and effectual method of obtaining certain relief. | power of New York could not be more approThey had, therefore, raised money to pay the priately exercised than in providing against the charges of shipping paupers to foreign lands. evils of pauperism. Also, at page 142, they The commission give it as their opinion, that declare pauperism to be a moral pestilence, as this mode of disposing of paupers promised much requiring protective measures as contamuch, and ought to be encouraged The fruits gion or infection. In Prigg v. Pennsylvania (16 of this policy were soon visible among us. In- Peters, 625) the court say that the right to expel deed, such a fraudulent conspiracy to relieve paupers and vagabonds is undoubted. The themselves, not only of the obligations of hu- same principle is recognized and approved in manity, but of the expense of supporting their the License Cases (5 How., 629).. own helpless population, could not remain long concealed. Idiots, lunatics, the lame, the aged and infirm, women and children, were thrown upon our shore destitute of everything, and our poor-houses were filled with foreigners in this hopeless and helpless condition. The same plan of relief was also adopted at a later day on the Continent, and we seemed in a fair way to become the poor-house of Europe. The evil has gone on increasing, until not only the poor-houses and hospitals are full, but in Boston and New York immense sums have been expended in mitigating the sufferings of the alien poor and distitute. These authorities, as well as the case of Holmes v. Jennison (14 Peters, 540), place the right of the State not only to regulate, but to expel, paupers in a very clear light. The State having this right, has she so used it as to regulate unlawfully foreign commerce, or has she usurped the taxing power of the United States? The ground assumed is, that the power of Congress to regulate commerce is exclusive, and hence the State can make no law which affects such commerce without regulating it unlawfully. This power is not, by the terms of the grant, any more exclusive than the power over militia, or the right to make bankrupt laws. Upon equally manifest that the court have not so settled the question. There are dicta which seem to look that way, and some learned judges who have sat upon this bench have expressed themselves as satisfied with these dicta; but there are dicta, also, the other way. equally respectable. The proof of these coming events was unexamination of the adjudged cases, it will be mistakable farther back than 1837, when the act of Massachusetts now in question became a law. The State saw, not only parishes which were insensible to the dictates of humanity and capable of transporting their poor and destitute to unknown lands, there to leave them to the mercy of strangers, but relatives and kindred regardless of the ties of blood, who were willing to thrust from them the aged, the infirm, the insane, and the helpless, and to place them be yond the possibility of a return. These were the circumstances which, in 1837, demanded legislation, and the act, in our view, met the exigency, and nothing more. It secures two things: first, a bond to indemnify against the liability for the support of those wholly incapable of providing for themselves; and, second, two dollars for each and every other alien passenger. This bond and money must be furnished before the passengers are permitted to land. It is admitted that the provisions of the act are reasonable, so far as regards the class who come in forma pauperis, but the law in other respects is alleged to be invalid. It was said. among other things, that we lay hold of a ship before she comes to our jurisdiction; but this is evidently a total misapprehension, for she must, by the terms of the act, be within our 319*1*waters, in the port or harbor where the passengers are to be landed, before she is boarded and the passengers examined. The act is in every feature manifestly a pauper law, growing out of a pressing emergency, and although as lenient as the circumstances would allow, yet our right to make and enforce it, is denied. We have seen that the State has exercised for two hundred years the right to make pauper laws. Can she do it now? I contend that this power is one of her attributes of sovereignty, which she has never surrendered, and now has the right to enjoy. The position assumed by the counsel is, that a State law made in the exercise of lawful power is unconstitutional, if it affects foreign commerce. This conclusion, I contend, cannot be maintained. Gibbons v. Ogden (9 Wheat., 1) is the leading case in which this question of exclusive author ity has been agitated, and is the case supposed to give countenance to the idea that the power *is exclusive; and yet the court mani. [*320 festly studiously avoid deciding the question. On the contrary, they give a construction to the powers and laws of the States irreconcilable with such conclusive rights as are now claimed. The court concede, in distinct terms, that the laws concerning pilots and pilotage, quarantine, health, harbors-in short, police laws generally-are constitutional, though they do interfere with, and to some extent regulate, commerce. They rest on the police power of a State exercised for necessary purposes, and are police laws-not laws regulating foreign commerce. It is obvious that police and municipal laws do and must exist, to a great extent, and must, from the character of our government, deal with and affect foreign commerce. Debts must be collected and crimes punished; ships must be under sanitary and harbor regulations; pilots are indispensable; in general terms, life, property, and personal rights must be protected. All such laws, in their application to those engaged in foreign commerce, must affect, and influence, nay, often tend to regulate, that commerce. They cannot be executed That she has not granted it to the United without, and, moreover, most of them must be States, and that they do not possess it, is ob- State laws, and cannot be supplied by the Unitvious. And it is equally obvious that the States ed States, if they had power to do it. The have generally exercised this power since the court saw all this when considering Gibbons v. adoption of the Constitution. In New York v. Ogden, and declare, in terms not to be misapMin (11 Pet., 141) the court say the police|prehended, that police laws come from the SUPREME COURT OF THE UNITED STATES. may 1849 acknowledged power of the State. They are. | persons, and not be in collision. State laws The court were manifestly of opinion, that health laws, harbor laws, and police laws generally, do not conflict with the power of the or every seeming conflict, then, that amounts It is not legislation upon the same subject, United States to regulate commerce, nor dis to unconstitutional collision. The rule appliturb the harmony of the governments; but cable to collision is laid down with some disboth the States and the United States may and tinctness in 1 Story's Com., 432: ought to exercise their respective powers to implied limitations or prohibitions it is not gether in the ports which are common to both. sufficient to show a possible or potential inconIn cases of The doctrine distinctly maintained is, that all venience. There must be a plain incompatibil police laws are constitutional unless in conflict ity, a direct repugnancy, or an extreme potenwith some law of the United States. opinion is fully sustained in the case of New This tial inconvenience, leading to the same result." York v. Miln (11 Peters, 102), and in the Li-ient, and yet constitutional. The system *A law may be potentially inconven [*322 cense Cases (5 How., 504). work together in the same territory, and upon presupposes that the two governments must the same objects, or they cannot enjoy the functions confided to them. therefore, is to harmonize their action, and reconcile as far as possible the exercise of the The first object, ample, has the care of life and health, the powers belonging to each. other of commerce; but life and health cannot The one, for ex be protected without controlling commerce. The object, then, should be to harmonize both, by not bringing into conflict any laws which can be reconciled by a liberal and fair interpretation of the Constitution. This is irreconcilable with the proposition of the plaintiff's counsel, that such a law may be unconstitutional without collision with a law of the United States, and proves, moreover, that the power to regulate commerce is not exclusive. The extent of the police powers of the State, and their right to concurrent jurisdiction over 321*] foreign commerce, for *many purposes, within a State, are illustrated in the same case in another way, still more conclusive. The court say that police measures may be similar to the measures of the United States, the forms of law may be the same as those employed by the United States to regulate commerce, and yet such police acts are not unconstitutional, unless they come in actual collision with the laws of the United States. The case, therefore, of Gibbons v. Ogden falls far short of maintain ing the exclusive power over commerce which is set up in this case. Thus stood the law in 1847, when the subject came under the consideration of the court in the License Cases (5 Howard), when a majority of the bench concurred in opinion 1. That the question had not been judicially settled. 2. That the power to regulate foreign commerce is concurrent. 3. That there neither is, nor can be, any un constitutionality in State laws regulating for eign commerce within State territory, unless such laws are in conflict with some law of Congress, The question being thus finally disposed of, I come to the inquiry, whether there is any law of the United States in conflict with the law of Massachusetts. The plaintiff's counsel allege that such conflict does exist. fore examining the laws said to be collision, I But bewill ascertain, as far as I am able, the principles upon which unconstitutional conflict rests. The Constitution of the United States declares that the laws of the United States shall be supreme; and it has been often held, that, in case of conflict, the law of a State must yield. But when does illegal conflict exist? What is the evidence of it? State laws may be similar to those of the United States, may act upon the same subjects and deal with the same 718 and incompatibly plain, and hence it is that Hence it is that repugnance must be direct mere inconvenience is not to be regarded, and hence it is that the rule substantially excludes all cases of collision, except those which cannot be reconciled. If a navigator be arrested on board of a vessel about to sail, or the ship be venience. If the vessel and crew are detained seized for debt, it is attended with incon at quarantine, or she is compelled to deposit ballast in a particular place, it may be inconpilot. And yet it is manifest that, in most of venient; and so it may be to take and pay a right to make and enforce laws, and the law of these matters, the States do and must hold the Congress neither can, nor was it ever designed collision must conform to this state of things. it should, provide for all the public wants and exigencies, in seaports, Hence the necessity of a concurrent, instead of an exclusive, jurisdiction in the regulation of commerce. quiry, whether the acts which have been re- Large, 661), exempts from duty the apparel, 488), secures to passengers ship room, by limit- It requires. also, the master to report a list | to the Union; that it is to be concurrently exerof the passengers. cised; and that these are truths which have never been denied. These are all, except the last provision, designed to secure the comfort of the passengers while on the voyage. The law of Massachusetts neither impedes, modifies, nor changes any of the provisions. Indeed, the only thing 323*] in common to these *acts and the law of Massachusetts is the fact that they relate to passengers. This last named act was considered in New York v. Miln, and the law of that State declared not to be in conflict. It seems to be supposed that a State has no power to legislate in regard to passengers; but this is a misapprehension. Because, as I have shown, the State has the right, as it possesses concurrent power over the subject, and because it does and has exercised the power in regard to quarantine and health, subjecting passengers to detention and rigorous restraint. The pauper law of Massachusetts is as much a police act as the health laws, and there is as urgent necessi ty for guarding against the evils of pauperism, as against contagion. In 2 Story's Com., 410, sec. 937, the author says: "That the power of taxation remains in the States, concurrent and co-extensive with that of Congress, the slightest attention to the subject will demonstrate beyond controversy." In the License Cases (5 How., 582) the Chief Justice says: "The State power of taxation is concurrent with that of the general government, is equal to it, and is not bound to yield." Same case. p. 588, Justice McLean says: "The power to tax is common to the federal and State governments, and it may be exercised by each in taxing the same property; but this produces no conflict." Most of these principles are fully recognized in Providence Bank v. Billings (4 Peters, 561). In McCulloch v. Maryland, in answer to a suggestion that the States might abuse so unlimited a power if the law of the United States is not supreme over it, the court say: "This vital power may be abused, but the Constitution of the United States was not intended to furThe counsel next referred generally to the nish the corrective for every abuse of power naturalization laws, leaving us to infer that the which may be committed by the States. law of the State is in conflict with all of them. The only security against abuse is found in the This may be so, but I have not sagacity enough structure of the government itself." Again, at to see in what way this conflict exists, or how page 428: "It is admitted that the power of the process of naturalization has any connec-taxing the people and their property is essential tion with foreign commerce, as it cannot occur until long after the subjects of it have arrived in the country. The connection, if any, is too remote to demand notice. It is next said to be in conflict with the Treaty of 1794 with Great Britain; but this treaty was abrogated by the war. The Treaty of 1815, in its first article, is not very dissimilar from the fourteenth article of the Treaty of 1794. It secures reciprocal liberty of commerce to the subjects of each country; but the terms are express, that persons doing business in the one country or the other shall be subject to the laws where they are. The laws of Massachusetts cannot, therefore, conflict with any rights secured by that treaty. On the whole, there is no direct repugnancy or plain incompatibility with any law or treaty of the United States, and therefore no unconstitutional conflict. Indeed, it would be more than difficult to distinguish this law of Massachusetts, in its influence upon foreign commerce, from numerous police acts of the States. If no other objection than collision can be found against the law of Massachusetts, it must remain in force. But other objections are raised. The right of the State to collect of the owners of a vessel two dollars for each alien passenger is denied, and this provision is supposed to furnish proof that the act is a regulation of commerce. It becomes necessary, therefore, to inquire what right a State has to impose taxes, and whether it is restrained from imposing this tax upon ship owners. to the very existence of the government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it.' Again, at page 429: It is obvious that the right of taxation is an incident of sovereignty, and is co-extensive with it." The sovereignty is therefore the limit of the power. In Weston v. City of Charleston (2 Peters, 449) it is said: "Where the right to tax exists, it is a right which acknowledges no limits. It may be carried to any extent within the jurisdiction of the State." In Providence Bank v. Billings, "The power may be exercised on any object brought within the jurisdiction." The power, then, is vital, essential to the existence of a State, unabridged, concurrent, coextensive with that of the United States, coextensive with the sovereignty of the State, applies both to persons and property, knows no supreme law over it, may reach any object brought within the jurisdiction, *and [*325 may be carried in its application to any extent the government chooses." This summary of the power is sufficient. It needs no commentary, being as broad, comprehensive, complete, and exclusive as can be desired; and yet we are asked if the State can tax a ship or a passenger. There is manifestly no limitation, except the prohibitions contained in the Constitution. The State may tax ships, wharves, warehouses, goods, men of every description, though engaged in commerce, unless restrained by positive prohibitions. On this point I find the doctrines held by the 324*] court so precisely *and clearly laid This brings me to inquire what the prohibidown, that I shall do little more than cite the tions are. In art. 1, sec. 10, is found the follanguage of the bench. In McCulloch v. Mary-lowing language: No State shall, without the land (4 Wheat., 425) the court declare, that the power of taxation is of vital importance to a State; that it is retained by the States; that it is not abridged by the grant of a similar power consent of Congress, lay any imposts or duties on imports or exports, except, &c. ... No State shall, without the consent of Congress lay any duty of tonnage." These constitute the only limits to the power of taxation. It is in The law of Massachusetts imposes no duty In Brown v. Maryland (12 Wheat., 437). Again, he says: "If we appeal to usage for It is supposed that the ninth section of the first article of the Constitution gives some countenance to the opinion, that men are imports; but this clause manifestly relates to slaves and the foreign slave trade, and the right to tax those persons imported was doubtless given to discourage the traffic. As soon as the twenty years ran out, Congress suppressed the traffic, which indicates clearly the understand 326*]ing in regard to the provision. *Moreover, the whole history of immigration shows clearly that the framers of the Constitution never anticipated interposing obstacles to it. While, however, it is admitted that men are not usually classed with imports, yet it is contended that, in the form of imports, or as a tax generally upon commerce, the requirement of two dollars for each alien passenger is unlawful. I deny that any such inference can be drawn, without manifest violation of the constitutional rights of the States. If any proposition is proved by authority piled on authority, it is that the right of taxa tion is co-extensive with the jurisdiction of the State-that it reaches all objects within that jurisdiction-is uncontrolled by any superior power in the United States, having no limitations upon it except the prohibitions contained in the Constitution. Everything except duties on imports and tonnage is left open for the States to exercise their authority upon it, when and in what manner they see fit. The right to tax everything connected with foreign commerce save these two things is unquestionable. This right is the thing declared by the court to be vital, sacred, indispensable to the existence of a State-a right which cannot be relinquished-a right not bound to yield to any other authority. This vital, sacred, fundamental right, the relinquishment of which cannot be presumed, is not a matter to be impaired or frittered away 720 1849 by construction. It cannot be diminished or more than what everybody understands to be tion to imports and tonnage, as the language plaintiff's counsel, that, if a tax has any bear- employed in foreign commerce, or connected The fact that taxes upon men or property therewith, would have a bearing upon it, and tend to regulate it, was as well known when the Constitution was made as at this time, and yet the right to impose such taxes is manifestly left in the States. It is said, nevertheless, that a tax upon comlate it, as if it were upon imports or tonnage. merce in any form, tends just as much to reguThis may be true; but as this power was purposely left in the States to this extent, the presumption is, that the makers of the Constitution intended they should have the power to regulate commerce to this extent. But if the doctrine contended for be admitpart of a State to tax anything connected with ted, it would utterly defeat all right on the foreign commerce, as the tendency of all taxation on such property or persons is to regulate it. Capital, ships, warehouses, goods, men, all would, upon this principle, be exempt, and yet we know, not only by practice, but from authority, that this unabridged right does extend to all these objects. In 5 How., 576, the Chief Justice says by construction, which is not taken from the plain. No State shall lay a duty on imports or tonnage. Is this a denial of right to tax men or any other thing? Is anything reserved exclusively to the United States except imports and tonnage? And if not, how can a State be denied the right to its sources of revenue to the fullest extent? We think the boundaries of jurisdiction are plainly marked by the language of the prohi bition, and that it would be an unpardonable violation of the rights of the States to cover objects which are manifestly excluded. But the case of Brown v. Maryland (12 Wheat., 419) is much relied on to authorize a blow at the rights of the States. By this decis ion, two questions were raised and settled. 1. That a tax of $50 upon an importer, as 328*] such, for a license *to sell, and making it penal to sell the goods imported by himself before he pays such a tax, is tantamount to a duty on the goods imported, and therefore within the prohibition of the Constitution. This case assumes that, if an importer is thus taxed, and denied the right to sell before he pays the tax, he is taxed because he is an importer and engaged in that business, and such a tax is evasive in form, for in substance it is a tax or duty on imports. The court take the ground, that what cannot be done directly cannot be done indirectly, but that the act, which, when done indirectly, is equivalent to its being done directly, must be clearly the same thing as that which is forbidden. In other words, it must be a manifest case of evasion--one about which there can be no reasonable doubt. The court admit the right to tax classes of men, but deny the right to tax the importer because he imports, for that is equivalent to a duty on imports. The decision of the first point comes to this and no more. The State may levy any tax which is not obviously a duty on imports, but it cannot, by indirection, do the precise thing forbidden. It seems to us very clear that men are not imports, nor were they ever thought of by the framers of the Constitution as reserved sources of revenue to the United States. 2. The court decided that such a tax upon the importer was a regulation of commerce, and therefore unconstitutional. The court maintained, that the importer who paid a duty to the United States was in fact the purchaser of a right to sell his goods, and they deter mined that this right was secured to him while the goods in the original bale remained in his hands, but no longer. The right, there fore is limited to the importer, and to goods in the original bale in his hands. The court were of opinion, that the right to tax imports in the original bale, if exercised by the States, might be carried so far as to defeat the sale, and in that case the tax would regulate the disposition of the goods by frustrating the trade. They therefore come to the conclusion, that the right to import implied the right to sell, under the limitations which have been stated. This doctrine is probably pushed quite as far as the Constitution will bear. But passengers are not bales of goods, or articles of commerce, nor are they brought in to sell. No trade is defeated or frustrated by the law of MassaHOWARD 7. U. S., BOOK 12. chusetts, nor is any commerce by water or on land regulated. The doctrine, therefore, maintained on the second point decided can have no application to the case under consideration. There is, then, I apprehend, nothing in Brown v. Maryland *which tends to [*329 render the law of Massachusetts one of questionable authority. Men, I repeat, are not imports, or articles of trade or traffic. If they are, I would ask, Who is the importer? Who trades in them? Who claims the right to sell? Nor is there anything in the more general view of the question which can support the view that they are constructively imports. Why do not the counsel contend that they are tonnage? This has been done in the progress of this case, though it now seems to be abandoned. It was said at one time, that one of the acts of the United States connects passengers with tonnage, as it forbids masters the right to bring more than two for each five tons of shipping, and hence the tax of Massachusetts was alleged to be a tonnage duty. Nothing can illustrate more forcibly the danger of converting a tax upon a ship owner or master for bringing in passengers into a duty on imports or a duty on tonnage than the fact that ingenious minds hesitate and disagree as to which of two classes of things so utterly different in their character it shall be assigned. It proves, what is true, that there is no similarity to either, nor any congruity in the association. I trust, then, the power of the court will not be strained to diminish an obvious right of the State, in order to add to the increasing power of the United States. I will now, without pursuing this inquiry further, return to an inquiry which I reserved in the outset. I have maintained that the law of Massachusetts is a police law, and although I have argued the two dollar assessment as a revenue measure, yet I maintain that the police power carries with it a right to provide for the expense of executing any law which the public exigency demands. Before considering the right of raising money, I will invite the attention of the court to the rights which the States are acknowledged to possess in regard to police authority, that we may see whether the law of Massachusetts oversteps the known limits of that power in dealing with individuals, or with the United States, or in raising money.. In 16 Peters, 625, it is said: "We entertain no doubt whatever that the States, in virtue of their general police power, possess full jurisdiction to arrest and restore runaway slaves, and to remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers." |