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." 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 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 Baldwin. a 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? And which of them (the States) cannot forbid their soil from being polluted by incendiaries and felons from any quarter?” The constitutions of Kentucky, Mississippi, Alabama, Missouri, Arkansas-all States admitted by the acts of Congress to the Union 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. 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 If slavery can upon this ground be withdrawn from the commerical power of the United States, and committed exclusively to the States, then I ask, how can those who entertain this opinion hestitate for a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 police regulation? How in a matter so clear, can 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 we not do this? Is our right doubted and denied? Then I ask those who concede the power to enforce penalties for a violation of have provisions in their constitutions author-non-intercourse laws in regard to slavery, and This is what we may do-it is what is con- | important inquiry, though secondary in princi izing the Legislatures to exclude slaves brought 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 ne groes 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 the right to raise revenue when sales are made 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; on the contrary, we have not come fully up to the advice, for we do not shut out the pestilence. 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. ceded to us by the highest authority. When we exact bonds of indemnity for lunatics, paupers, aged and infirm persons, and those incapable of supporting themselves, is it doing more than to protect ourselves by very reasonable measures? When we exact of masters two dollars for each alien brought in, to be expended in relieving these alien paupers, whom, if we receive, we must support, is this a measure out-❘ side of what is recommended? ple, arises as to the power to exact two dollars for each alien, as a condition upon which he may come to abide here? I contend that this feature of the law (although, in reply to the arguments of counsel, it has been treated as a revenue measure) is, in fact, strictly a police measure. The counsel deny that the State has a right to take any money in execution of the law. I trust we have vindicated the right, as belonging to the reserved power of the State to tax whatever is within its territory; but whether we have or not, there can be little doubt that police laws carry with them the inherent right the law. How are we met when we attempt to exercise the power conceded to us? If we attempt to meet pauperism in the great highway of its introduction, we are rebuked for regulating for eign commerce, although everybody can see that, ❘ to raise in some form sufficient funds to execute if this privilege be denied to us, we can take no effective measures to prevent its introduction; for we must see the persons and know their condition before we can decide what is expedient. Moreover, nothing can be effectual that It is upon this ground that fees are paid to pilots, and that masters are compelled to pay, whether they take a pilot or not. It is on this ground that ship-owners are obliged to is not felt by those who are chiefly instrument- | pay the expenses, often large, of quarantine al in the introduction of such persons. We may protect ourselves, say the court; but when, how, where? These are pregnant inquiries. Can we deal with paupers and pauperism as with contagion or infection? Can we hold those who bring the calamity upon us accountable? Can we protect ourselves | as we do against the dangers of gun-pow and health laws. It is on this ground that ballast laws and harbor laws are enforced. *All such acts subject the party, either [*334 to expense or to what is equivalent. These police acts all stand on the firm basis of acknowledged right. The authority of a State to maintain and enforce them is admitted. They are mostly precautionary measures, found der and explosive articles, which put in peril necessary for the public welfare. The princilife and property? We lay the burden of pro-ple running through them all is, that those who tective measures upon those who bring in such ❘ give occasion to resort to corrective legislation merchandise or such diseases. 333*] *What can a State do to avert or prevent, after the paupers and vagabonds are landed and mixed with the popluation? Such an exercise of the power conceded to us would be barren and useless. We must meet it on shipboard, as we do disease and dangerous merchandise. There we can put our hands upon the lunatics, idiots, aged and infirm paupers, etc. There we can learn what the ship owner, the master, and the agents for emigration are about. There we can detect their conspiracy with the parishes of Europe to transfer their poor and their culprits to this country, to poison our morals and increase our burdens. There is the place, and the only place, to apply the corrective, where the evidence can lead to no mistake. If we cannot meet the evil here, and regulate it here, the power to expel and the power to prevent are empty and worthless. The result 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 them. The Constitution was never designed to work out such results-results which are as injurious to the United States as they are to the States. If we cannot meet and control by suitable regulations the introduction of such persons, on what principle can the laws expelling or forbidding the introduction of free negroes be sustained? Such laws exist, and I apprehend it will be found difficult to sustain them on the ground of color alone. deny to But I have dwelt, perhaps, sufficiently on this question of power to admit or sons the right to live among us. deny to per A still more must bear the expense. It may be a great misfortune to have contagion on board of a vessel; but those who sail her bring it in, and must bear the expense of the measures necessary to preserve the public health. This right goes, not only to the requirement of money, but to the destruction of property, when safety demands it. This principle is inherent in the police system, and if it were not-if the expense of executing such laws could not be exactedthey could not be executed at all. The State manifestly ought not to be required to pay pilots, or for the expense of quarantine. Is there any well founded distinction between this mode of employing police power and that adopted by Massachusetts? Is not protection against paupers just as necessary and as completely police in its character as the preservation of health? Let us look attentively at the law of Massachusetts in this particular. It manifestly cannot 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 neitlier 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 would be adequate to the exigency, and accordingly required the master to pay that much. And the Supreme Court of Massachusetts say, pense 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 that it little more than covered the actual ex- | and growing evil, and stands upon the same 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 me. 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. 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. 3d. That although the Constitution gives to Congress 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 for eign 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 Our a 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. 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 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 suspended in its operations, our persons and property would remain secure. Justice would be ad does exist between the law of Massachusetts | ministered, and good order just as well pre and any law of the United States, and therefore the law of Massachusetts is valid. 5th. That two views might be taken of that provision of the law which required the master to pay after the rate of two dollars each for all alien passengers brought into port and landed. First, the counsel for the plaintiff maintains that it is a tax for revenue, and as such is a regulation of commerce. We meet them on this ground by saying, that the provision can be and is maintained under the taxing power of the State, which, being concurrent and coextensive with that of the United States, and served as it is now. The only material derangement would be in the foreign trade and commerce. It is manifest that our strength, and the durability of our system, lie in the federative principle-in the organization of States, whose powers embrace everything except a very few national objects. The limitation of this government to such objects alone gives to it its strength and usefulness, and the most unwise, if not the most fatal, course it can take will be to arrogate to itself the power of the States, by taking from them what they 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 class of persons engaged in commerce, unless the State is restrained by the prohibitions in the Constitution; that these are limited to duties on imports and tonnage; that men are neither the one nor the other, nor are they the subjects of trade and commerce, as they are not bought, or sold, or brought into the country by anyone for the purposes of trade. They are, therefore, excluded from the prohibitions, and are left to the State as a resource of revenue, and may be taxed. 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 power over foreign commerce is exclusive, and no doubt this doctrine extends also to commerce between the States. Commerce consists of everything belonging to trade and navigation. It is manifest, however, that the States have managed, controlled, and regulated at all times nine tenths of this intercourse. Their laws prevail, not only in the *ports, [*337 harbors, cities, etc., but I know of no attempt on the part of the United States to regulate in any way the trade between New Hampshire, 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, which in turn supply their wants from those Such are the grounds upon which I have endeavored to place the merits of the questions involved. We are opposed at every step, and whatever position we assume, it is alleged to be within the sur supposed mischief complained of. We are denied the right to board a vessel for the purpose of examining the passengers. We were always till now denied by the counsel the right to exact, in any case, a bond of indemnity for alien paupers; and as a bond is a contingent liability to pay money, it is difficult to see how it can be lawful, though it is now conceded to be so, while a claim for money is the express authority of the law of nations. Vattel, Book, 2, ch. 9, sec. 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 guan 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. effo 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 quaran denounced as unlawful. The one right stands | tine, for the exclusive use of all persons enter upon no better foundation than the other. We are denied the right to demand money for any purpose. We can do none of these things without regulating unlawfully foreign commerce. We cannot meet and correct the evil of pauperism. England, Ireland, and Germany may empty their poor-houses upon us, and compel us to assume their burdens and to perform their duties to humanity, because we are passive, powerless instruments in their hands. We do not believe that the States are thus shorn of their authority, or that the Constitution of the United States was ever designed to cover such broad ground, and therefore we feel confident that the law of Massachusetts is constitutional. ing our harbor 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? ex It is eminently proper that the passenger should pay all reasonable and proper penses. 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 *is by a turnpike; [*339 but the traveler, 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 Mr. Willis Hall, for the defendant in error: through the territory without a passport, but On the former argument of this cause, the the traveler, and not the State, pays for the distinguished counsel who will conclude this passport. The State is under no obligation to discussion illustrated it by supposing a citizen | permit the passenger to enter her territory at of the United States coming from Charleston | all. Nothing can be more reasonable, there Smith v. Turner. 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 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 in fore, 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, sometime 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, 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 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 dividual that ever entered the harbor-any | a foreign port, one dollar and fifty cents. For 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 each steerage passenger, mate, sailor, or mariner, one dollar." The defendant, as health commissioner, demanded of the plaintiff, as master, etc., the 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, 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. 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, *that the [*341 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. Facts were proclaimed in Connecti 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 sur-cut and in the neighboring cities, and when rounded with difficulties. Under these circumstances, far abler counsel might well despair of being able to present the pestilence had subsided, thanksgivings were proclaimed in this and the neighboring States. Governor Jay called the attention of the Legis a new view of the case, or a new argument; | lature to the subject in his message, and they 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. 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 com I. Our quarantine, as now established, rests | mencing that glorious career which has since 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. 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 impassible as that of a State prison, that no one might enter or escape without the permis 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 | sion of the health officer. It also directed that |