U.S. Supreme Court New York v. Miln, 36 U.S. 11 Pet. 102
102 (1837) New York v. Miln 36 U.S. (11 Pet.) 102 ON CERTIFICATE OF DIVISION IN
OPINION OF THE JUDGES OF THE CIRCUIT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK Syllabus In February, 1824, the Legislature of New York passed "an act
concerning passengers in vessels arriving in the port of New York."
By one of the provisions of the law, the master of every vessel
arriving in New York from any foreign port or from a port of any of
the states of the United States other than New York is required,
under certain penalties prescribed in the law, within twenty-four
hours after his arrival, to make a report in writing containing the
names, ages, and last legal settlement of every person who shall
have been on board the vessel commanded by him during the voyage,
and if any of the passengers shall have gone on board any other
vessel or shall, during the voyage, have been landed at any place
with a view to proceed to New fork, the same shall be stated in the
report. The Corporation of the City of New York instituted an
action of debt under this law against the master of the ship Emily for the recovery of certain penalties imposed by
this act, and the declaration alleged that the Emily, of
which William Thompson was the master, arrived in New Fork in
August, 1829, from a country out of the United States, and that one
hundred passengers were brought in the ship in the voyage, and that
the master did not make the report required by the statute referred
to. The defendant demurred to the declaration, and the judges of
the circuit court being divided in opinion on the following point,
it was certified to the Supreme Court.

															"That the act of the Legislature of New York mentioned in the
plaintiff's declaration assumes to regulate trade and commerce
between the port of New York and foreign ports, and is
unconstitutional and void."

															The Supreme Court directed it to be certified to the Circuit
Court of New York that so much of the section of the act of the
Legislature of New York as applies to the breaches assigned in the
declaration does not assume to regulate commerce between the port
of New York and foreign ports, and that so much of the said act is
constitutional.

															The act of the Legislature of New York is not a regulation of
commerce, but of police, and, being so, it was passed in the
exercise of a power which rightfully belonged to the state. The
State of New York possessed the power to pass this law before the
adoption of the Constitution of the United States. The law was
"intended to prevent the state's being burdened with an influx of
foreigners and to prevent their becoming paupers, and who would be
chargeable as such." The end and means here used are within the
competency of the states, since a portion of their powers were
surrendered to the federal government.

															The case of Gibbons v.
Ogden , 9 Wheat. 203, and Brown v.
State of Maryland , 12 Wheat. 419, cited. The
section of the act of the Legislature of New York on which this
action is brought falls within the limits of the powers of state
laws drawn by the Court in the case of Gibbons v. Ogden, and there is no aspect in which the powers exercised by it
transcends these limits. There is not the least likeness between
the case of Brown v. State of Maryland and the case before
the Court.

															In the case of Brown v. State of Maryland, this Court
did indeed extend the power to regulate commerce, so as to protect
the goods imported from a state tax, Page 36 U. S. 103 after they were landed and were yet in bulk, because they were
the subjects of commerce and because, as the power to regulate
commerce, under which the importation was made, implied a right to
sell whilst the bales or packages were in their original form. This
does not apply to persons. They are not the subjects of
commerce.

															There is a portion of the reasoning of the Court in the cases of Ogden v. Saunders and Brown v. State of Maryland, which would justify measures on the part of the state not only
approaching the line which separates regulations of commerce from
those of police, but even those which are almost identical with the
former class if adopted in the exercise of their acknowledged
powers. 22 U. S. 9 Wheat.
204, 22 U. S. 209 .

															From the language of the Court in these cases it appears that
whilst a state is acting within the scope of its legitimate power
as to the end to be attained, it may use whatever means, being
appropriate to the end, it may think fit, although they may be the
same or nearly the same as scarcely to be distinguished from those
adopted by Congress acting under a different power, subject only,
the Court said, to this limitation -- that in the event of
collision, the law of the state must yield to the law of Congress.
The Court must be understood, of course, as meaning that the law of
Congress is passed upon a subject within the sphere of its power.
Even then, if the section of the act of New York under
consideration in this case would be considered as partaking of the
nature of a commercial regulation, the principle laid down in Gibbons v. Ogden would save it from condemnation if no
such collision existed. There is no collision between the
provisions of the section of the law of New York on which this suit
has been brought and the provisions of the laws of the United
States of 1799, or 1819, relating to passengers.

															It is obvious that the passengers laws of the United States only
affect, through the power over navigation, the passengers whilst on
their voyage and until they shall have landed; after that, and when
they shall have ceased to have any connection with the ship, and
when therefore they have ceased to be passengers, the acts of
Congress applying to them as such, and only professing to legislate
in relation to them as such, have then performed their office, and
can with no propriety of language be said to come into conflict
with the law of a state, whose operation only begins where that of
the laws of Congress end, whose operation is not even on the same
subject, because although the person on whom it operates is the
same, yet, having ceased to be a passenger, he no longer stands in
the only relation in which the laws of Congress either professed or
intended to act upon him.

															A state has the same undeniable and unlimited jurisdiction over
all persons and things within its territorial limits as any foreign
nation when that jurisdiction is not surrendered or restrained by
the Constitution of the United States.

															It is not only the right but the bounden and solemn duty of a
state to advance the safety, happiness, and prosperity of its
people and to provide for its general welfare by any and every act
of legislation which it may deem to be conducive to these ends
where the power over the particular subject or the manner of its
exercise are not surrendered or restrained by the Constitution of
the United States.

															All those powers which relate to merely municipal legislation or
which may more properly be called internal police are not
surrendered or restrained, and consequently in relation to these
the authority of a state is complete, unqualified, and
exclusive.

															It is at all times difficult to define any subject with
precision and accuracy. If this be so in general, it is
emphatically so in relation to a subject so diversified and Page 36 U. S. 104 various as that under the consideration of the Court in this
case. If the Court were to attempt it, it would say that every law
came within the description of a regulation of police, which
concerned the welfare of the whole people of a state or any
individual within it, whether it related to their rights or their
duties, whether it respected them as men or as citizens of the
state in their public or private relations, whether it related to
the rights of persons or of property, of the whole people of a
state or of any individual within it, and whose operation was
within the territorial limits of the state and upon the persons and
things within its jurisdiction. An example of the application of
these principles is the right of a state to punish persons who
commit offenses against its criminal laws within its territory.

															Persons are not the subjects of commerce, and not being imported
goods, they do not fall within the reasoning founded upon the
construction of a power given to Congress to regulate commerce and
the prohibition of the states from imposing a duty on imported
goods.

															In the Superior Court of the City of New York, the plaintiffs
instituted an action of debt for the recovery of $15,000, the
amount of certain penalties alleged to have been incurred by the
defendant under the provisions of an Act of the Legislature of the
State of New York passed February 11, 1824, entitled "an act
concerning passengers in vessels coming to the port of New York."
The defendant, being an alien, removed the cause into the Circuit
Court of the United States, and the pleadings in the case were
carried on to issue in that court.

															The act of the Legislature of New York provides, in the first
section, that the master of any ship or vessel arriving in the port
of New York from any country of the United States, or from any
other state of the United States, shall, within twenty-four hours
after his arrival, make a report, in writing, to the Mayor of the
City of New York or, in his absence, to the recorder, on oath or
affirmation, of the name, place of birth, and last legal
settlement, age and occupation of every person brought as a
passenger in the ship or vessel or on board of her on her last
voyage from any country out of the United States or from any of the
United States into the port of New York or into any of the United
States, and of all persons landed from the ship, during the voyage
at any place, or put on board, or suffered to go on board any other
vessel, with intention of proceeding to the City of New York, under
a penalty, on the master and commander, the owner, consignee or
consignees, of $75 for each passenger not Page 36 U. S. 105 reported and for every person whose name, place of birth, last
legal settlement, age and occupation shall be falsely reported.

															The second section authorizes the mayor, &c., to require
from every master of such vessel that he be bound with sureties in
such sum as the mayor, &c., shall think proper in a sum not to
exceed $300 for every passenger, to indemnify and save harmless the
mayor, &c., of the City of New York and the overseers of the
poor of the city from all expenses of the maintenance of such
person or of the child or children of such person born after such
importation in case such person, child, or children shall become
chargeable to the city within two years, and if, for three days
after arrival, the master of the vessel shall neglect to give such
security, the master of the vessels and the owners shall, severally
and respectively, be liable to a penalty of $500 for each and every
person not a citizen of the United States for whom the mayor or
recorder shall determine that bonds should have been given.

															The third section enacts that whenever any person brought in
such vessel, not being a citizen of the United States, shall, by
the mayor, &c., be deemed liable to become chargeable on the
city, the master of the vessel shall, on an order of the mayor,
&c., remove such person without delay to the place of his last
settlement, and in default shall incur all the expenses attending
the removal of such person and of his maintenance.

															The fourth section provides that every person, not being a
citizen of the United States, entering the City of New York with an
intention of residing therein shall within twenty-four hours make a
report of himself to the mayor stating his age, occupation, and the
name of the ship or vessel in which he arrived, the place where he
landed, and the name of the commander of the vessel.

															The sixth section subjects the ship or vessel in which such
passengers shall have arrived to the penalties imposed by the
former sections for any neglect of the provisions of the law by the
master or owner, and authorizes proceedings by attachment against
the ship or vessel for the same in the courts of New York.

															The declaration set forth the several provisions of the act and
alleged breaches of the same, claiming that the amount of the
penalties stated had become due in consequence of such breaches. To
this declaration the defendant entered a demurrer, and the
plaintiffs joined in the same. Page 36 U. S. 130 BARBOUR, Justice, delivered the opinion of the Court.

															This case comes before this Court upon a certificate of division
of the Circuit Court of the United States for the Southern District
of New York. It was an action of debt brought in that court by the
plaintiff to recover of the defendant as consignee of the ship
called the Emily, the amount of certain penalties imposed
by a statute of New York passed February 11, 1824, entitled, "an
act concerning passengers in vessels coming to the port of New
York." The statute, amongst other things, enacts that every master
or commander of any ship or other vessel arriving at the port of
New York from any country out of the United States or from any
other of the United States than the State of New York, shall,
within twenty-four hours after the arrival of such ship or vessel
in the said port, make a report in writing, on oath or affirmation,
to the Mayor of the City of New York, or, in case of his sickness
or absence, to the recorder of the said city, of the name, place of
birth, and last legal settlement, age and occupation, of every
person who shall have been brought as a passenger in such ship or
vessel on her last voyage from any country out of the United States
into the Page 36 U. S. 131 port of New York or any of the United States and from any of the
United States other than the State of New York, to the City of New
York, and of all passengers who shall have landed or been suffered
or permitted to land from such ship or vessel at any place during
such her last voyage or have been put on board or suffered or
permitted to go on board of any other ship or vessel with the
intention of proceeding to the said city, under the penalty on such
master or commander, and the owner or owners, consignee or
consignees of such ship or vessel, severally and respectively, of
$75 for every person neglected to be reported as aforesaid, and for
every person whose name, place of birth, and last legal settlement,
age and occupation, or either or any of such particulars, shall be
falsely reported as aforesaid, to be used for and recovered as
therein provided.

															The declaration alleges that the defendant was consignee of the
ship Emily, of which a certain William Thompson was
master, and that in the month of August, 1829, said Thompson, being
master of such ship, did arrive with the same in the port of New
York from a country out of the United States, and that one hundred
passengers were brought in said ship, on her then last voyage from
a country out of the United States into the port of New York, and
that the said master did not make the report required by the
statute, as before recited. The defendant demurred to the
declaration. The plaintiff joined in the demurrer, and the
following point, on a division of the court, was thereupon
certified to this Court, viz., "That the act of the Legislature of New York mentioned in the
plaintiff's declaration assumes to regulate trade and commerce
between the port of New York and foreign ports, and is
unconstitutional and void."

															It is contended by the counsel for the defendant that the act in
question is a regulation of commerce; that the power to regulate
commerce is, by the Constitution of the United States, granted to
Congress; that this power is exclusive, and that consequently the
act is a violation of the Constitution of the United States.

															On the part of the plaintiff it is argued that an affirmative
grant of power previously existing in the states to Congress is not
exclusive except 1st, where it is so expressly declared in terms by
the clause giving the power, or 2d where a similar power is
prohibited to the states, or 3d, where the power in the states
would be Page 36 U. S. 132 repugnant to and incompatible with a similar power in Congress;
that this power falls within neither of these predicaments; that it
is not in terms declared to be exclusive; that it is not prohibited
to the states, and that it is not repugnant to nor incompatible
with a similar power in Congress, and that having preexisted in the
states, they therefore have a concurred power in relation to the
subject, and that the act in question would be valid, even if it
were a regulation of commerce, it not contravening any regulation
made by Congress. But they deny that it is a regulation of
commerce; on the contrary, they assert that it is a mere regulation
of internal police, a power over which is not granted to Congress,
and which, therefore, as well upon the true construction of the
Constitution as by force of the Tenth Amendment to that instrument,
is reserved to and resides in the several states.

															We shall not enter into any examination of the question whether
the power to regulate commerce be or be not exclusive of the
states, because the opinion which we have formed renders it
unnecessary. In other words, we are of opinion that the act is not
a regulation of commerce, but of police, and that being thus
considered, it was passed in the exercise of a power which
rightfully belonged to the states.

															That the State of New York possessed power to pass this law
before the adoption of the Constitution of the United States might
probably be taken as a truism, without the necessity of proof. But
as it may tend to present it in a clearer point of view, we will
quote a few passages from a standard writer upon public law showing
the origin and character of this power. Vattel, book 2, ch. 7, §
94.

															"The sovereign may forbid the entrance of his territory either
to foreigners in general or in particular cases or to certain
persons or for certain particular purposes, according as he may
think it advantageous to the state." Ibid., ch. 8, § 100.

															"Since the lord of the territory may, whenever he thinks proper,
forbid its being entered, he has no doubt a power to annex what
conditions he pleases, to the permission to enter."

															The power, then, of New York to pass this law having undeniably
existed at the formation of the Constitution, the simple inquiry is
whether by that instrument is was taken from the states and granted
to Congress, for if it were not, it yet remains with them.

															If, as we think, it be a regulation not of commerce, but
police, Page 36 U. S. 133 then it is not taken from the states. To decide this, let us
examine its purpose, the end to be attained, and the means of its
attainment. It is apparent from the whole scope of the law that the
object of the legislature was to prevent New York from being
burdened by an influx of persons brought thither in ships, either
from foreign countries or from any other of the states, and for
that purpose a report was required of the names, places of birth,
&c., of all passengers, that the necessary steps might be taken
by the city authorities to prevent them from becoming chargeable as
paupers. Now we hold that both the end and the means here used are
within the competency of the states, since a portion of their
powers were surrendered to the federal government. Let us see what
powers are left with the states. The Federalist, No 45, speaking of
this subject, says the powers reserved to the several states all
extend to all the objects which in the ordinary course of affairs
concern the lives, liberties, and properties of the people and the
internal order, improvement and prosperity of the state. And this
Court, in the case of Gibbons v.
Ogden , 9 Wheat. 203, which will hereafter be more
particularly noticed, in speaking of the inspection laws of the
states, say they form a portion of that immense mass of legislation
which embraces everything within the territory of a state not
surrendered to the general government, all which can be most
advantageously exercised by the states themselves. Inspection laws,
quarantine laws, health laws of every description, as well as laws
for regulating the internal commerce of a state and those which
respect turnpike roads, ferries, &c., are component parts of
this mass.

															Now if the act in question be tried by reference to the
delineation of power laid down in the preceding quotations, it
seems to us that we are necessarily brought to the conclusion that
it falls within its limits. There is no aspect in which it can be
viewed in which it transcends them. If we look at the place of its
operation, we find it to be within the territory and therefore
within the jurisdiction of New York. If we look at the person on
whom it operates, he is found within the same territory and
jurisdiction. If we look at the persons for whose benefit it was
passed, they are the people of New York, for whose protection and
welfare the Legislature of that state are authorized and in duty
bound to provide. If we turn our attention to the purpose to be
attained, it is to secure that very protection, and to provide for
that very welfare. If Page 36 U. S. 134 we examine the means by which these ends are proposed to be
accomplished, they bear a just, natural and appropriate relation to
those ends.

															But we are told that it violates the Constitution of the United
States, and to prove this we have been referred to two cases in
this Court -- the first, that of Gibbons v.
Ogden , 9 Wheat. 1, and the other that of Brown v. State of
Maryland , 12 Wheat. 419. The point decided in the
first of these cases is that the acts of the Legislature of New
York granting to certain individuals the exclusive navigation of
all the waters within the jurisdiction of that state with boats
moved by steam for a term of years are repugnant to the clause of
the Constitution of the United States which authorizes Congress to
regulate commerce so far as the said acts prohibit vessels licensed
according to the laws of the United States for carrying on the
coasting trade from navigating said waters by means of steam. In
coming to that conclusion, this Court in its reasoning laid down
several propositions, such as that the power over commerce included
navigation, that it extended to the navigable waters of the states,
that it extended to navigation carried on by vessels exclusively
employed in transporting passengers. Now all this reasoning was
intended to prove that a steam vessel licensed for the coasting
trade was lawfully licensed by virtue of an act of Congress, and
that as the exclusive right to navigate the waters of New York,
granted by the law of that state, if suffered to operate, would be
in collision with the right of the vessel licensed under the act of
Congress to navigate the same waters, and that as when that
collision occurred, the law of the states must yield to that of the
United States when lawfully enacted, therefore the act of the State
of New York was in that case void.

															The second case, to-wit that of Brown v.
State of Maryland , 12 Wheat. 419, decided that the
act of the State of Maryland requiring all importers of foreign
goods by the bale or package and other persons selling the same by
wholesale, bale or package, &c., to take out a license for
which they should pay fifty dollars, and in case of neglect or
refusal to take out such license subjecting them to certain
forfeitures and penalties, was repugnant first to that provision of
the Constitution of the United States which declares that

															"No state shall, without the consent of Congress, lay any impost
or duty on imports or exports except what may be absolutely
necessary for executing its inspection laws,"

															and secondly Page 36 U. S. 135 to that which declares that Congress shall have power "to
regulate commerce with foreign nations, among the several states
and with the Indian tribes."

															Now it is apparent from this short analysis of these two cases
that the question involved in this case is not the very point which
was decided in either of those which have been referred to. Let us
examine whether in the reasoning of the Court there is any
principle laid down in either of them which will go to prove that
the section of the law of New York on which this prosecution is
founded is a violation of the Constitution of the United
States.

															In Gibbons v. Ogden, the law of the state assumed to
exercise authority over the navigable waters of the state; to do so
by granting a privilege to certain individuals and by excluding all
others from navigating them by vessels propelled by steam, and in
the particular case this law was brought to bear in its operation
directly upon a vessel sailing under a coasting license from the
United States. The Court was of opinion that as the power to
regulate commerce embraced within its scope that of regulating
navigation also, as the power over navigation extended to all the
navigable waters of the United States, as the waters on which
Gibbons' vessel was sailing were navigable, and as his vessel was
sailing under the authority of an act of Congress, the law of the
state, which assumed, by its exclusive privilege granted to others,
to deprive a vessel thus authorized of the right of navigating the
same waters, was a violation of the Constitution of the United
States because it directly conflicted with the power of Congress to
regulate commerce. Now there is not in this case one of the
circumstances which existed in that of Gibbons v. Ogden, which, in the opinion of the Court, rendered it obnoxious to the
charge of unconstitutionality. On the contrary, the prominent facts
of this case are in striking contrast with those which
characterized that. In that case, the theater on which the law
operated was navigable water, over which the Court said that the
power to regulate commerce extended; in this, it was the territory
of New York, over which that state possesses an acknowledged an
undisputed jurisdiction for every purpose of internal regulation;
in that, the subject matter on which it operated, was a vessel
claiming the right of navigation, a right which the Court said is
embraced in the power to regulate commerce; in this, the subjects
on which it operates are Page 36 U. S. 136 persons whose rights and whose duties are rightfully prescribed
and controlled by the laws of the respective states within whose
territorial limits they are found -- in that, said the Court, the
act of a state came into direct collision with an act of the United
States; in this, no such collision exists.

															Nor is there the least likeness between the facts of this case
and those of Brown v. State of Maryland. The great grounds
upon which the Court put that case were that sale is the object of
all importation of goods; that therefore the power to allow
importation implied the power to authorize the sale of the thing
imported; that a penalty inflicted for selling an article in the
character of importer was in opposition to the act of Congress
which authorized importation under the authority to regulate
commerce; that a power to tax an article in the hands of the
importer the instant it was landed was the same in effect as a
power to tax it whilst entering the port; that consequently the law
of Maryland was obnoxious to the charge of unconstitutionality on
the ground of its violating the two provisions of the Constitution,
the one giving to Congress to power to regulate commerce, the other
forbidding the states from taxing imports. In this case it will be
seen that the discussion of the Court had reference to the extent
of the power given no Congress to regulate commerce, and to the
extent of the prohibition upon the states from imposing any duty
upon imports. Now it is difficult to perceive what analogy there
can be between a case where the right of the state was inquired
into in relation to a tax imposed upon the sale of imported goods
and one where, as in this case, the inquiry is as to its right over
persons within its acknowledged jurisdiction; the goods are the
subject of commerce, the persons are not; the Court did indeed
extend the power to regulate commerce, so as to protect the goods
imported from a state tax after they were landed and were yet in
bulk, but why? Because they were the subjects of commerce and
because, as the power to regulate commerce under which the
importation was made implied a right to sell; that right was
complete without paying the state for a second right to sell whilst
the bales or packages were in their original form. But how can this
apply to persons? They are not the subject of commerce, and not
being imported goods, cannot fall within a train of reasoning
founded upon the construction of a power given to Congress to
regulate Page 36 U. S. 137 commerce and the prohibition to the states from imposing a duty
on imported goods.

															Whilst, however, neither of the points decided in the cases thus
referred to is the same with that now under consideration, and
whilst the general scope of the reasoning of the Court in each of
them applies to questions of a different nature, there is a portion
of that reasoning in each which has a direct bearing upon the
present subject and which would justify measures on the part of
states not only approaching the line which separates regulations of
commerce from those of police, but even those which are almost
identical with the former class if adopted in the exercise of one
of their acknowledged powers. In Gibbons
v. Ogden , 9 Wheat. 204, the Court said if a state,
in passing laws on a subject acknowledged to be within its control
and with a view to those subjects, shall adopt a measure of the
same character with one which Congress may adopt, it does not
derive its authority from the particular power which has been
granted, but from some other which remains with the state and may
be executed by the same means. All experience shows that the same
measures, or measures scarcely distinguishable from each other, may
flow from distinct powers, but this does not prove that the powers
are identical. Although the means used in their execution may
sometimes approach each other so nearly as to be confounded, there
are other situations in which they are sufficiently distinct to
establish their individuality. In page 22 U. S. 209 , the
Court said since, however, in regulating their own purely internal
affairs, whether of trading or of police, the states may sometimes,
enact laws the validity of which depends on their interfering with
and being contrary to, an act of Congress passed in pursuance of
the Constitution, it would inquire whether there was such collision
in that case, and it came to the conclusion that there was.

															From this it appears that whilst a state is acting within the
legitimate scope of its power, as to the end to be attained it may
use whatsoever means, being appropriate to that end, it may think
fit, although they may be the same, or so nearly the same, as
scarcely to be distinguishable from those adopted by Congress,
acting under a different power, subject only, said the Court, to
this limitation -- that in the event of collision, the law of the
state must yield to the law of Congress. The Court must be
understood, of course, as meaning Page 36 U. S. 138 that the law of Congress is passed upon a subject within the
sphere of its power. Even, then, if the section of the act in
question could be considered as partaking of the nature of a
commercial regulation, the principle here laid down would save it
from condemnation if no such collision exist.

															It has been contended at the bar that there is that collision,
and in proof of it we have been referred to the revenue act of 1799
and to the act of 1819, relating to passengers. The whole amount of
the provision in relation to this subject in the first of these
acts is to require in the manifest of a cargo of goods a statement
of the names of the passengers, with their baggage, specifying the
number and description of packages belonging to each respectively;
now it is apparent as well from the language of this provision as
from the context that the purpose was to prevent goods being
imported without paying the duties required by law under the
pretext of being the baggage of passengers. The act of 1819
contains regulations obviously designed for the comfort of the
passengers themselves; for this purpose, it prohibits the bringing
more than a certain number, proportioned to the tonnage of the
vessel, and prescribes the kind and quality of provisions, or sea
stores, and their quantity, in a certain proportion to the number
of the passengers. Another section requires the master to report to
the collector a list of all passengers, designating the age, sex,
occupation, the country to which they belong, &c., which list
is required to be delivered to the Secretary of State, and which he
is directed to lay before Congress. The object of this clause, in
all probability, was to enable the government of the United States
to form an accurate estimate of the increase of population by
emigration, but whatsoever may have been its purpose, it is obvious
that these laws only affect, through the power over navigation, the
passengers whilst on their voyage and until they shall have landed.
After that, and when they have ceased to have any connection with
the ship, and when therefore they have ceased to be passengers, we
are satisfied that acts of Congress, applying to them as such and
only professing to legislate in relation to them as such, have then
performed their office, and can with no propriety of language be
said to come into conflict with the law of a state whose operation
only begins when that of the laws of Congress ends; whose operation
is not even on the same subject, because, although Page 36 U. S. 139 the person on whom it operates is the same, yet, having ceased
to be a passenger, he no longer stands in the only relation in
which the laws of Congress either professed or intended to act upon
him.

															There is then no collision between the law in question and the
acts of Congress just commented on, and therefore, if the state law
were to be considered as partaking of the nature of a commercial
regulation, it would stand the test of the most rigid scrutiny if
tried by the standard laid down in the reasoning of the Court
quoted from the case of Gibbons v. Ogden. But we do not place our opinion on this ground. We choose rather
to plant ourselves on what we consider impregnable positions. They
are these:

															That a state has the same undeniable and unlimited jurisdiction
over all persons and things within its territorial limits as any
foreign nation where that jurisdiction is not surrendered or
restrained by the Constitution of the United States. That, by
virtue of this, it is not only the right but the bounden and solemn
duty of a state to advance the safety, happiness, and prosperity of
its people and to provide for its general welfare by any and every
act of legislation which it may deem to be conducive to these ends
where the power over the particular subject or the manner of its
exercise is not surrendered or restrained in the manner just
stated. That all those powers which relate to merely municipal
legislation, or what may perhaps more properly be called internal
police, are not thus surrendered or restrained, and that
consequently, in relation to these, the authority of a state is
complete, unqualified, and exclusive.

															We are aware that it is at all times difficult to define any
subject with proper precision and accuracy; if this be so in
general, it is emphatically so in relation to a subject so
diversified and multifarious as the one which we are now
considering. If we were to attempt it, we should say that every law
came within this description which concerned the welfare of the
whole people of a state or any individual within it, whether it
related to their rights or their duties; whether it respected them
as men, or as citizens of the state; whether in their public or
private relations; whether it related to the rights of persons or
of property, of the whole people of a state or of any individual
within it, and whose operation was within the territorial limits of
the state and upon the persons and things within its jurisdiction.
But we will endeavor to illustrate our meaning rather by
exemplification than by definition.

															No one will deny that a state has a right to punish Page 36 U. S. 140 any individual found within its jurisdiction who shall have
committed an offense within its jurisdiction against its criminal
laws. We speak not here of foreign ambassadors, as to whom the
doctrines of public law apply. We suppose it to be equally clear
that a state has as much right to guard by anticipation against the
commission of an offense against its laws as to inflict punishment
upon the offender after it shall have been committed. The right to
punish or to prevent crime does in no degree depend upon the
citizenship of the party who is obnoxious to the law. The alien who
shall just have set his foot upon the soil of the state is just as
subject to the operation of the law as one who is a native citizen.
In this very case, if either the master or one of the crew of the Emily, or one of the passengers who were landed, had, the
next hour after they came on shore, committed an offense or
indicated a disposition to do so, he would have been subject to the
criminal law of New York either by punishment for the offense
committed or by prevention from its commission, where good ground
for apprehension was shown, by being required to enter into a
recognizance, with surety, either to keep the peace or be of good
behavior, as the case might be, and if he failed to give it, by
liability to be imprisoned in the discretion of the competent
authority. Let us follow this up to its possible results. If every
officer and every seaman belonging to the Emily, had
participated in the crime, they would all have been liable to
arrest and punishment, although thereby the vessel would have been
left without either commander or crew. Now why is this? For no
other reason than this -- simply that being within the territory
and jurisdiction of New York, they were liable to the laws of that
state, and amongst others, to its criminal laws, and this too not
only for treason, murder and other crimes of that degree of
atrocity, but for the most petty offense which can be imagined.

															It would have availed neither officer, seaman, nor passenger to
have alleged either of these several relations in the recent voyage
across the Atlantic. The short but decisive answer would have been
that we know you now only as offenders against the criminal laws of
New York, and being now within her jurisdiction, you are now liable
to the cognizance of those laws. Surely the officers and seamen of
the vessel have not only as much, but more, concern with navigation
than a passenger, and yet in the case here put, any and every one
of them would be held liable. There would be the same liability,
and for the same reasons, on the part of the officers, seamen, Page 36 U. S. 141 and passengers to the civil process of New York in a suit for
the most trivial sum, and if, according to the laws of that state,
the party might be arrested and held to bail in the event of his
failing to give it, he might be prisoned until discharged by law.
Here, then, are the officers and seamen, the very agents of
navigation, liable to be arrested and imprisoned under civil
process and to arrest and punishment under the criminal law.

															But the instrument of navigation -- that is, the vessel -- when
within the jurisdiction of the state, is also liable by its laws to
execution. If the state has a right to vindicate its criminal
justice against the officers, seamen and passengers who are within
its jurisdiction, and also, in the administration of its civil
justice, to cause process of execution to be served on the body of
the very agents of navigation, and also on the instrument of
navigation, under which it may be sold because they are within its
jurisdiction and subject to its laws, the same reasons precisely
equally subject the master, in the case before the Court, to
liability for failure to comply with the requisitions of the
section of the statute sued upon. Each of these laws depends upon
the same principle for its support, and that is that it was passed
by the State of New York by virtue of her power to enact such laws
for internal policy as it deemed best, which laws operate upon the
persons and things within her territorial limits, and therefore
within her jurisdiction.

															Now in relation to the section in the act immediately before us,
that is obviously passed with a view to prevent her citizens from
being oppressed by the support of multitudes of poor persons who
come from foreign countries without possessing the means of
supporting themselves. There can be no mode in which the power to
regulate internal police could be more appropriately exercised. New
York, from her particular situation, is perhaps more than any other
city in the Union exposed to the evil of thousands of foreign
emigrants arriving there, and the consequent danger of her citizens
being subjected to a heavy charge in the maintenance of those who
are poor. It is the duty of the state to protect its citizens from
this evil; they have endeavored to do so by passing, amongst other
things, the section of the law in question. We should upon
principle, say that it had a right to do so.

															Let us compare this power with a mass of power, said by this
Court in Gibbons v. Ogden not to be surrendered to the
general government. They are inspection laws, quarantine laws,
health Page 36 U. S. 142 laws of every description, as well as laws for regulating the
internal commerce of a state, &c. To which it may be added that
this Court, in Brown v. State of Maryland, admits the
power of a state to direct the removal of gunpowder as a branch of
the police power which unquestionably remains, and ought to remain,
with the states. It is easy to show that if these powers, as is
admitted, remain with the states, they are stronger examples than
the one now in question. The power to pass inspection laws involves
the right to examine articles which are imported, and are therefore
directly the subject of commerce, and if any of them are found to
be unsound or infectious, to cause them to be removed or even
destroyed. But the power to pass these inspection laws is itself a
branch of the general power to regulate internal police. Again, the
power to pass quarantine laws operates on the ship which arrives,
the goods which it brings, and all persons in it, whether the
officers and crew or the passengers; now the officers and crew are
not agents of navigation; the ship is an instrument of it, and the
cargo on board is the subject of commerce, and yet it is not only
admitted that this power remains with the states, but the laws of
the United States expressly sanction the quarantines and other
restraints which shall be required and established by the health
laws of any state and declare that they shall be duly observed by
the collectors and all other revenue officers of the United
States.

															We consider it unnecessary to pursue this comparison further,
because we think that if the stronger powers, under the necessity
of the case, by inspection laws and quarantine laws, to delay the
landing of a ship and cargo, which are the subjects of commerce and
navigation, and to remove or even to destroy unsound and infectious
articles, also the subject of commerce, can be rightfully
exercised, then that it must follow as a consequence that powers
less strong, such as the one in question, which operates upon no
subject either of commerce or navigation, but which operates alone
within the limits and jurisdiction of New York upon a person at the
time not even engaged in navigation, is still more clearly embraced
within the general power of the states to regulate their own
internal police and to take care that no detriment come to the
commonwealth. We think it as competent and as necessary for a state
to provide precautionary measures against the moral pestilence of
paupers, vagabonds, and possibly convicts as it is to guard against
the physical pestilence which may arise from unsound and infections
articles Page 36 U. S. 143 imported or from a ship the crew of which may be laboring under
an infectious disease.

															As to any supposed conflict between this provision and certain
treaties of the United States by which reciprocity as to trade and
intercourse is granted to the citizens of the governments with
which those treaties were made, it is obvious to remark that the
record does not show that any person in this case was a subject or
citizen of a country to which treaty stipulation applies; but
moreover, those which we have examined stipulate that the citizens
and subjects of the contracting parties shall submit themselves to
the laws, decrees, and usages to which native citizens and subjects
are subjected.

															We are therefore of opinion, and do direct it to be certified to
the circuit court for the Southern District of New York, that so
much of the section of the act of the Legislature of New York as
applies to the breaches assigned in the declaration does not assume
to regulate commerce between the port of New York and foreign
ports, and that so much of said section is constitutional. We
express no opinion on any other part of the act of the Legislature
of New York, because no question could arise in the case in
relation to any part of the act except that declared upon.

															THOMPSON, Justice.

															This case comes up from the Supreme Court for the Southern
District of New York upon a certificate of a division of opinion of
the judges upon a question which arose upon the trial of the cause.
The action is founded upon an act of the Legislature of the State
of New York concerning passengers in vessels coming to the port of
New York, and is brought against the defendant, being consignee of
the ship Emily, to recover certain penalties given in the
act for the neglect of the master of the ship to make a report to
the Mayor of New York of the name and description of the passengers
who had been brought in the ship on her last voyage.

															The declaration sets out in part, the law on which the action is
founded, and avers that on 27 August, in the year 1829, William
Thompson, being master or commander of said ship, did arrive with
the said ship or vessel in the port of New York from a country out
of the United States, to-wit, from Liverpool, in England, or from
one of the United States other than this state (New York), to-wit,
from the State of New Jersey, at the city and within the county of
New York, and it is further averred that one hundred Page 36 U. S. 144 persons were brought as passengers in the said ship on her last
voyage from a country out of the United States, to-wit, from
Liverpool aforesaid, into the port of New York or into one of the
United States other than the State of New York, to-wit, into the
State of New Jersey, and from thence to the City of New York, and
that the said master of the vessel did not, within twenty-four
hours after the arrival of the ship in the port of New York, made a
report in writing to the mayor or recorder of the said city of the
name, place of birth, and last legal settlement, age, and
occupation of the several persons so brought as passengers in said
ship pursuant to the provisions of the act in part hereinbefore
recited, but that a large number of the said persons, to-wit, one
hundred, were neglected to be reported, contrary to the directions
and provisions of the said act, whereby an action hath accrued to
the plaintiff, to demand and have from the defendant, the consignee
of the said ship, the sum of $7,500. To this declaration there is a
general demurrer and joinder.

															The certificate then states that the cause was continued from
term to term until the last Monday in October in the year 1829, at
which term, the following point was presented on the part of the
defendant, viz., that the act of the Legislature of the
State of New York mentioned in the plaintiff's declaration assumes
to regulate trade and commerce between the port of New York and
foreign ports and is unconstitutional and void. And upon the
question thus occurring, the opinions of the two judges were
opposed, and the point upon which the disagreement happened is
certified to this Court.

															Although the point as here stated is general, and might embrace
the whole of the act referred to in the plaintiff's declaration,
yet its validity cannot come under consideration here any further
than it applied to the question before the circuit court. The
question arose upon a general demurrer to the declaration, and the
certificate under which the cause is sent here contains the
pleadings upon which the question arose and shows that no part of
the act was drawn in question except that which relates to the
neglect of the master to report to the mayor or recorder an account
of his passengers according to the requisition of the act. No other
part of the act could have been brought under the consideration of
the circuit court or could now be passed upon by this Court was it
even presented in a separate and distinct point. For this Court
will not entertain any abstract question upon a certificate of
division of opinion which does not Page 36 U. S. 145 arise in the cause. The question must occur before the circuit
court according to the express terms of the act of Congress in
order to come here upon such division of opinion. And if the only
cause of action alleged in the declaration was the neglect of the
master to report his passengers to the mayor or recorder, no other
part of the act could have been drawn in question, and although the
question, as stated, may be broader than was necessary, yet as the
declaration and demurrer are embraced in the certificate, the
question in the circuit court cannot be mistaken. The certificate
might have been sent back for a more specific statement of the
point, but as the breach is assigned under this part of the act
only, and as we see that no other part of the act could have been
drawn in question in the circuit court, it is not deemed necessary
to send the cause back for more specific statement of the point. I
shall accordingly confine my inquiries simply to that part of the
act of the Legislature of the State of New York which requires the
master, within twenty-four hours after the arrival of the vessel in
the port of New York, to make a report in writing to the mayor or
recorder of the name, place of birth, and last legal settlement,
age and occupation of every person who shall have been brought as a
passenger in such ship or vessel on her last voyage. I do not mean,
however, to intimate that any other part of the act is
unconstitutional, but confine my inquiries to the part here
referred to, because it is the only part that can arise in this
case. And any opinion expressed upon other parts, would be
extrajudicial.

															This act is alleged to be unconstitutional on the ground that it
assumes to regulate trade and commerce between the port of New York
and foreign ports and is a violation of that part of the
Constitution of the United States which gives to Congress the power
to regulate commerce with foreign nations. This clause in the
Constitution has repeatedly been drawn in question before this
Court and has undergone elaborate discussion both at the bar and
upon the bench, and so far as any points have been settled, I do
not consider them now open for examination. In the leading cases
upon this question where the state law has been held to be
unconstitutional, there was an actual conflict between the
legislation of Congress and that of the states upon the right drawn
in question. 22 U. S. 9 Wheat.
195; 25 U. S. 12 Wheat. 446; 31 U. S. 6 Pet.
515. And in all such cases, the law of Congress is supreme, and the
state law, though enacted in the exercise of powers not
controverted, must yield to it. Page 36 U. S. 146 But in the case now before the Court, no such conflict arises.
Congress has not legislated on this subject in any manner to affect
this question. By the 23d section of the duty act of 1799, 1 Stat.
644, it is required that the manifest shall contain the names of
the several passengers, distinguishing whether cabin or steerage
passengers, or both, with their baggage, specifying the number and
description of packages belonging to each, respectively; but this
is a mere revenue law, having no relation to the passengers after
they have landed. Nor does the act regulating passenger ships and
vessels, 3 Stat. 488, at all conflict with this state law. Its
principal object is to provide for the comfort and safety of
passengers on the voyage; it requires the captain or master of the
vessel to deliver a list or manifest of all passengers with the
manifest of the cargo, and the collector is directed to return,
quarterly, to the Secretary of State copies of such list of
passengers, by whom statements of the same are required to be laid
before Congress at every session, by which it is evident that some
statistical or political object was in view by this provision.

															It is not necessary in this case to fix any limits upon the
legislation of Congress and of the states on this subject or to say
how far Congress may, under the power to regulate commerce, control
state legislation in this respect. It is enough to say that
whatever the power of Congress may be, it has not been exercised so
as in any manner to conflict with the state law, and if the mere
grant of the power to Congress does not necessarily imply a
prohibition of the states to exercise the power until Congress
assumes to exercise it, no objection on that ground can arise to
this law. Nor is it necessary to decide, definitively whether the
provisions of this law may be considered as at all embraced within
the power to regulate commerce. Under either view of the case, the
law of New York, so far at least as it is drawn in question in the
present suit, is entirely unobjectionable.

															This law does not in any respect interfere with the entry of the
vessel or cargo. It requires the report of the master to be made
within twenty-four hours after the arrival of the vessel. In the
case of Gibbons v.
Ogden , 9 Wheat. 195, it is said the genius and
character of the whole government seems to be that its action is to
be applied to all the external concerns of the nation, and to those
internal concerns which affect the states generally, but not to
those which are completely within a particular state which do not
affect other states Page 36 U. S. 147 and with which it is not necessary to interfere for the purpose
of executing some of the general powers of the government. The
completely internal commerce of a state may then be considered as
reserved for the state itself.

															To test the present case by this rule. The duly here imposed
arises after the master and passengers have arrived within the
limits of the state, and is applied to the purely internal concerns
of the state. This provision does not affect other states, nor any
subject necessary for the purpose of executing any of the general
powers of the government of the Union. For although commerce,
within the sense of the Constitution, may mean intercourse, and the
power to regulate it be coextensive with the subject on which it
acts, and cannot be stopped at the external boundary of a state,
according to the language of this Court in the case of Brown v.
Maryland , 12 Wheat. 446, it cannot be claimed that
the master or the passengers are exempted from any duty imposed by
the laws of a state after their arrival within its jurisdiction, or
have a right to wander uncontrolled after they become mixed with
the general population of the state, or that any greater rights or
privileges attach to them because they come in through the medium
of navigation than if they come by land from an adjoining state,
and if the state had a right to guard against paupers' becoming
chargeable to the city, it would seem necessarily to follow that it
had the power to prescribe the means of ascertaining who they were,
and a list of their names is indispensable to effect that object.
The purposes intended to be answered by this law fall within that
internal police of the state, which, throughout the whole case of Gibbons v. Ogden, is admitted to remain with the states.
The Court there, in speaking of inspection laws, said they form a
portion of that immense mass of legislation which embraces
everything within the territory of a state not surrendered to the
general government, all which can be most advantageously exercised
by the states themselves. Inspection laws, quarantine laws, health
laws of every description, as well as laws for regulating the
internal commerce of a state and those which respect turnpike
roads, ferries, &c., are component parts of this mass. No
direct general power over these objects is granted to Congress, and
consequently they remain subject to state legislation. If the
legislative power of the state can reach them, it must be for
national purposes; it must be, when the power is expressly given
for a special purpose, or is clearly incidental to some power which
is expressly Page 36 U. S. 148 given.

															Again, in speaking of the law relative to the regulation of
pilots, it is said that when the government of the Union was
brought into existence, it found a system for the regulation of its
pilots in full force in every state, and that the adoption of these
laws, as also the prospective legislation of the states, manifests
an intention to leave this subject entirely to the states until
Congress should think proper to interpose, but that the section of
the law under consideration is confined to pilots within the bays,
inlets, rivers, harbors and ports of the United States, which are,
of course, in whole or in part, within the limits of some
particular state, and that the acknowledged power of a state to
regulate its police, its domestic trade, and to govern its own
citizens may enable it to legislate on this subject to a
considerable extent. But that the adoption of the state system,
being temporary, until further legislative provision shall be made
by Congress, shows conclusively an opinion that Congress could
control the whole subject, and might adopt the system of the states
or provide one of its own. Here seems to be a full recognition of
the right of a state to legislate on a subject coming confessedly
within the power to regulate commerce until Congress adopts a
system of its own.

															And again, in the case of Brown v. State of Maryland, the Court, in speaking of state laws in relation to gunpowder, said
the power to direct the removal of gunpowder is a branch of the
police power which unquestionably remains, and ought to remain,
with the states. The state law here is brought to act directly upon
the article imported, and may even prevent its landing because it
might endanger the public safety,

															Can anything fall more directly within the police power and
internal regulation of a state than that which concerns the care
and management of paupers or convicts or any other class or
description of persons that may be thrown into the country and
likely to endanger its safety, or become chargeably for their
maintenance? It is not intended by this remark to cast any reproach
upon foreigners who may arrive in this country. But if all power to
guard against these mischiefs is taken away, the safety and welfare
of the community may be very much endangered.

															A resolution of the old Congress, passed on 16f September 1788,
has an important bearing on this subject; 13 vol. Journals of
Congress 142. It is as follows:

															"Resolved that it be and it is hereby recommended to the several
states to pass proper laws for Page 36 U. S. 149 preventing the transportation of convicted malefactors from
foreign countries into the United States."

															Although this resolution is confined to a certain description of
persons, the principle involved in it must embrace every
description which may be thought to endanger the safety and
security of the country. But the more important bearing which this
resolution has upon the question now before the Court relates to
the source of the power which is to interpose this protection. It
was passed, after the adoption of the Constitution by the
convention, which was on 17 September 1787. It was moved by Mr.
Baldwin and seconded by Mr. Williamson, both distinguished members
of the convention which formed the Constitution, and is a strong
contemporaneous expression, not only of their opinion but that of
Congress, that this was a power resting with the states, and not
only not relinquished by the states, or embraced in any powers
granted to the general government, but still remains exclusively in
the states.

															The case of Willson v. Blackbird Creek
Marsh Company , 2 Pet. 251, is a strong case to show
that a power admitted to fall within the power to regulate commerce
may be exercised by the states, until Congress assumes the
exercise. The state law under consideration in that case authorized
the erection of a dam across a creek up which the tide flowed for
some distance, and thereby abridged the right of navigation by
those who had been accustomed to use it. The Court said

															"The counsel for the plaintiff in error insist that it comes in
conflict with the power of the United States to regulate commerce
with foreign nations and among the several states. If Congress had
passed any act which bore upon the case, any act in execution of
the power to regulate commerce the object of which was to control
state legislation over those small navigable creeks into which the
tide flows and which abound throughout the lower country of the
middle and southern states, we should not have much difficulty in
saying that a state law, coming in conflict with such act, would be
void. But Congress has passed no such act; the repugnancy of the
law of Delaware to the Constitution is placed entirely on its
repugnancy to the power to regulate commerce with foreign nations
and among the several states -- a power which has not been so
exercised as to affect the question. We do not think that the act
empowering the Blackbird Creek Marsh Company to place a dam across
the creek can, under all the circumstances of the case, be
considered as repugnant to the power to regulate Page 36 U. S. 150 commerce in its dormant state, or as being in conflict
with any law passed on the subject."

															The state law here operated upon the navigation of waters over
which the power to regulate commerce confessedly extends, and yet
the state law, not coming in conflict with any act of Congress, was
held not to be unconstitutional, and was not affected by the dormant power to regulate commerce. By the same rule of
construction, the law of New York, not coming in conflict with any
act of Congress, is not void by reason of the dormant
power to regulate commerce, even if it should be admitted that
the subject embraced in that law fell within such power.

															This principle is fully recognized by the whole Court in the
case of Houston v.
Moore , 5 Wheat. 1. The validity of a law of the
State of Pennsylvania relative to the militia of that state came
under the consideration of the Court, and Mr. Justice Washington,
who spoke for a majority of the Court, said:

															"It may be admitted at once that the militia belongs to the
states respectively in which they are enrolled, and that they are
subject both in their civil and military capacities to the
jurisdiction and laws of such state except so far as those laws are
controlled by acts of Congress, constitutionally made. Congress has
power to provide for organizing, arming, and disciplining the
militia, and it is presumable that the framers of the Constitution
contemplated a full exercise of this power. Nevertheless if
Congress had declined to exercise them, it was competent for the
state governments to provide for organizing, arming and
disciplining their respective militia in such manner as they may
think proper."

															And Mr. Justice Johnson, who dissented from the Court in the
result of the judgment, when speaking on this point says:

															"It is contended that if the states do possess this power over
the militia, they may abuse it. This, says he, is a branch of the
exploded doctrine that within the scope in which Congress may
legislate, the states shall not legislate. That they cannot, when
legislating within that wide region of power, run counter to the
laws of Congress is denied by no one. When instances of this
opposition occur, it will be time enough to meet them."

															And MR. JUSTICE STORY, who also dissented from the result of the
judgment, is still more full and explicit on this point. "The
Constitution," said he,

															"containing a grant of powers, in many instances similar to
those already existing in the state governments, and some of these
being of vital importance also to state authority and state
legislation, it is not to be admitted that a mere grant of such
powers in affirmative terms to Congress does per se transfer an exclusive Page 36 U. S. 151 sovereignty on such subjects to the latter. On the contrary, a
reasonable interpretation of that instrument necessarily leads to
the conclusion that the powers so granted are never exclusive of
similar powers existing in the states, unless when the Constitution
has expressly, in terms, given an exclusive power to Congress, or
the exercise of a like power is prohibited to the states, or where
there is a direct repugnancy, or incompatibility in the exercise of
it by the states. The example of the first class is to be found in
the exclusive legislation delegated to Congress over
places purchased by the consent of the Legislature of the state in
which the same shall be, for forts, arsenals, dockyards, &c.;
of the second class, the prohibition of a state to coin money, or
emit bills of credit; of the third class, as this Court has already
held, the power to establish a uniform rule of naturalization and
the delegation of admiralty and maritime jurisdiction. In all other
cases not falling within the classes already mentioned, it seems
unquestionable that the states retain concurrent authority with
Congress, not only upon the letter and spirit of the Eleventh
Amendment of the Constitution, but upon the soundest principle of
reasoning. There is this reserve, however, that in cases of
concurrent authority, when the laws of a state and of the Union are
in direct and manifest collision on the same subject, those of the
Union, being the supreme law of the land, are of paramount
authority, and the state laws so far, and so far only, as such
incompatibility exists, must necessarily yield."

															Whether therefore the law of New York, so far as it is drawn in
question in this case, be considered as relating purely to the
police and internal government of the state, and as part of the
system of poor laws in the City of New York, and in this view
belonging exclusively to the legislation of the state, or whether
the subject matter of the law be considered as belonging
concurrently to the state and to Congress, but never having been
exercised by the latter, no constitutional objection can be made to
it. Although the law, as set out in the record appears to have been
recently passed, 11 February, 1824, yet a similar law has been in
force in that state for nearly forty years, 1 Rev.Laws 1801, 556,
and from the references at the argument to the legislation of other
states, especially those bordering on the Atlantic, similar laws
exist in those states. To pronounce all such laws unconstitutional
would be productive of the most serious and alarming consequences,
and ought not to be done Page 36 U. S. 152 unless demanded by the most clear and unquestioned construction
of the Constitution.

															It has been argued at the bar that this law violates certain
treaties between the United States and foreign nations, and the
treaties with Brazil, Prussia and Austria, 8 Stat. 378, 390, 398,
have been referred to as being in conflict with it. It would be a
sufficient answer to this objection that the national character of
the defendant or of the master or vessel do not appear upon the
record accompanying the certificate, so as to enable the Court to
inquire whether the law conflicts with any treaty stipulation. But
there is nothing in the law, so far, at all events, as it relates
to the present case, which is at all at variance with any of the
treaties referred to. These treaties were entered into for the
purpose of establishing a reciprocity of commercial intercourse
between the contracting parties, but give no privileges or
exemptions to the citizens or subjects of the one country over
those of the other. But in some of them, particularly in the treaty
with Brazil, it is expressly provided that the citizens and
subjects of each of the contracting parties shall enjoy all the
rights, privileges, and exemptions in navigation and commerce which
native citizens or subjects do or shall enjoy, submitting
themselves to the laws, decrees, and usages there established, to
which native citizens or subjects are subjected. And the other
treaties referred to have substantially the same provision.

															Whether the law of New York, so far as it applies to the case
now before the Court, be considered as a mere police regulation and
the exercise of a power belonging exclusively to the state, or
whether it be considered as legislating on a subject falling within
the power to regulate commerce, but which still remains dormant,
Congress not having exercised any power conflicting with the law in
this respect, no constitutional objection can, in my judgment,
arise against it. I have chosen to consider this question under
this double aspect because I do not find, as yet laid down by this
Court, and certain and defined limits to the exercise of this power
to regulate commerce, or what shall be considered commerce with
foreign nations and what the regulations of domestic trade and
police. And when it is denied that a state law, in requiring a list
of the passengers arriving in the port of New York from a foreign
country to be reported to the police authority of the city, is
unconstitutional and void because embraced within that power, I am
at a loss to say where its limits are to be found. It becomes
therefore a very important Page 36 U. S. 153 principle to establish that the states retain the exercise of
powers which, although they may in some measure partake of the
character of commercial regulations, until Congress asserts the
exercise of the power under the grant of the power to regulate
commerce.

															MR. JUSTICE STORY, dissenting.

															The present case comes before the court upon a certificate of
division of opinion of the judges of the Circuit Court of the
Southern District of New York. Of course, according to the well
known practice of this Court and the mandates of the law, we can
look only to the question certified to us and to it in the very
form in which it is certified. In the circuit court, the following
point was presented on the part of the defendant, viz., that the act of the Legislature of the State of New York, mentioned
in the plaintiff's declaration assumes to regulate trade and
commerce between the port of New York and foreign ports, and is
unconstitutional and void. And this point constitutes the matter of
division in the circuit court and that upon which our opinion is
now required.

															The act of New York here referred to, was passed on 11 February
1824, and is entitled "an act concerning passengers in vessels
coming to the port of New York." By the first section it requires
the master of any ship arriving at the port of New York from any
country out of the United States or from any other of the United
States than New York, within twenty-four hours after the arrival,
to make a report in writing, on oath or affirmation, to the mayor
of the city, &c., of the name, place of birth, and last legal
settlement, age and occupation of every passenger brought in the
ship on her last voyage, from any foreign country or from any other
of the United States to the City of New York, and of all passengers
landed or suffered or permitted to land at any place during her
last voyage or put on board or suffered or permitted to go on board
of any other ship with an intention of proceeding to the said city,
under the penalty of $75 for every passenger not so reported, to be
paid by the master, owner or consignee. The second section makes it
lawful for the mayor, &c., to require every such master to give
bond, with two sufficient sureties, in a sum not exceeding $300 for
each passenger, not being a citizen of the United States, to
indemnity and save harmless the mayor, &c., and overseers of
the poor, from all expense and charge Page 36 U. S. 154 which may be incurred for the maintenance and support of every
such passenger, &c., under a penalty of $500. The third section
provides, that whenever any person brought in such ship, and being a citizen of the United States, shall be, by the
mayor, &c., deemed likely to become chargeable to the city, the
master or owner shall, upon an order for this purpose, remove every
such person without delay to the place of his last settlement, and
in default shall be chargeable with the expenses of the maintenance
and removal of such person. The fourth section requires persons not
citizens entering into the city with the intention of residing
there to make a report prescribed by the act under the penalty of
$100. The fifth section provides for the manner of recovering the
penalties; the sixth section makes the ship liable to attachment
and seizure for the penalties. The seventh section repeals former
acts, and the eighth and last section declares persons swearing or
affirming falsely in the premises guilty of perjury and punishable
accordingly.

															Such is the substance of the act. It is apparent that it applies
to all vessels coming from foreign ports and to all coasting
vessels and steam boats from other states, and to all foreigners,
and to all citizens who are passengers, whether they come from
foreign ports or from other states. It applies also not only to
passengers who arrive at New York, but to all passengers landed in
other states or put on board of other vessels, although not within
the territorial jurisdiction or limits of New York.

															The questions then presented for our consideration under these
circumstances are:

															1st. Whether this act assumes to regulate trade and commerce
between the port of New York and foreign ports?

															2d. If it does, whether it is unconstitutional and void.

															The counsel for the plaintiff assert the negative; the counsel
for the defendant maintain the affirmative, on both points.

															In considering the first point, we are spared even the necessity
of any definition or interpretation of the words of the
Constitution by which power is given to Congress "to regulate
commerce with foreign nations and among the several states," for
the subject was most elaborately considered in Gibbons v.
Ogden , 9 Wheat. 1. On that occasion, Mr. Chief
Justice Marshall, in delivering the opinion of the Court, said

															"Commerce undoubtedly is traffic, but it is something more; it
is intercourse; it describes the commercial intercourse between
nations, and parts of nations in all its branches, Page 36 U. S. 155 and is regulated by prescribing rules for carrying on that
intercourse." 22 U. S. 9 Wheat.
189. And again,

															"These words comprehend every species of commercial intercourse
between the United States and foreign nations; no sort of trade can
be carried on between this country and any other to which this
power does not extend." 22 U. S. 9 Wheat.
193-194.

															"In regulating commerce with foreign nations, the power of
Congress does not stop at the jurisdictional lines of the several
states; it would be a very useless power if it could not pass those
lines. . . . If Congress has the power to regulate it, that power
must be exercised wherever the subject exists; if it exists within
the states, if a foreign voyage may commerce or terminate at a port
within a state, then the power of Congress may be exercised within
a state." 22 U. S. 9 Wheat.
195.

															"The power of Congress then comprehends navigation within the
limits of every state in the Union, so far as that navigation may
be connected with commerce, with foreign nations or among the
several states." 22 U. S. 9 Wheat.
197. And again, "it is the power to regulate, that is, to prescribe
the rule, by which commerce is governed." 22 U. S. 9 Wheat.
196. But, what is most important to the point now under
consideration, it was expressly decided in that case that vessels
engaged in carrying passengers were as much within the
constitutional power of Congress to regulate commerce as vessels
engaged in the transportation of goods.

															"Vessels [said the Chief Justice] have always been employed, to
a greater or less extent in the transportation of passengers, and
have never been supposed to be on that account withdrawn from the
control or protection of Congress. Packets which ply along the
coast, as well as those which make voyages between Europe and
America, consider the transportation of passengers as an important
part of their business, yet it has never been suspected that the
general laws of navigation did not apply to them."

															And again, "a coasting vessel employed in the transportation of
passengers is as much a portion of the American marine as one
employed in the transportation of a cargo." 22 U. S. 9 Wheat.
215-216. And this language is the more impressive because the case
then before the Court was that of a steamboat, whose principal
business was the transportation of passengers. If, then, the
regulation of passenger ships be in truth a regulation of trade and
commerce, it seems very difficult to escape from the conclusion
that the act in controversy is, in the sense of the objection, an
act which assumes to regulate trade and commerce between the port
of New York and foreign ports. It requires a Page 36 U. S. 156 report not only of passengers who arrive at New York, but of all
who have been landed at any places out of the territorial limits of
New York, whether in foreign ports or in the ports of other states.
It requires bonds to be given by the master or owner for all
passengers, not citizens, and it compels them to remove or pay the
expenses of removal of all passengers who are citizens and are
deemed likely to become chargeable to the city, under severe
penalties. If these enactments had been contained in any act passed
by Congress, it would not have been doubted that they were
regulations of passenger ships engaged in foreign commerce? Is
their character changed by their being found in the laws of a
state?

															I admit in the most unhesitating manner that the states have a
right to pass health laws and quarantine laws and other police laws
not contravening the laws of Congress rightfully passed under their
constitutional authority. I admit that they have a right to pass
poor laws and laws to prevent the introduction of paupers into the
state under the like qualifications. I go further and admit that in
the exercise of their legitimate authority over any particular
subject, the states may generally use the same means which are used
by Congress if these means are suitable to the end. But I cannot
admit that the states have authority to enact laws which act upon
subjects beyond their territorial limits, or within those limits
and which trench upon the authority of Congress in its power to
regulate commerce. It was said by this Court in the case of Brown v. State of
Maryland , 12 Wheat. 419, that even the acknowledged
power of taxation by a state cannot be so exercised as to interfere
with any regulation of commerce by Congress.

															It has been argued that the act of New York is not a regulation
of commerce, but is a mere police law upon the subject of paupers,
and it has been likened to the cases of health laws, quarantine
laws, ballast laws, gunpowder laws, and others of a similar nature.
The nature and character of these laws were fully considered and
the true answer given to them in the case of Gibbons v.
Ogden , 9 Wheat. 1, and though the reasoning there
given might be expanded, it cannot, in its grounds and
distinctions, be more pointedly illustrated or better expounded. I
have already said that I admit the power of the states to pass such
laws and to use the proper means to effectuate the objects of them,
but it is with this reserve -- that these means are not exclusively
vested in Congress. A state cannot make a regulation of commerce to
enforce its health laws, because it is a Page 36 U. S. 157 means withdrawn from its authority. It may be admitted that it
is a means adapted to the end, but it is quite a different question
whether it be a means within the competency of the state
jurisdiction. The states have a right to borrow money, and
borrowing by the issue of bills of credit would certainly be an
appropriate means; but we all know that the emission of bills of
credit by a state is expressly prohibited by the Constitution. If
the power to regulate commerce be exclusive in Congress, then there
is no difference between an express and an implied prohibition upon
the states.

															But how can it be truly said that the act of New York is not a
regulation of commerce? No one can well doubt that if the same act
had been passed by Congress, it would have been a regulation of
commerce, and in that way and in that only would it be a
constitutional act of Congress. The right of Congress to pass such
an act has been expressly conceded at the argument. The act of New
York purports on its very face to regulate the conduct of masters
and owners and passengers in foreign trade and in foreign ports and
places. Suppose the act had required that the master and owner of
ships should make report of all goods taken on board or landed in
foreign ports, and of the nature, qualities and value of such
goods; could there be a doubt that it would have been a regulation
of commerce? If not, in what essential respect does the requirement
of a report of the passengers taken or landed in a foreign port or
place differ from the case put? I profess not to be able to see
any. I listened with great attention to the argument to ascertain
upon what ground the act of New York was to be maintained not to be
a regulation of commerce. I confess that I was unable to ascertain
any from the reasoning of either of the learned counsel who spoke
for the plaintiff. Their whole argument on this point seemed to me
to amount to this, that if it were a regulation of commerce, still
it might also be deemed a regulation of police and a part of the
system of poor laws, and therefore justifiable as a means to attain
the end. In my judgment, for the reasons already suggested, that is
not a just consequence or a legitimate deduction. If the act is a
regulation of commerce and that subject belongs exclusively to
Congress, it is a means cut off from the range of state sovereignty
and state legislation.

															And this leads me more distinctly to the consideration of the
other point in question, and that is whether, if the act of New
York be a regulation of commerce, it is void and unconstitutional?
If the power of Congress to regulate commerce be an exclusive power
or Page 36 U. S. 158 if the subject matter has been constitutionally regulated by
Congress so as to exclude all additional or conflicting legislation
by the states, then and in either case it is clear, that the act of
New York is void and unconstitutional. Let us consider the question
under these aspects.

															It has been argued that the power of Congress to regulate
commerce is not exclusive, but concurrent with that of the states.
If this were a new question in this Court, wholly untouched by
doctrine or decision, I should not hesitate to go into a full
examination of all the grounds upon which concurrent authority is
attempted to be maintained. But in point of fact the whole argument
on this very question, as presented by the learned counsel on the
present occasion, was presented by the learned counsel who argued
the case of Gibbons v.
Ogden , 9 Wheat. 1, and it was then deliberately
examined and deemed inadmissible by the Court. Mr. Chief Justice
Marshall, with his accustomed accuracy and fullness of
illustration, reviewed at that time the whole grounds of the
controversy, and from that time to the present the question has
been considered (so far as I know) to be at rest. The power given
to Congress to regulate commerce with foreign nations and among the
states has been deemed exclusive from the nature and objects of the
power and the necessary implications growing out of its exercise.
Full power to regulate a particular subject implies the whole
power, and leaves no residuum, and a grant of the whole to one is
incompatible with a grant to another of a part. When a state
proceeds to regulate commerce with foreign nations or among the
states, it is doing the very thing which Congress is authorized to
do. Gibbons v.
Ogden , 9 Wheat. 198-199. And it has been remarked
with great cogency and accuracy that the regulation of a subject
indicates and designates the entire result, applying to those parts
which remain as they were as well as to those parts which are
altered. It produces a uniform whole, which is as much disturbed
and deranged by changing what the regulating power designs to leave
untouched as that upon which it has operated. Gibbons
v. Ogden , 9 Wheat. 209.

															This last suggestion is peculiarly important in the present
case, for Congress has, by the Act of 2 March 1819, ch. 170,
regulated passenger ships and vessels. Subject to the regulations
therein provided, passengers may be brought into the United States
from foreign ports. These regulations, being all which Congress
have chosen to enact, amount, upon the reasoning already stated, to
a Page 36 U. S. 159 complete exercise of its power over the whole subject, as well
in what is omitted as what is provided for. Unless, then, we are
prepared to say that wherever Congress has legislated upon this
subject clearly within its constitutional authority and made all
such regulations as in its own judgment and discretion were deemed
expedient, the states may step in and supply all other regulations
which they may deem expedient as complementary to those of
Congress, thus subjecting all our trade, commerce and navigation
and intercourse with foreign nations to the double operations of
distinct and independent sovereignties, it seems to me impossible
to maintain the doctrine that the states have a concurrent
jurisdiction with Congress on the regulation of commerce, whether
Congress has or has not legislated upon the subject; a
fortiori when it has legislated.

															There is another consideration which ought not to be overlooked
in discussing this subject. It is that Congress, by its
legislation, has in fact authorized not only the transportation but
the introduction of passengers into the country. The act of New
York imposes restraints and burdens upon this right of
transportation and introduction. It goes even further and
authorizes the removal of passengers, under certain circumstances,
out of the state, and at the expense of the master and owner in
whose ship they have been introduced, and this though they are
citizens of the United States and were brought from other states.
Now if this act be constitutional to this extent, it will justify
the states in regulating, controlling, and, in effect, interdicting
the transportation of passengers from one state to another in
steamboats and packets. They may levy a tax upon all such
passengers; they may require bonds from the master that no such
passengers shall become chargeable to the state; they may require
such passengers to give bonds that they shall not become so
chargeable; they may authorize the immediate removal of such
passengers back to the place from which they came. These would be
most burdensome and inconvenient regulations respecting passengers,
and would entirely defeat the object of Congress in licensing the
trade or business. And yet if the argument which we have heard be
well founded, it is a power strictly within the authority of the
states, and may be exerted at the pleasure of all or any of them,
to the ruin and perhaps annihilation of our passenger navigation.
It is no answer to the objection to say, that the states will have
too much wisdom and prudence to exercise the authority to so great
an extent. Laws were actually passed of a retaliatory nature by the
States of New York, New Jersey, and Page 36 U. S. 160 Connecticut during the steamboat controversy which threatened
the safety and security of the Union and demonstrated the necessity
that the power to regulate commerce among the states should be
exclusive in the Union in order to prevent the most injurious
restraints upon it.

															In the case of Brown v. State of
Maryland , 12 Wheat. 419, the state had by an act
required that every importer of foreign goods selling the same by
wholesale should, before he was authorized to sell the same, take
out a license for which he should pay fifty dollars, and in default
the importer was subjected to a penalty. The question was whether
the state legislature could constitutionally require the importer
of foreign goods to take out such a license before he should be
permitted to sell the same in the imported package. The Court held
that the act was unconstitutional and void as laying a duty on
imports, and also as interfering with the power of Congress to
regulate commerce. On that occasion, arguments were addressed to
the court on behalf of the State of Maryland by their learned
counsel similar to those which have been addressed to us on the
present occasion, and in a particular manner the arguments that the
act did not reach the property until after its arrival within the
territorial limits of the state; that it did not obstruct the
importation, but only the sale of goods, after the importation. The
Court said

															"There is no difference in effect between the power to prohibit
the sale of an article and the power to prohibit its introduction
into the country; the one would be a necessary consequence of the
other; none would be imported if none could be sold. . . . It is
obvious that the same power which imposes a light duty can impose a
heavy one, which amounts to a prohibition. Questions of power do
not depend on the degree to which it may be exercised; if it may be
exercised at all, it must be exercised at the will of those in
whose hands it is placed. . . . The power claimed by the state is
in its nature in conflict with that given to Congress [to regulate
commerce], and the greater or less extent to which it may be
exercised, does not enter into the inquiry concerning its
existence. . . . Any charge on the introduction and incorporation
of the articles into and with the mass of property in the country
must be hostile to the power given to Congress to regulate
commerce, since an essential part of that regulation, and principal
object of it, is to prescribe the regular means of accomplishing
that introduction and incorporation."

															This whole reasoning is directly applicable to the present case
if, Page 36 U. S. 161 instead of the language respecting the introduction and
importation of goods, we merely substitute the words, respecting
the introduction and importation of passengers, we shall instantly
perceive its full purpose and effect. The result of the whole
reasoning is that whatever restrains or prevents the introduction
or importation of passengers or goods into the country, authorized
and allowed by Congress, whether in the shape of a tax or other
charge or whether before or after their arrival in port, interferes
with the exclusive right of Congress to regulate commerce.

															Such is a brief view of the grounds upon which my judgment is
that the act of New York is unconstitutional and void. In this
opinion I have the consolation to know that I had the entire
concurrence, upon the same grounds, of that great constitutional
jurist, the late Mr. Chief Justice Marshall. Having heard the
former arguments, his deliberate opinion was that the act of New
York was unconstitutional and that the present case fell directly
within the principles established in the case of Gibbons v.
Ogden , 9 Wheat. 1, and Brown v.
State of Maryland , 12 Wheat. 419.

															MR. JUSTICE BALDWIN.

															The direct question on which this case turns is whether a law of
New York directing the commanders of passenger vessels arriving
from foreign ports, to make a report of their numbers, &c., and
to give security that they shall not become chargeable to the city
as paupers, before they shall be permitted to land, is repugnant to
that provision of the Constitution of the United States, which
gives to Congress power "to regulate commerce with foreign
nations," &c. In considering this question, I shall not inquire
whether this power is exclusive in Congress or may be, to a certain
extent, concurrent in the states, but shall confine myself to an
inquiry as to its extent and objects. That the regulation of
commerce in all its branches was exclusively in the several
colonies and states from April 1776, and that it remained so,
subject to the ninth Article of Confederation, till and adoption of
the Constitution (one great object of which was to confer on
Congress such portion of this power as was necessary for federal
purposes), is most apparent from the political history of the
country, from the peace of 1782 till 1787. 1 Laws U.S. 28-58. It
was indispensable to the efficiency of any federal government that
it should have the power of regulating foreign commerce, and
between the states, by laws of uniform operation throughout the
United States, but it was one of the most delicate subjects which
could be touched on account of the difficulty of imposing
restraints upon the extension of the power to matters not directly
appertaining to commercial regulation.

															"This idea that the same measure might, according to
circumstances, be arranged with different classes of powers was no
novelty to the framers of the Constitution. Those illustrious
patriots and statesmen had been, many of them, deeply engaged in
the discussions which preceded the war of our revolution, and all
of them were well read in those discussions. The right to regulate
commerce, even by the imposition of duties, was not controverted,
but the right to impose a duty for the purpose of revenue produced
a war perhaps as important in its consequences to the human race as
any the world has ever witnessed." Gibbons v.
Ogden , 9 Wheat. 202.

															In the declaration of rights in 1774, Congress expressly
admitted the authority of such acts of Parliament

															"as are bona fide restrained to the regulation of our
external commerce, for the purpose of securing the commercial
advantages of the whole empire to the mother country, and the
commercial benefits of its respective members, excluding every idea
of taxation, internal or external, for raising a revenue on the
subject in America, without their consent."

															But in admitting this right, they asserted the free and
exclusive power of

															"legislation in their several provincial legislatures in all
cases of taxation and internal polity, subject only to the negative
of their sovereign, as has been heretofore used and
accustomed."

															Taxation was not the only fear of the colonies, as an incident
or means of regulating external commerce; it was the practical
consequences of making it the pretext of assuming the power of
interfering with their "internal polity," changing their "internal
police," the "regulation thereof," "of intermeddling with our
provisions for the support of civil government, or the
administration of justice." See Journ.Cong. 28, 98, 147,
177.

															The states were equally afraid of entrusting their delegates in
Congress with any powers which should be so extended, by
implication or construction, of which the instructions of Rhode
Island in May, 1776, are a specimen.

															"Taking the greatest care to secure to this colony in the
strongest and most perfect manner its present form and all the
powers of government so far as it relates to its internal police
and conduct of our own officers, civil and religious."

															2 Journ.Cong. 163. In consenting to a declaration of
independence, the convention of Pennsylvania added this proviso:
that "the forming the government, and regulating the internal
police of the colony, be always reserved to the people of the
colony." In the 3d Article of Confederation, the states guarantee
to each other their freedom, &c., and against all attacks on
their sovereignty and trade; in the treaty of alliance with France,
the latter guarantees to the states their sovereignty "in matters
of commerce," absolute and unlimited. In the 9th Article of
Confederation, the same feeling is manifest in the restriction on
the treatymaking power by reserving the legislative power of the
states over commerce with foreign nations. It also appears in the
cautious and guarded language of the Constitution in the grant of
the power of taxation and the regulation of commerce, which give
them, in the most express terms, yet in such as admit of no
extension to other subjects of legislation, which are not included
in the enumeration of powers. In giving power to Congress "to lay
and collect taxes, duties, imposts and excises," the objects are
defined "to pay the debts, and provide for the common defense and
general welfare of the United States;" this does not interfere with
the power of the states to tax for the support of their own
government, nor is the exercise of that power by the states an
exercise of any portion of the power that is granted to the United
States. 22 U. S. 9 Wheat.
199.

															"That the power of taxation is retained by the states, is not
abridged by the grant to Congress, and may be exercised
concurrently are truths which have never been denied."

															4 id. 425. It results from the nature and objects of
taxation that it must be concurrent, as the power of raising
revenue for the purposes of each government is equally
indispensable, though the extent of taxation is a matter which must
depend on their discretion. Id., 428; 29 U. S. 4 Pet.
561-563. The objects of taxation depend, of course, on those to
which the proceeds are to be applied. Congress is limited to those
which are defined in the terms of the grant, but the states have no
other limitations imposed on them than are found in their
constitutions and such as necessarily result from the powers of
Congress, which states cannot annul or obstruct by taxation. 17 U. S. 4 Wheat. 400; 22 U. S. 9 Wheat. 816; 27 U. S. 2 Pet.
463. In other respects, the taxing power of Congress leads to no
collision with the laws of the states. But the power to regulate
commerce had been a subject of more difficulty, from the time the
Constitution was framed, owing to the peculiar situation of the
country. In other nations, commerce is only of two descriptions,
foreign and domestic; in a confederated government, there is
necessarily a third -- "commerce between the constituent members of
the confederacy;" in the United States there was a fourth kind,
which was carried on with the numerous Indian tribes, which
occupied a vast portion of the territory. Each description of
commerce was in its nature distinct from the other in the mode of
conducting it, the subjects of operation, and its regulation; from
its nature, there was only one kind which could be regulated by
state law -- that commerce which was confined to its own
boundaries, between its own citizens or between them and the
Indians. All objects of uniformity would have been defeated if any
state had been left at liberty to make its own laws on any of the
other subjects of commerce, but the people of the states would
never surrender their own control of that portion of their commerce
which was purely internal. Hence the grant is confined "to regulate
commerce with foreign nations, and among the several states, and
with the Indian tribes," which restricts the term "commerce" to
that which concerns more states than one, and the enumeration of
the particular classes to which the power was to be extended,
presupposes something to which it does not extend. "The completely
internal commerce of a state, then, may be considered as reserved
for the state itself." 22 U. S. 9 Wheat.
194-195.

															This government is acknowledged by all to be one of enumerated
powers. The principle that it can exercise only the powers granted
to it would seem too apparent to have required to be enforced by
all those arguments which its enlightened friends, while it was
depending before the people, found it necessary to urge. This
principle is now universally admitted. 17 U. S. 4 Wheat. 405. Another principle is equally so: that all powers not
granted to the United States or prohibited to the states remain as
they were before the adoption of the Constitution, by the express
reservation of the 10th Amendment, 14 U. S. 1 Wheat. 325; 17 U. S. 4 Wheat. 193, and that an exception presupposes the existence of the
power excepted. 25 U. S. 12 Wheat. 438. Though these principles have been universally adopted,
their application presents questions which perpetually arise, as to
the extent of the powers which are granted or prohibited, "and will
probably continue to arise as long as our system shall exist;" 17 U. S. 4 Wheat. 405.

															It would seem that the term "commerce," in its ordinary sense
and as defined by this Court, would by this time have become
intelligible; it has been held to embrace every species of
commercial intercourse, trade, traffic and navigation; "all foreign
commerce," and "all commerce among the states," 22 U. S. 9 Wheat.
193; 25 U. S. 12 Wheat. 446, the regulation of which has been surrendered. But it
has been at the same time held that as to those subjects of
legislation "which are not surrendered to the general government,"
inspection, quarantine, health laws of every description, the
internal commerce and police of a state, turnpike roads, ferries,
&c., "no direct general power over these objects is granted to
Congress; consequently they remain subject to state legislation," 22 U. S. 9 Wheat.
203, and "ought to remain with the states." 25 U. S. 12 Wheat. 443. In the broad definition given in these two cases, "to
commerce with foreign nations, and among the several states," it
has been applied, in the most cautious and guarded language, to
three kinds of commerce which are placed under the jurisdiction of
Congress, expressly excluding the fourth kind, the internal
commerce of a state. The Court very properly call these branches of
commerce, units, 22 U. S. 9 Wheat.
194, each of distinct subject matter of regulation, which the
states might delegate or reserve.

															It would contradict every principle laid down by the Court to
contend that a grant of the power "to regulate commerce with
foreign nations" would carry with it the power to regulate commerce
"among the several states, or with the Indian tribes," either by
implication, construction, or as a means of carrying the first
power into execution. It would be equally so to contend that the
grant of the three powers could embrace the fourth, which is as
distinct from all the others as they are from each other; as units,
they cannot be blended, but must remain as distinct as any other
powers over other subjects which have not been surrendered by the
states.

															If, then, the power of regulating internal commerce has not been
granted to Congress, it remains with the states as fully as if the
Constitution had not been adopted, and every reason which leads to
this result applies with still greater force to the internal polity
of a state, over which there is no pretense of any jurisdiction by
Congress. No subtlety of reasoning, no refinement of construction
or ingenuity of supposition can make commerce embrace police or
pauperism which would not, by parity of reasoning, include the
whole code of state legislation. Quarantine, health, and inspection
laws come much nearer to regulations of commerce than those which
relate to paupers only; if the latter are prohibited by the
Constitution, the former are certainly so, for they operate
directly on the subjects of commerce -- the ship, the cargo, crew
and passengers -- whereas, poor laws operate only on passengers who
come within their purview.

															On the same principle by which a state may prevent the
introduction of infected persons or goods and articles dangerous to
the persons or property of its citizens, it may exclude paupers who
will add to the burdens of taxation, or convicts who will corrupt
the morals of the people, threatening them with more evils than
gunpowder or disease. The whole subject is necessarily connected
with the internal police of a state, no item of which has to any
extent been delegated to Congress, every branch of which has been
excepted from the prohibitions on the states, and is, of course,
included among their reserved powers.

															If there is any one case to which the following remark of this
Court is peculiarly applicable, it is this:

															"It does not appear to be a violent construction of the
Constitution, and is certainly a convenient one, to consider the
power of the states as existing over such cases as the laws of the
Union may not reach." 17 U. S. 4 Wheat. 195. Let this case be tested by this rule, and let it be
shown that any clause in the Constitution empowers Congress to pass
a law which can reach the subject of pauperism, or the case of
pauper imported from a foreign nation or another state. They are
not articles of merchandise or traffic, imports or exports.
Congress cannot compel the states to receive and maintain them, nor
establish a system of poor laws for their benefit or support, and
there can be found in no decision of this Court any color for the
proposition that they are in any respect placed under the
regulation of the laws of the Union or that the states have not
plenary power over them. The utmost extent to which they have held
the power of regulating commerce by Congress to operate as a
prohibition on states has been in the cases of Gibbons v.
Ogden, to the vessel in which goods or passengers were
transported from one state to another, and in Brown v.
Maryland, to the importation of goods from foreign ports to
the United States.

															In the former case, the only question was whether a state law
was valid which prohibited a vessel propelled with steam from
navigating the waters of New York, though she had a coasting
license; in the latter, the question was whether a state law "could
compel an importer of foreign articles to take out a license from
the state before he shall be permitted to sell a bale or package so
imported." Both laws were held void on account of their direct
repugnance to the Constitution and existing laws of Congress, the
Court holding that they comprehended vessels of all descriptions,
however propelled and whether employed in the transportation of
goods or passengers, and that an importer of goods on which he had
paid or secured the duties could not be prevented from selling them
as he pleased before the packages were broken up. In the New York
case, the whole reasoning of the Court was to show that "a coasting
vessel employed in the transportation of passengers is as much a
portion of the American marine as one employed in the
transportation of a cargo," and they referred to the provisions of
the law regulating the coasting trade, to the Constitution
respecting the migration or importation of certain persons, to the
duty acts containing provisions respecting passengers, and the act
of 1819 for regulating passenger ships for the same purpose. 22 U. S. 9 Wheat.
215-219, &c. Nothing more was decided or was intended to be
decided than that the power to regulate commerce, including
navigation, comprehended all vessels, and "the language of the laws
excluding none, none can be excluded by construction."

															"The question, then, whether the conveyance of passengers be a
part of the coasting trade and whether a vessel can be protected in
that occupation by a coasting license are not and cannot be raised
in this case. The real and sole question seems to be whether a
steam machine in actual use deprives a vessel of the privilege
conferred by a license." 22 U. S. 9 Wheat.
219. It is evident, therefore, that there is nothing in the cases
then before the Court in their reasoning or judgment which can
operate unfavorably on the present law; on the contrary, there is
much (in my opinion) which directly affirms its validity, not
merely negatively, but positively, as the necessary result of the
principles declared in these and other cases.

															Taking it as a settled principle that those subjects of
legislation which are not enumerated in the surrender to the
general government remain subject to state regulation, it follows
that the sovereignty of the states over them, not having been
abridged, impaired, or altered by the Constitution, is as perfect
as if it had not been adopted. Having referred to the cases in
which this Court has defined the nature and extent of state
sovereignty, "in all cases where its action is not restrained by
the Constitution," it is unnecessary to make a second quotation
from their opinions, the inevitable conclusion from which is that,
independently of the grants and prohibitions of the Constitution,
each state was and is "a single sovereign power," a nation over
whom no external power can operate, whose jurisdiction is
necessarily exclusive and absolute, within its own boundaries, and
susceptible of no limitation not imposed by itself by a grant or
cession to the government of the Union. The same conclusion results
from the nature of an exception or reservation in a grant; the
thing excepted or reserved always is in the grantor, and always
was; of consequence, the reserved powers of a state remain, as
stated in the treaty of alliance with France, and the
Confederation.

															The states severally bound themselves to assist each other
against all attacks on account of sovereignty, trade or any other
pretext whatever. France guaranteed to them their liberty,
sovereignty and independence, absolute and unlimited, as well in
matters of government as commerce. So the states remain in all
respects where the Constitution has not abridged their powers; the
original jurisdiction of the state adheres to its territory as a
portion of sovereignty not yet given away, and subject to the grant
of power, the residuary powers of legislation remain in the state.
If the power of regulating trade had not been given to the general
government, each state would have yet had the power of regulating
the trade within its territory, 16 U. S. 3 Wheat. 386, 16 U. S. 389 ,
and this power yet adheres to it, subject to the grant, the only
question then is to what trade or commerce that grant extends. This
Court has held that it does not extend to the internal commerce of
a state, to its system of police, to the subjects of inspection,
quarantine, health, roads, ferries, &c., which is a direct
negation of any power in Congress. They have also held that
"consequently, they remain subject to state legislation," which is
a direct affirmation that those subjects are within the powers
reserved, and not those granted or prohibited.

															We must then ascertain what is commerce and what is police, so
that when there arises a collision between an act of Congress
regulating commerce or imposing a duty on goods and a state law
which prohibits or subjects the landing of such goods to state
regulations, we may know which shall give way to the other; which
is supreme and which is subordinate, the law of the Union or the
law of the state. On this subject, this Court seems to me to have
been very explicit. In Brown v. Maryland, they held that
an importer of foreign goods may land them and hold them free from
any state taxation till he sells them or mixes them with the
general property of the state by breaking up his packages, &c.
Up to this point, then, the goods remained under the protection of
the power to regulate foreign commerce, to the exclusion of any
state power to tax them as articles of domestic commerce. This drew
a definite line between the powers of the two governments, as to
the regulation of what was commerce or trade, and it cannot be
questioned that it was the true one; the power of Congress was held
supreme and that of the state subordinate. But the conclusion of
the Court was very different when it contemplated a conflict
between the laws which authorized the importation and landing of
ordinary articles of merchandise and the police laws of a state,
which imposed restrictions on the importation of gunpowder or
articles injurious to the public health. In considering the extent
of the prohibition on states against imposing a tax on imports or
exports, this Court use this language:

															"The power to direct the removal of gunpowder is a branch of the
police power, which unquestionably remains and ought to remain with
the states. If the possessor stores it himself, out of town, the
removal cannot be a duty on imports, because it contributes nothing
to the revenue. If he prefers placing it in a public magazine, it
is because he stores it there, in his own opinion, more
advantageously than elsewhere. We are not sure that this may not be
classed among inspection laws. The removal or destruction of
infectious or unsound articles is undoubtedly an exercise of that
power and forms an express exception to the prohibition we are
considering. Indeed, the laws of the United States expressly
sanction the health laws of a state. The principle, then, that the
importer acquires a right not only to bring the articles into the
country, but to mix them with the common mass of property does not
interfere with the necessary power of taxation, which is
acknowledged to reside in the states to that dangerous extent which
is apprehended. It carries the prohibition in the Constitution no
further than to prevent the states from doing that which it was the
great object of the Constitution." 25 U. S. 12 Wheat. 442-444.

															Now as it is acknowledged that the right of the importer, so
secured by the Constitution and acts of Congress, is subject to the
restraints and limitations of the police laws of a state and the
removal and destruction of dangerous, infectious, and unsound
articles is an undoubted exercise of the power of a state to pass
inspection laws, the consequence is obvious. The power of Congress
is and must be subordinate to that of the states whenever commerce
reaches that point at which the vessel, the cargo, the crew, or the
passengers on board become subject to the police laws of a state;
the importer must submit to inspection, health and quarantine laws,
and can land nothing contrary to their provisions. For such
purposes they are an express exception to the prohibitions on the
states against imposing duties on exports and imports, which power
might have been exercised by the states had it not been forbidden, 22 U. S. 9 Wheat.
200; the restriction presupposes the existence of the power
restrained, and the Constitution certainly recognizes inspection
laws as the exercise of a power remaining in the state. 22 U. S. 9 Wheat.
203; 25 U. S. 12 Wheat. 438-442. The Constitution thus has made such laws an
exception to the prohibition. The prohibition was a restriction on
the preexisting power of the state, and being removed as to all
police laws and those of inspection, the effect thereof is, by all
the principles of this Court as to exceptions, the same as by the
rules of the common law. "An exception out of an exception leaves
the thing unexcepted." 4 Day's Com.Dig. 290.

															It may therefore, U.S. be taken as an established rule of
constitutional law that whenever anything which is the subject of
foreign commerce is brought within the jurisdiction of a state, it
becomes subject to taxation and regulation by the laws of a state
so far as is necessary for enforcing the inspection and all
analogous laws, which are a part of its internal police. And as
these laws are passed in virtue of an original inherent right in
the people of each state to an exclusive and absolute jurisdiction
and legislative power, which the Constitution has neither granted
to the general government nor prohibited to the states, the
authority of these laws is supreme and incapable of any limitation
or control by Congress. In the emphatic language of this Court,
this power "adheres to the territory of the state as a portion of
sovereignty not yet given away." It is a part of its soil, of both
of which the state is tenant in fee till she makes an
alienation.

															No opinions could be in more perfect conformity with the spirit
and words of the Constitution than those delivered in the two
cases. They assert and maintain the power of Congress over the
three kinds of commerce which are committed to their regulation,
extend it to all its ratifications, so as to meet the objects of
the grant to their fullest extent, and prevent the states from
interposing any obstructions to its legitimate exercise within
their jurisdiction. But having done this -- having vindicated the
supremacy of the laws of the Union over foreign commerce wherever
it exists and for all the purposes of the Constitution -- the Court
most strictly adhered to that line which separated the powers of
Congress from those of the states, and is drawn too plainly to be
mistaken when there is a desire to find it.

															By the Constitution,

															"The Congress shall have power . . . to regulate commerce with
foreign nations, and to pass all laws which may be necessary and
proper for carrying into execution the foregoing power . . . as to
regulate commerce,"

															&c. By inherent original right, as a single sovereign power,
each state has the exclusive and absolute power of regulating its
internal police and of passing inspection, health, and quarantine
laws, and by the Constitution, as construed by this Court, may lay
any imposts and duties on imports and exports, which may be
absolutely necessary for executing its inspection laws and those
which relate to analogous subjects. Here are two powers in Congress
by a grant from states -- one to regulate, the other to enforce,
execute, or carry its regulations into effect; there are also two
powers in a state, one to pass inspection laws, the other to lay
duties and imposts on exports and imports, for the purpose of
executing such laws. The power of the state is original, that of
Congress is derivative by the grant of the state; both powers are
brought to bear on an article imported after it has been brought
within the state, so that each government has jurisdiction over the
article for different purposes, and there is no constitutional
objection to the exercise of the powers of either by their
respective laws. The framers of the Constitution foresaw and
guarded against the conflict by first providing against the
imposition of taxes, by a state, on the articles of commerce, for
the purposes of revenue and next securing to the states the
execution of their inspection laws, by this provision:

															"No state shall, without the consent of the Congress, lay any
imposts or duties on imports or exports except what may be
absolutely necessary for executing its inspection laws, and 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 Treasury of the
United States, and all such laws shall be subject to the revision
and control of the Congress."

															There can be no plainer or better defined line of power; a state
can, by its reserved power, tax imports and exports to execute its
inspection laws; it can tax them for no other purpose without the
consent of Congress, and if it is even by an inspection law, it is
subject to two restrictions -- the United States is to receive the
net produce, and Congress may revise and control the law. If the
inspection law imposes no duty or impost, Congress has no power of
revision or control over it, and its regulations of commerce must
be subject to its provisions; no restraints were imposed on this
reserved power in the states, because its exercise would neither
defeat nor obstruct any of the powers of Congress, and these are
the reasons of the Court for the construction of the Constitution
which they have given.

															"It carries the prohibition in the Constitution no further than
to prevent the states from doing that which it was the great object
of the Constitution to prevent."

															This object is clearly pointed out in the clause above quoted by
the nature of the prohibition, with its qualifications; it was not
to wholly deny to the states the power of taxing imports or
exports, it only imposed, as a condition, the consent of Congress.
In this respect it left to the states a greater power over exports
than Congress had, for by the ninth section of the first article,
they were prohibited from taxing exports without any qualification,
even by the consent of the states, whereas, with the consent of
Congress, any state can impose such a tax by a law, subject to the
conditions prescribed. But if the state law imposes no tax on
imports or exports, the prohibition does not touch it, either by
requiring the consent of Congress, or making the law subject to its
revision or control; consequently an inspection law which consists
merely of regulations as to matters appropriate to such subjects is
no more subject to any control than any other law relating to
police. If the law imposes a tax, it then becomes so far subject to
revision; but this power to revise and control extends only to the
tax, and as to that Congress cannot go so far as to prevent a state
from imposing such as "may be absolutely necessary for executing
its inspection laws." Thus far the power of the state is incapable
of control, and as this Court has declared that health, police, and
quarantine laws come within the same principle as inspection laws,
the same rule must apply to them; the powers of the states over
these subjects are absolute if they impose no tax or duty on
imports or exports. If they impose such a tax, the law is valid by
the original authority of the state, and if not altered by
Congress, by its supervisory power, is as binding as it would have
been before the Constitution, because it has conferred no original
jurisdiction over such subjects to Congress.

															Taken in this view, the object of this prohibition is apparent,
and when carefully examined will be found materially different from
the prohibitions in the next sentence, which relate to matters
wholly distinct, and are as different in their nature as their
object. Among them is a prohibition on the states, against laying a
duty on tonnage without the consent of Congress, but it imposes no
other condition, so that if this consent is once given, no revision
or control over the law exists. This provision would apply to a law
regulating pilots, which has never been considered by Congress as a
regulation of commerce and has been left to the states, whose laws
have been adopted from the beginning of the government, such
adoption being the consent required by the Constitution.

															When the Constitution thus gives Congress a revising and
controlling power over state laws which impose a tax or duty on
imports or exports or in any case makes their consent necessary to
give validity to any law or act of a state, the meaning, object and
intention is to declare that no other restriction exists. Any case,
therefore, which does not come within the prohibition or in which
the prohibition is removed by the performance of the condition can
be no more reached by any act of Congress than if no jurisdiction
over it had been granted. The reserved power of the state, when
thus disencumbered of all restraints, embraces the case as one
appropriate to its exclusive power of legislation, which Congress
cannot interfere with, though it may tax or regulate the same thing
for federal purposes, it cannot impair the power of the states to
do either for such purposes and objects as are recognized or
authorized by the Constitution. Thus the states, by inspection and
analogous laws, may regulate the importation and exportation of the
subject of foreign commerce so far as is necessary for the
execution of such laws; for all other purposes, the power of
Congress over them is exclusive until they are mixed with the
common mass of the property in a state by a package sale. Thus, all
the objects of the Constitution having been effected, the state has
the same power over the articles imported as over those which had
never been subject to the regulation of Congress.

															In applying these plain deductions from the provisions of the
Constitution, as expounded by this Court, to the present case, it
comes within none of the prohibitions. The law in question
encroaches on no power of Congress, it imposes no tax for any
purpose; it is a measure necessary for the protection of the people
of a state against taxation for the support of paupers from abroad
or from other states, which Congress has no power to impose by
direct assessment or as a consequence of its power over commerce.
The constitutional restraints on state laws which bear on imports,
exports or tonnage were intended and are applicable only to cases
where they would injuriously affect the regulations of commerce
prescribed by Congress, not the execution of inspection or
analogous laws, with which the Constitution interferes no further
than to prevent them from being perverted to the raising money for
the use of the state and subjecting them to the revision and
control of Congress. In this view of the respective powers of the
general and state governments, they operate without any collision.
Commerce is unrestricted by any state laws which assume the
obstruction of navigation by any vessels authorized by law to
navigate from state to state, or from foreign ports to those of a
state, whether to transport goods or passengers. Imported articles
remain undisturbed, under the protection of Congress, after they
are landed, until by a package sale they become incorporated into
the common mass of property within a state, subject to its powers
of taxation and general jurisdiction. But neither vessels nor goods
are protected from the operation of those laws and regulations of
internal police, over which the states have a acknowledged power,
unaffected by any grant or prohibition which impairs its plenitude,
the consequence of which is Congress has no jurisdiction of the
subject matter, can pass no laws for its regulation, nor make any
exemption from their provisions.

															In any other view, collisions between the laws of the states and
Congress would be at inevitable as interminable. The powers of a
state to execute its inspection laws is as constitutional as that
of Congress to carry into execution its regulations of commerce; if
Congress can exercise police powers as a means of regulating
commerce, a state can, by the same parity of reasoning, assume the
regulation of commerce with foreign nations as the means of
executing and enforcing its police and inspection laws. There is no
warrant in the Constitution to authorize Congress to encroach upon
the reserved rights of the states by the assumption that it is
necessary and proper for carrying its enumerated powers into
execution, or to authorize a state, under color of its reserved
powers or the power of executing its inspection or police
regulations, to touch upon the powers granted to Congress or
prohibited to the states. Implied or constructive powers of either
description are as wholly unknown to the Constitution as they are
utterly incompatible with its spirit and provisions.

															"The Constitution unavoidably deals in general language," 14 U. S. 1 Wheat. 326; "it marks only its great outlines and designates its
important objects," 17 U. S. 4 Wheat. 407; but these outlines and objects are all enumerated; none
can be added or taken away; what is so marked and designated in
general terms comprehends the subject matter in its detail. A grant
of legislative power over any given subject comprehends the whole
subject -- the corpus, the body, and all its constituent parts; so
does a prohibition to legislate; yet the framers of the
Constitution could not have intended to leave it in the power of
Congress to so extend the details of a granted power as to embrace
any part of the corpus of a reserved power. A power reserved or
excepted in general terms, as internal police, is reserved as much
in detail and in all its ramifications as the granted power to
regulate commerce with foreign nations; the parts or subdivisions
of the one cannot be carried into the other by any assumed
necessity of carrying the given power in one case into execution
which could not be done in the other. "Necessary" is but another
word for "discretionary" when there is a desire to assume power;
let it once be admitted as a constitutional apology for the
assumption by a state of any portion of a granted power, or by
Congress of any portion of a reserved power, the same reasoning
will authorize the assumption of the entire power. States have the
same right of deciding when a necessity exists and legislating on
its assumption as Congress has. The Constitution has put them on
the same footing in this respect, but its framers have not left
their great work subject to be mangled and mutilated by any
construction or implication which depends on discretion or actual
or assumed necessity. Its grants, exceptions, and reservations are
of entire powers, unless there are some expressed qualifications or
limitations; if either are extended or contracted by mere
implication, there are no limits which can be assigned, and there
can be no certainty in any provision in the Constitution or its
amendments. If one power can be incorporated into and amalgamated
with another distinct power, or if substantive and distinct powers,
which are vested in one legislative body, can be infused by
construction into another legislature as the means of carrying into
execution some other power, the consequences are obvious.

															Any enumeration or specification of legislative powers is
useless if those which are omitted are inserted on the ground of
necessity; this would be supplying the defects of the Constitution
by assuming the organic powers of conventions of the people in the
several states; so it would be if constructive restrictions on the
states were made in cases where none had been imposed, or none
resulted from the granted powers which were enumerated. When an
implied power or restriction would thus be added as a constructive
provision of the Constitution, it would have the same force and
effect as if it was expressed in words, or was apparent on
inspection; as a power which was necessary and proper, it must also
be construed to carry with it the proper means of carrying it into
effect by a still further absorption by Congress of specific powers
reserved to the states or by the states of those enumerated in the
grant to Congress.

															Let, then, this principle be once incorporated in the
Constitution, the federal government becomes one of consolidated
powers or its enumerated powers will be usurped by the states. When
the line of power between them is drawn by construction, and
substantive powers are used as necessary means to enforce other
distinct powers, the powers, the nature and character of the
federal and state governments must necessarily depend on the mere
opinions of the constituent members of the tribunal which expounds
the Constitution from time to time, according to their views of an
existing necessity. No case can arise in which the doctrine of
construction has been attempted to be carried further than in this;
the law of New York, on which this case turns, has but one object,
the prevention of foreign paupers from becoming chargeable on the
city or other parts of the state; it is a part of the system of
internal police prescribing laws in relation to paupers. The state
asserts as a right of self-protection the exclusion of foreigners
who are attempted to be forced upon them under the power of the
laws for the regulation of commerce, which the defendant contends
protects all passengers from foreign countries till they are
landed, and puts it out of the power of a state to prevent it. On
the same principle, convicts from abroad may be forced into the
states without limitation; so of paupers from other states, if once
put in a vessel with a coasting license; so that all police
regulations on these subjects by states must be held
unconstitutional.

															One of two consequences must follow. There can be no poor laws
applicable to foreigners; they must be admitted into the state and
be supported by a tax on its citizens, or Congress must take the
subject into its own hands as a means of carrying into execution
its power to regulate commerce. Its laws must not be confined to
the seaports in the states into which foreign paupers are
introduced; they must extend to every part of the state to which
paupers from other states can be brought, for the power to regulate
commerce among the several states is as broad in all respects as to
do it with foreign nations.

															"It has been truly said that commerce, as the word is used in
the Constitution, is a unit every part of which is indicated by the
term. . . . If this be the admitted meaning of the word, in its
application to foreign nations, it must carry the same meaning
throughout the sentence, and remain a unit unless there be some
plain intelligible cause which alters it." 22 U. S. 9 Wheat.
194. To my mind there can be no such cause for discriminating
between an imported and a domestic pauper; one is as much an
article of commerce as another, and the same power which can force
them into a state from a vessel can do it from a wagon and regulate
their conveyance on the roads or canals of a state, as well as on
its rivers, havens or arms of the sea. In following out these
principles to their consequences, Congress may, and to be
consistent ought, to go further. Poor laws are analogous to health,
quarantine, and inspection laws, all being parts of a system of
internal police to prevent the introduction of what is dangerous to
the safety or health of the people, and health and quarantine laws
extend to the vessel, the cargo, and passengers. Laws excluding
convicts and paupers are as necessary to preserve the morals of the
people from corruption and their property from taxation as any laws
of the other description can be; nor do they interfere any further
with the regulations of commerce; as laws in pari materia they must stand or fall together or some arbitrary unintelligible
distinction must be made between them, which is neither to be found
in the Constitution nor decisions of this Court.

															If the principle on which health and quarantine laws are
sustained is applied to this case, the validity of the law in
question is not to be doubted; if this principle is not so applied,
then it is an unsound one, which must be abandoned, whereby the
reserved powers of the states over their internal police, must
devolve on Congress as an incident to or the means of regulating,
"commerce with foreign nations" and "among the several states."
There is no middle ground on which health and quarantine laws can
be supported which will not equally support poor laws; nor can poor
laws be declared void on any ground that will not prostrate the
others; all must be included within or excepted from the
prohibition.

															When we recur to the political history of the country from 1774
to the adoption of the Constitution, we find the people and the
states uniformly opposing any interference with their internal
polity by Parliament or Congress; it is not a little strange that
they should have adopted a Constitution which has taken from the
states the power of regulating pauperism within their territory.
They little thought that, in the grant of a power to regulate
commerce with foreign nations and among the states, they also
granted, as a means, the regulation of internal police; they little
feared that the powers which were cautiously reserved to themselves
by an amendment could be taken from them by construction, or that
any reasoning would prevail, by which the grant would be so
stretched as to embrace them. We should never have had a federal
government if there had been a declaration in its frame that
Congress could pass poor laws or interfere to revise or control
those passed by the states, or that Congress could legislate on any
subject of legislation over which no jurisdiction was granted to
them and which was reserved to the states or people in the same
plenitude as they held it before they surrendered any portion of
their power. The Constitution gives no color for such doctrines,
nor can they be infused into it by any just rule of interpretation;
the Tenth Amendment becomes a dead letter if the Constitution does
not point to the powers which are "delegated to the United States,"
or "prohibited to the states," and reserve all other powers "to the
states respectively or the people." Any enumeration of powers
granted, any specific prohibitions on the states, will not only
become wholly unmeaning, if new subjects may be brought within
their scope, as means of enforcing the given powers, or the
prohibitions on the states extended beyond those which are
specified, but the implied powers and implied prohibitions must be
more illimitable than those which are express.

															When the Constitution grants a power, it makes exceptions to
such as were not intended to be absolute; but from the nature of
those which are assumed, they are not included in the enumeration
and cannot be controlled by the exceptions, which apply only to
what is granted. When prohibitions are imposed on the states, the
Constitution uses terms which denote their character, whether they
are intended to be absolute or qualified. In the first clause of
the tenth section of the first article, the prohibitions are
positive and absolute; no power can dispense with them; those in
the second are qualified; "no state shall, without the consent of
Congress" is merely a conditional prohibition; when the consent is
given, the condition is performed, and the power of the state
remains as if no condition had ever been exacted. See Poole v.
Fleeger, post, 36 U. S. 212 .
But if a state lays a tax on imports or exports, then two other
conditions are imposed, the produce goes to the United States, and
Congress may revise and control the state law; Congress can,
however, do no more than consent or dissent or revise or control
the law of the state; it has no power to pass a distinct law
embracing the same subject in detail. The original primary power is
in the state, and, subject to the consent and supervision of
Congress, it admits of no other restriction.

															Now when a law which imposes no tax on imports, exports, or
tonnage is brought within a prohibition by construction, it cannot
be validated by the consent of Congress, and if it can take
jurisdiction of the subject, it cannot be confined to mere revision
or control; the power must be coextensive with its opinion of the
necessity of using it as the means of effecting the object. This
seems to me utterly inconsistent with the Constitution, which has
imposed only a qualified prohibition on the power of states to tax
the direct subjects of foreign commerce, imports, and exports. I
cannot think that it intended or can be construed to impose an
unqualified prohibition on a state to prevent the introduction of
convicts or paupers, who are entitled to no higher protection than
the vessel or goods on board, which are subject to state taxation
with the assent of Congress, and to health, inspection and
quarantine laws without their consent. I can discriminate no line
of power between the different subjects of internal police, nor
find any principle in the Constitution or rule of construing it by
this Court that places any part of a police system within any
jurisdiction except that of a state, or which can revise or in any
way control its exercise except as specified. Police regulations
are not within any grant of powers to the federal government for
federal purposes; Congress may make them in the territories, this
District, and other places where they have exclusive powers of
legislation, but cannot interfere with the police of any part of a
state. As a power excepted and reserved by the states, it remains
in them in full and unimpaired sovereignty, as absolutely as their
soil, which has not been granted to individuals or ceded to the
United States; as a right of jurisdiction over the land and waters
of a state, it adheres to both, so as to be incapable of exercise
by any other power, without cession or usurpation. Congress had the
same power of exclusive legislation in this District, without a
cession from Maryland and Virginia; they have the same power over
the sites of forts, arsenals and navy yards, without a cession from
a state or purchase with its consent as they have to interfere with
its internal police.

															It is the highest and most sovereign jurisdiction, indispensable
to the separate existence of a state; it a power vested by original
inherent right, existing before the Constitution, remaining in its
plenitude, incapable of any abridgment by any of its provisions.
The law in question is confined to matters of police, it affects no
regulations of commerce, it impairs no rights of any persons
engaged in its pursuits; and while such laws are not extended
beyond the legitimate objects of police, there is in my opinion no
power under the Constitution which can impair its force or by which
Congress can assume any portion or part of this power under any
pretext whatever. By every sound rule of constitutional and common
law, a power excepted or reserved by a grantor "always is with him
and always was," and whatever is a part of it is the thing
reserved, which must remain with the grantor.

															If it be doubtful whether the power is granted, prohibited, or
reserved, then, by the settled rules and course of this Court, its
decision must be in favor of the validity of the state law. 10 U. S. 6 Cranch 128; 25 U. S. 12 Wheat. 436. That such a course of decision is called for by the
highest considerations no one can doubt; in a complicated system of
government like ours, in which the powers of legislation by state
and federal government are defined by written Constitutions
ordained by the same people, the great object to be effected in
their exposition is harmony in their movements. If a plain
collision arises, the subordinate law must yield to that which is
paramount, but this collision must not be sought by the exercise of
ingenuity or refinement of reasoning; it ought to be avoided,
whenever reason or authority will authorize such a construction of
a law, "ut magis valeat quam pereat." While this remains,
as it has been, the governing rule of this Court, its opinions will
be respected, its judgments will control public opinion, and tend
to give perpetuity to the institutions of the country. But if state
laws are adjudged void on slight or doubtful grounds when they are
not manifestly repugnant to the Constitution, there is great reason
to fear that the people, or the legislatures of the states may feel
it necessary to provide some additional protection to their
reserved powers, remove some of the restrictions on their exercise,
and abridge those delegated to Congress.

															This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of New York and on the question and point on which the
judges of the said circuit court were opposed in opinion and which
was certified to this Court for its opinion agreeable to the act of
Congress in such case made and provided, and was argued by counsel.
On consideration whereof it is the opinion of this Court that so
much of the section of the act of the Legislature of New York as
applies to the breaches assigned in the declaration does not assume
to regulate commerce between the port of New York and foreign
ports, and that so much of said section is constitutional.
Whereupon it is now here ordered and adjudged by this Court that it
be so certified to the said circuit court.