and entirely to Congress. When I say completely and entirely to Congress, I mean all that can be included in the term “ commerce among the several States,” subject, of course, to the right of the States to pass inspection laws in the mode prescribed by the Constitution, to the prohibition of any duty upon exports, either from one. State to another State or to foreign countries, and to that commercial uniformity which the Constitution enjoins respecting all that relates to the introduction of merchandise into the United States, and those who may bring it for sale, whether they are citizens or foreigners, and all that concerns navigation, whether vessels are employed in the transportation of passengers or freight, or both, including, also, all the regulations which the necessities and safety of navigation may' require. “Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike-roads, ferries, &c., are component parts of that immense mass of legislation which embraces every thing within the territory of a State not surrendered to the general government.”

But the conclusion derived from the. subject-matter of the clause, as I have just stated it, is strengthened particularly by what may be done in respect to commerce -by treaty, and by other clauses in the Constitution relating to commerce. Martens (p. 151) says, — “ The mere general liberty of trade, such as it is acknowledged at present in Europe, being too vague to secure to a nation all the advantages it is necessary it should-derive from its commerce,, commercial powers have been obliged to have recourse to treaties for their mutual benefit. The number of these treaties is considerably augmented since the sixteenth century. However they may differ in their conditions, they turn generally on these three points: — 1. On commerce .in time of peace. 2. On the measures to he pursued with respect to commerce and commercial subjects in case of rupture between the parties. 3. On the commerce of the contracting .party that may happen to remain neuter, while the other contracting party is at war with a third power. .With respect, to the first point the.custom is, — 1. To settle in general the privileges that the contracting powers grant reciprocally to their subjects. 2. To enter .into the particulars of the rights to be enjoyed by their subjects,- as well with respect to their property as to their personal rights. Particular care is usually taken to provide for the free enjoyment of their reíigion ; for their right to the benefit of the laws of the country; for the security of the books of commerce, &c. 3. To mention spe-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, or enter into any agreement, or compact with another State or with a foreign power. The States, then, cannot regulate commerce by a treaty or compact, and before it can be claimed that they may do so in any way by legislation, it must be shown that the surrender which they have made to a common government to regulate commerce for the benefit of all of them-, has been done in terms which necessarily imply that the same power may be used by them separately, or that the power in Congress to regulate commerce has been modified by some other clause in the Constitution. No such modifying clause exists. . The terms used do not, in their ordinary import, admit of any exception from the entireness of the power in Congress to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. The exercise of any such power of regulation by the States, or any one or more of them, would conflict with the constitutional authority of; the United States to regulate commerce by legislation and by treaty, and would measurably replace the States in their commercial attitude to each other as they stood under the Articles of Confederation, and not as they meant to be when “ we, the people of the United States,” in their separate sovereignties, as they existed under the Articles of Confederation, superseded the latter by their ratification of “the Constitution for the United States of America.”

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

Apply the foregoing reasoning to the acts of Massachusetts and New York, and whatever may be the motive for such enactments or their legislative denomination, if they practically operate as regulations of commerce, or as restraints upon 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 of commodities, the States have a power to lay them, as well as Congress. Not so, however, as to duties and impost;' f the first, in its ordinary taxing sense, being .taxes or customs upon merchandise ; and an impost being also, in its restrained sense, a duty upon imported goods, but also, in its more enlarged meaning, any tax or imposition upon persons. Notwithstanding what may have otherwise been said, I was brought to the conclusion, in my consideration of the taxing power of Congress before these cases were before us4 that there was no substantial reason for supposing it was used by the framers of the Constitution exclusively in its more confined sense.

But I return to those clauses with which I have said the acts in question conflict. It will be conceded by all, that the fifth clause of the ninth section of the first article of the Constitution, declaring that “ no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another,” was intended to establish among them a perfect equality in commerce and navigation. That all should be alike, in respect to commerce and navigation, is an enjoined constitutional equality, which can neither be -interrupted by Congress nor by the States. When Congress enacts regulations of commerce or revenue, it does so for the United States, and the equality exists. When a State passes a law in any way acting upon commerce, or one of revenue, it can only do so for itself 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 dispntable point, that, under the power given to Congress to layjand collect taxes, duties, imposts, and excises, it may, in the exercise of its power to regulate commerce, tax persons as well as things, as the condition.- of their admission into the United States. To lay and collect taxes, duties, and imposts gives to Congress a plenary power overall .persons and things for taxation, except exports. Such is the received meaning of the word taxes in its most extended sense, and always so when it is not used in contradistinction to terms of taxation, having a limited meaning as to the objects to which, by usage, the terms apply. It is in-the Constitution used in both senses. -In its extended sense, when it is said that Congress may lay and collect taxes; and in a more confined sense, in contradistinction to duties, imposts, and excises.

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

The distinction is not mine. It has been long since made •by jurists and writers upon national law, because the history of nations, from an early antiquity until now, shows such relations between them.' The framers of the Constitution acted upon it throughout, in all the sovereign powers which they proposed that the States should yield to the United States. Martens properly says, that, to have a just idea of the states of which Europe is composed, we must distinguish those which are absolutely sovereign from those which are but demi-sovereign.. The states of the German empire, for instance, and the Italian princes who acknowledge their submission to the empire, — and the German states, in their present Diet for great national purposes, with a vicar at its head, overtopping in might and majesty, but with regulated power, all before who have been emperors of Germany. I do not mean to say that the States of this Union are demi-sovereign to the general government in the sense in which some of the nations in Europe are to other nations ; but that such connection between those nations furnishes the proof of the distinction between territorial sovereignty and political sovereignty. The sovereignty of these States and that of the United States, in all constitutional particulars, have a different origin. But I do mean to say, that the distinction between territorial and political jurisdiction arises, whether the association be voluntary between states, or otherwise. Whenever one power has an exterritorial right over the territory or sovereignty of another power, it is called by writers “ a partial right of sovereignty.” Is not that exactly the case between the United States, as a nation, and the States ? Do not the constitutional. powers of the United-States, act upon the territory, as well as upon the sovereignty, of the States, to the extent of what was their sovereignty before, they yielded it to the United States? Can any one of the sovereign powers of the United States be carried out by legislation, without acting upon the territory and sovereignty of the States ? This being so, Congress may say, and does say, whence a voyage may begin to the United States, and where it may end in a State of the United States. Though in its transit it enters the territory of a-State, the political' jurisdiction of the State cannot interfere with it by taxation in any way until the voyage has. ended; not until the persons who may be brought as passengers have been landed, or the goods which may have been entered as merchandise have passed from the hands of the importer, or have been made by himself a portion of the mass of the general property of' the State. It is upon this distinction between territorial and'political jurisdiction that the case of Brown v. Maryland rests. Without it, it has no other foundation, although it is not so expressed in the opinion of the court.

In these cases the laws complained of meet the vessels when they have arrived in the harbour, on the way to the port to which they are bound, before the passengers have been landed. And before they are landed they are met by superadded conditions in the shape of a tax, with which it is said they must comply, or which. the captain must pay for them, before they are permitted to land. Certainly it is not within the political jurisdiction of a State, in such circumstances of a 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.” Police powers, then, and sovereign powers are the same, the former being considered so many particular rights under that name or word collectively placed in the hands of the sovereign. Certainly the States of this Union have not retained them to the extent of the preceding enumeration. How much of it have the States retained ? I answer, unhesitatingly,, all necessary to theit internal government. Generally! all not delegated by them in the Articles of Confederation to the United States of America; all not yielded by them under the Constitution of the United States. Among them, qualified rights to protect their inhabitants by quarantine from disease ; imperfect and qualified, because the commercial power which Congress has is necessarily connected with quarantine. And Congress may, by adoption, presently and for the future, provide for the observance of such State laws, making such alterations as the interests and conveniences of commerce and navigation may require, always keeping in mind that the great object of quarantine shall be secured.

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

By that act, collectors, revenue-officers, masters and crews of revenue-cutters, and military officers in command of forts upon the coast, are required to aid in the execution of the State’s quarantine laws. But then, and it may be observed particularly in reference to the acts of Massachusetts and New York now in. question, the law provides that nothing in the act “ shall enable a State to collect a duty of tonnage or impost without the consent of Congress ” ; that no part of the cargo of any vessel shall in any case be taken out, otherwise than as by law is allowed, or according to the regulations thereinafter established; thus showing that the State’s quarantine power over the cargo for the purpose of purifying it or the vessel has been taken away. By the second section of the same act, the power of the States in respect to warehouses and other, buildings for the purification of the cargo is also taken away, and exclusively assumed by the United States. And by the third section, in order that the States may be subjected to as little expense as possible, and that the safety of the public revenue may not be lessened, it is provided that the United States, under the orders of the President of the United States, shall purchase or erect suitable warehouses, with wharves and .inclosures for goods, and merchandise taken from vessels subject to quarantine, or other restraint, pursuant to the health laws of any State.. And in regard to the word imposts, in the first section of the act, I may here remark, though I have heretofore given its meaning, that it means in the act,' as well as it does in the Constitution, personal imposts upon á foreigner enjoying the protection of a State, or it may be a condition of his admission (Martens, p. 97), as well as any tax or duty upon goods ; and Martens, as well as all other jurists and writers upon international law, uses the word in the sense I have said it has, also, as “ imposts on real estates and duties on the entry and-consumption of merchandises.” (pp. 97, 98.)

But, further, by the police power in the States they have reserved the right to be informed of the name and quality of every foreigner that arrives in the State. This, and no more than this, was Miln’s case, in 11 Peters. But after they have been landed, as is said 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 the purposes of trade, independently of every other condition of admittance which the States may attempt to impose upon such persons. When it is done in either way, the United States, of course, subject the foreigner to the-laws of the United States, and canhot exempt him from the internal power of police of the States in any particular in which it is not constitutionally in conflict with the laws of the United States. And in this sense it is that, in treaties providing for such mutual admission of foreigners between nations, it is universally said, “ hut subject always to the laws and statutes of the two countries respectively ” ; but certainly not to such of the laws of a State as would exclude the foreigner, or which add another condition to his admission into the United States.

And, .further, I may here remark that this right of taxation claimed for the States upon foreign passengers is inconsistent with the naturalization clause in the Constitution, and the laws of Congress regulating it. If a State can, by taxation or otherwise, direct upon what terms foreigners may come into it, it may defeat the whole and long-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 fully exercised over those who are not paupers, vagabonds, or fugitives from justice ? The . international right of visitation forbids it. The freedom ox liberty of commerce allowed by all European nations to the inhabitants of. other nations does not permit it; and the constitutional obligations of the States of this Unión to the United States, in respect to commerce and navigation and naturalization, have qualified - "’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 Constitution from tonnage duties, save by the authority, of Congress, and who are also protected by treaty stipulations. They tax passengers whtrare owners, and agents of the vessel, and accompany the ship. They tax owners, agents, and servants who accompany goods brought in for'sale, and who are by our treaties at full liberty freely tascóme-and reside in any part of our territories in pursuit of foreign commerce.

The tax is demandable from the master on entering the port, , and the law. provides that, when 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' Union, our vessels of every description go free and unrestrained, regardless of State authority. They enter at pleasure, depart at pleasure, and pay no duties. Steamboats pass for thousands of miles on rivers that are State boundaries, not knowing nor regarding in whose jurisdiction they are, claiming protection under these provisions of the Constitution. ' If they did not exist, such vessels might be harassed by insupportable exac-tions. If it be the true meaning of the Constitution, that' a State can evade them by declaring that the mastei may be taxed in regard to passengers, on the mere assertion that he Shall have a remedy over against the passengers, citizens and aliens, and that the State may assess the amount of tax at discretion, then the old evil will be revived, as the States may tax at every town and village where a vessel of any kind lands. They may tax on the assumption of self-defence, or on any other assumption, and raise a revenue from others, and thereby exempt their own inhabitants frpm taxation.

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 - commerce by “ a revenue measure,” for the purposes of its own treasury. If the State taxes, with the consent of Congress,- the vessel directly, by a tonnage duty, or indirectly, by taxing the master and crew, or taxes the cargo by an impost, or assumes to tax passengers, or to regulate in any other mode, she assumes to exercise the jurisdiction of Congress, and to regulate navigation engaged in foreign commerce ; she does that which Congress has the power to do, and is restrained by the Consti-' tution within the same limits to which Congress is restricted. And as Congress cannot raise money for the benefit of a State treasury, so neither can a State exercise the same power for the same purpose.

. 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 arid assumptions might, indeed, be endless. Were this court once to hold that aliens belonging to foreign commerce, and passengers coming from other. States, could have a poll-tax levied on them on entering any port of a State, on the assumption that the tax should be applied to maintain State police powers, and by this means the State treasury could be filled, the time is. not distant when States holding the great inlets .of commerce might raise all necessary revenues from foreign intercourse, and from intercourse among the States, and thereby .exémpt their own inhabitants from taxation altogether. The money once being in the treasury, the State legislature might apply it to any and every purpose, at discretion, as New York has done ; and if more was needed, the capitation’ tax might be increased at discretion, the power to tax having no other limitation.

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 come, into the harbour, and equally welcome, to enter the State. She does not address herself to them at all, but demands a revenue duty from the master, making the presence of passengers the pretext. We have to deal with the law as we find it, and/ not with an imaginary case that it migh’t' involve,. but undoubtedly does not.

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 by the possessions of Spain. With neither of these governments was our intercourse by any means harmonious at that time.

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 limitation of time; and reciprocal liberty was granted .to the people and inhabitants of the United States in his Majesty’s European territories; but subject always, as to what respects this article, to the laws and statutes of the two countries respectively. This stipulation was substantially renewed by the treaty of 1815, article first. In the British dominions our inhabitants were to abide by the general laws of Great Britain, and in our territories the subjects and inhabitants of that country were to abide by the laws of the United States, and also by the laws of any State where they might be. But the treaty does not refer to laws of exclusion. The State laws could not drive out those admitted by treaty without violating it, and furnishing cause of war; nor could State laws interpose any hindrance or molestation to the free liberty of coming. We have similar, treaties with many cither nations of the earth, extending over much of its surface, and covering populations more than equal to one half of its inhabitants. Millions of people may thus freely come and reside in our territories without limitation of time, and after a residence of five' years, by taking the proper steps, may be admitted to citizenship under our naturalization laws. Thousands of such persons have been admitted, and we' are constantly admitting them now; and when they become citizens they may go into every State without restraint, being entitled “ to all the privileges and immunities of citizens of the several States.”

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. It is also insisted that the States may tax all persons and property within their respective jurisdictions, except in cases where they are affirmatively prohibited. This is a truism not open to denial. Certainly the States may tax their own inhabitants at discretion, unless they have surrendered the power. But constitutional exceptions to the State power are so broad as to render the claim valueless in the present instance. The. States cannot lay export' duties; nor duties on imports, nor tonnage duties on vessels. If they fax the master and crew, they indirectly lay a duty on the vessel. If the passengers' on board are taxed, the protected goods — the imports — are reached.

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.

GRIER, J.

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.

Mr. Justice McEINLEY.

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 Constitution provides, 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 the Congréss prior to the year 1808; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.” '

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 any other article of commerce or importation, and to pay the duty imposed by law, whilst the persons of the first class, although subjects of commerce, had the free exercise of volition, and could remove at pleasure from one place to another ; and when they determined to migrate or remove from any European government to the United States, they voluntarilyxdissolved the bond of allegiance to their sovereign, with the intention to contract a temporary or permanent allegiance to the government of the United States, and if transported in an American ship, that allegiance commenced the moment they got on board. They were subject to, and protected by, the laws of, the United States, to the end of their voyage.

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 State power begin ? This is, perhaps, one of the most perplexing questions ever submitted to the consideration of this court.

A similar question arose in the case of Brown v. The State of Maryland, 12 Wheat. 419, in which the court carried out the power of Congress to regulate commerce with foreign nations, upon the subject then under consideration, to the line which separates it from the reserved powers of the States, and plainly established the power of the States over the same subject-matter beyond that line.

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.

Mr. Justice GRIER. 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 my purpose to repeat the arguments urged an vindication of the judgment of the court in that case, and which equally apply to this, but rather to state distinctly what ’I consider the point really presented by this case, and to examine some-of the propositions assumed; and arguments urged with so much ability by the learned counsel of the defendants.

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 men, respectively, shall, from-time to time, notify the pilots of the port of said city or town of the place or places where the said examination is tó be made, and the said pilots shall be required to anchor all such vessels at the place so appointed, and require said vessels there to remain till such examination shall be made; and any pilot who shall refuse or neglect to perform the duty imposed upon Jiim by this section, or. who shall, through negligence or design, permit any alien passenger to land before such examination shall be had, shall forfeit to the city or town :a sum not less than fifty nor more than two thousand dollars.

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 license to foreigners to. become denizens or citizens-of the Commonwealth of Massachusetts; for they have. sought no such privilege, and, so far as is yet known, may have been on their way to some other place.

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 size and power of the steam-engine, or the number of passengers which she carries. We have to deal with things, and we cannot change them by changing their names. Can a State levy a duty on vessels engaged in commerce, and not owned by her own citizens, by changing its name from a “ duty on tonnage ” to a tax on the master, or an impost upon imports,'by calling it a charge on the owner or supercargo, and justify this evasion of a great principle by producing a dictionary or a dictum to prove that a ship-captain is not a. vessel, nor a supercargo an import ?

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 incompetent to maintain themselves are not permitted to land until a bond has been given, in the sum'of one thousand dollars, with sufficient security, that they will not become a city, town, or State charge within ten years. By the stringency of these bonds, the poor, the aged, and the infirm are compelled to continue their journey and migrate to other States; and yet, after having thus driven off all persons of this class, and obtained .an indemnity against loss by them if they remain, it is complained of ás a hardship, that the State should not be allowed to tax those .who, on examination, are found not to be within this description, — who are not paupers, nor likely to become such; and that this exaction should be demanded, not for a license to remain and become domiciled in the State, but for. leave to pass through it. But admitting the hardship of not permitting these States to raise revenue by taxing’the'citizens of other States, or immigrants seeking to become such, the answer still remains, that the question before the court is not one of feeling or discretion, but of power. 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 State of the power to exclude all persons from entering hei ports or passing through her territory.

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 concern, may well be doubted. If these States-still retain ' all the rights of sovereignty, as this argument, assumes, one of the chief objects for which this Union was formed has totally failed, and “ we may again witness the scene of conflicting commercial regulations and exactions which were once so destructive to the harmony of the State's, and fatal to their commercial interests abroad.”

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, 9 Wheat. 195.)

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.?. The argument of those who challenge the right to exercise this power for the States of Massachusetts and New York, on the ground that it is a necessary appurtenant to-the police power, seems fallacious, also, in this respect. It assumes, that, because .a State, in the exercise of her acknowledged right, may exclude paupers, lunatics, &c., therefore she may exclude all persons, whether they come within this category or not. But she may exclude putrid and pestilential goods from being landed on her shores; yet it does not follow that she may prescribe what sound, goods may be landed, or prohibit their im-. portation' altogether. The powers used for self-defence arid protection against harm cannot be perverted into weapons of offence and aggression upon the rights of others. A State is left free to impose srich taxes as she pleases upon those who have elected to become residents or citizens; but it is not necessary to her safety or welfare that she should exact a transit duty on persons or property for permission to pass to other States.

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 immigration of foreigners to other States, except on prescribed conditions, and to tax the commerce or intercourse between the citizens of these States, is not a police power, nor necessary for the preservation of the health, the morals, or the domestic peace of the States who claim to exercise it.

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.

CITRON, J.

I concur with the foregoing opinion of Mr. Justice Grier. .

Mr. Chief Justice TANEY, dissenting.

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 enacts that no alien passengers other than those before spoken of shall be permitted to land until the master, owner,. consignee, or agent of the vessel shall pay to the boarding officer the sum of two dollars for each passenger so landing ; the money-thus collected to be appropriated to the support of foreign paupers.

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 think there is no treaty or act of Congress which can justly be so construed. But it is not necessary to examine that question until we have first inquired whether Congress can lawfully exercise such a power, and whether the States are bound to submit to it. For if the people of the several States of this Union reserved to themselves the power of expelling from their borders any person, or class of persons, whom it might' deem dangerous to its peace, or likely to produce a physical or moral evil among its citizens, then any treaty or law of Congress invading this right, and authorizing the introduction of any person or description of persons against the consent of the State, would be an usurpation of power which this court could neither recognize nor enforce.

I had supposed this question not now open to dispute. It was distinctly decided in Holmes v. Jennison, 14 Pet. 540; in Groves v. Slaughter, 15 Pet. 449; and in Prigg v. The Commonwealth of Pennsylvania, 16 Pet. 539.

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, then any act on the subject by the general government, in conflict with the State law, would also be void, and this court bound to disregard it. It must be paramount and absolute in the sovereignty which possesses it. A concurrent and equal power in the United States and the States as to who should and who should-not be permitted to reside in a State, would be a direct conflict of powers repugnant to each other, continually thwarting and defeating its exercise by either, and ‘could result in nothing but disorder and confusion.

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 to our shores in emigrant ships, and that measures of precaution and self-defence have become absolutely necessary on the Atlantic border. But whether this law was necessary or not is not a question for this court; and I forbear, therefore, to discuss its justice and necessity. This, court has no power to inquire whether a State has acted wisely or justly in the-exer- cise of its reserved powers. Massachusétts had the sole and exclusive right to judge for herself whether any eyil.was to be apprehended from the introduction of alien passengers from' foreign countries. And in the exercise of her discretion, she had a right to exclude them if she thought proper to do so. Of course I do not speak of public functionaries or agents, or officers of foreign governments. Undoubtedly no State has a right to interfere with the free ingress of persons' of that description. But there does not appear to have been any such among the aliens who are the subjects of this suit, and no question, therefore, can arise on that score. .

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 obligatioa of guarding against the danger. The same rule must apply to governments who are charged with 'the . duty of protecting their citizens. Massachusetts has legislated upon this principle. She requires bond and security from one class of aliens, and from another, whom she deems less likely to become, chargeable, she accepts a sum of money, and takes upon herself the obligation of providing a remedy for the apprehended evil.

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 this must be done, and must be decided. too upon legal evidence, admissible in a court of justice, if it is determined that the State may provide against the admission of one description of aliens, but not against another; that it may take securities against paupers and persons diseased, but not against those who are in health or have the' means of support; and that this court have the power to supervise the conduct of the State authorities, and to regulate it and determine whether it has been properly exercised or not.

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 still think upon the subject, I desire now to add to it a reference to the thirty-second number of the Federalist, which shows that the construction given to this clause of the Constitution by a majority of the justices of this court is the same that was given to it at the time of its adoption by the eminent men of the day who were concerned in framing it, and active in supporting it. For in that number it is explicitly affirmed, that, “ notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it.was deemed improper that the like-authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States.” The grant of a general authority to regulate commerce is not, therefore, a prohibition to-the States to make any regulations, concerning it within their own-territorial limits, not in conflict with the regulations of Congress. -

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,. 5; 5 Howard, 629.)

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, 11 Peters, 107. .1 shall not, therefore, discuss further the provisions in the second section of the statute * for, at all' events, the requisitions of that section, if not by all admitted to be constitutional, are less objectionable than those of the third ; and if the last can be vindicated, the first must be, and hence the last has constituted the burden of the arguments on both sides.

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. 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.”

. 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 expense of those introducing them, and introducing the evils which may attend on them. This seems to. have been the attempt in this statute, and as such was a matter of legitimate police in relation to paupers.

, 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,³ Howard, 741-743.) Yet it does not always; and it is the master, and the owners through him, who complain in the present action, and not the passengers; jf it fell on the latter alone, they would be likely, not only to complain, but to go in vessels to other States where onerous conditions had not been imposed. Supposing, however, the burden in fact to light on them, it is in some, though a less degree, and in a different-view, as a matter of, right, to be vindicated.

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 such were its necessary consequence, the measure would be of very questionable expediency. But the makers of this law. may have' had no such design, and such does-not seem .to be the necessary, consequence of it, as large numbers of emigrants still continue to arrive in Massachusetts when they would be likely to ship for ports in other States where no such law exists, if this operated on them as a discouragement, and like (Jther taxes when felt, of when high, had become in some degree prohibitory.

. 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, 11 Peters, 156.) When this is done in a .law providing against the increase of pauperism, and seems legitimately to be connected with the' ' subject, and when the sum required of the master-or passenger is not disproportionate to' the ordinary charge, there appears no reason to regard it as any measure except what it professes to be,.— one connected with the State police as to alien passengers, one connected with the .support of paupers, and-one designed neither to regulate commerce nor be a source of revr enue for general purposes. (5 Howard, 626.)

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.' The last year, so fruitful in immigration and its contagions diseases of ship-fever arid the terrific cholera, and the death of so many from the. former, as well as the. extraordinary expense consequent from these causes, furnish a strong illustration that the terms required are neither excessive nor inappropriate.

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 16 Peters, 625. But in law, the word police is much broader, and includes all legislation for' the internal policy of a. State. (4 BL Coin., ch. 13.)

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, 5 Howard, 471.)

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 master, or passengers, rather than on others, unless clearly forbidden by the Federal Constitution. And it can he none the less a police measure than is a quarantine charge, because the master or owner is required to pay it, or even the passengers, rather than the other people of the State by a general tax.

Even to exclude paupers entirely has been held to be a police measure, justifiable in a State. (Prigg v. Pennsylvania, 16 Peters, 625; 5 Howard, 629.) Why, then, is not the milder measure of a fee or tax justifiable in respect to those alien passengers considered likely to become paupers, and to be applied solely to the support of those who do become chargeable from that class ? And why is not this as much a police ‘measure as the other ? If such measures must be admitted to be local, are . of State cognizance, belong to State interests,, they clearly are among State rights.

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, 5 Howard, 624; Baldwin’s Views, 184, 188; cases cited in The United States v. New Bedford Bridge, 1 Woodb. & Min. 423.)

Thus viewed, the case also comes clearly within the principles settled in New York v. Miln, 11 Peters, 102, and is fortified by the views in the License Cases, 5 Howard, 504. The fact that the police regulation in the case of Miln was enforced by a penalty instead of a toll, and in the License Cases by a prohibition' at times, as well as a fee, does not alter the principle, unless the mode of doing it in the present case should be found, on further examination, before closing, to be forbidden to the States.

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 foreigners within her borders. If this power can be shown to exist, and it is in its nature and character a police power also, then we have already demonstrated that the States can rightfully*continue to exercise, it. But if it be not such a power, and hence cannot be ranked under that title and enjoy the benefit of the decisions exémpting police powers from control by the general government, yet if it exists as a municipal rather than a police power, and has been constantly exercised by the States, they cannot be considered as not entitled to it, unless they have clearly ceded it to Congress in some form or other. 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; 5 Howard, 525, 629; New York v. Miln, 11 Peters, 142; Prigg v. Pennsylvania, 16 Peters, 625; and Holmes v. Jennison, 14 Peters, 565.)

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 that, if a sovereign' state pleases,, it may, as a matter of clear right, exclude them entirely, or only, when paupers or convicts, (Baldwin’s Views, 193, 194,) or only when slaves, or, what is still-more common in America, in Free States as well as Slave States, exclude colored emigrants, though free. As further proof and illustration that this power exists in the States, and has never been parted with, it was early exercised by Virginia as to others than paupers, (1 Bl. Com., by Tucker, pt. 2, App., p. 33,) and it is now exercised, in one form or another, as to various persons, by more than half the States of the Union. (11 Peters, 142; 15 ib. 516; 16 ib. 625; 1 Brockenbrough, 434; 14 Peters, 568 ; 5 Howard, 629.)

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, 11 Peters, 56, says as to the States,— “ I admit that they have a right to pass poor-laws, and laws to prevent the introduction of paupers into the States, under like qualifications.”

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 to aliens not resident here at all, or not so long. (See acts of 1790, 1795, and 1800.)

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 slavetrade , and not at the bringing in of any other persons than slaves, and not as if Congress supposed that, under the ninth section, it was contemplated to give it power, or recognize its power, over any thing, but the foreign slave-trade. But of this more hereafter. ' 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, 14 Peters, 568.) Though the obligation to do so is, to be sure, an imperfect one, of the performance of which she is judge, and sole judge, till Congress make some stipulation with foreign powers as to their surrender (11 Peters, 391); and if States do not surrender this right of affixing conditions to their ingress, the police authorities of Europe will proceed still further to inundate them with actual convicts and paupers, however mitigated the evil may be at times by the voluntary immigration with the rest of many of the enterprising, industrious, and talented. But if the right be carried beyond this, and be exercised with a view to exclude rival artisans, or laborers, or to shut out all foreigners, though persecuted and unfortunate, from mere naked prejudice, or with a view to thwart any conjectural policy of the general government, this course, as before suggested, would be open to much just criticism.

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 cargoes. If the power be clear, however others may differ as to the’ expediency of the exercise of it as to particular classes or in a particular form, this cannot impair the power. 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, 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, and therefore the right to impose it must depend upon the question, whether-it is an le 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. But as a condition to their landing and remaining within the jurisdiction of the State, enough is required by way of condition or terms for that privilege, arid the risk of their becoming chargeable, when aliens, (though not chargeable at the time,) to cover in some degree 'the. éxpenses happening under such contingency. This has nothing to, do with the regulation of commerce, itself, — the right to carry passengers to and fro over the Atlantic Ocean, — but merely with their inhabitancy or residence within a State so as to be entitled to its .charity, its privileges, and protection. Such laws do not conflict directly with-any provision by the general government as to foreign commerce, because none has been-made on this point, and they áre not in clear collision with any made by that government on any other point, When, as here, they purport to be for a different purpose from touching the concerns of the general government, — when they are, as here, adapted to another local and legitimate object, — it is unjust to a sovereign State, and derogatory to the character of her people and legislature, to impute a sinister and illegitimate design to them concerning foreign commerce, different from that avowed, and from that which the amount of the tax and the evil to be guarded against clearly indicate as the true design. Hence, as before remarked, Mr. Justice Johnson, in the same opinion which was cited by the original defendants, says the purpose is the test; and if that be different, and does not clash, the law is not unconstitutional.

So Chief, Justice Marshall, in 9 Wheat. 204, says, that Congress for one purpose and a State for another may use like means and both be vindicated. And though Congress obtains its power from a special grant, like that of the power “ to regulate commerce,” the State may obtain it from a reserved power over internal commerce or over, its police.. Hence, while Congress regulates the number of passengers to the size of the vessel, as a matter of foreign commerce, and may exempt their baggage and -tools from duties as a matter of imposts on imports, yet this is not inconsistent with the power of a State, after passengers arrive within her limits, to impose térms on their landing, with a view to benefit her pauper police, or her fiscal resources, or her municipal safety and welfare. And the two powers, thus exercised separately by the two governments, may, as Mr. Justice Johnson says, “be perfectly distinct.” So, in the language of Chief Justice Marshall, “ if executed by the same means,” “ this does not prove that the powers themselves are identical.”

The measures of the general government amount to a regulation of the traffic, or trade, or business, of carrying passengers , and of the imposts on imports; .but those of the States amount to neither, and merely aifect the passengers or master of the vessel after their arrival within the limits of a State, and for State purposes, State security, and State pjolicy.

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 ” (9 Wheat. 235); or, in the words of Chief Justice-Marshall, “although the means used in their execution may sometimes approach each other so nearly as to .be confounded ” (p.. 204). But where any doubt arises, it should operate against the uncertain and loose, or what' the late chief justice called “ questionable-power to regulate commerce,” (9 Wheat. 202,) rather than the more fixed and distinct police or taxing-power. 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. (9 Wheat. 203; License Cases, 5 Howard; United States v. New Bedford Bridge, 1 Woodb. & Minot, 423.) Here we see no such collision.

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' by the other, for the public safety, to keep it in large quantities. (4 Metcalf, 294.) Neither of these acts by the State attempts to. intérfere with the commerce abroad, but after its arrival here, and for other purposes," local and-sanatory, or municipal.

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, 9 Wheat. 201, by Chief Justice Marshall.) And if, in Brown v. Maryland, 12 Wheat. 447, the tax or duty imposed there can be considered as held to violate both, it was because it was not only a tax on imports, but provided for the treatment of goods themselves, or regulated them as imported in foreign commerce, and while in bulk.

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 14 Peters, 575.)

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 of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible.”

This rule has been recognized in various decisions on constitutional -questions by many of-the judges of this court. 2Cranch, 397; 3 Wheat. 386; 5 Wheat. 49; Wilson v. Blackbird Creek Marsh Company, 2 Peters, 245; Prigg v. Pennsylvania, 16 Peters, 627, 655, 664; New York v. Miln, 11 Peters, 103, 132; Groves v. Slaughter, 15 Peters, 509; Holmes v. Jennisoh, 14 Peters, 579. So by this court itself, in Sturges v. Crowninshield, 4 Wheat. 193. And also by other authorities entitled to much respect. 4 Elliot’s Deb. 567; 3 Jefferson’s Life, 425-429; 3 Serg. & Rawle, 79; Peck’s Trial, 86, 87, 291-293, 329, 404, 434, 435; Calder v. Bull,³ Dall. 386; 1 Kent’s Com. 364; 9 Johns. 568.

In other cases it is apparently contravened. 9 Wheat. 209; 15 Peters, 504, by Mr. Justice McLean, and 511, by Mr. Justice Baldwin; Prigg v. Pennsylvania, 16 Peters, 543; New York v. Miln, 11 Peters, 158, by Mr. Justice Story; The Chusan, 2 Story, 465; Golden v. Prince,³ Wash. C. C. 325.

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.” (4 Wheat. 122, 193, by Chief Justice Marshall; Prigg v. Commonwealth of Pennsylvania, 16 Peters, 626, by Chief Justice Taney, and 650, by Mr. Justice Daniel.)

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, 2 Peters, 245, though a commercial question. And Judge Story did the same in Houston v. Moore, 5 Wheat. 49, - a militia question. So, many of the other grants in • this same section of the Constitution, under like forms -of expression, have been virtually held not to be exclusive; such as that over weights and measures; that over bankruptcy (Sturges v. Crowninshield, 4 Wheat. 122); that over taxation (see cases already cited); that to regulate the.-value of foreign coins; that to discipline „the militia (Houston v. Moore, 5 Wheat. 1; 3 Stor. Com. on Constitution, § 1202; 15 Peters, 499; Rawle on the Constitution, ch. 9, p. 111); that “to provide for the punishment of counterfeiting coin ” (Fox v. State of Ohio, 5 How. 410); and robbing the mail when punished as highway robbery (5 Wheat. 34). Why, then, hold this to be otherwise than concurrent?

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, 2 Dallas, 296); and though doubt has been flung on this since by the United States v. Villato, 2 Dall. 372, Chirac v, Chirac, 2 Wheat. 269, and by some of the court in 5 Howard, 585, and Golden v. Prince,³ Wash. C. C. 314; and though these doubts may be well founded unless the State naturalization be for local purposes only in the State, as* intimated in Collet v. Collet, and more favorable than the law of the United States, and not to give rights of citizenship out of the State, (1 Bl. Com., by Tucker, App. 3, 4, 255, 296,) which were the chief objections in³ Wash. C. Cr 314; yet this change of opinion does not impugn in principle the ground for considering the local measure in their case as not conflicting with foreign commerce. The reasoning for a change there does not apply here.

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, 4 Wheat. 196; 3 Ell. Deb. 259; Baldwin’s Views, 193, 194.)

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, 2 Peters, 245.) So elsewhere. (Corfield v. Coryell, 4 Wash. C. C. 371; 1 Woodb. & Mm. 417, 424, 425; 9 Wheat. 203. See also Warren Bridge Case, 11 Peters, 420; 17 Conn. 64; 8 Cowen, 146; 1 Pick. 180; 7 N. Hamp. 35.) And it has been considered elsewhere not to confer, though in navigable waters, any right or control over the fisheries therein, within the limits of a State. (4 Wash. C. C. 383. See also Martin v. Waddell, 16 Peters, 367; 3 Wheat. 383 ; Angell on Tide Waters, 105.) So the States have been accustomed to legislate as to pilots, and Congress has concurred in it., But if the acts of the States alone as to pilots are not valid, on the ground of a concurrent power in them, it is difficult to see hoyr Congress can transfer or cede to the States an authority on this which the Constitution has not given to them. (Chief Justice Taney, in 5 Howard, 580.) The real truth is, that, each possessing the power in some views and places, though not exclusively, Congress may declare it will not exercise the power on its part, either by an express law or by actual - omission, and thus leaye the field open to the States, on their reserved or concurrent rights, and not on any rights ceded to them by Congress. This reconciles the whole matter, and tends strongly to sustain the same view in the case now under consideration.

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, 5 Howard, 441.)

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 either general or uniform: For though Congress is empowered to regulate commerce, and ought to legislate for foreign commerce as for all its leading incidents and uniform and universal wants, 3ret “ to regulate commerce ” could never have been supposed by the framers of the Constitution to devolve on the general government the care of any thing except exterior intercourse with foreign nations, with other States, and the Indian tribes. Every thing else within State limits was, of course, to be left to each State, as too different in so large a country to be subjected to uniform rules; too multifarious for the attention of the central government, and toó local for its cognizance over Only general matters.

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. (9 Wheat. 225.) It was hence'that the States in respect to duties and imposts were not left to exercise concurrent powers, and this Avas prevented, -not by merely empowering Congress to tax imports, but by expressly forbidding the States to dp the same ; and this express prohibition would not have been resorted to, or been necessary,'if a mere grant to Congress of the power to impose duties or to “ regulate commerce ” was alone deemed exclusive, and Avas to prevent taxation of imports by the States,: or assessing money by them on any kind of business or traffic by navigation, such as carrying passengers.

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, 9 Wheat. 204, 239.) In this way much was meant to be left in the States, and much ever has been left, which partially related to commerce, and an expansive, arid roving, and absorbing construction has since been attempted to -be given to the grant of the. poAver to regulate commerce, apparently never thought of at the time it was introduced into the Constitution. When I say much was'left, and meant to be left, to the States in connection with commerce, I mean, concerning details and local matters, inseparable in some respects from foreign commerce, but not belonging to its exterior or general character, and not conflicting with any thing Congress has already done. (Vanderbilt v. Adams, 7 Wendell, 349; New Bedford Bridge Case, 1 Woodb. & Min. 429.) Such is this very matter as to taxation to support foreign paupers, with many other police matters, quarantine, inspections, <fcc. (See them enumerated in the License Cases, 5 Howard.)

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, (4 Wheat. 195,) considered “ the power of the States as existing over such cases as the laws of the Union may not reach.”

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 (5 Howard, 504) appear to have held that it is not exclusive as . to several matters connected in some degree with commerce. The case of New York v. Miln (11 Peters, 141) seems chiefly to rest on a like principle, and likewise to hold that measures of the character now under consideration are not regulations of commerce.

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 speaks, and a different course of reaspning begs the question attempted to be proved. In other cases, when the power of Congress is not exclusive and that of the States-is concurrent, the silence of Congress to legislate on any mere local or subordinate matter within the limits of a State; though connected in some respects with foreign commerce, is rather an invitation for the' States to legislate upon it, — is rather leaving it to them for the present, and assenting to their action in the matter, — than a circumstance nullifying and destroying every useful and ameliorating provision made by them.

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.” . (2 Peters, 252.)

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, 4 Wheaton, 195, 196.) And in 16 Peters, 610, Justice Story admits “that no uniform rule of interpretation can be applied to it [the Constitution], which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses.”

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 then what appears to he the spirit of a wise conciliation, and are able to reconcile several opinions elsewhere expressed, some as to the concurrent and some as to the exclusive character of the power “ to regulate commerce.” It may thus be exclusive as to some matters and not as to others, and every thing can in that aspect be reconciled and harmonious, and accord, as I have before explained, with the nature and reason of each case, the only constitutional limits where no express restrictions are imposed. I. am unable to see any other practical mode of administering the complicated, and sometimes conflicting, relations of the Federal and State governments, but on a rule like this. And thus deciding the cases as they arise under it,- according to the nature and character of each case and each grant, some indicating one to be exclusive, and some indicating another not to be exclusive; and this, also, at times, as to different kinds of exercise of power under one and the same, grant. (See Justice Johnson, 9 Wheat, 235-239.) There is another view of this question which leads to like results. If the opposite opinions mean only that the States cannot, after express grants to the general government, legislate on them for and in behalf of the general government, and1 not simply for themselves in local matters,—cannot legislate for other States without their own limits, extra territor.ium, or as to general uniformity, general conduct, or the subject-matter over the whole country, like naturalization and bankruptcy, — then there is no difference between the spirit of those opinions and . my own. But if they are construed to mean, that after sucbí a grant, with no express prohibition on a State to act for itself alone on the matter, and none implied from their relations to the general government and the nature of the subject, a State cannot make such regulations'and laws for itself, and its own people, and local necessities, as do not violate any act of Congress in relation -to the matter, I do not think they are supported either by sound principle or precedents.

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; 9 Wheaton, 238.)

_ ' -This. circumstance shows, also, that the argument to avoid State legislation is not sufficient when it discovers some different spirit or policy in the' general measures of the States from that in-the general government.' The States have a right to diifer in opinion, — some are very likely often to differ. But what clause in the Constitution makes such an instance, of independence a nullity, or makes a different object an illegitimate one ? To be a nullity, it must oppose what' has been actually done or prescribed by Congress, and in a case where it has no reserved power to act differently from Congress. We have already seen that an indirect reduction of the revenue of the general government by the "license laws, when passed under a legitimate power, and with a different legitimate view, did not render them unconstitutional, nor does this, under like circumstances, though it may indirectly operate in . some measure against emigration.

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 their legislation now existing on matters of bankruptcy, and in respect to the disciplining of the militia, and imposing taxes on land, is also void. For the powers over all these are expressly ceded to Congress, and are not now regulated by any .existing acts of Congress, though all except weights and measures once have been. The argument alluded to, if sound, would thus be strong, that Congress, having once acted-on these and ceased to, means that nothing more shall be done.

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 their nature, and not conflicting with actual provisions in relation to them already made under the general government. (14 Peters, 594.)

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, and of the usage that the States may act in such concurrent cases or local matters till their measures conflict directly Avith those of Congress? (Ibid. 179.) Where is the line of distinction between a measure by the State which is void, whether it conflict or not, and one which is not void till it comes into actual collision with some law passed by the general government ? . What becomes of the idea, that the power to regulate foreign commerce is exclusive, and Congress may prohibit the introduction’ of obscene prints under it, and yet the States unay do the latter also, but touch nothing connected with commerce ? Is not the introduction of these connected Avith it? Cannot the States, too, patronize science and the arts in various Avays, though a like potver is conferred on Congress by means of patents and copyrights. (Livingston v. Van Ingen, 9 Johns. 572.)

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.” (9 Wheat. 234.) ' It is argued that this means to exclude State action, Avhere Congress' has not occupied the field, as well as Avhere it has.’ Yet it seems plainly to be inferred, from other words connected, that-he considers the power of the States niust be at an end so far as the United States have by their legislative act taken the subject under their immediate superintendence.” This means the subject then under consideration. But Avhere have they so .taken the subject of the admission of alien passengers into States, and the terms of it, “ under then-immediate • superin ten dence ”'? They may have regulated the manner of their coming here, but. where their maintenance here when sick br poor, or likely to be poor ? where their taxa- ’ tion here ? '

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 . to orle extent, but it is not in others. It may be considered as exclusive so far as it goes, and still leave the rest of the held concerning them open to the States. Thus the right to regulate the number of passengers in vessels from abroad in proportion to the tonnage has been exercised by Congress, and majr be deemed the use of a legitimate authority. (3 Statutes at Large, 448; 9 Wheat. 216..) So has it been exercised to exempt their personal “baggage”, and “tools” from imposts, not, as some seem to suppose, their goods or merchandise. (1 Statutes at Large, 661.) But this statute of Massachusetts conflicts with neither. So Congress provides for uniform naturalization of aliens, but this statute does not interfere with that. So Congress does not forbid passengers to come from abroad; neither does this statute.

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.. Oh this reasoning, passengers there in vessels, boats, wagons stages, or on horseback, are as much connected with commerce as if they, come in by sea; and they may consist of paupers, slaves, or convicts, as well as of merchants .or travel-lers for pleasure and personal improvement; and-thus all the laws of Ohio, Mississippi, and many .other States, either forbidding or taxing the entrance of slaves or liberated blacks, will be'. nullified, as well as those of almost every Atlantic State, excluding paupers coming in from without their limits...

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. taxes of the United States, much more of the States, why is it necessary to declare in terms any article “free,” when Silence would make it so ? The real truth rather is, that Congress has no right to tax alien friends, or exclude them, and' hence the silence. This statute,' then, contravenes no act of Congress on this matter of passengers.

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. The Prussian treaty does not appear to contemplate any thing beyond the establishment of reciprocal .duties, and a treatment, in other respects like “the most favored nations.” (8 Stat. at Large, 164.)

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-. mercial arrangement of 1830 with Great Britain. (4 Stat. at Large, 419.) The intention of that act does not in any re•spect seem to go beyond that of the treaties just referred to, and in some respects is to have matters stand as they did before. Each side imposed charges and duties. They existed in England and her colonies, as well as with us ; but this arrangement sought only to have them not unequal nor prohibitory of trade, and not to discriminate against each-other by general legislation. (See 1 Commerce and Navigation, State. Papers, 158; 4 Stat. at Large, 419.)

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 to uphold. (West River Bridge v. Dix, 6 Howard, 548.) But here -the amount of the tax, compared with the burden flung on the State by foreign paupers, does not look so much like a wish to prohibit entirely the entrance of alien passengers, and thus disclose a covert design, hostile to the policy of the general government, as like a wish to obtain enough to cover the expenses and trouble of maintaining such of them as, though not paupers, are likely to become so in the ordinary couse of human events. This is a highly important consideration in judging whether the law throughout looked really to the subject of¿ pauperism, and not to hostility towards emigration, nor, under the third'section,, to revenue from foreign commerce, independent of the pauper system. It is unjust to regard such provisions as intended to conflict with foreign commerce, when there is another and local matter which they profess to reach, and can and do honestly reach.

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. (4 Wheat. 196; 9 Wheat. 335; Baldwin’s Views, 193.)

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. It will operate justly among the States, no less than between them and the general government, as it will leave each to adopt the course best suited to its peculiar condition, and not leave one helplessly borne down with expenses from foreign sources while others are entirely free, nor draw the general government, in order to remedy such inequalities, into a system of police and local legislation, over which their authority is doubtful, as well as their ability to provide so' well for local wants as the local governments, and those immediately interested in beneficial results.

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 and adjudged by this court; that the judgment of the said Court for the Trial of Impeachments and the Correction of Errors be' and the same is hereby reversed, with costs, and that, this cause be and the same is hereby rémanded to the said Court for the Trial of Impeachments and the.Correction of Errors, in order that further proceedings may be had therein, in conformity to the aforesaid opinion and judgment of this court.

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.

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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.

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