SUPREME COURT OF THE UNITED STATES. late commerce with foreign nations, and they As the limitations in that clause of the Con- Congress have, therefore, now the power- 2. To impose such an import duty upon their This, I presume, will not and cannot be denied. Now, if Congress have that power, it is derived either 1. From the power to lay and collect import duties. 2. From the power of regulating commerce with foreign nations. 3. Or from its being an attribute necessarily belonging to the national government. And if Congress derive the power from any one of these sources, their power is necessarily exclusive of any State authority upon the subject. As to imports, I have already shown that the States are expressly prohibited by the Constitution from laying or collecting any such duties. As to the power to regulate commerce with foreign nations, I intend to endeavor to show, in a subsequent part of my argument, | that that power is also exclusive of the State Legislatures. As to the authority derived from the fact that it is an attribute of the national government, there can be no doubt that, in that view of the case, the State governments can have no concurrent power on the subject. If, therefore, Congress possess the power of levying an import duty upon persons imported or brought into the United States, if they have the power to prohibit the importation of them altogether, no State can have such power, and the law of the State of New York is unconstituional and void. But it is said that this clause of the Constitution was only intended to be applicable to slaves which might be brought into the United States. It seems to me that this argument cannot avail the opposing counsel. Because, if this be so, then, as I have already shown that this clause was a limitation upon the powers of Congress, if that limitation extended only to slaves, then the powers of Congress, so far. as they relate to free foreigners migrating to the United States, were left, and now exist, wholly unlimited, except so far as limitations 307*] may be *found in the words of the Constitution or in the nature of the case. But the convention intended, as the words of the clause evidently show, that the provision should not be confined to slaves. (3 Madison Papers, 1429.) Mr. Gouverneur Morris objected, that, as the clause now stands, it implies that the Legislature may tax freemen imported. Colonel Mason admitted this to be so, and said necessary for the case of convicts, in order to "that it was prevent the introduction of them.' With this 712 1849 explanation, the clause was passed unanimously. I shall here leave this point in the case. post, and that the State of New York has no I think I have shown that this tax is an imconstitutional power to lay and collect it, without the assent of Congress, and if collected, it must be paid into the treasury of the United States. But we were told upon the former argument, that no import duty could be laid upon white ion of the framers of the Constitution. But men. I have shown that such was not the opintax upon every passenger brought or imported what is this law of New York? It imposes a into the port of New York. Such a tax is an be laid upon white men, by what authority impost. And if it be true that no impost can upon every passenger, white or black, bond or does the State of New York impose such a duty as if a change of the name can alter the nature free? Because we call it a tax, not an impost; of the thing. This law is not only an impost, but a regulawhether, as such, it must not be considered as tion of commerce; and I propose now to inquire unconstitutional and void. tention to go into a lengthened and minute conIn discussing this question, it is not my insideration of the several cases which have been heretofore decided in this court, in which the validity of State laws has been the subject of decisions here. These cases were so fully considered in the License Cases decided at the last term, that every member of the court must be familiar with them. To enter now into a labored examination of them would, therefore, be little less than a waste of the time of the court. with foreign nations, and among the several Congress have power to regulate commerce States, and with the Indian tribes." merce" in this clause of the Constitution? It What is the meaning of the word "combecomes necessary to settle the meaning of the word. Chief Justice Marshall, in the case of Gibbons v. Ogden (9 Wheat., 189), says. speaking of this word: would limit it to traffic, to buying and selling, The counsel for the appellee and do not admit that it comprehends naviga*or the interchange of commodities, [*308 tion. This would restrict a general term, applicable to many objects, to one of its significations. Commerce undoubtedly is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse.' Marshall says: "It has, we believe, been uni- have the power of regulating that intercourse: Why is this marked distinction made in the Constitution? The regulation of the commerce with foreign nations, including the regulation of all our intercourse with them, may, in many instances, materially affect the relation between us and foreign nations. It may often lead to war. It may become the subject of treaties. All which considerations show that it is a na tional question, from which the States must be absolutely excluded. Not so with the power of regulating commerce among the States. This is a mere internal matter among ourselves, with which foreigners can have nothing to do. They can know only the one government, and can do nothing with the State governments. The power to regulate this internal commerce is vested in Congress, and they may exercise it or not, as they think proper; and until they do exercise it, it is possible that the States may have power to regulate the matter among themselves. Not so with foreign commerce. Foreign nations know nothing of the States, and can look only to the general government. With respect to foreign commerce, it is essential that the regulations should be uniform throughout the whole country, so that the different nations should know the terms upon which their commerce or intercourse with this country can be carried on. In all cases where the right of commercial regulations comes before this court, this distinction should never be lost sight of. In cases of commerce among the States, if Congress do not exercise the powers given to them, it may 309*] be matter of doubt whether the State Legislatures may not make regulations of the commerce among themselves. and those regulations may be good until Congress shall undertake to make the regulations. And all the cases where it has been admitted by any judge of this court that the States have a concurrent power to make such regulations of commerce will be found to be of that nature. The two leading cases are Gibbons v. Ogden (9 Wheat., 1) and Wilson v. The Black Bird Creek Marsh Co. (2 Peters, 245.) They will both be found to be cases of internal commerce among the States. In the case of The City of New York v. Miln (11 Peters,) the opinion of the court was delivered by Mr. Justice Barbour. He says: We shall not enter into any examination of the question whether the power to regulate commerce be or be not exclusive of the States, because the opinion which we have formed renders it unnecessary; in other words, we are of opinion that the act is not a regulation of commerce, but of police; and that, being thus considered, it was passed in the exercise of a power which rightfully belonged to the State. If, as we think, it be a regulation, not of commerce, but police; then it is not taken from the States.' (p. 132.) In that case, the law of New York was considered as a part of its system of poor-laws, and was, therefore, held to be constitutional. But even in that case Judge Story dissented from the opinion of the court, and stated that Chief Justice Marshall had been of opinion, upon the former argument of the case, that the law of New York was unconstitutional. the introduction or importation of passengers or goods into the country, authorized and allowed by Congress, whether in the shape of a tax or other charge, or whether before or after arrival in port, interferes with the exclusive right of Congress to regulate commerce. That And this is in strict conformity with the doctrine established in the case of Brown v. The State of Maryland (12 Wheat., 419). was also the case of an imported article from a foreign nation, upon which the plaintiff in error had paid a duty upon its importation. The State undertook, by law, to say that he should not sell it without a license. The court decided that the duty required and paid upon the importation of the article was a regulation of commerce, and that, upon paying that duty, the importer had a right to sell the article; else the importation of it would be of no use to him, and he would have complied with the regulations of Congress to no purpose, if, after paying the duty, he could not sell the article, which was the [*310 sole and only object of its importation. The court said, that, although the imported article was within the State, yet, so long as it remained in the original package in which it was imported, it could not be considered as having become so identified with the mass of property in the State as to subject it to the power of taxation by the State. In support of the doctrine for which I am now contending, I beg to refer the court to the opinion of Judge Johnson in the case of Gibbons v. Ogden (9 Wheat., 227), by which it will be found that he takes the distinction between foreign commerce and the commerce among the States. The court declared that the power to regulate is exclusive, although that was a case of collision between the State law and the law of Congress. In the case of Brown v. The State of Maryland, the decision of the court was substantially the same. I contend, then, both upon principle and upon authority, that the power to regulate commerce with foreign nations is vested in Congress exclusively; that the States have no power to interfere with it; that commerce means intercourse, and that passengers are as much a part of that commerce and intercourse as goods or merchandise; that no State has the power of making any reg ulations upon the subject, and most assuredly not of laying and collecting an import duty upon passengers imported or brought into the United States. (1 Tucker's Black., Appendix, page 150; 3 Madison Papers, 1585.) Before I leave this point of the case, I would call the attention of the court to the opinion of our State Legislature upon this subject-an opinion entitled to some little weight in this case. [Mr. Ogden here read the resolution passed by the Legislature of the State of New York, in February, 1847.] In the opinion, then, of the Legislature of New York, passengers are a part of the commerce of the country, which Congress have the power to regulate, and the regulation of it belongs to Congress by virtue of the Constitution, and the State Legislature cannot legislate on the subject. This, it seems to me, is the plain language of this resolution. Now, I think taxing passengers has something to do with regulating the commerce and intercourse between the United States and foreign nations, and in the language of the Legislature in this resolution, that regulation “belongs, by virtue of the Constitution, to Congress." The case of pilots has frequently been referred to as a regulation of commerce, and therefore within the powers given to Congress; and in these cases the power of Congress has never been held to be exclusive, but State laws 311*] are constantly passed on that subject, and their validity has never been questioned. I propose to make a few more observations upon this subject. The only power which Congress can possess over pilots must be derived from the power given to them to regulate commerce. There is no express power given as to the regulation of pilots. And unless the regulation of pilots can be considered as a regulation of commerce, it is not within the constitutional power of Congress. And it may be well doubted whether the reg ulation of pilots can be considered as a regula tion of commerce. Pilots are rather a necessary aid to the successful carrying on of commerce than a regulation of commerce itself. A power to regulate commerce would hardly confer the power of regulating ship carpenters, and yet they are essential to create the very means, and the only means, by which commerce can be carried on. Pilots are, it seems to me, rather to be considered as belonging to the port arrangements, such as the places where ships from different places may be anchored, as to the wharfage, &c., all of which are now considered as regulations of commerce, al though the commerce of the country may be, and often is, materially affected by them. The regulations of commerce should be uniform throughout the whole country. This never can be the case in the regulation of pilots. Different skill and experience are required at different ports. The distance which the pilot must conduct vessels is different at different ports; the dangers to be avoided are more numerous and greater at some ports than others. The charges of pilotage must, therefore, be greater at some ports than at others. No uniform regulations can, therefore, be made upon the subject. The whole spirit of the Constitution is, that the commercial regulations of Congress should be uniform throughout the whole country; and as it is impossible that the regulations of pilots should be so, it affords a strong argument to prove that their regulation never was intended to be given to Congress. Again, the regulation of pilots can hardly be considered as a regulation of foreign commerce; it is a mere local matter, confined to particular | ports and harbors, and may, therefore, be considered as a subject upon which the States may legislate, and their laws be valid, until they come in conflict with the laws of Congress. conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively hereafter enact for the purpose, until further legis lative provision shall be made by Congress.' The words of this section are peculiar. Congress make no regulations as to pilots, but leave them as they were regulated by the States. They are to continue subject to the regulation of State laws then existing, and such State laws as may hereafter be enacted by the States, until further provision shall be made by Congress; seeming to act upon the principle that the State laws would be valid until interfered with by Congress. The provision is found in an act for establishing and supporting light-houses, beacons, buoys, and public piers. The objects of the act are local, and though intended for the security and safety of the commerce of the country, they cannot be strictly called regulations of commerce. As to foreign commerce, no foreign nation could complain if we had no lighthouses, no beacons, or buoys. These are things for our own advantage and convenience, by making our ports more accessible to ships and vessels. They are peculiarly advantageous to the particular ports near which they are found, and might, therefore, well be left to State legislation. Noscitur a sociis. The provision in relation to pilots in this law is to be judged of by the other provisions found in the law, none of which can be considered as commercial regulations in the sense in which the terms are used in the Constitution. The only other law ever passed by Congress in relation to pilots was passed on the 2d of March, 1837, which declares that it shall and may be lawful for the master or commander of any vessel coming into or going out of any port situate upon waters which are the boundary between two States, to employ any pilot duly authorized by the laws of either of the said States bounded on the said waters, to pilot the said vessel to or from the said port, &c. It will be perceived, that this act does not pretend, in any part of it, to be a regulation of pilots. It regulates ship masters, if it can be called a regulation at all, and it authorizes them to employ certain pilots; but it is no regulation of those pilots. I have been thus particular upon the subject of pilots, because I am confident that Congress never have attempted any regulation of them; that any uniform regulation, which is the only regulation Congress could make on the subject, is, from the nature of the subject, impossible; and that the only provision *Congress [*313 have ever pretended to make upon the subject is to consider them as local matters, like lighthouses, &c., and therefore have left them properly to State laws. There can be no doubt that any State may erect and maintain a light-house, may plant And this seems to have been the understand- buoys and beacons for the benefit and advantage ing of Congress. At their first session under of its own ports and harbors. So may any indithe Constitution, in August, 1789, in An Act for vidual, and these, although they may be exthe establishment and support of light-houses,tremely useful to commerce, cannot be called beacons, buoys, and public piers," we find a section declaring that all "pilots in the bays, in312*] lets, rivers, harbors, and ports *of the United States shall continue to be regulated in regulations of commerce. And pilots stand upon the same footing, and are so placed by the Act of Congress of 1789. We may say of the laws relating to pilots, as 1849 PASSENGER CASES-NORRIS V. THE CITY OF BOSTON. Chief Justice Marshall says of the inspection | pose a similar tax upon passengers. Because, This clause, it is true, is a limitation upon the powers of Congress, and is not applicable in its terms to State legislation on the subject. But the words are general, and if Congress, who have the power of regulating the commerce of the country, and the revenue arising from that commerce, have no power to give the preference mentioned in this clause of the Constitution, surely a State which has no power to regulate commerce, and has nothing to do with the revenue derived from it, can give no such prefer ence. The intention of this clause in the Constitution evidently is, that the regulations of commerce and of its revenues shall be equal and uniform in all the ports of the United States. It was the inequality existing in these respects in the different ports of the United States which, more than anything else, gave birth to the Constitution. Now, a very important part of the commerce and intercourse between the United States and Europe is the transportation of passengers. The passage money received from passengers is a most important item in the freights carried by our merchant ships. This tax upon passengers is in effect a tax upon the ship owner. He may, indeed, add it to the amount he If he does so, he is charges for the passage. compelled to charge so much more for a passage to New York than is charged to any other port. The great body of our immigrants, many of whom bring with them large families, cannot afford to pay an additional dollar for themselves and each individual of their families, 314*] *and they will therefore sail for other ports. The consequence is, that the ship owner in New York must lose the passage money altogether, or he must consent to pay the dollar himself. The amount of this tax annually paid is much larger than is generally supposed. By the report of the commissioners of immigration, made on the 1st of October last, it appears that, from the 5th of May to the 30th of september, not quite five months, the number of passengers, foreigners, who arrived at New York was 101,546. For the remaining seven months of the year they may be fairly estimated at 100, 000 more, making 200,000 in a year, which is a tax upon our ship owners of $200,000 per annum. The court will now see that these merchants have good reason for appealing to this court for the establishment of their constitutional right to be put upon an equal footing with the ship owners in the other ports of the United States. It is no argument against us upon this point to say, that some of the other States also im My argument upon this point applies with I have now stated the several grounds upon First. That the validity of the law is con- Second. That they are ready to abide by, and to submit to, any decision this honorable court may make upon the subject. As a citizen of New York, I am proud to say, that, although there is no State in the Union whose laws have been so frequently before this court as violating the Constitution, yet there is no State which has ever shown greater respect and veneration *for the Constitution [*315 and for this honorable court, by always submitting without a murmur to its decisions. The pride of New York is, that she is a member of this republic-that the republic has a Constitution made and adopted for the purpose of preserving the peace, prosperity, and happiness of the people. She believes that on the preservation of this Constitution depends our And however, Union, that upon our Union depend the happiness and prosperity and the liberties of the people of these United States. in New York, we may differ among ourselves upon minor points, the greatest wish of our may be perpetual. hearts is that this Constitution and this Union NORRIS v. CITY OF BOSTON. The following is a sketch of the argument of Mr. Davis, for the defendants: He said he rose to address the court with unaffected distrust and diffidence in his ability to The only circumstance add anything new in a case that had been so fully investigated. which inspired him with confidence was the order of the court directing the rehearing, fully executed by confiding the case to other which he thought would have been more usecounsel; but he had found it not entirely easy to pursue this course, as the Executive of the State had manifested a wish that he should remain in the case. The great question involved was the constitutionality of the Act of Massachusetts of 1837, regulating the introduction of alien paupers. The plaintiff's counsel alleged, substantially— 715 SUPREME COURT OF THE UNITED STATES. 1st. That Congress has the exclusive power to regulate foreign commerce. 2d. That in a case like that of the law of Massachusetts it is unnecessary to prove any conflict with any law of the United States, for the act of Massachusetts assumes to regulate foreign commerce, which is of itself a violation of the Constitution. 3d. That the bringing in of alien passengers is a part of foreign commerce, and hence any attempt to regulate concerning them is a regulation of commerce. 4th. That nevertheless the law of Massachusetts does in fact conflict with certain legislation and certian treaties of the United States. 5th. That the law furthermore falls within certain provisions of the Constitution, which prohibit the levying of a duty on imports, and also on tonnage. We contend, on the other hand— 1st. That the power of Congress over foreign 316*] commerce is *not exclusive, but is and has at all times been exercised, both in regard to foreign commerce and the commerce between the States, concurrently within the territory of the State, and that no regulation of a State within its territory has been or can be adjudged unlawful, unless it be repugnant to or incompatible with some law of the United States. 2d. That, consequently, although alien passengers are brought in by vessels engaged in foreign commerce, yet they must be subject to and obey the police laws of the State, unless such laws are in collision with laws of the United States. 3d. That the law of Massachusetts does not conflict with any act or treaty of the United States upon the subject of passengers. 4th. That it does not fall within the clause of the Constitution prohibiting the levy of duties on imports or upon tonnage, but is a police act for the regulation of paupers and pauperism. I shall notice all these positions, but not in the order in which they have been stated. First. I shall contend that the law of Massachusetts was not made for the purpose of regulating foreign commerce, although it affects it so far as is necessary in providing for the regulation of a class of persons connected with it, but it is in fact an act modifying the pauper laws of the State, and designed to mitigate, in some degree, the burdens attempted to be thrown upon us in subjecting us to support the alien poor. This can be made manifest by tracing the history of our legislation upon this subject, and the causes which have led to it. It will appear that the Colony, Province, and State, each in turn exercised a free, unrestrained authority over paupers and pauperism. I shall do little more than refer the court to some of the laws, and state in the briefest way their provisions. In 1639 there is an act of the colony providing for the poor, which evidently alludes to still earlier laws. (Ancient Charters and Colony Laws, 178.) This act made it the duty of towns, not only to provide for the poor, but for all alike, whether native inhabitants, alien sojourn ers, or transient persons. 1849 In 1693 provision was made for the forcible another, but out of the colony; and further removal of paupers, not only from one town to provision of the like kind was made in 1767. (Ibid., 252, 662.) thorized and required *to bind out as [*317 felons, convicts, and infamous persons are vessels, if required by the overseers of the poor By the statute of 1819, c. 165, masters of in any town, are obliged to give bonds to indemnify the town for three years against any cost or charge from persons brought in, who might become paupers. vessels are required to give bonds to indemnify By the statute of 1830, c. 150, masters of the towns where they may land alien passengers against liability for their support as paupers, unless excused from so doing by the overseers of the poor. And there is a further provision, that, by paying five dollars for any passenger, the claim for a bond should be commuted. stantially into the Revised Statutes in 1836. These various provisions were carried sub hundred years from the first legislation now on Thus stood the law at the end of nearly two record, by which it appears that the Colony, Province, and State had in succession asserted ism. They asserted, not only the right to coman unlimited power over paupers and pauperpel the body politic to provide for the poor, but contribute, if able; they bound out poor chilthey made the relatives within certain degrees dren, expelled from their territory paupers which belonged elsewhere, denied to such the right to come in, and also shut out convicts, manifestly the highest prerogative over the felons, and infamous persons. They asserted time, considered its power in this respect unwhole subject, and the State has, down to this abridged. They went to the extent of determining for themselves of what and of whom their residents should consist, maintaining this right as well after the adoption of the federal Constitution as before. the King of England appointed a commission ing an unexampled mass of evidence, reported In 1692 provision was made compelling the| relatives of poor persons to contribute, when mission found that several of the parishes had The great fact material here is, that the comable, to their support. (Ibid., 252.) already adopted emigration as the most sure 716 |