tentiary or hospital or poor-house farm for its wretched outcasts, or a receptacle for its poisons to health and instruments of gambling and debauchery."

us the insane, the imbecile, the infirm, and such as are incapable of providing for themselves, I will receive even these. I will permit those sent from the poor-houses of Europe to find a refuge here, but you shall indemnify me to some extent for the expense which will be incurred. You shall in one class of cases give bonds, in another pay a very moderate sum of money. I make this a condition upon which I open my territory to you.

In New York v. Miln, 11 Peters, 141: “There can be no mode in which the power to regulate internal police could be more appropriately exercised” (than in regard to paupers). "It is the duty of the State to protect its citizens from this evil; they have endeavored to do so by passing, among other things, the section of the law in question. We should upon principle say that it had a right so to do." "We think it competent and as necessary for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against physical pestilence, which may arise from unsound and infectious articles imported, or from a ship, the crew of which may be laboring under an infectious disease." p. 142. In Holmes v. Jennison, 14 Peters, the same doctrine is maintained. Also in Groves v. Slaughter, 15 Peters, 516, per Mr. Justice Bald-lice regulation? How in a matter so clear, can win.

In 5 How. 629, License Cases, Mr. Justice Woodbury says: "Who does not know that slaves [for sale] have been prohibited admittance by many of our States, whether coming from their neighbors or from abroad? which of them [the States] cannot forbid their soil from being polluted by incendiaries and felons from any quarter?"

And

I am aware that the regulations to which I have referred in regard to slaves have been considered regulations of police, and not regulations of commerce, although slaves are held and treated as properly, being bought and sold like merchandise. If slavery can upon this ground be withdrawn from the commerical power of the United States, and committed exclusively to the States, then I ask, how can those who entertain this opinion hestitate for a moment in regard to paupers and pauperism, which in no respect belong to trade, traffic, or commerce, but are manifestly subjects for po

the power and right of the State to regulate be doubted?

The law of Massachusetts has no reference whatever to foreign commerce, except as the instrument employed to inflict an injury upon the State. It is the avenue through which these persons are introduced, and is controlled just so far as is necessary to mitigate the evil and make it endurable, but no farther. Can The constitutions of Kentucky, Mississippi, we not do this? Is our right doubted and deAlabama, Missouri, Arkansas-all States ad- nied? Then I ask those who concede the mitted by the acts of Congress to the Union-power to enforce penalties for a violation of have provisions in their constitutions author-non-intercourse laws in regard to slavery, and izing the Legislatures to exclude slaves brought the right to raise revenue when sales are made in for sale from other places. Nearly all the slave States have laws upon this subject, forbidding the introduction of slaves as merchandise under penalties. The free States go farther, and so do some of the slave States, and emancipate the slaves thus brought in, in violation of law. There have been, and probably now are, laws in force raising a revenue out of the sale of negroes brought from one State to another. An account of most of these constitutions and laws may be found in Groves v. Slaughter, 15 Peters, Appendix, 75. A particular and even minute examination of the provisions of these acts, and the power claimed by the States on this head, might be both useful and instructive; but I have no time to do more than invite the attention of the court to the subject, and make a few very obvious suggestions.

331*] *If they may, as these authorities certainly authorize them to do, exclude from their territory convicts, felons, vagabonds, paupers, and slaves, and if, as the slave States claim, they may exclude and expel free negroes without violating the commercial powers of the United States, may they not manifestly exercise the lesser power of regulating the admission of any of these or any other classes of persons, and may they not prescribe the conditions upon which they shall be permitted to come in? If they may shut out or expel, does it not follow that the power to do so implies the power to make conditions?

Yet this is all that Massachusetts does. She says to ship masters, If you will bring among

of slaves from one State in another, on what ground these laws can be sustained. If the law of Massachusetts comes within the wide grasp of the commercial power of the United States, which goes, not only to foreign, but to commerce between the States, how are such laws to escape? How have they escaped hitherto ? Have we no right to control the mercenary shippers, who, stimulated [*332 by the hope of gain, are struggling to empty both the prisons and poor-houses of Europe upon us? I have read the language of this bench, in which they concede the right, and declare it to be our duty, to exercise our police power by protective and preventive measures. We are warned that it is as much our duty to provide against the moral pestilence of pauperism as against infection. We have not overstepped this boundary a hair's breadth; the advice, for we do not shut out the pestilence. on the contrary, we have not come fully up to

What kind of measures are we authorized to adopt? We may, under the authority and sanction of this court, determine who shall reside

with us; we may shut out or expel vagabonds and paupers; we may guard against moral and physical pestilence; we may protect life, health, and property; we may stop the approach of that foreign commerce which brings contagion; we may say to a ship master, You shall take a pilot-you shall anchor here, and deposit your ballast there. In a word, we may give as much direction to commerce as is necessary to accomplish these objects.

This is what we may do-it is what is con- | important inquiry, though secondary in princiceded to us by the highest authority. When ple, arises as to the power to exact two dollars we exact bonds of indemnity for lunatics, pau- for each alien, as a condition upon which he pers, aged and infirm persons, and those incapa- may come to abide here? I contend that this ble of supporting themselves, is it doing more feature of the law (although, in reply to the than to protect ourselves by very reasonable arguments of counsel, it has been treated as a measures? When we exact of masters two dol- revenue measure) is, in fact, strictly a police lars for each alien brought in, to be expended in measure. relieving these alien paupers, whom, if we receive, we must support, is this a measure outside of what is recommended?

If we cannot meet the evil here, and regulate it here, the power to expel and the power Let us look attentively at the law of Massato prevent are empty and worthless. The re-chusetts in this particular. It manifestly cansult will be, that ship masters and traffickers in emigration can and will force upon us paupers, vagabonds, felons, and infamous persons, though we have an admitted power to expel

not be executed without expense. Officers, boats, and boatmen are necessary, for vessels must be boarded. The passengers must be examined, and bonds, in some cases, required. These are admitted to be appropriate measures, but they cannot be executed without money. Those who can give no bonds must be sent back, and this is attended with large expenses. It is obvious that the amount of expenses can neither be foreseen nor accurately estimated. What rule could, under such circumstances, be adopted for raising funds? The Legislature, being left at discretion, thought, in the then existing state of things, a scale equal to two dollars each for such aliens as gave no bonds. But I have dwelt, perhaps, sufficiently on would be adequate to the exigency, and accordthis question of power to admit or deny to per-ingly required the master to pay that much. sons the right to live among us. A still more And the Supreme Court of Massachusetts say,

that it little more than covered the actual expense at the time this suit was instituted. There has since been a great increase of the number of aliens arriving annually in Massachusetts, and this fact is employed to lead the court to erroneous conclusions. We believe, however, the case is to be decided by the recrd, and if so, it will be seen that the record does not object to the amount of money raised, but to the right to raise any. The objection is to the power of the State to demand any. We say we have a right to enough to meet all expenses, at least, under any view of 335*] constitutional power which may be taken, and that an excess cannot be noticed by the court unless the fact appears upon the record.

I have now chiefly gone over the material considerations connected with this case, and feel deeply conscious that I have but too imperfectly discharged the duty imposed upon I will, however, briefly recapitulate the positions which have been assumed, that the court may, at a glance, see in connection the grounds upon which we stand.

me.

1st. I have maintained that the law of Massachusetts is a police act for the regulation of paupers and pauperism.

2d. That the State has a right to make such laws, which are but a modification of a system which has been maintained by her people for two hundred years, who have and do claim the right of unqualified sovereignty in this particular.

and growing evil, and stands upon the same basis as the quarantine and health laws of the States. In looking at the subject in this asspect, we contended that the States *do, [*336 and always have, exercised an extensive concurrent jurisdiction over foreign commerce, and those employed in it; that the laws of the States which relate to shipping, wharves, docks, piers, harbors, and the men employed in foreign commerce, are innumerable and, as was well said by Mr. Justice Catron, so numerous and diversified that Congress could not supply them in a century. I said that hence the necessity of a concurrent exercise of the power over foreign commerce was apparent. Our system, as a whole, is complicated; two governments spread over the same territory, but for different purposes, must impinge upon each other occasionally. But the day has gone by when we need feel any alarm from the strength of individual States. Virginia once held a twelfth of the political power in the Senate; now, she holds but a thirtieth, and her relative importance to the Union has waned beyond that proportion. The States, at every advance of the power and strength of the Union by an increase of the members of the confederacy, lose something of their relative importance and comparative strength. They go backward in the process, while the confederacy goes forward. This is a warning to us to take nothing from the power of the States to add to the power of the Union, for in the States lies the strength of the Union. This federal government is wholly incapable of managing the great and complicated affairs of this wide-spread country. It cannot legislate for the local wants of Maine and Texas. These are supplied by the local Legislatures of the States, whose powers are so great, so diversified, and so comprehensive, that, if this government were pended in its operations, our persons and property would remain secure. Justice would be administered, and good order just as well preserved as it is now. The only material derangement would be in the foreign trade and 5th. That two views might be taken of that commerce. It is manifest that our strength, provision of the law which required the master and the durability of our system, lie in the to pay after the rate of two dollars each for all federative principle-in the organization of alien passengers brought into port and landed. States, whose powers embrace everything exFirst, the counsel for the plaintiff maintains cept a very few national objects. The limitathat it is a tax for revenue, and as such is a tion of this government to such objects alone regulation af commerce. We meet them on gives to it its strength and usefulness, and the this ground by saying, that the provision can most unwise, if not the most fatal, course it be and is maintained under the taxing power can take will be to arrogate to itself the power of the State, which, being concurrent and co- of the States, by taking from them what they extensive with that of the United States, and have been accustomed to enjoy through the equal to it, necessarily confers the right to tax whole federal history. The counsel say the navigators, owners, passengers, or any other power over foreign commerce is exclusive, and class of persons engaged in commerce, unless no doubt this doctrine extends also to comthe State is restrained by the prohibitions in merce between the States. Commerce consists the Constitution; that these are limited to du- of everything belonging to trade and navigaties on imports and tonnage; that men are are tion. It is manifest, however, that the States neither the one nor the other, nor are they the have managed, controlled, and regulated at all subjects of trade and commerce, as they are not times nine tenths of this intercourse. Their bought, or sold, or brought into the country by laws prevail, not only in the *ports, [*337 anyone for the purposes of trade. They are, harbors, cities, etc., but I know of no attempt therefore, excluded from the prohibitions, and on the part of the United States to regulate in are left to the State as a resource of revenue, any way the trade between New Hampshire, and may be taxed. Vermont, Rhode Island, and Massachusetts, or that between New Jersey, Connecticut, and New York. The great markets draw their daily supplies from the neighboring States,

3d. That although the Constitution gives to Congres the power to regulate foreign commerce, yet this is not an exclusive but a concurrent power, and that, consequently, the State may, within its own limits, regulate foreign commerce, provided it does not make laws for that purpose which are repugnant to the laws of the United States.

4th. That no such conflict or repugnancy does exist between the law of Massachusetts and any law of the United States, and therefore the law of Massachusetts is valid.

The other view follows out the principle upon which we start, namely, that the law is strictly a police act made to correct an existing

sus

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 harbor of New York; it may be a member of Congress, on his way to 338*] discharge his legislative *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 al- | passengers. lowed 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.

1 Revised Statutes, p. 436, sec. 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 It would be a truer illustration to suppose a master of every vessel that shall arrive in the citizen or an alien-no matter whom, the Pres- port of New York, viz.: "For the master and ident of the United States or the humblest in- each cabin passenger in a vessel arriving from dividual that ever entered the harbor any a foreign port, one dollar and fifty cents. For person capable of being the vehicle of in- each steerage passenger, mate, sailor, or marifectious disease-to approach our city, bring-ner, one dollar." ing infection, bearing death to thousands-an The defendant, as health commissioner, deapproach more dreadful than that of an invad-manded of the plaintiff, as master, etc., the ing army. He is repelled-justly repelled-by sum of two hundred and ninety-five dollars for

the use of the quarantine, for that number of it, the objectionable clauses have not crept in steerage passengers brought by him in his ves-through any oversight or inadvertence on the sel as aforesaid. The master refused to pay, part of its framers. No law was ever better and the health commissioner sued, as required considered, both as to its efficiency for the purby the statute. pose intended, and as to its collision with any law of the United States.

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.

a

This cause has already been once elaborately argued before the court. Cases involving 340*] analogous principles have since *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.

This obnoxious law was reported by a joint special committee, of which Aaron Burr was a member and De Witt Clinton was chairman. The Supreme Court of New York overruled For ten years prior, the yellow fever had raged the demurrer, denying that the State law is almost annually in the city, and annual laws contrary to the Constitution of the United were passed to resist it. The wit of man was States, and declaring that the principle in- exhausted, but in vain. Never did the pestivolved is essentially the same as that involved lence rage more violently than in the summer in the case of New York v. Miln, 11 Peters, de- of 1798. The State was in despair. The riscided by this court in favor of the State law. ing hopes of the metropolis began to fade. The The master appealed from this decision to opinion was gaining ground, *that the [*341 the Court of Errors, the highest court in our cause of this annual disease was indigenous, State, and that court unanimously affirmed the and that all precautions against its importation decision of the Supreme Court. From that were useless. But the leading spirits of that court the master has appealed to this high tri- day were unwilling to give up the city without bunal, and the only specification which he a final desperate effort. The havoc in the makes of the unconstitutionality which he al-summer of 1798 is represented as terrific. The leges against the State law is, that it is a regu- whole country was roused. A cordon sanitaire lation of commerce over which the State has was thrown around the city. Governor Mifflin, no jurisdiction. 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. Facts were proclaimed in Connecticut and in the neighboring cities, and when the pestilence had subsided, thanksgivings were proclaimed in this and the neighboring 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.

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

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 impassible as that of a State prison, that no one might enter or escape without the permission of the health officer. It also directed that