378*] *of great weight. This court has said, a contemporary 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. Stewart v. Laud, 1 Cranch, 309. Mr. Van Buren adverted to the printed points submitted to the court, and insisted, on the whole case 1. That, if the law in question be "a regulation of commerce," it is such a regulation as the State has a right to make. The right has never been granted exclusively to the Union or prohibited to the States. It rests with the State. II. If Congress might legislate on the same subject, it has not done so in a manner conflicting with this law. III. The tax laid is not an impost or duty of tonnage. The court needed no assurance, he added, that the people of New York feel a deep interest in the decision of this question. The law | has stood for half a century, has been adopted and approved by Congress; system has grown up under it; with an exposed situation, the health and lives of her citizens and of the whole people have been protected by it. Our State had not been a large claimant on either the justice or bounty of the Union; yet she is believed to have contributed something to its aggrandizement. The strength, the intellect, and the lives of her citizens have been freely tendered to its support. She has cheerfully poured into its lap, as her alma mater, the immense resources collected at her port. Her insolvent laws have been prostrated by the judgment in Sturges v. Crowninshield. This very power "to regulate commerce," under which her splendid schemes of internal improvement have been projected and executed, has not been wielded to dig her canals, or, to any consider able extent, to deepen her rivers or to protect her harbors. Nay, the effort of the State to aid them, and to encourage the brilliant but unrequitted genius of one of her sons, was deemed by this court to conflict with this overreaching power of Congress, and fell a victim to judicial condemnation. She indulges the hope, at least, that it will not now be so construed as to prostrate her institutions of public health which have defied the constructions of half a century of time, and of transcendent ability. She saw with unaffected concern the prodigious strides made by this power to regulate commerce towards engrossing and consolidating the power of the Union. This may well be regarded as the mastodon of construction, start ing from this bench, and in its giant strides trampling upon the rights of the States and their sovereignty. Fortunately, it is only known to the present day by its colossal bones, scattered through the reports of the early opin379*] ions of *members of this court. Its march was arrested, its life terminated, in New York v. Miln. The noble ground then assumed was maintained in the License Cases. He had no right to advise the court, but as an humble citizen contributing a mite towards public opinion, there could be no impropriety in alluding to the jealousy felt towards this branch of the government. The life tenure of its judges removes them from the direct effect of public opinion. Selected by the general government, they are yet in some sort arbiters between it and the States. It is desirable they should secure the affections of the people. Their recent decisions have largely effected this, and the people regard these as indications that popular and liberal impulses have reached this bench. To confirm this, they have only to adhere to the just rules already laid down, to the practice the great maxim which secures respect and renders certain the rights of property and life, Stare decisis. In the case at bar, New York asks nothing but justice at their hands. Granting much, yielding much, to the wealth, glory, and power of the Union-a Union in which she feels a just pride, and the value of which she never stopped to calculate-she does not feel that it is immodest to ask (if it be considered asking) that she may avail herself of her local position to sustain in part the expense to her citizens, and the danger to their health and lives, which attend her exposure and the Union's commerce-that she may arrest and purify the stream before it enters her veins, that the blood of life to the rest of the Union may not be infection and death to her. Norris v. City of Boston. Mr. J. Prescott Hall, for the plaintiff in error: The object of the writ of error in this case is to test the constitutionality of an act of the Legislature of the State of Massachusetts, passed in the year 1837, entitled, "An Act relating to alien passengers." With the general question involved in the cause, this court is entirely familiar. It is a branch of constitutional law which has occupied its attention at intervals during the last thirty years. The controversy with regard to the powers of the several States over commerce and navigation, and their authority to control these and analogous subjects, supposed to be beyond their jurisdiction, began as far back as the year 1819, with the case of McCulloch v. Maryland, 4 Wheat. 316, when it was here decided, that the act of Congress establishing a bank of the United States was not only constitutional, but that the States had no warrant for taxing its branches, or power, by *these or [*380 other means, to impede their action, or drive them beyond their territorial limits. In strict analogy with this case was that of Weston v. The City of Charleston, 2 Peters, 449, in the year 1829, when this court held that a tax imposed by a State on stock issued for loans to the United States was unconstitutional, and could not be collected. The question as to the power of the States over commerce and navigation was directly presented by Gibbons v. Ogden, in the year 1824, when it was held that the State of New York could not grant to any of its citizens an exclusive right to traverse the great bays and navigable waters of that State with vessels pro(pelled by steam, to the exclusion of those from other States, licensed or enrolled under acts of Congress. These discussions led to another, in the year 1827, when this court decided that the State of Maryland could not compel merchants, engaged in the business of importing and selling foreign goods by the bale or package, to take out licenses for the same, and to pay a sum of ❘ Can they levy contributions upon aliens and she will extend the system. If it is advisable | Orleans, who have no purpose of remaining in money, or tax, for the privilege. Brown v. State of Maryland, 12 Wheat. 419. Then followed, after an interval of ten years, the case of The City of New York v. Miln, 11 Peters, 102, which is supposed to control the present controversy and recognize the power of a State to regulate, in some degree, the commerce and navigation of the whole country, even on the tide waters which wash our shores. Nor will such controversies cease, perhaps, until other kindred subjects have been explored and examined; for New York claims now, and exercises, the power of imposing burdens upon the disposition of foreign merchandise in its original condition as imported, when sold in a particular manner that is, by auction. The recent decisions of this court upon the license laws of New Hampshire, Massachusetts, and Rhode Island may be also referred to, as bearing materially upon the reasoning we must employ, in expressing our views upon the subject now under consideration; but as they will undergo a critical examination in the progress of the argument, they are here merely glanced at in passing. This brief statement of the course of legislation and decision upon these subjects brings us back to the case now before the court. It arises under the act of Massachusetts before referred to, passed in the year 1837, shortly after the case of The City of New York v. Miln had opened the eyes of her legislators to this new source of revenue. This law provides, that, upon the arrival of a 381*] vessel in the "waters of Massachusetts with alien passengers on board an officer of the city or town where such passengers are to be landed shall stop the vessel, and examine into the condition of its passengers. If any lunatics or infirm persons, incompetent to maintain themselves, are found, they cannot be permitted to land till security is given against their becoming chargeable within ten years; and no other alien passenger shall be permitted to land until two dollars are paid for each, to be appropriated for the support of foreign paupers. By another provision of the same law, the State pilots are required to anchor vessels at particular places, suitable for the examination of such passengers; and all this may be done while the ship is yet, comparatively, at seamore than a cannon-shot from the shore, and beyond the jurisdiction of Massachusetts. The examination may be made, and the tax is exacted, before the passage money is earned; be fore the voyage is completed; while the insurance is running; before the passenger touches the soil of the State; while all is in itinere. The validity of the act is defended upon the ground that it is a poor-law; that it is a police regulation; that the State has a system of pauper laws, of which this is a part; that the money, when collected, is expended in the support of foreign paupers; and that, as the means are appropriate to the end, the law itself may be upheld as valid. The States have the power, beyond doubt, to pass poor-laws and make police regulations. But the question is, Can they provide for paupers, foreign or domestic, by a tax upon the commerce or navigation of the United States? citizens of other States, on shipboard, for the support of their police regulations and pauper systems? Are they not forbidden the exercise of this power by the Constitution of the United States, which is the paramount law of the land? The means may be appropriate to attain the end, if the State has the power to use them; but have they any such power? And that is the whole question before the court. If the tax were imposed upon merchandise imported from foreign countries, the means to accomplish the object would be as appropriate as any other; and Massachusetts, were she an independent nation, might employ them at her discretion. But when she came into the Union, in 1789, she gave up, in express terms, all control over foreign commerce, although she was more interested in it at that time than any other State. But she never did tax foreign commerce, be it observed, when she had the power to do so, for the support of paupers; *on the [*382 contrary, for more than half a century, she maintained her own system by her other means. The tempting bait was first thrown out in the year 1837, by the case of New York v. Miln, and she seized it with avidity. In our view of the law in question, it imposes a tax on the commerce of the country for the benefit of Massachusetts and its treasury. We consider it as a direct invasion of the power of Congress to regulate navigation and trade, and therefore as unconstitutional and void. It is not an inspection law, nor a quarantine or police regulation; and if it were, the States cannot lay taxes on the commerce of the country, or any part of it, to build up and support police or quarantine establishments, although we admit the incidental expenses and ordinary fees of inspection belonging to sanatory regulations may be exacted by the States. But the law in question imposes a duty on imports without the assent of Congress; for there may be importations of men as well as merchandise. The ninth section of the first article of the Constitution of the United States, when speaking of "the migration or importation" "of persons," is not restricted to any particular class of persons. The words are general, they are applicable to all persons, bond or free, and show that the whole power over such importations is confided to Congress. Nor is the use of the word "importation," when connected with "persons," peculiar to the Constitution. An act passed by Congress in 1793 is entitled, "An Act to prevent the importation of certain persons into certain States where, by the laws thereof, their admission is prohibited." And Judge Marshall held, in the case of The Brig Wilson, 1 Brockenbrough, 437, that the prohibition of the law comprehended freemen as well as slaves. Various English statutes, applicable to the British Isles, where slavery does not exist, have been passed to regulate or impede or prohibit the importation of persons, free in their own countries, and who would be so in England. Stat. 1 and 2 P. & M. c. 4; 5 Eliz. c. 20; Jacob's Law Dict. art. Egyptians. And it may be remarked here, that the very act of Congress before referred to proves that the whole power of regulating or prohibiting the importation of persons is vested exclusively in the general government. It was passed upon a petition from North Carolina, setting forth that the French had set free their slaves in Gaudaloupe, and the aid of Congress was invoked to protect the institutions of the South from the dangerous contact of free persons of color. The State felt its want of power over the subject. She knew it was vested in Con383*] gress alone, *and to Congress she turned for relief. That body immediately prohibited the "importation" of "negroes, mulattoes, and persons of color," free as well as slaves, into any State which by law had proibited or should prohibit the importation of any such person or persons. And this act sanctioned to this day the legislation of the Southern States, to a great extent, upon this very subject. The act of the State of Massachusetts now under examination might also be regarded, were it necessary, as imposing a duty on ton nage; being a tax on passengers by the poll. The number of passengers to be taken on board, or imported, in ships of the United States, is limited by law to a fixed relation, or ratio, with the tonnage of the vessel; and as only two passengers are allowed for every five tons, a tax of two dollars on each person is a tax on the vessel of eighty cents a ton. The question before the court is a question as to power, and of power alone. It is a question as to the power on the part of a State to tax the commerce of the Union, to raise a revenue for her own uses. Give Massachusetts the authority to collect money from passengers for the support of paupers, and see how quickly these reasons for the decision of the Supreme Court of Massachusetts are not strong enough to sustain it. No court can determine the constitutionality of a law by the extent to which its purposes are carried; for if a State has the power to pass a law, she alone can limit its exercise. The courts cannot regulate or control the discretion of legislators; and if their power be once admitted, all control over them is surrendered up. The Chief Justice of this court has said, in express terms, that "upon this question the object and motive of the State are of no importance, and cannot influence the decision. It is a question of power." Can the Supreme Court of Massachusetts say that its Legislature may impose a tax of two dollars upon each alien passenger, but cannot increase it to five? Can the court inquire into the condition of the treasury, count foreign paupers, ascertain the extent of their wants, and so determine whether the tax was designed for constitutional purposes or not? Is there any limit in the power of a State to tax the property of its own citizens in any way and to any extent it may see fit? Must not the same authority which selects the objects of taxation determine its extent also? Where is the limit? Who can define its bounds? Surely the courts cannot, and it has always been held that the power to tax is a power to destroy. 2 Peters, 467; 4 Wheaton, 431. The money to be derived from the tax in the present case is not devoted to the use of those particular aliens who pay it, but to all aliens subsequently to arrive. The strong are to pay for the feeble, the rich for the poor. Passengers arrive at Boston, New York, and New to support emigrants when in a state of destitution, it is also desirable to educate their children, so that they may not become a burden upon the Commonwealth at a future day. The expense of free schools is far beyond that of pauper asylums; and if Massachusetts has those places. Their destination is westward, towards the interior States, who have no soil touching upon that ocean which, by the Constitution, is as free to them as to the States. which are washed by its waves. Emigration, is encouraged by the Constitu the power to raise revenue by these means fortion of the United States. Its prohibition and one purpose, so may she for the other. It is true Chief Justice Shaw, in this very case of Norris v. The City of Boston, now before the court, restricts the power of the State to the object for which the tax is laid. He supposes that the States may impose small burdens of this kind, but are prohibited from their extension. He says 4 Met. 297: "If, under the form of pilotage, a large sum of money should be demanded of any inward bound vessel, the effect of which would be to raise a revenue from foreign commerce, the pretense of its being pilotage would not make it legal. And this suggestion answers an argument much pressed, that if the State could demand two dollars in respect to each passenger, it could demand two hundred, or two thousand, and so raise a large revenue for any and all purposes. We think it is plain, that, if any such large sum were exacted of passengers, it would indicate the real purpose and design of the law to be to raise revenue, and not in good faith to carry into effect a useful and beneficent poorlaw-useful and beneficent to such aliens them selves; and therefore it would be in contravention of the Constitution and laws of the United States, and void." 384*] *With great respect, we submit that impediments in its way were subjects of complaint in the Declaration of Independence. The laws of Congress encourage and protect emigration. The condition of mankind solicits it; ships are given up entirely to the importation. of passengers, their decks being loaded with responsible beings instead of merchandise. Steam has added its power to that of the winds,. and vessels propelled by its energies will be hereafter exclusively devoted to this great. branch of commerce. New York and Boston and New Orleans have almost a monopoly of this business, and they seize the occasion to raise revenue from it. It may be well to regulate this matter; it *may be expedient to raise a fund for [*385. paupers; it is kind and benevolent to do so; but the question is, How can it be lawfully done? Who shall make this regulation of commerce-Congress or the States? Congress has the power to make the burden uniform; the States cannot. Massachusetts taxes the passenger two dollars; New York but one. who arrive in Boston, for the most part, pay through to other States. Those who come to New York, oftentimes without touching at the New Yo city, ascend the Hudson, and continue their progress without ceasing, until they reach the Those great prairies of the west. Yet each and all of these countless thousands leave a portion of their property, destined for their own use in other States, in the treasuries of these two ocean powers, and for the benefit of persons other than themselves. The Norwegian is taxed for the Frenchman, the Dane for the Irishman, the German for the Englishman, and all for the benefit of New York and Massachusetts. If these two States have the burdens of foreign pauperism, so have they also the benefits of foreign commerce. The sails of their ships whiten every sea, while the internal States, shut out from the ocean, have no such benefits in the same degree. The tax of Massachusetts is not applicable to such paupers as arrive at the same time with the rich and the healthful. Her laws guard the Commonwealth sedulously against this burden, by requiring those who are in the condition of becoming a charge upon the State to give ample security for ten years against such charge before they are permitted to land. The pauper gives security; those who are above his condition pay a tax-not for themselves, but for others. The law of Massachusetts discriminates, taxing aliens alone. If it may do this, it may discriminate among nations. Treaties would have nothing to do with the subject, for the States cannot make them; nor could Congress restrain them if the power in question is a mere police regulation or sanatory measure. Congress cannot regulate or restrain the States in matters of police and health, as each State has unlimited power over these subjects, to be exercised according to its own discretion. If States may tax those who arrive by sea, they may tax those who travel by land. They may favor the North and burden the South; and New York, in her laws, does discriminate, in relation to this very subject, favorably to New Jersey, Connecticut, and Rhode Island, and adversely towards the other States. She takes upon herself to say, that coastwise passengers shall all be taxed; but that those from contiguous States, because of the frequency of intercourse, shall not be burdened to the same degree as those who are more remote. 386*] *With entire confidence, we submit that this cannot be done. New York cannot discriminate between the Southern and the Eastern States in favor of the latter and against the former. She has no power over the subject. Citizens of one State have the privileges and immunities of citizens in all the other States, and they cannot be limited or curtailed in their rights by State authority. Even Congress could not do this, as its legislation must be uniform throughout the nation. But the act of Massachusetts taxes aliens who come here for temporary purposes of business. Alien passengers in steamers and ships of war, whether foreign or domestic, are brought within its terms. The packets which ply constantly, in all seasons of the year, between Boston and Liverpool, are subject to its demands, and must obey them. The comity of nations forbids the exercise of this power to this extent, for the very idea of taxation, includes, or implies, that of reciprocal rights and duties; of allegiance on one side, and protection on the other. "The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. This is an original principle, which has its foundation in society itself." "All subjects over which the sovereign power of a State extends are objects of taxation; but those over which it does not extend are, upon the soundest principles, exempt from taxation." "The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think not." 2 Peters, 563, 564; 4 Wheat. 429. Aliens and merchandise are not "introduced" into Massachusetts by her "permission," nor do commerce and navigation exist by her "authority." The persons and property of aliens do not belong to the "body politic" of that State, and her "sovereignty" does not extend to commerce and navigation, nor to aliens before they come within her jurisdiction. Until landed, they are under the jurisdiction of the United States, covered and protected by their laws. It will not be denied that Congress may impose taxes or duties at pleasure on men and merchandise, upon their importation (within the limits of treaties), without any objection as to its constitutional right to do so. But suppose the power were exercised by Congress; from whence would such authority be derived? Obviously, from the power "to lay and collect taxes, duties, imposts, and excises," and "to regulate commerce." The control of Congress over foreign commerce is *unlimited, [*387 while that of the States has been given up to the general government. Massachusetts cannot raise a fund for her pauper system by taxing the property of aliens on shipboard before it is landed or made subject to her jurisdiction. She could lay no duty, for instance, under the tariff of 1842, on "wearing apparel and other personal effects, not merchandise, professional books, instruments, implements and tools of trade, occupation or employment of persons arriving in the United States," because this law declared that those articles should be exempt from duty. upon this subject Congress has legislated from the beginning to the same effect. And Has not the general government, then, interposed its authority and prescribed the terms under which aliens shall come into the ports of the United States-not the ports of Boston and New York, but the ports of the nation at large, each and all of them, from the St. John's to the Rio Grande? Congress has said that the pers rsonal effects, not merchandise of aliens, shall be admitted exempt from duties. It has nowhere taxed their persons, but has permitted them, so far as their legislation is concerned, to come in free of charge. If the States cannot tax the personal effects, not merchandise, of aliens because Congress has permitted them to be free, how can they tax their persons, which, by clear implication, are to be free also? Congress as often regulates commerce by permitting it to go untrammeled as it does by direct action. If that power were to impose taxes upon specific articles enumerated in a tariff, and omit all others, the latter would be free; for all articles not directly charged with duty by some act of Congress are undoubtedly exempt therefrom. The Liverpool Hero, 2 Gall. 188. No State can, without the consent of Congress, lay any duty on imports except to carry out, as far as may be necessary, their inspection laws; and this by the express words of the tenth section of the first article of the Constitution. But suppose that section had been omitted; could the States then impose duties upon imports while the eighth section remains, which gives to Congress the entire control over the subject? "From the vast inequality," says Chief Justice Marshall, "between the different States of the confederacy as to commercial advantages, few subjects were viewed with deeper interest, or excited more irritation, than the manner in which the several States exercised, or seemed disposed to exercise, the power of laying duties on imports. From motives which were deemed sufficient by the statesmen of that day, the general power of taxation, indispensably necessa388*] ry as it was, and jealous as the *States were of any encroachment on it, was so far abridged as to forbid them to touch imports or exports, with the single exception which has been noticed. Why are they restrained from imposing these duties? Plainly because, in the general opinion, the interests of all would be best promoted by placing the whole subject under the control of Congress." It is obvious that the same power which imposes a light duty can impose a very heavy one; one which amounts to a prohibition. Questions of power do not depend on the degree to which it may be exercised at all; it must be exercised at the will of those in whose hands it is placed. 4 Wheat. 438, 439. It is not denied by the plaintiff in error, that States can establish systems of pauper laws, which may include aliens as well as natives; but they cannot tax commerce or navigation in order to procure the means for their support. For this purpose they must assess their own property and their own constituents, and not assume a power to tax, because of the benevolent objects for which the revenue is to be raised. If the end will sanction the means, then all power of restraining taxation is at an end. We do not complain of any just exercise of a police power, nor of inspection laws, nor demands for lists of passengers, nor of acts to keep out pestilence or regulate the introduction of persons burdensome to the Commonwealth, nor of the stopping of ships for examination merely. All these things may be done, and yet no authority found in the States to tax passengers, brought into the country in the due course of commerce and navigation, for the purpose of supporting these measures. If the States may impose these burdens, they may exclude passengers altogether. If they can tax aliens as such, they may expel them, when landed, by an oppressive exercise of the power. If they tax on arrival, they may tax on departure, and there is no limit to the power. It is supposed that this case is governed by that of The City of New York v. Miln; but upon examination it will be found that the action in that case was not founded upon any section of the passenger law which imposed a tax upon them. It was an action of debt, for the recovery of a penalty for not reporting the names of the passengers. The declaration averred that a certain vessel arrived in the port of New York from Liverpool, with passengers on board, and that the master did not make a report in writing to the mayor of the city of the name, place of birth and last legal settlement, age, and occupation of the several persons brought as passengers on the ship, contrary to *the [*389 provisions of the act of the State of New York (partly recited in the declaration), whereby an action accrued to the plaintiff to demand from the defendant, the consignee of the ship, the sum of seven thousand five hundred dollars. To this declaration there was a demurrer and joinder. The decision of the court was therefore confined to that part of the act which requires the master, within twenty-four hours after the arrival of his vessel, to make report of his passengers, but the question as to the power of taxation did not arise. It is true there were many general remarks upon constitutional law, made by the judges who gave opinions; but the points before the court and the questions passed upon were those above referred to. Chief Justice Taney, in remarking upon this case of New York v. Miln, observes, that, "the question as to the power of the States upon this subject was very fully discussed at the bar. But no opinion was expressed upon it by the court, because the case did not necessarily involve it, and there was great diversity of opinion on the bench. Consequently the point was left open, and has never been decided in any subsequent case in this court." 5 How. 584. But can the maritime States, by their own acts, prohibit the importation of settlers for the public lands, or their migration to those unoccupied regions of the interior which are ready to welcome their approach? Congress has legislated upon the subject of emigration and naturalization, the exclusive power over which is given to that body by the Constitution. It has also legislated concerning the carrying of passengers, prescribing the space they shall be entitled to occupy on shipboard, the food and water with which they shall be supplied, and the privileges they shall enjoy. The institutions and laws of the United States encourage the emigration of foreigners, and our untilled soil requires the stimulating power of their industry. Can the maritime States, then, by their own legislation, restrain or destroy that commerce which relates to the importation of passengers, and their migration to other States open for their reception? The law of Massachusetts prescribes some of the terms upon which aliens may land upon her shores. If it can prescribe some, it can prescribe others. It may establish burdensome or impossible conditions, and so shut out emigrants altogether. Let it not be forgotten that this is a question of power exclusively. Emigrants arrive in Boston destined for Iowa. This convenient eastern port is selected as a place of disembarkation, the ultimate purpose being a permanent settlement elsewhere. The passengers are not, as a matter of course, either diseased, *decrepit or infirm. They may [*390 |