Argument of Counsel describing the yellow fever epidemics and history of quarantine law.
Mr. Willis Hall, for the defendant in error.
On the former argument of this cause, the distinguished counsel who will conclude this discussion illustrated it by supposing a citizen of the United States coming from Charleston by water to arrive in the harbour of New York; it may be a member of Congress, on his way to discharge his legislative [48 U.S. 283, 338] functions in the Capitol, or it may be one of this honorable court, proceeding to his seat in this august tribunal. His progress is arrested, and he is not allowed to proceed until he has paid a dollar to an official of the State or city of New York. This is true. Nor is this citizen allowed to enter the city at all, if infected with the yellow-fever or any other infectious disease. And if he approaches the city by land, he will not be allowed to enter the ferry-boat at Jersey City until he has paid the toll.
It would be a truer illustration to suppose a citizen or an alien,-no matter whom, the President of the United States or the humblest individual that ever entered the harbour,-any person capable of being the vehicle of infectious disease,-to approach our city, bringing infection, bearing death to thousands,-an approach more dreadful than that of an invading army. He is repelled,-justly repelled,-by the express authority of the law of nations. (Vattel, Book 2, ch. 9, 123.)
By whom is he repelled? By the Federal government? Under what clause of the Constitution? Under which of its powers? Under its commercial power?- A traffic in contagion! a tariff upon disease! Under its war power?-A war with the king of terrors! No. The State, and the State alone, has the power, and alone is charged with the duty, of repelling disease, and of guarding its confines from the entrance of whatever might injure its citizens.
To turn away the stranger to perish was uncivilized and unchristian; but long experience proved that it was also unsafe. Men thus desperately situated would find means to communicate with their friends on shore, and thus the infection would be propagated in spite of all efforts at prevention.
The perception of this necessity, increasing wealth, a better civilization, and a larger infusion of the Christian maxim, 'Do as you would be done by,' at length erected a hospital on the coast, in connection with the quarantine, for the exclusive use of all persons entering our harbour from the sea, until they can safely be permitted to enter our thronged city.
How should the expenses of the quarantine and its appurtenances be defrayed? By the passenger, or by the State? The State did not invite the stranger to her shores. He did not come for her benefit. The misfortune which has fallen upon or threatens him is not of her procuring. Why should she divide the evil with him?
It is eminently proper that the passenger should pay all reasonable and proper expenses. He receives all the direct benefit, and the maxim applies, 'Qui sentit commodum debit et sentire onus.' Here the State is indirectly benefited. So it [48 U.S. 283, 339] is by a turnpike; but the traveller, who receives the direct benefit, pays the toll. So in Europe it is supposed that the safety of society requires the adoption of a law in every nation that no one shall travel through the territory without a passport, but the traveller, and not the State, pays for the passport. The State is under no obligation to permit the passenger to enter her territory at all. Nothing can be more reasonable, therefore, than that she should make it the condition of his admission, that he should pay all the expenses which his admission occasions.
The record in this case shows, that, some time in 1841, the plaintiff, as master of the ship Henry Bliss, brought into the port of New York, from Liverpool, a foreign port, and landed, two hundred and ninety-five steerage passengers.
1 Revised Statutes, p. 436, 7, requires 'the health-commissioner of the port of New York to demand, and, in case of refusal or neglect to pay, to 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.:- For the master and each cabin passenger in a vessel arriving from a foreign port, one dollar and fifty cents. For each steerage passenger, mate, sailor, or mariner, one dollar.'
The defendant, as health-commissioner, demanded of the plaintiff, as master, & c., the sum of two hundred and ninety-five dollars for the use of the quarantine, for that number of steerage passengers brought by him in his vessel as aforesaid. The master refused to pay, and the health- commissioner sued, as required by the statute.
The action is debt on the statute. The master demurred, on the ground that the State law is contrary to the Constitution of the United States, and void.
The Supreme Court of New York overruled the demurrer, denying that the State law is contrary to the Constitution of the United States, and declaring that the principle involved is essentially the same as that involved in the case of New York v. Miln, 11 Peters, decided by this court in favor of the State law.
The master appealed from this decision to the Court of Errors, the highest court in our State, and that court unanimously affirmed the decision of the Supreme Court. From that court the master has appealed to this high tribunal, and the only specification which he makes of the unconstitutionality which he alleges against the State law is, that it is a regulation of commerce over which the State has no jurisdiction.
This cause has already been once elaborately argued before the court. Cases involving analogous principles have since [48 U.S. 283, 340] been fully discussed by very eminent counsel. This re-argument which has been ordered admonishes me that the case itself has been thoroughly investigated by the court, which, after viewing it in every aspect, by the light of all the arguments which have been suggested, still finds itself perplexed with doubt and surrounded with difficulties.
Under these circumstances, far abler counsel might well despair of being able to present a new view of the case, or a new argument; but if I cannot hope to enlighten, I will promise at least not to detain the court longer than is necessary to run rapidly over the brief which I have prepared.
I. Our quarantine, as now established, rests upon two laws, both passed on the same day, both having a common origin, both made with obvious reference to each other, although by different legislatures, and both forming in fact but one law.
The first was passed by the State on the 27th of February, 1799. The second was enacted by the Federal government on the same day. To be understood, they must be collated and traced historically.
Far removed from danger, we now coolly discuss the provisions of laws made in the very agony of fear. We must retrace our steps; we must catch the spirit of the times before we can understand or appreciate the various provisions of those laws.
The State law is the one establishing the quarantine and marine hospital at Staten Island, and which adopts the provision as to passengers substantially as it now exists.
The law which in these days of State rights is sought to be overthrown, as going too far in asserting the separate existence of the States, was passed in the heyday of Federalism and consolidation. It was passed by a Federal legislature, a Federal council of revision, and signed by John Jay, as Governor. If it is obnoxious to the objections now urged against it, the objectionable clauses have not crept in through any oversight or inadvertence on the part of its framers. No law was ever better considered, both as to its efficiency for the purpose intended, and as to its collision with any law of the United States.
This obnoxious law was reported by a joint special committee, of which Aaron Burr was a member and De Witt Clinton was chairman. For ten years prior, the yellow-fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, [48 U.S. 283, 341] that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non-intercourse between New York and Philadelphia. This may be thought to conflict strangely with the doctrine, that the Federal government alone has jurisdiction of commerce between the States, but it may serve as an illustration that the police laws of the States are paramount; that when men are trembling for their lives, no commercial regulations can oppose a moment's obstacle. Fasts were proclaimed in Connecticut and in the neighbouring cities, and when the pestilence had subsided, thanksgivings were proclaimed in this and the neighbouring States. Governor Jay called the attention of the legislature to the subject in his message, and they responded by appointing a joint special committee of the Senate and Assembly, at the head of which they placed De Witt Clinton, then a senator from the city of New York, just commencing that glorious career which has since rendered his name immortal. This act of raising a special joint committee of the two houses is as rare, and almost as significant of great danger impending over the republic, as that of appointing a dictator in ancient Rome. This joint committee reported the law of 1799 as a supplement to the law of 1798. This law contemplated, by an express provision, that the aid of the United States should be sought as far as deemed necessary, and another provision of the law imposed a light charge upon passengers, for the purpose of supporting the establishment.
The system then established has continued without material variation to this day. It seems to have had two objects in view:--
1st. To cut off completely all intercourse between persons under quarantine and the city.
To effect this, the law required that the quarantine should be removed from Governor's Island, which was within three quarters of a mile of the city, to Staten Island, which was more than nine miles distant. It also required a plot of forty acres of ground to be purchased, and a wall to be thrown around it as high and impassable as that of a state prison, that no one might enter or escape without the permission of the health- officer. It also directed that a marine hospital should be built within the wall, and adequate accommodations prepared for all who should be sent to quarantine. [48 U.S. 283, 342] 2d. The second object of the law was to cut off all communication between the vessel and goods, and the city.
To do this, they must put an end to the practice of suspected vessels breaking bulk at the wharves. They doubted their constitutional right thus to interfere with the landing of goods. They were puritanically scrupulous as to their federal duties. But neither Jay, nor Clinton, nor Burr, ever doubted their entire right over persons, either to prohibit their landing or to prescribe such conditions as they saw fit.
To obviate this constitutional difficulty as to their interfering with the landing of goods, they determined to apply to the Federal government. Accordingly, a clause was introduced into the law directing the Governor to make the application if he saw fit. This was the origin of the Federal law. The court will perceive that it is directly connected with the State law, and obviously made with reference to it. Governor Jay had already applied to the Federal government. He induced his friend, John Adams, to advert to the subject as follows, in his message of December 8th, 1798:--
In the response, which was then customary, from the Senate, they reply to this recommendation as follows:--
Thus it appears that neither the President not the Senate contemplated the establishment of a complete system, but merely a law auxiliary to the State systems. Of course it became necessary to examine the State systems, to see what aid [48 U.S. 283, 343] was required, and especially the New York system, with special reference to which this legislation was called for.
In compliance with this recommendation of the President, Congress passed the law of the 25th of February, 1799.
This law begins by requiring the collectors and revenue-officers to observe the restrictions imposed upon vessels by the State health laws, and to aid in their execution. It next provides for landing goods elsewhere than at the wharves of a city. It then requires the parties interested to pay for storage of goods 'landed elsewhere,' &c.
Of this law it is to be observed,--
1st. That it confines itself entirely to goods, over which it was supposed, under its commercial powers and its exclusive right to collect, duties, it must exercise an exclusive control.
2d. That it provides no means of supporting the quarantine. This is a universal charge throughout Europe wherever quarantines are established.
This was not an oversight, for the law provides for the expenses of purifying and storing goods, but says nothing of the expenses of purifying, healing, and maintaining passengers. This omission is fully accounted for by the fact, that all the State laws, and especially the laws of New York, had already provided for the general expenses of the quarantine, and Congress had knowledge of those laws, and was satisfied with them. Another inference from the omission of this essential provision is, that Congress doubted its power to lay a tonnage or other duty for any such purpose. It certainly has no such power except under the general welfare clause, which was then stoutly denied by a party which, two years afterwards, gained the ascendency, which it has subsequently maintained.
3d. A third observation is, that it was passed on the same day with the State law which suggested to the governor the propriety of calling on the Federal government for aid, and the perfect understanding which existed at that time between the two governments leaves no room to doubt that it was passed mainly at the instigation of Governor Jay,-that it was made especially with reference to the New York law,-that the two laws form, in fact, but one,-that to be understood they must be read together,-that the Federal law contains not only a general, but a particular sanction of every section in the State law. In reliance upon these two laws thus established, New York has gone to great expense in forming an adequate establishment for our harbour,-one which has protected the city since its complete establishment in 1805. Of its efficiency, a distinguished physician of New Orleans thus speaks:-'If the disease [48 U.S. 283, 344] is not communicable by infection, how can we account for the fact that in a few years five physicians, health-officers for the quarantine of New York, have fallen victims to it, while there has not been a case known in that city for twenty-two years?'
From the foregoing facts another conclusion arises worth noting. New York has acted in good faith. Under color of police regulations, she has not attempted to regulate commerce. In her legislation, she has had no object in view but protection from disease.
II. The charge which the State, by her law, exacts from passengers arriving in the port of New York to support her quarantine, is merely a common-law toll, and may be defended on the same principles as the ferriage from State Island to the city. All the rules of a toll apply to it.
1st. It is established by the State for the support of work done for the public good, to be paid by those only who are especially benefited by it. 1 Mod. 474; Cro. Eliz. 711.
2d. It is supported by a good consideration, which is necessary to a toll. 2 Wilson, 296; 4 Taunt. 520; 10 Barn. & Cres. 508.
Those who do not go to the hospital receive a consideration, as well as those who do. The probability of advantage is as good a consideration as the actual enjoyment of the consideration.
Ramsgate harbour is supported by a toll upon all vessels, whether they enter or not, which come into a situation from which they would be compelled to seek refuge there in case of a storm. 3 Wm. Bl. 714.
If a port of refuge is a proper subject of toll at a point where it becomes essential in case of a storm, much more is a hospital of refuge, at a point where there is peculiar danger of disease, and when, without it, disease would be death.
This principle of charging those who receive no actual benefit is very common. It is sufficient to instance pilotage. It is part of every system of pilotage, that, if a pilot offers, the vessel must pay pilotage whether she receives or rejects him.
3d. There is an essential difference between a toll and a tax. Tax comes from a word that means the arrangement of the items of the public account. It has long since come to mean the charge which the government exacts of its citizens for its support. A tax is public, a toll private. A toll rests upon a good consideration. A tax is irrespective of consideration; it rests upon the authority of government alone; it is as imperative in a bad government as a good. That the distinction is a substantial one appears from the fact, that in England a toll [48 U.S. 283, 345] may be granted by the king, but a tax can be levied only by an act of Parliament. Cro. Eliz. 559; 3 Lev. 424; 2 Mod. 143; 4 ib. 323.
In this respect, this case differs from the Massachusetts case, which was argued at the last term, and is about to be re-argued. There the two dollars exacted of the passenger for the benefit of the almshouse is applied to a purpose in which the passenger has no particular interest. It might as well have been applied to any other, or be paid at once into the treasury of the State, for its use for all purposes. It is, therefore, a tax, and rests upon the authority of government alone; but for the New York charge there is a fair equivalent,-it rests upon a private consideration.
III. In all ports, quarantine (including lazarettos) is now one of the established charges. It is of modern origin. None prior to the plague in Marseilles in 1720. McCulloch's Dict., Art. Quarantine; Howard on Lazarettos, passim.
The charge in England is much higher than it is here; indeed, the charge here is less than in any other commercial nation. The necessity of these establishments is now universally admitted by all disinterested persons.
The laws relating to quarantine in all nations are usually classed among municipal regulations. They are so in France. (See Dict. de Jurisprudence, Arts. Autorit e Municipale, and Salubrit e Publique.) They are so in England. Evans, in his collection of statutes, places them among police and criminal laws. (6 Evans's Statutes, 142.)
For convenience, quarantine charges in England are collected at the custom-house; but they are carried to the consolidated fund. (45 Geo. III. c. 10, 7.) This fund is devoted to the support of the king's household and the civil expenses of the internal government. 1 Bl. Com. 331.
They are so also in Denmark. A remarkable illustration of this fact appears in the recent discussion of the 'Sound dues.' In a communication on the subject from the Secretary of State, (the distinguished counsel who concludes this argument,) attached to President Tyler's inaugural message of June, 1841, the Sound dues were complained of as unreasonable. When the territory on both sides of the Sound (it is said) belonged to Denmark, there may have been some foundation for the charge; but the territory on the north of the Sound has, for several centuries, been an independent nation. There is, therefore, no longer a pretext for the exaction. The distinguished counsel admitted that the port charges which arose in consequence of being compelled to go into port to pay the dues were properly payable, for they rested upon an equivalent. By turning to [48 U.S. 283, 346] our own State papers (2 Com. and Nav. 144), it will be seen that one of these port charges is for quarantine.
Again, all the maritime States of the Union have considered quarantines as an internal municipal regulation, entirely within their jurisdiction, and no one has ever thought of applying to the Union on the subject, except where they have attempted to defray the expense by a tonnage duty, which can be laid by a State only by consent of Congress.
Virginia has never applied to Congress on the subject. She requires the master or owners of the vessel to defray the expense.
Pennsylvania and Delaware have never asked the assent of Congress to any law. They defray expenses precisely as is prescribed by the New York law.
Maryland, South Carolina, and Georgia have established their own systems, but they have preferred to defray the expenses by a tonnage duty. To do this, they were of course compelled to get the permission of Congress.
New York has considered them as municipal regulations under every dynasty. The first law on the subject on her statute-book appears in 1758. ( 2 Liv. and Smith, Col. Laws, ch. 199. She was then a Colony. All her commerce was then regulated in London, as now in Washington. Yet the execution of this law was in the hands of the Colonial authorities. They prohibited the vessel from landing, until examined and purified, and charged all expenses to the master. This interference was not considered a regulation of commerce by the mother country.
The same law was re enacted verbatim in 1784. (1 Greenl. 117.) New York was then a separate and independent sovereignty, and had her own custom-house and revenue officers. Yet the execution of this law was given, not to her revenue officers, but to the master and wardens of the port.
The third law was passed in 1794. (3 Greenl. 146.) New York had then become a member of the Federal Union. This law assumed the whole subject of quarantine, and all its appendages, as being under the exclusive control of the State.
Thus quarantine laws passed in three widely different dynasties preserve to the quarantine of New York the same municipal character.
This slight review of the New York laws cannot fail to impress upon the court, not only that she has always considered them essentially police laws, but that the construction which New York has put upon her rights to impose quarantine charges upon master, owner, or passengers was contemporaneous with the Constitution, and has been continued without objection [48 U.S. 283, 347] more than half a century. We claim, therefore, the application of the rule in Stuart's case, that 'a contemporaneous exposition of the Constitution of the United States, adopted in practice and acquiesced in for a number of years, fixes the meaning of it, and the court will not control it.' (1 Cranch, 299.)
IV. All the legislation of the United States on this subject has been in corroboration and recognition of the State quarantine and health laws, and whenever this court has adverted to them, it has been to approve of them, as within the State authority, notwithstanding their admitted interference with commerce. The United States have passed three laws on the subject.
The first was the law of May 27th, 1796. (1 Story's Laws, 432.) This law simply required the President to direct the revenue-officers to aid in the execution of quarantine, and also the health laws of the States.
Hypercriticism may contend that the establishment of a marine hospital on the quarantine grounds, for the exclusive reception of infected persons thrown upon our coast from the sea, has nothing to do with quarantine. But it is absurd to say that it is not a pertinent and appropriate part of our health laws, and under the express sanction and protection of the United States law of 1796.
The second law was passed on the 25th of February, 1799. This law we have already examined, and found that the whole purport of the law, as well as the proposition in the President's message, was to come in aid of the State laws.
The third law was passed on the 13th of July, 1832. It simply authorizes the Secretary of the Treasury to employ additional boats, if necessary, to aid State quarantines.
These laws sanction the whole system of State quarantines, and every thing appurtenant to quarantines, such as hospitals, and the means of purification, and the preventing the spreading of contagion. Of these laws Chief Justice Marshall has said,-'The laws of the United States expressly sanction the health laws of a State.' (12 Wheat. 444.)
Again, the decisions of this court, in harmony with the laws of the United States, have always spoken with approbation of the health laws of the States. In Gibbons v. Ogden, Chief Justice Marshall holds the following language:-'The inspection laws form a portion of that immense mass of legislation which embraces every thing within the territory of a State not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, [48 U.S. 283, 348] as well as laws for regulating the internal commerce of a State, and those with respect to turnpike-roads, ferries, &c. are component parts of this mass.' (9 Wheat. 203.)
In numerous subsequent decisions, this court have always adverted to this class of State laws in the same strain. To this it will be said, in reply, This doctrine is readily admitted, but a marine hospital is no essential part of a system of health laws. We answer,-- First, a marine hospital or lazaretto is connected with the quarantine in every nation in Europe. Secondly, nearly a century's experience in our own port, with and without a hospital, has demonstrated its necessity. Thirdly, the State, which has the sole discretion in the matter, has deemed it a necessary part of her quarantine.
A quarantine regulation is not merely a detention of forty, or twenty, or any other number of days. Instead of a detention, it may be a deviation, a requiring of passengers to be landed at a particular point, or it may be an order that the sick shall be received into a hospital made for the purpose, and cared for.
V. It must be admitted that the States may pass quarantine and health regulations, that is, laws to prevent the introduction of infection into their harbours. Consequently, they may resort to such means for that purpose, and to defray the expense, as they judge expedient, and as are within their jurisdiction.
The possession of the power to establish embraces the power to support. For example, the Constitution gives the power to Congress to establish post-offices. Under that power they have always exercised the right, without dispute, to exact postages. It is a maxim in this court, laid down in the case of Miln and in numerous other cases, that a State has jurisdiction of all means not prohibited to it by the Federal or State constitution. It is not pretended that the means resorted to in this case are prohibited by the State constitution; nor could such prohibition, if it existed, be the subject of inquiry in this court.
VI. The whole controversy, then, reduces itself to the single question, Is the means which has been resorted to by the State of New York to support its quarantine and health laws-that of exacting a toll or tax of passengers-prohibited to it by the Federal Constitution? We confidently aver that it is not.
1st. This power, which is included in the power to prohibit the entrance or exit to and from the territories of the States, is nowhere given to the Federal government. It is nowhere granted as a substantive power. The power to grant ingress and egress to and from its territory belongs to every sovereign [48 U.S. 283, 349] State. (Vattel, Lib. 2, ch. 7, 98; 2 Ruth. Inst. 476.) They may, therefore, attach what conditions they please to this privilege.
In the distribution of the substantive powers of government between the sovereignty of the United States and the State sovereignties, those only which were expressly granted fall to the share of the United States; all others remain with the States. In 4 Wheat. 195, this court say:-'It does not appear to be a violent construction of the Constitution, and is certainly a convenient one, to consider the power of the States as existing over such cases as the laws of the Union may not reach.'
By a substantive power is meant a power which may be exercised, not as a means, but an end. It must be expressly granted, either directly and distinctly by name, or indirectly, as included in and adhering to some other granted power. This power is nowhere granted by name, nor is included in any other grant of power.
First, it is not included in the ninth section of the first article of the Constitution:-'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 Congress prior to the year 1808; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.'
This is a case of migration, not of importation. This section gives Congress no power over migration. It recognizes a pre existing right in the States to exclude it at all times, and says Congress shall not exclude it before 1808. Where does Congress get the power to exclude it after 1808? The prohibition of the exercise of a power for a limited time, which Congress did not possess before at all, cannot give it to them. Congress cannot take power, not as a means, but as an end, by implication. Such a conclusion is effectually excluded by the tenth amendment:-'The powers not delegated to the United States, nor prohibited to the States, are reserved to the States or the people.'
Again, this section at the time was explained, and has ever since been construed, as having no other effect than giving Congress power, after 1808, to prohibit the slave-trade.
Judge Iredell, the leading member of the Convention from North Carolina, thus explains this section when submitted to the State convention:-'The Eastern States, who long ago have abolished slavery, did not approve of the expression slaves. They therefore used another, which answered the same purpose. . . .. The word migration refers to free persons, but the word importation refers to slaves, because free [48 U.S. 283, 350] persons cannot be said to be imported.' (3 Ell. Deb., 1st ed., p. 98.)
Judge Wilson, who had the largest agency in forming the Constitution of any man except Madison, thus explains this section to the convention of Pennsylvania:-'Under the present confederation, the States may admit the importation of slaves as long as they please; but by this article, after the year 1808 the Congress will have power to prohibit such importation, notwithstanding the disposition of any State to the contrary. . . .. The gentleman says that it means to prohibit the introduction of white people from Europe, as this tax may deter them from coming amongst us. A little impartiality and attention will discover the care that the Convention took in selecting their language. The words are, 'The migration or importation of such persons, &c., shall not be prohibited by Congress prior to the year 1808, but a tax or duty may be imposed on such importation.' It is observable here that the term migration is dropped when a tax or duty is mentioned, so that Congress have power to impose the tax only on those imported.'
Here we have the express authority of Judge Wilson, (and there is no higher on a question of constitutional interpretation,) that this ninth section does not give Congress the power to tax free emigrants or passengers. The advocates for this power in the Federal government must look for some other clause in which this power lies concealed.
Secondly, we are told it is part of the power contained in the grant to Congress 'to regulate commerce.'
The term 'regulation of commerce' had a very definite and well- understood meaning at and before the Revolution. The phrase had become popularized by the disputes between the Colonies and the mother country. It was not understood to embrace any of the offices between ship and shore, such as pilotage, wharfage, quarantine, &c., all of which were regulated by colonial, and not by the laws of the mother country. (See Colonial Laws, passim.) It was not understood to embrace the right to levy duties for revenue, either upon persons or things. The assumption of the right to levy duties upon tea, under the pretence of regulating commerce, produced the Revolution. But the right to regulate commerce was conceded to England. In the address of the Continental Congress to the people of Great Britain they say,-'The Colonies are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign: but from the necessity [48 U.S. 283, 351] of the case, and a regard for the mutual intercourse of both countries, we cheerfully consent to the operation of such acts of the British Parliament as are bon a fide restricted to the regulation of our foreign commerce.' ( 1 Journal, 28, 29.)
The regulation of commerce was considered as something great and international,-almost synonymous with the Navigation Acts,-acts intended by Great Britain to secure the benefits of the commerce of her Colonies to herself, and to regulate her commercial intercourse with foreign nations. In this popular sense it was used by the framers of our Constitution. The grant of the power to regulate commerce to Congress was intended merely to substitute in this respect the new government for the old,-the United States for England.
Passengers are not the subjects of commerce. The power to tax them, if it existed in the Federal government, would not be by virtue of the power to regulate commerce. They never have been treated as such by the Federal government. Duties have been levied upon goods from the first, but never upon passengers. Passengers may be landed anywhere, but goods only in ports of entry. The payment of passage-money gives no more control over them than the payment of board gives the hotel-keeper control over his boarders. If the power to tax them is placed upon the general taxing power of the United States, that is universally admitted to be common to the States. This law of New York is, therefore, as constitutional as any other of her tax laws, even although Congress may tax the same things.
Again, the grant to Congress of the metaphysical power to regulate commerce did not carry with it any of the physical means of its exercise. The power to regulate, &c., is a mere capacity, a jurisdiction, an authority to make rules or laws. For example, the State has power to lay a poll tax of five dollars a head on every resident of this State. But does any one suppose that, by virtue of this power, the citizen may be called upon by a tax-collector to pay this sum? Must there not be a law to that effect? A mere power in the Federal or State government is latent and dormant; like the electricity of the air, it is unfelt and unseen until its energies are concentrated into the thunderbolt of a law.
It is palpable that the grant of power to regulate commerce will not authorize the collector to exclude passengers from our soil, or levy a tax upon them. There must be some law to that effect before he can move.
If there is any thing or any measure attached to the mere grant of the power to regulate commerce, and which passes with it, it is the right to lay a duty on tonnage. If the grant to Congress [48 U.S. 283, 352] would of itself exclude the States from any act, it would from this. Yet Marshall tells us that the States would have had this right, had they not been expressly excluded from it by another clause in the Constitution. (9 Wheat. 202.) If the right to lay a duty on tonnage is not taken from the States by the grant to Congress of the power to regulate commerce, with what propriety can it be said that this grant takes from them the right to tax passengers?
Again. Laying duties on imports belongs especially to commerce. Yet Hamilton says the States would have had this right had they not been expressly prohibited. (Federalist, No. 32, p. 169.) And in neither case does the collector derive his authority to collect duties from the grant in the Constitution, but from express laws.
A similar idea is conveyed by Marshall in the case of Sturges v. Crowninshield, 4 Wheat. 196:-'It is not the mere existence of the power, but its exercise,' &c. Two conclusions follow:--
1. The mere grant of the metaphysical power by the Constitution does not carry with it any of the physical means necessary for its execution. It does not execute itself.
2. That although the power be exclusive, the means are not so.
This idea, that an exclusive power seizes upon the appropriate means of its execution and makes them exclusive also, has been a fruitful source of error. The argument is, A tax upon passengers is an appropriate means of regulating commerce; therefore the power to regulate commerce seizes upon it and converts it to its own nature,-that is, makes it exclusive, if it is itself exclusive.
This notion of a grant of exclusive power, carrying with it the means of its own execution, and assimilating them to its own exclusive nature, is not a mere abstract speculation, but has often been attempted to be enforced, as in this case, in practice. Thus in 1824 an attempt was made to compel the boatmen on the Erie Canal to take out coasting licenses, on the fallacious idea that the exclusive power of Congress over commerce gave an exclusive control over all the means of commerce. (De Witt Clinton's Message of 1824.)
The same assumption led to the case of Wilson v. The Blackbird Creek Marsh Co., 2 Peters, 245. In that case the legislature of Delaware had incorporated a company, and authorized it to build a dam across a tide- water navigable creek, actually used for navigation. It was thought that this means of commerce pertained exclusively to the commercial power, and that any interference with it was of itself, without any act of Congress, [48 U.S. 283, 353] an infringement of the power to regulate commerce. But Chief Justice Marshall held that the power, without a law made in pursuance thereof, was nothing; that the repugnance of the State law must be to an act of the United States made in exercise of such power.
A similar case aroce in the courts of the State of New York, The People v. The Saratoga Railroad Co., 15 Wend. 114. The railroad company built a bridge over the navigable waters of the Hudson, above any port of entry, and interfering with no law of the United States. The court held, that though Congress had the power, yet that there was no repugnance to make the State law void till Congress had exercised the power by passing a repugnant act.
Still, it is objected that the law of the State of New York laying a tax or toll upon passengers is a regulation of commerce, and that Congress alone has power to make a regulation of commerce. Admitting that Congress has the exclusive right to make such regulations, this is not a regulation of commerce. Does it purport to be a regulation of commerce? Does the State undertake to regulate commerce? No. It purports and has been used for half a century as a regulation of health or quarantine. Is it an appropriate regulation of health? Yes, unquestionably. Why, then, is it called a regulation of commerce? Is it because it interferes with commerce? All quarantines must interfere with commerce more or less; yet this court has repeatedly declared that they are not on that account unconstitutional. Is it because it may be used as a regulation of commerce? So may a duty on tonnage. Yet Chief Justice Marshall says the States might use it for revenue purposes. It therefore became necessary to prohibit it by a distinct clause.
This court has repeatedly held that the States and the Federal government may do the selfsame thing in the exercise each of its respective and acknowledged 'Whilst a State is acting within the legitimate scope of its power as to the end to be attained, it may use whatsoever means, being appropriate to that end, it may think fit; although they may be the same, or so nearly the same, as scarcely to be distinguishable from those adopted by Congress, acting under a different power.' (11 Peters, 137.)
To say that a tax upon passengers may be resorted to by the Federal government as a means is saying nothing. Every act which may be done by the States may be resorted to by the Federal government as a means, if 'necessary and proper' to the exercise of a granted power.
It has been shown that this power to prohibit the entrance [48 U.S. 283, 354] of passengers, or place any conditions upon their entrance, has never been granted directly or indirectly, as a distinct substantive power or as adhering to any other power, to the Federal government.
2d. This power has nowhere been prohibited to the States. All the prohibitions upon the States are found in Art. 1, 10. The only clause which is alleged to prohibit the States from the exercise of this power is,- 'No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for the execution of its inspection laws.'
1. This is not an impost or duty. The lighter takes the goods from the ship to the wharf for so much a ton. This is an impost in one sense, but not in the sense in which the word is used in this section. 'Impost or duty,' as used in the Constitution, means such as is laid by virtue of sovereignty alone, irrespective of consideration. But we have seen that the tax laid upon passengers by the State is, in fact, a toll resting upon a private consideration, as much as pilotage or wharfage, both of which are regulated by statute.
2. Passengers are not imports. That term is applied properly to things or slaves brought into the country as property without their own volition. 'Immigration applies as properly to voluntary as importation to involuntary arrivals,' (9 Wheat. 216,) is the declaration of Chief Justice Marshall.
Judges Iredell and Wilson, active members of the convention which formed the Constitution, also declare that import or importation was intentionally used to avoid the idea of its application to passengers or emigrants. (3 Ell. Deb., 1st ed., 98 and 251.)
Judge Barbour, in delivering the opinion of the court in the case of The City of New York v. Miln, says,-'Passengers are not the subjects of commerce, and are not imported goods,' &c. (11 Peters, 136.)
3. But admitting, notwithstanding these authorities, that passengers are imports, this section does not prohibit the States from laying any duty or impost upon imports, but from laying more than is 'absolutely necessary for the execution of its inspection laws.'
If passengers are imports, the law in question is an inspection law. Infected or decayed goods are thrown into the sea. Infected passengers are sent to the hospital, and the necessary expenses are defrayed by a duty laid by the State, by express authority of the Constitution. Inspection laws apply to imports as well as exports. The [48 U.S. 283, 355] nucleus of this provision as to State inspection laws was introduced into the convention by Colonel Mason, and applied only to exports. (3 Madison Papers, 1568, 1569.) It was afterwards modified, the word imports introduced, and it took its present form. (Ibid. 1584.)
Inspection of imports must relate principally to health. If, then, this toll or tax upon passengers is a duty upon imports, it is exclusively for the execution of a State inspection law. But it is objected, that in this case more is taken than is 'absolutely necessary.' This is denied. The State has advanced from its treasury, for the support and execution of this inspection law, more than it has received,-from the adoption of the Constitution to 1799, from $1,000 to $5,000 per annum; in 1799, $15,000; in 1809, $6,000.
During the war and the previous non-intercourse and embargo laws, from 1809 to 1815, the quarantine establishment, including the marine hospital, was sustained almost exclusively by the State. And the same must again occur whenever a foreign war arises.
If, then, in time of peace, there is a surplus, (which is not the case,) is it not proper that it should be applied to pay the debts of the establishment, and provide for its future wants?
Again, admitting that more is exacted than is 'absolutely necessary,' the abuse cannot be corrected in this way. The fact does not appear in the case. The State has had no opportunity of contesting this point. This case comes up on demurrer. But suppose the record presented the question of excess properly to the court. It could not pronounce it, on any principle, a defence to a party refusing to pay at all.
Besides, the Constitution itself prescribes the appropriate remedy for the evil:-'And the net produce of all duties and imposts laid by any State on imports and 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.' Constitution, Art. 1, 10. This clause in the Constitution supposes that the State law may collect more than is necessary for the purpose, and that it is not for that reason void. The action for excess must be brought by the United States, and Congress must correct the State law. This is the appropriate remedy, and this court has nothing to do with the matter.
The conclusion is irresistible. If this section includes a tax or impost upon passengers, it contains also an authorization of the State law. 3d. Not only does the Constitution not grant the power over passengers to the Federal government, and not prohibit it to the States, but, from the foundation of the government, this power [48 U.S. 283, 356] has been exercised almost exclusively by the States, without objection.
First, that this power of admission to their territories was purely a State power was the doctrine of the founders of our republic.
Those who formed the articles of confederation inserted the following article:-'The people of each State shall have free ingress and egress to and from any other State.' (Confederation, Art. 4.) From which it is to be inferred, that the power over ingress and egress was purely a State power, and that this article was necessary to restrict this power, so far as the citizens of other States of the Union were concerned; but it did not attempt to interfere with its exercise in relation to aliens.
When, a few years after the Federal Constitution was formed, (which was intended as a revision of the articles of confederation,) this article had been found defective in overriding the health laws of the States,-in absolutely requiring the admission of the citizens of other States, although they might bring yellow-fever with them,-the article was modified as follows:-'The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.' ( Constitution, Art. 4, 2.)
This section was intended to authorize the exclusion of the citizens of other States, under the same circumstances under which they exclude their own. This section had no reference to aliens. The right of the State as to them remained as before. It is worthy of observation,--
1. That the New York law makes no distinction between its own citizens and all other persons. 2. That the case shows, and the fact is conceded, that all the persons on whom the tax was levied in this case were aliens.
Again, that the power over ingress and egress was not taken from the States by the new Constitution was the contemporaneous exposition.
In the first Congress after the adoption of the Constitution by the convention, in which were many members of that convention, the following resolution, of the date of the 16th of September, 1788, was passed:--
Secondly, not only were such the expressed opinions of the statesmen of that day, but ever since. It is believed that every State in the Union has practically guarded the gates of her own territory, and permitted the ingress and egress of such things and such persons only as she pleased.
1. As to the egress of persons. All the States of the Union constantly enforce the writ of ne exeat. Numerous States, since the adoption of the Constitution, have passed or enforced laws prohibiting the egress of debtors without the leave of their creditors.
2. As to the export of things. The statutes of New York declare, that 'no flour shall be exported from the State until it has been submitted to an inspector.' (1 Rev. Stat., 1st ed., p. 536, 1.) Similar laws have been made as to beef and pork, and most of the productions of the State. Similar laws have also been passed in other States.
The State may lay an embargo absolutely prohibiting the export of any or all articles. Mr. Madison moved in convention to prohibit the States laying an embargo, but it was not though expedient, and the proposition was rejected. (3 Madison Papers, 1444.)
It is not intended to say that Congress may not resort to an embargo as a means. But it has no power to interdict the export of any article irrespective of the object. For example, it may perhaps resort to an embargo in the exercise of the war power, but it cannot do it to prevent a famine. 3. As to the ingress of persons. The State poor laws, settlement laws, laws prohibiting the entrance of paupers, convicts, infected persons, &c., are of this description.
The laws of most, if not all, of the slaveholding States prohibiting the entrance of free blacks, is another instance of the exercise of this power. Does any one suppose the same power could legally have been exercised by Congress? 4. As to the importation of things. Mississippi, and, it is believed, some other of the Southern States, have assumed the right to prohibit the importation of slaves as merchandise, and this right has been sanctioned by this court in the case of Groves v. Slaughter, 15 Peters, 449. The same right has been claimed and exercised by all the Free States.
In New York, the introduction of bank-notes under one dollar, and of lottery-tickets, is prohibited. (1 Rev. Stat., 1st ed., p. 666, 29; p. 713, 8.) So the introduction of noxious or immoral articles, injurious to the health or morals of the people, is universally prohibited [48 U.S. 283, 358] by the States, and not by the Federal government; such as licentious books, immoral paintings, articles of gaming, tainted food, dangerous preparations of gunpowder, and all nuisances.
The proposition, that the laying duties, or the right to regulate commerce, gives Congress the right to import what it pleases, is not true. The case of Brown v. Maryland, 12 Wheat. 419, by no means supports it. The whole doctrine of that case is, that Congress has a monopoly of duties on whatever articles the State permits to be landed.
Ellsworth held in the Convention, that taking from Congress the power to lay duties on exports did not take away from it the power to lay an embargo (3 Madison Papers, 1385) or prohibit exportation. On the same principle, giving the power to lay duties on imports does not give the power to import.
These examples show abundantly how extensively and constantly the States have exercised this power over ingress and egress,-over imports and exports. On the other hand, no instance is recollected of Congress exercising this power over persons, except in the case of what is known as the alien law of 1798. By this law power was given to the President, by his marshals, to remove certain aliens. (1 Story, 515, ch. 75.)
This law was bitterly censured at the time, and the right assumed by Congress denounced as unconstitutional. And it is now almost universally admitted that it was a violent and unconstitutional stretch of Federal power. Mr. Tazewell, a distinguished Senator from Virginia, said,-'But one power was given to Congress over aliens,-that of naturalizing them; and this did not authorize Congress to prohibit the migration of foreigners to a State, or to banish them when admitted. The States had not parted from their power of admitting foreigners to their society.' (Ell. Deb., 1st ed., 251; 2 Virginia Stat. at Large, New Series, 492.)
This assumption of power on the part of Congress greatly excited and aroused the country. The legislatures of Virginia and Kentucky denounced the law, and passed resolutions supposed to have been drawn by Jefferson and Madison, and which have ever since been considered as of incontrovertible authority in the construction of constitutional law.
The following is the fourth of the Kentucky resolutions:-'That alien friends are under the jurisdiction and protection of the laws of the State where they are; that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens, and it being true as a general principle, and one of the amendments to the Constitution having also declared, that the powers not delegated to the United States by the Constitution nor [48 U.S. 283, 359] prohibited by it to the States are reserved to the States respectively or the people, the act of Congress of the United States passed 22d of June, 1798, entitled 'An act concerning aliens,' which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.'
VII. The law of the State of New York does not violate or contravene the provisions of any law or treaty of the United States. 'Laws made in pursuance of the Constitution, and all treaties made or to be made, or which shall be made under the authority of the United States, shall be the supreme law of the land.' (Constitution, Art. 6, 2.)
1st. As to treaties. The vessel was an English vessel, and it is conceded that all the emigrants on whose account the toll was collected were British subjects. If the toll violates in letter or spirit any treaty with England, it is illegal and void. The treaties by which our intercourse is regulated with England are the treaties of 1794 and 1815. These treaties profess to place the two nations on terms of equal and reciprocal advantages.
1. Does it violate reciprocity? The New York law lays a tax or toll upon passengers to defray the selfsame expenses which England defrays by a tonnage duty. England collects four times as much from our vessels for the support of her quarantine and hospital as we do from hers. The expenses in England amount to nearly a dollar per ton for an ordinary vessel of three hundred or four hundred tons. We collect that amount only upon here and there a passenger vessel. If, therefore, there is any violation of the reciprocity stipulations of the treaties in the execution of quarantine or health laws, it is on the part of England. (2 State Papers, Com. and Nav., Mitchell's App., No. 9.)
2. This is a law regulating the internal police of the country; and it is a rule of international law, independent of treaties, 'that all foreigners are admitted into a country on condition of obeying its laws.' ( Vattel, Lib. 2, ch. 8, 101.) One of the laws which they are bound to obey is the payment of all reasonable tolls. (Ibid., Lib. 1, ch. 9, 103.)
This principle of international law is incorporated in these treaties, which are made expressly subject to the laws and statutes of the country. ( Treaty of November, 1774, art. 14; of July, 1815, art. 1; Ell. Dip. Code, 253-275.) It is immaterial, so far as treaties are concerned, whether laws be made by the States or the United States. If it were within its constitutional powers, indisputably Congress might lay such a tax, as well as add a new item to the tariff. The State law is not obnoxious to the objection of infringing any treaty. [48 U.S. 283, 360] 2d. As to a law. There is no law of the United States taxing passengers. Even if they have the power, they have not used it. Nor can it fairly be said that there is a law regulating passengers. The law of 1819 ( 3 Story, 1722) relates to 'passenger ships and vessels.' It regulates the number of passengers who may be taken on board by the tonnage. It was made in the exercise of the undisputed police power of Congress over vessels on the ocean. There is nothing in it with which the State law interferes in the remotest degree.
But, it is replied, we do not contend there is any conflict with any written law, any actual regulation, but with 'a non-regulation.'
Congress, it is assumed, has legislated on the subject of passengers, and it is as much its will that what is not prohibited should remain as it is, as what is prohibited. In other words, that, by making one regulation on a subject, Congress takes possession of the whole subject as effectually as by making every possible regulation. This ingenious theory has never been applied in practice, and never can be.
1. None but 'laws made' are declared by the Constitution to be the supreme law of the land. Is this imaginary 'non-regulation' a law made by Congress? What are its terms, its provisos, and its exceptions,-its extent, its length, and its breadth? And who is to construe and apply it?
2. This inferential legislation is uncontrollable by Congress. A vast mass of means hitherto left exclusively to the States, as more advantageous to the country, will be immediately seized upon and appropriated by the Federal government, not by virtue of any new legislation, but by this court sanctioning the theory of 'non-regulation.' No discretion is left to the legislature. The Constitution becomes self- acting. It seizes, proprio vigore, when any power is put in action by the slightest act of legislation on the subject, upon all the means which might by any possibility be brought within its reach. The concurrence of State power becomes an empty sound.
The rule, in case of collision between Federal and State laws on a subject of concurrent jurisdiction, laid down by Marshall, is, that 'the State law, so far, and so far only, as that incompatibility exists, must necessarily yield.' (5 Wheat. 49, 50.) This is no longer the rule. The State laws must yield so far as the Federal power extends,-so far as the Federal government had power to pass incompatible laws.
Things which have hitherto been left to the States must be taken from them. Pilot laws, harbour regulations, laws respecting lighterage, wharfage, &c., must be abolished. Tide-mills, dams, bridges, &c., upon navigable tide-water, which [48 U.S. 283, 361] line our coast, must be swept away. Under the doctrine of 'non-regulation,' Congress takes possession at once of all the remote as well as immediate means of executing its powers; e. g. the power to regulate commerce gives remote power over the ship-builder, the timber-merchant, the lumber-man, & c. The names of some of the titles in the French Code of Commerce may convey some idea of the extent of power which may be included in the power to regulate commerce:-Partnerships, Banks, Brokers, Carriers, Bills of Exchange, Vessels, Insurances, Bankruptcies, &c. Thus far Congress has left these subjects to the States; but if this doctrine of 'non- regulation' prevails, the matter is taken out of the hands of Congress, and all the regulations on these subjects which it was competent for Congress to make under its constitutional power are to be considered as made already. State power is in effect annihilated; if not at once, it is so crippled that it dies a lingering death.
This rule of construction will be found oppressive in the extreme, and impossible. Oppressive, because it requires men to obey laws which they cannot know; impossible, because the courts cannot apply it. The courts easily determine the limits of a written law, and their decisions are uniform; but it surpasses human knowledge to ascertain with precision the ramifications of a subject-matter.
Subjects intermingle. Commerce, manufactures, agriculture, are concerned in ship-building. Scarcely an act can be presented to the court which is not compound. How much of that subject, which carries with it the power of Congress, shall be necessary for that purpose?
It is to commerce particularly that this theory has been applied. 'Commerce,' it is said, 'is a unit, and what is not regulated is as much a part of the unit as what is.' We may admit that the power to regulate commerce is a unit, and is exclusive. We may admit that the regulations of commerce from one system, and are all exclusive. But the means employed or resorted to by these regulations are as diverse as nature, and as free to the States as to Congress. This case turns upon taking money as a tax or toll from passengers. This is not a regulation of any kind, but an act, a means.
These means are not permanently or necessarily attached to the regulation which adopts them. Granted that they may be resorted to to-day by a regulation of commerce, they are not inseparately attached to that regulation. They form no part of the unit. They may be resorted to to- morrow by a totally different regulation,-one of health or finance on the part of [48 U.S. 283, 362] the States. The fallacy consists in confounding a regulation of commerce with the means which it adopts.
This idea of unity was first broached by Mr. Madison, who suggested that the right to regulate commerce was one and indivisible, and would exclude the States from the right to lay tonnage duty, and consequently that there was no necessity for any express prohibition in the Constitution upon the States. (3 Madison Papers, 1585.) The convention thought otherwise, and inserted the prohibitory clause, and Marshall intimates that it might have been resorted to by the States had it not been prohibited. (9 Wheat. 202.) The idea was again suggested by Mr. Webster in his argument in the case of Gibbons v. Ogden. (9 Wheat. 14.) 'Henceforth,' he says, 'the commerce of the State was to be a unit.' This view of the nature of the commercial power was afterwards referred to by Marshall as one having great weight. (Ibid. 209.)
The major proposition of these distinguished men, of the unity of the commercial power, is not contested, but merely its application to commercial means. The case of Gibbons v. Ogden was not decided against the State on the ground that the law of the State violated the commercial unity, or that the means employed by the State were not in themselves common to both governments, but because a law of the United States had already appropriated them to her use, and that the law of the State attempting to do the same was necessarily repugnant to the Federal law, and therefore void.
Marshall certainly did not intend, by the unity of commercial power, unity of commercial means, nor that the power of Congress to use the means of itself appropriated them, or that 'non-regulation' was equivalent to regulation, in any case.
In Sturges v. Crowninshield, his language is,-'It may be thought more convenient that much of it [any subject committed to Congress] should be regulated by State legislation, and Congress may purposely omit to provide for many cases to which their power extends.' (4 Wheat. 195.) It is obvious that he thought that the States might use any means whatever not prohibited to them, and which Congress had not by an actual law appropriated to itself.
Again, he says in Wilson v. The Blackbird Creek Marsh Co.,-'If Congress had passed any act which bore upon the case, . . . we should feel not much difficulty in saying that a State law coming in conflict with such act would be void. But Congress has passed no such act.' True, says the objector, but Congress has power to pass such an act, and 'non- regulation' is equal to regulation. It is clear that Marshall gave no such efficacy to 'non-regulation.'- [48 U.S. 283, 363] The repugnance which makes a State law void must be to some actual existing law of the United States, and not to some non-existing inferential regulation.
I have attempted to prove that the power over passengers either to exclude or tax them has not been given to Congress, either directly or indirectly; that it has nowhere directly or inferentially been prohibited to the States; that in practice it has been used by the States exclusively since the foundation of the government; and that the law of the State of New York now in question, made in exercise of that power, does not, in the remotest degree, infringe any treaty or any law of the United States.
I cannot conclude this argument without calling the particular attention of this court to the case of The City of New York v. Miln. The Supreme Court of the State of New York held this case to be identical with that. In that case the State law required the master to deliver a manifest of his passengers to the mayor within twenty-four hours of his arrival; to give bond and security for $300 to the city to indemnify against expenses of maintenance; that the master shall remove such passengers as the mayor, & c., shall direct; that the vessel shall be liable for any penalties incurred by the master. That law, like this, was alleged to be a regulation of commerce. That law prohibited passengers from landing altogether. This allows them to land on condition of paying expenses. That law required the master to give bond and security in $300 for each passenger. This law allows each one to come on shore on payment of the expenses. That law, after two elaborate arguments, was held not to be a regulation of commerce. In what particular does it differ in principle from this? Both are made in the execution of police laws of the State. Neither assumes to regulate commerce, and both are interferences with it.
The gist of the argument of Mr. Justice Story in his dissenting opinion in that case is, that 'the States cannot resort to a regulation of commerce,' & c., &c. Certainly not. The very question in dispute was, whether that was a regulation of commerce. He assumes, without proving it, the whole question.
He speaks of exclusive means. Powers may be exclusive, regulations may be exclusive, but means cannot be so, unless the States are excluded from them by name in the Constitution, or unless the Federal government have appropriated them, by an express law, to their own use. No doubt, as the very learned judge says, if the same means had been resorted to by Congress, it would have been in the execution of a regulation of commerce, and when resorted to by the States, it is in the bon a fide execution of a police law. [48 U.S. 283, 364] The rule is very clearly and concisely laid down by Judge Johnson:- 'Whenever the powers of the respective governments are frankly exercised with a distinct view to the ends of such powers, they may act upon the same means, and yet the powers be kept perfectly distinct. A resort to the same means, therefore, is no argument to prove the identity of their respective powers.' (9 Wheat. 239.)
This case cannot be decided for the plaintiff without overruling the case of Miln. This court, like all others, is presumed to be governed by the maxim, Stare decisis. For no court is it so important. Disrespect follows inconsistency, and woe to the Union when the decisions of this court shall cease to be respected. If the majority of to-day attempt to correct a supposed previous erroneous decision, the majority of to-morrow will certainly reinstate the old rule. This court remains, but its members change. Three of the five members who decided in favor of State rights in the case of Miln are gone. Where is Thompson? Where is Baldwin? Where is Barbour, who gave the opinion of the court in that case? Had these judges remained in the seats which they once adorned, this suit would never have been brought. Is it wise thus to invite speculation upon the sad changes which the inevitable doom that awaits us all must produce in this tribunal? If temporary majorities are to give the law of this court, its decisions, which should be as permanent as the republic, will become as fluctuating and mortal as its members.
The poor emigrants do not ask to be relieved of this tax. They do not bring this suit, nor is it brought for their benefit. The foreign agent, the rich shipper, is before this court striving, at the expense of these unfortunates, to swell their enormous gains. This toll is embraced in the price of passage. The emigrant knows nothing of it. If it is removed, he will know nothing of it, but that the home and the asylum that greeted him, and rescued him from disease and death on his arrival, are gone.
What cares the rich shipper of Liverpool, what cares his agent in New York, whether infection is brought to our shores,-whether disease ravage our city? No ties bind him to the soil. No family or kindred to weep over. Wealth is at his disposal. He keeps aloof or flies from the pestilence which his accursed avarice has brought upon the devoted city.
But ask the emigrant, ask the destitute, ask the poor citizen, ask the thronging masses who make up the population of a great city, whom the strong bonds of poverty and affection chain to their homes, 'Come weal, come woe.' They will pray you to preserve unimpaired the health laws of the city, [48 U.S. 283, 365] the quarantine, and its hospital, which have so long proved an efficient protection to them and their families. They will conjure you, with the agonizing earnestness of men who feel that their lives are concerned in what they ask.
Has this court listened to the suggestion, that, if this power is conceded to the States, it may be abused to the prejudice of commerce? Such a consideration is not for them. Let them close their ears, if they would not be betrayed into error.
Marshall has said,-'All power may be abused, and if the fear of abuse is to constitute an argument against its existence, it might be urged against the existence of that which is indispensable to the general safety.' (12 Wheat. 440.)
But the suggestion is absurd. There is no such danger. If the child may be trusted to its mother, the city may be trusted to the State. It forms its greatest pride, and dearest interest. The commerce of New York is its glory, and the great source of its prosperity. Will it be guilty of the suicidal folly of destroying or injuring it? No. The accommodations for the sick passenger form one of the attractions of its port. The emigrants flock to it in preference to any other. The past year, more than one hundred thousand have arrived. All the hospitals at the quarantine have been crowded, and yet no extraordinary fatality has prevailed.
On the other hand, the mortality among the emigrants who have arrived at Quebec has been frightful,-not less than one tenth of the whole number. The pestilence has been scattered through the country, and the whole province has been sorely afflicted.
What has occasioned the difference but the very hospitals supported by this tax, and which must fall with it? They have been the refuge, and have yearly saved the lives, of thousands of the emigrants, and nothing, save their religion, is more gratefully cherished by them than the hospital at the quarantine ground in New York.
Conceding for a moment, that, if the State institution is destroyed, the Federal government have power to replace it, will they do it? Will they continue to give it adequate support? Such is not the history of the past.
A few years before the close of the last century, Congress set on foot a marine hospital fund for the relief of sailors. In 1802, it had accumulated to more than ninety thousand dollars. At this time Massachusetts and Virginia governed the Union. They concluded to divide the fund between them. Fifteen thousand dollars were appropriated to build a sailor's hospital at Boston, and thirty-five thousand went to purchase an old hospital at Gosport, in Virginia. [48 U.S. 283, 366] Is it wise to leave an interest so local and so intensely interesting as that which concerns the lives of the citizens of New York to depend on the fluctuations of political influence? What do the Alleghanies or the Rocky Mountains know or care for the ravages of yellow-fever in the city of New York?
The island of New York will soon contain a million of people. When pestilence comes, it will sweep away thousands in a day. If she sees the necessary means of self-protection withheld or removed to more favored cities, what bonds will be strong enough to bind her to submission? When, the poisoned darts of death falling thick and fast around them, her citizens are called upon to wait the slow, reluctant movements of the Federal government,-when, driven to desperation by the imminent danger impending over them, they see themselves cut off from reasonable succour by the selfish, unsympathizing legislation of a remote people, who send their exports to Hudson's Bay or the mouth of the Columbia, will they not be impelled to take the law into their own hands?
Our country is extending itself farther and farther to the south and west. Wisdom cries aloud, with a warning voice, to leave local interests as much as possible to local legislation, and attend only to those common and external interests for which the Union was formed. Let the States repose in the undisturbed exercise of the sovereignty which is left to them, and we may, with safety, extend our system to the extreme limits of the continent.
The State of New York asks the humble boon of being allowed to protect herself against an exclusively internal evil. Two thirds of the common revenue are collected in her harbour. She divides the annual millions which, but for the Union, would be poured into her own coffers, freely and ungrudgingly among her sisters. She calculates not the value of the Union. She glories in the honor and welfare of our common country. But she has deemed it not unreasonable that she should be allowed to protect herself against dangers to which this commerce, carried on for the common benefit, exposes her, and her alone.
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