occupation, and whether they intend to become | Southern States, in spite of any State law to inhabitants of this country, and how many the contrary; inevitably producing the most have died on the voyage; and this list is to be returned quarterly to the State Department, to be laid before Congress. But the law makes no provision for their landing, nor does it require any inspection as to their health or condition. These matters are evidently intended to be left to the State government, when the voyage has ended, by the proper custom house entry. For it cannot be supposed that, if the Legislature of the United States intended by ❘ this law to give the passengers a right to land, it would have been so regardless of the lives, and health, and interests of our own citizens as to make no inquiry and no examination serious discontent, and ultimately leading to the most painful consequences. It will hardly be said, that such a power was granted to the general government in the confidence that it would not be abused. The statesmen of that day were too wise and too well read in the lessons of history and of their own times to confer unnecessary authority under any such delusion. And I cannot imagine any power more unnecessary to the general government, and at the same time more dangerous and full of peril to the States. But there is another clause in the Constitution which it is said confers the exclusive pow upon a subject which so nearly concerned them. er over this subject upon the general governBut it directs no inquiries, evidently because ment. The ninth section of the first article dethe power was believed to belong to the States. clares that the migration or importation of And as the landing of the passengers depended on the State laws, the inquiries as to their health and condition properly belonged to the State authorities. The Act of 1819 may fairly be taken as denoting the true line of division between the two sovereignties, as established by the Constitution of the United States and recognized by Congress. I forbear to speak of other laws and treaties referred to. They are of the same import, and are susceptible of the same answer. There is no conflict, therefore, between the law of Massachusetts and any treaty, or law of the United States. Undoubtedly, vessels engaged in the transportation of passengers from foreign countries may be regulated by Congress, and are a part of the commerce of the country. Congress may prescribe how the vessel shall be manned and navigated and equipped, and how many passengers she may bring, and what provision shall be made for them, and what tonnage she such persons as any of the States then existing should think proper to admit should not be prohibited by the Congress prior to the year 1808, but that a tax or duty might be imposed on such importation, not exceeding ten dollars for each importation. The word "migration" is supposed to apply to alien freemen voluntarily migrating to this country, and this clause to place their admission or migration entirely in the power of Congress. At the time of the adoption of the Constitution, this clause was understood by its friends to apply altogether to slaves. The Madison Papers will show that it was introduced and adopted solely to prevent Congress, before the time specified, from prohibiting the introduction of slaves from Africa into such States as should think proper to admit them. It was discussed on that ground in the debates upon it in the Convention; and the same construction is given to it in the forty-second number of the Federalist, which was written by Mr. shall pay. But the law of Massachusetts now | Madison, and certainly nobody could have unin question does not in any respect attempt to ❘ derstood the object and intention of this clause regulate this trade or impose burdens upon it. I do not speak of the duty enjoined upon the pilot, because that provision is not now before us, although I see no objection to it. But this law imposes no tonnage duty on the ship, or any tax upon the captain or passengers for entering its waters. It merely refuses permission to the passengers to land until the security demanded by the State for the protection of its own people from the evils of pauperism has been given. If, however, the treaty or act of 474*] Congress above referred to had *attempted to compel the State to receive them without any security, the question would not be on any conflicting regulations of commerce, but upon one far more important to the States, that is, the power of deciding who should or should not be permitted to reside among its citizens. Upon that subject I have already stated my opinion. I cannot believe that it was ever intended to vest in Congress, by the general words in relation to the regulation of commerce, this overwhelming power over the States. For if the treaty stipulation before referred to can receive the construction given to it in the argument, and has that commanding power claimed for it over the States, then the emancipated slaves of the West Indies have at this hour the absolute right to reside, hire houses, and traffic and trade throughout the better than he did. *It appears from this number of the [*475 Federalist that, those who in that day were opposed to the Constitution, and endeavoring to prevent its adoption, represented the word "migration" as embracing freemen who might desire to migrate from Europe to this country, and objected to the clause because it put it in the power of Congress to prevent it. But the objection made on that ground is dismissed in a few words, as being so evidently founded on misconstruction as to be unworthy of serious reply; and it is proper to remark that the objection then made was, that it was calculated to prevent voluntary and beneficial migration from Europe, which all the States desired to encourage. Now, the argument is, that it was inserted to secure it, and to prevent it from being interrupted by the States. If the word can be applied to voluntary immigrants, the construction put upon it by those who opposed the Constitution is certainly the just one; for it is difficult to imagine why a power should be so explicitly and carefully conferred on Congress to prohibit immigration, unless the majority of the States desired to put an end to it, and to prevent any particular State from contravening this policy. But it is admitted on all hands, that it was then the policy of all the States to encourage immigration, as it was also the policy of the far greater number of them to dis-led to embrace those persons only who were courage the African slave trade. And with brought in as property. these opposite views upon these two subjects, the framers of the Constitution would never have bound them together in the same clause, nor spoken of them as kindred subjects which ought to be treated alike, and which it would be the probable policy of Congress to prohibit at the same time. No State could fear any evil from the discouragement of immigration by other States, because it would have the power of opening its own doors to the immigrant, and of securing to itself the advantages it desired. The refusal of other States could in no degree affect its interests or counteract its policy. It is only upon the ground that they considered it an evil, and desired to prevent it, that this word can be construed to mean freemen, and to class them in the same provision, and in the same words with the importation of slaves. The limitation of the prohibition also shows that it does not apply to voluntary immigrants. Congress could not prohibit the migration and importation of such persons during the time specified "in such States as might think proper to admit them." This provision clearly implies that there was a well known difference of policy among the States upon the subject to which this article relates. Now, in regard to voluntary immigrants, all the States, without exception, not only admitted them, but encouraged them to come; and the words "in such States as may think proper to admit them" 476*] *would have been useless and out of place if applied to voluntary immigrants. But in relation to slaves it was known to be otherwise; for while the African slave trade was still permitted in some of the more Southern States, it had been prohibited may years before, not only in what are now called free States, but also in States where slavery still exists. In Maryland, for example, it was prohibited as early as 1783. The qualification of the power of prohibition, therefore, by the words above mentioned, was entirely appropriate to the importation of slaves, but inappropriate and useless in relation to freemen. They could not and would not have been inserted if the clause in question embraced them. I admit that the word "migration" in this clause of the Constitution has occasioned some difficulty in its construction; yet it was, in my judgment, inserted to prevent doubts or cavils upon its meaning; for as the words "imports" and "importation" in the English laws had always been applied to "property and things," as contradistinguished from "persons," it seems to have been apprehended that disputes might arise whether these words covered the introduction of men into the country, although these men were the property of the persons who brought them in. The framers of the Constitution were unwilling to use the word "slaves" in the instrument, and described them as persons; and so describing them they employed a word that would describe them as persons and which had uniformly been used when persons were spoken of, and also the word which was always applied to matters of property. The whole context of the sentence, and its pro But apart from these considerations, and assuming that the word "migration" was intended to describe those who voluntarily came into the country, the power granted is merely a power to prohibit, not a power to compel the State to admit it. And it is carrying the powers of the general government by construction, and without express grant or necessary implication, much farther than has ever heretofore been done, if the former is to be construed to carry with it the latter. The powers are totally different in their nature, and totally different in their action on the States. The prohibition could merely retard the growth of population in the States. It could bring upon them no danger, nor any new evil, moral or physical. But the power of compelling them to receive and to retain among them persons whom the State may deem dangerous to its peace, or who may be tainted with crimes or infectious *diseases, or who may be a burden [*477 upon its industrious citizens, would subject its domestic concerns and social relations to the power of the federal government. one It would require very plain and unambiguous words to convince me that the States had consented thus to place themselves at the feet of the general government; and if this power is granted in regard to voluntary immigrants, it is equally granted in the case of slaves. The grant of power is the same, and in the same words, with respect to migration and to importation, with the exception of the right to impose a tax upon the latter; and if the States have granted this great power in case, they have granted it in the other; and every State may be compelled to receive a cargo of slaves from Africa, whatever danger it may bring upon the State, and however earnestly it may desire to prevent it. If the word "migration" is supposed to include voluntary immigrants, it ought at least to be confined to the power granted, and not extended by construction to another power, altogether unlike in its character and consequences, and far more formidable to the States. But another clause is relied on by the plaintiff to show that this law is unconstitutional. It is said that passengers are imports, and that this charge is therefore an impost or duty on imports, and prohibited to the States by the second clause of the tenth section of the first article. This objection, as well as others which I have previously noticed, is in direct conflict with decisions heretofore made by this court. The point was directly presented in the case of Miln v. The City of New York, 11 Peters, 102, and was there deliberately considered, and the court decided that passengers clearly were not imports. This decision is perfectly in accordance with the definition of the word previously given in the case of Brown v. Maryland, 12 Wheat. 419. Indeed, it not only accords with this definition, but with the long established and well settled meaning of the word. For I think it may safely be affirmed, that, both in England and this country, the words visions and limitations, and the construction "imports" and "importation," in statutes, in given to it by those who assisted in framing statistical tables, in official reports, and in pubthe clause in question, show that it was intend- Ilic debates, have uniformly been applied to articles of property, and never to passengers | quire examination *is the objection, [*479 voluntarily coming to the country in ships; and in the debates of the Convention itself, the words are constantly so used. The members of the Convention unquestionably used the words they inserted in the Constitution in the same sense in which they used them in their debates. It was their object to be understood, and not to mislead, and they that the money demanded is a tax on the captain of the vessel, and therefore a regulation of commerce. This argument, I think, is sufficiently answered by what I have already said as to the real and true character of the transaction, and the relative powers of the Union and the States. But I proceed to inquire whether, if the law of ought not to be supposed to have used familiar | Massachusetts be a tax, it is not a legitimate words in a new or unusual sense. And there is no reason to suppose that they did not 478*] *use the word "imports," when they inserted it in the Constitution, in the sense in which it had been familiarly used for ages, and in which it was daily used by themselves. If in this court we are at liberty to give old words new meanings when we find them in the Constitution, there is no power which may not, by this mode of construction, be conferred on the general government and denied to the States. But if the plaintiff could succeed in maintaining that passengers were imports, and that the money demanded was a duty on imports, he would at the same time prove that it belongs to the United States, and not to him, and, consequently, that he is not entitled to recover it. | The tenth section of the first article prohibits a State from laying any duty on imports or exports except what may be absolutely necessary for the execution of its inspection laws. Whatever is necessary for that purpose may therefore be laid by the State without the previous consent of Congress. If passengers are imports, then their condition may be examined and inspected by an officer of the State like any other import, for the purpose of ascertaining whether they may not when landed bring disease or pauperism into the State; for if the State is bound to permit them to land, its citizens have yet the right to know if there is danger, that they may endeavor to avert it, or to escape from it. They have, therefore, under the clause of the Constitution above mentioned, the power to lay a duty on this import, as it is called, to pay the necessary expenses of the inspection. It is, however, said that more than sufficient to pay the necessary expenses of the inspection was collected, and that the duty was laid also for other purposes. This is true. But it does not follow that the party who paid the money is entitled to recover it back from the State. On the contrary, it is expressly provided in the clause above mentioned, that the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the treasury of the United States. If, therefore, these passengers were imports, within the meaning of this clause of the Constitution, and the money in question a duty on imports, then the net produce or surplus, after paying the necessary expenses of inspection, belongs to the treasury of the United States. The plaintiff has no right to it, and cannot maintain a suit for it. It is appropriated by the express words of the Constitution to the United States, and they, and they alone, would have a right to claim it from the State. The argument, however, that passengers are imports, is, in my judgment, most evidently without any reasonable foundation. The only remaining topic which seems to re exercise of its taxing power, putting aside for the present the other considerations herein before mentioned, and which I think amply sufficient to maintain its validity. Undoubtedly the ship, although engaged in the transportation of passengers, is a vehicle of commerce, and within the power of regulation granted to the general government; and I assent fully to the doctrine upon that subject laid down in the case of Gibbons v. Ogden. But it has always been held that the power to regulate commerce does not give to Congress the power to tax it, nor prohibit the States from taxing it in their own ports, and within their own jurisdiction. The authority of Congress to lay taxes upon it is derived from the express grant of power, in the eighth section of the first article, to lay and collect taxes, duties, imposts, and excises, and the inability of the States to tax it arises from the express prohibition contained in the tenth section of the same article. This was the construction of the Constitution at the time of its adoption, the construction under which the people of the States adopted it, and which has been affirmed in the clearest terms by the decisions of this court. In the thirty-second number of the Federalist, before referred to, and several of the preceding numbers, the construction of the Constitution as to the taxing power of the general government and of the States is very fully examined, and with all that clearness and ability which everywhere mark the labors of its distinguished authors; and in these numbers, and more especially in the one above mentioned, the construction above stated is given to the Constitution, and supported by the most conclusive arguments. It maintains that no right of taxation which the States had previously enjoyed was surrendered unless expressly prohibited; that it was not impaired by any affirmative grant of power to the general government; that duties on imports were a part of the taxing power, and that the States would have had a right, after the adoption of the Constitution, to lay duties on imports and exports, if they had not been expressly prohibited. The grant of the power to regulate commerce, therefore, did not, in the opinion of Mr. Hamilton, Mr. Madison, and Mr. Jay, prohibit the States from laying imposts and duties upon *imports brought into their own terri- [*480 tories. It did not apply to the right of taxation in either sovereignty, the taxing power being a distinct and separate power from the regulation of commerce; and the right of taxation in the States remaining over every subject where it before existed, with the excер tion only of those expressly prohibited. This construction, as given by the Federalist, was recognized as the true one, and affirmed by this court, in the case of Gibbons v. Ogden 9 Wheat. 201. The passage upon this sub-a tax upon the instrument of commerce is not ject is so clear and forcible, that I quote the forbidden. Indeed, taxes upon property in ships words used in the opinion of the court, which was delivered by Chief Justice Marshall. "In a separate clause," he says, "of the enumeration, the power to regulate commerce is given, as being entirely distinct from the right to levy taxes and imposts, and as being a new power not before conferred. The Constitution then considers those powers as substantive and distinct from each other, and so places them in the enumeration it contains. The power of imposing duties on imports is classed with the power to levy taxes, and that seems to be its natural place. But the power to levy taxes could never be considered as abridging the right of the States on that subject; and they might, consequently, have exercised it by levying duties on imports or exports, had the Constitution contained no prohibition upon the subject. This prohibition, then, is an exception from the acknowledged power of the States to levy taxes, not from the questionable power to regulate commerce." With such authorities to support me, so clearly and explicitly stating the doctrine, it cannot be necessary to pursue the argument further. I may therefore safely assume, that, according to the true construction of the Constitution, the power granted to Congress to regulate commerce did not in any degree abridge the power of taxation in the States; and that they would at this day have the right to tax the merchandise brought into their ports and harbors by the authority and under the regulations of Congress, had they not been expressly prohibited. They are expressly prohibited from laying any duty on imports or exports, except what may be absolutely necessary for executing their inspection laws, and also from laying any tonnage duty. So far, their taxing power over commerce is restrained, but no further. They retain all the rest; and if the money demanded is a tax upon commerce, or the instrument or vehicle of commerce, it furnishes no objection to it unless it is a duty on imports or a tonnage duty, for these alone are forbidden. 481*] *And this brings me back to the question whether alien passengers from a foreign country are imports. I have already discussed that question, and need not repeat what I have said. Most clearly, in my opinion, they are are continually laid, and their validity never yet doubted. And to maintain that a tax upon him is invalid, it must first be shown that passengers are imports or merchandise, and that the tax was therefore indirectly a tax upon imports. But although this money is demanded of the captain, and required to be paid by him or his owner before the passenger is landed, it is in no proper per and legitimate sense of the word a tax on him. Goods and merchandise cannot be landed by the captain until the duties upon them are paid or secured. He may, if he pleases, pay the duty without waiting for his owner or consignee. So here the captain, if he chose, might pay the money and obtain the privilege of landing his passengers without waiting for his owner or consignee. But he was under no obligation to do it. Like the case of a cargo, he could not land his passengers until it was done. Yet the duties demanded in the former case have never been supposed to be a tax on the captain, but upon the goods imported. And it would be against all analogy, and against the ordinary construction of all statutes, to call this demand a tax on the captain. The amount demanded depends upon the number of passengers who desire to land. It is not a fixed amount on every сарtain or every ship engaged in the passenger trade; nor upon her amount of tonnage. It is no objection, then, to the Massachusetts law to say, that the ship is a vehicle or the captain an instrument of commerce. The taxing power of the State is restrained only where the *tax is directly or indi- [*482 rectly a duty on imports or tonnage. And the case before us is the first in which this power has been held to be still further abridged by mere affirmative grants of power to the general government. In my judgment, this restriction on the power of the States is a new doctrine, in oppos opposition to the contemporaneous construction and the authority of adjudged cases. And if it is hereafter to be the law of this court, that the power to regulate commerce has abridged the taxing power of the States upon the vehicles or instruments of commerce, I cannot foresee to what it may lead; whether the same prohibition, upon the same principle, may not be carried out in respect to ship own not imports; and if they are not, then, accord-jers and merchandise in a way seriously to im ing to the authorities referred to, the State has a right to tax them their authority to tax not being abridged in any respect by the power in the general government to regulate commerce. I say nothing as to its being a tonnage duty, for, although mentioned in the argument, I do not suppose any reliance could be placed upon it. It is said that this is a tax upon the captain, and therefore a tax upon an instrument of commerce. According to the authorities before referred to, if it were a tax on the captain it would be no objection to it, unless it were indirectly a duty on imports or tonnage. pair the powers of taxation which have heretofore been exercised by the States. I conclude the subject by quoting the language of Chief Justice Marshall in the case of Billings v. The Providence Bank, in 4 Peters, 561, where, speaking upon this subject, he says: "That the taxing power is of vital importance, that it is essential to the existence of government, are truths which it cannot be necessary to re-affirm. They are acknowledged and assented to by all. It would seem that the relinquishment of such a power is never to be assumed. We will not say that a State may not relinquish it-that a consideration sufficiently valuable to induce a partial release of it may not exist; but as the whole community is inter rectly a tax on imports, and consequently un-ested in retaining it undiminished, that comwhich the deliberate purpose of the State to | contagious diseases. It is not, therefore, like Unquestionably a tax on the captain of a ship, bringing in merchandise, would be indilawful; but his being an instrument of combeing a merce and navigation does not make it so; for munity has a right to insist that its abandonment ought not to be presumed in a case in abandon it does not appear." Such has heretofore been the language of this court, and I can see nothing in the power granted to Congress to regulate commerce that shows a deliberate purpose on the part of the the law of Massachusetts, confined to aliens, but the money is required to be paid for every passenger arriving from a foreign port. The tax is imposed on the passenger in this case clearly and distinctly; for although the captain States who adopted the Constitution to aban-who lands them is made liable for the collection, don any right of taxation except what is directly prohibited. The contrary appears in the authentic publications of the time. It cannot be necessary to say anything upon the article of the Constitution which gives to Congress the power to establish a uniform rule of naturalization. The motive and object of this provision are too plain to be misunderstood. Under the Constitution of the United States, citizens of each State are entitled to the privileges and immunities of citizens in the several States; and no State would be willing that another State should determine for it what foreigner should become one of its citizens, and be entitled to hold lands and to vote at its elections. For, without this provision, any one State could have given the right of citizenship in every other State; and, as every citizen of a State is also a citizen of the United States, 483*] *a single State, without this provision, might have given to any number of foreigners it pleased the right to all the privileges of citizenship in commerce, trade, and navigation, although they did not even reside amongst us. The nature of our institutions under the federal government made it a matter of absolute necessity that this power should be confided yet a right is expressly secured to him to recover it from the passenger. There can be no objection to this law upon the ground that the burden is imposed upon citizens of other States, because citizens of New York are equally liable; but embracing, as it does, its own citizens and citizens of other States, when they arrive from a *foreign port, the right of a State [*484 to determine what person or class of persons shall reside among them does not arise, and what I have said upon that subject in the Boston case i inapplicable to this. In every other respect, however, it stands upon the same principles, involving also other and further considerations, which I proceed to notice, and which place it upon grounds equally firm with the case from Massachusetts. It will be admitted, I understand, that New York has the right to protect herself from contagious diseases, and possesses the right to inspect ships with cargoes, and to determine when it is safe to permit the vessel to come to the wharf, or the cargo to be discharged. In other words, it may establish quarantine laws. Consequently the State may tax the sh shi ship and cargo with the expenses of inspection, and with the costs and expenses of all measures deemed to the government of the Union, where all | necessary by the State authorities. This is the States were represented, and where all had a voice; a necessity so obvious that no statesman could have overlooked it. The article has nothing to do with the admission or rejection of aliens, nor with immigration, but with the rights of citizenship. Its sole object was to prevent one State from forcing upon all the others, and upon the general government, persons as citizens whom they were unwilling to admit as such. It is proper to add, that the State laws which were under examination in the License Cases applied altogether to merchandise of the description mentioned in those laws, which was imported into a State from foreign countries or from another State; and as the States have no power to lay a tax or duty on imports, the laws in question were subject to the control of Congress until the articles had ceased to be imports, according to the legal meaning of the word. And it is with reference to such importations and regulations of Congress and the States concerning them, that the paramount power of Congress is spoken of in some of the opinions then delivered. The questions as to the power of a State to exclude from its territories such aliens as it may deem unfit to reside among its citizens, and to prescribe the conditions on which they may enter it, and as to the power of a State to levy a tax for revenue upon alien passengers arriving from foreign ports, were neither of them involved in those cases, and were not considered or discussed in the opinions. I come now to the case from New York. The object of this law is to guard its citizens, not only from the burdens and evils of foreign paupers, but also against the introduction of uniformly the case in quarantine regulations; and although there is not the least appearance of disease in the crew, and the cargo is free from taint, yet if the ship comes from a port where a contagious disease is supposed to exist, she is always placed under quarantine, and subjected to the delay and expenses incident to that condition, and neither the crew nor cargo suffered to land until the State authorities are satisfied that it may be done without danger The power of deciding from what port or ports there is danger of disease, and what ship or crew shall be made subject to quarantine, on account of the port from which she sailed, and what precautions and securities are required to guard against it, must of necessity belong to the State authorities; for otherwise the power to direct the quarantine could not be executed. And this power of a State has been constantly maintained and affirmed in this court whenever the subject has been under consideration. And when the State authorities have directed the quarantine, if proof should be offered showing that the foreign ports to which it applied were free from disease, and that there was no just ground for apprehension, this court would hardly, upon that ground, feel itself authorized to pronounce the expenses charged upon the vessel to be unconstitutional, and the law imposing them to be void. Upon every principle of reason and justice, the same rule must be applied to passengers that is applied to ships and cargoes. If, for example, while rumors were recently prevailing that the cholera had shown itself in the principal seaport towns of Europe, New York had been injudicious enough to embarrass her own trade by placing at quarantine all vessels |